afternoon your honour's i'd like to reserve five minutes for rebuttal thank you runners as you know this is a race discrimination case in a rift context a reduction in force context i basically think that there are three pieces of evidence that support that this case should have gone to a jury as opposed to being summary judgment fodder first piece of evidence that we have that should've warranted allowing this case going to a jury is the fact that the layoff procedure that is outlined in the employee handbook for hurley medical center for non bargaining unit employees was not adequately follow now by admission when you read that procedure you'll notice there are several in big us and big terms in there the complicated it's extremely complicated so what i did was i got two witnesses two former assistant directors of human resources this rebecca jackson is this a foster to explain it to me and to memorialize how that procedure was supposed to be used in affidavits also not only did i have them explain to me exactly how the procedure was done i put it in it was completely deviated from mr dozer who was the african american who was retained and this row chevelle were in the same classification according to mr jackson and most forrester now defendants in this case have disputed that and disputed vigorously but the fact of the matter remains that there is a fact dispute as to whether or not this procedure was properly followed miss jackson and miss foster determined that not only were they in the same classification but because it was in a serious human resource coordinator zero and human resource coordinator one that the person with the less seniority in the series was to be eliminated that person was mr dozier that is not a matter of dispute mr dozer had less seniority he should have been the one who was laid off due to the fact that he was not later why is it fair to say that it's a tribal issue of fact for a jury as to race discrimination that there's a tribal issue of fact over a very complicated layoff procedure i mean let's just for the sake of argument call that a fifty one forty nine question what the right way to apply that procedure is in a riff let's just say for the sake of argument that's true in so in one sense i grant you wow yeah that's really hard to figure out sounds like a jury question but i guess what if i accept that i'm not sure why that has any do with race discrimination in fact the heart of the issue is the less likely it has anything to do with race discrimination well that's why i was emphasizing how complicated it i the more complicated the more one's inclined to say as a matter of law that just doesn't tell you anything about race discrimination true i mean it's complicated to you and i had store as people from the outside reading it but it's apparent from t witnesses it didn't seem very complicated to them and this rhetorics who was the individual with the evidence shows that it was easy for everybody to follow and there was only one way to look at it well it was easy for miss foster and mr jackson to follow it the way they did i mean it was who's the defendant this wasn't her regular job and she asked you know is this the right way to do it who who gets laid off suspected you were going to ask that the two pieces of evidence that really point to ms gabby as having potential racial animus in this case which obviously is the ultimate question in all these cases is to that is the following obviously miscavige expressed to mr or ex go ahead and figure out who is supposed to but i'm concerned the jamal is one of those individuals who is might potentially be laid off gabby like knew that the two people who were going to be the focus of this layoff were nancy rochelle and and she although she did although miss ricks in her deposition did say that ms gabrielle it was concerned there both of them might are affected she did indicate in her testimony mr oryx indicated in her testimony her deposition that godley did express a concern that jamal was the focus of the layoff and could potentially lose his job opening context that exchange i mean the district court judge is very careful about that i mean it's it again it's not clear but she says she didn't want anyone laid off the next question what about him but you could fairly say as the district court judge did that any person could have been inserted into that next question because what if what was just said in the answer before i granted was genuinely concerned that mr du is your was going to lose his job as a result of this layoff and because of that using the language of rachelle versus cingular wireless miss ro out as a result of that concern ok so let's assume that how do you get to racial animus that singling out combined with the fact that the procedure was not followed there has been case law in this search the same thing it isn't it isn't the only way he figured out is the fact that the procedure wasn't followed no the way that she was singled out is when gab ulick assuming for the sake of argument that era excepting my interpretation of it correctly slick i'm concerned the jamal is going to lose his job here figure out how to do this procedure are you getting that from though are you getting that from lori deposition yes ma'am that's my interpret that's my my interpretation of what she's saying and in the light most favorable to the nonmoving party that combined with the fact that works specifically after being told i'm concerned about jamal this is his job then comes to the conclusion that rochelle is not in the same classification as cocksure that rochambeau is in a classification of one in a classification of one she's the only person in that job and determines that she's the one who is to be laid off but it didn't already have the paperwork and then she was calling to make sure it was the right person you know gather like was the one who was told goggle is i recall the evidence gaggle it found out that there were two individuals who  potentially could be affected by this layoff and that she made sure that the one who was not affected was more the one who was not affected was mr dozer as opposed to my client see that in the record based on this ro testimony based on this rorik says testimony what pacifically it's work deposition is this is this page i did to eighty is that where you're getting it yes ma'am that's exactly right i'm getting it from i'm same question that was asked before you're feeding a particular name to gab you look at that point in time as opposed to gabby like saying well on her own in a deposition i didn't wan fire somebody but you but you said how did jamal's name come up and then you said so she expressed to you that she did not want to see jamal lose his job you could have put anybody's name in there who  the perceived answer to that was yes she say she don't want she didn't want anybody to lose their job so i didn't put the emphasis on anybody that i could reread it with the emphasis that i didn't want anybody to lose their job right and then the next question was but she specifically said i i don't want to see jamal lose his job and i believe her answer was yes to that and the reason why she didn't she expressed concern about your client losing her job too she did but i but the question was specifically put to her what about your mom now works could have answered jim god like didn't it didn't matter she was concerned about both she didn't want to see anybody lose their job so you know it really didn't matter but she answered she was concerned about jamal dozers losing his job and the way i write you know because of all inferences are in the light most favorable to the nonmoving party i interpreted that to mean that she was singling out in a manner of speaking miss rochelle for for layoff and i'd see have run out of time but you have to raise the not the fact that he had a completely different job in this are doing the job remaining person would be doing because that's not the way according to my witnesses what the people actually do in these jobs is not the way it is a determined as to how they are laid off i'm not talking about i'm not saying that the right can see a correct interpretation of the policy and saying how do you get to the racial motivation as opposed to you know this woman just sort of showed up because we closed the department and this is not her job anyway and this other guy's been there for a long time doing this job and it's just for two it is that she got a classification because they were closing it down in you know he should get the job we don't care what the policy says well how do i get to racial animus that's based upon the two things that i just mention the testimony of mr x about the concern over jamal losing his job and the fact that the procedure was completely deviated from in this particular case so that jamal could retain that position but that would apply it doesn't apply to everybody it would apply under these circumstances  of the person prefers a different race from the one you don't prefer i'm sorry it always applies when the person you prefer as of one race and the person that's fired is of another race in the middle izing race to make any employment is that's that's the key thing that's what judge white's asking you what about this shows utilizing race the fact that the fact that she's single the fact that rorik says testimony could be interpreted that she singled out the plaintiff for the purposes of this layoff and the fact that the procedure was deviated from in the manner that it told ed before she actually calculated who was to lose their job miss gavrila constructive miss rex somebody is gonna lose their job i'm concerned that it's just please figure out how to do it and then the procedure the process that  used to determine was then implemented that's how i that's how i get to that point thank you thank you have a lot of questions maybe i can rely on my brief for what it says and respond to some of the things that were asked of opposing counsel if i may i don't think this policy is that complicated what makes it complicated is infusing the word series into it there was an old policy in the old practice from the seventy's where you look at jobs in series social worker one social worker to social worker three just start with the one and start doing the layoffs and work your way out of this policy was developed in two thousand and nine two ready for a second because i really think it would be a reach to say that there was no genuine issue whether they misapplied their policy i mean i don't think that you're going to win this case by saying that they correctly applied their policy and thats it but if you want to go just so we're clear i do believe that that's a big part of it i don't think they've met that threshold that there is an issue of fact on how that policy is applied i was concerned as george s initially about the discussions present owner of the discussion of the facts by judge nicholson but what i'd then realizes she was identifying facts that did exist and facts that didn't exist she wasn't determining disputed facts the fact that does not exist is that there are the words series does not appear in that policy the only evidence below presented to the court was from deidra rex and she said we look at the classification that's the way the policy currently reads classification and department they both in h r there are different classifications because they have different job titles that isn't disputed so i do think that there is merit to our position that that is something that defeats their claim right from the right from the get go so i don't think it's that complicated once you take out the word class a series because that was something that doesn't apply here secondarily these two affidavits are from former employees who have testified or at least by affidavit in numerous other cases by opposing counsel's firm they're just testifying in their affidavits as to things that happened the way it was when they were there so there were it's questionable whether that testimony would even be admissible were to get to court or get to a jury so the point being is the whole notion of this series and creating an issue of fact is smoking merit and i would just ask that you read closely to that sort of sequence and i think i think then it will be a little bit easier to understand now we get to judge why its position and that's exactly our point further on what does this have to do with race nothing the uncertainty i think actually helps the remember there was only one person in each of these jobs well not singling some yes but if you accept that they were in the same classification you had one person that level one one person at level two some circuits say that not applying your own rules in a in a riff context or in a particular context is enough to show pretext that the first correction if i may is that they're not in the same classification they're in the same department human resources the undisputed testimony from deidra rex is that they are in different classifications so we don't we don't have that problem and that sort of dovetails back into the whole series you know but then you want to put all your eggs in the bass line i mean but you do have these two people i mean you can say it's old information you can say what you want but you know there's another side to it ok but i think you're right the ultimate issue here is where is the that the reason why the gavi like ones to protect is because he is african american and that he doesn't care and once to discriminate against  the russians here because he's the only other person at play if there had been twenty people that may have been subject to the layoff instead of russia ball and she said well let's keep let's keep dozer then i think you've got the singling out concern the play of the opposing counsel raised we don't have that if you can't make a decision about who to lay off without considering the people who are to be laid off there's only two of them so but it's just coincidental that he's african american it's not where there were other people other nominees already use who were protect the other thing is if you look at the job descriptions they're very different duties from the substantive standpoint but i don't think in this case it does generate that inference because he's the only other person that's in play and they have to talk to about jamal they didn't say in the depositions what about the black guy they said what a bunch of all they know everybody knows each other they don't refer to him by names they know who holds what position so i don't think that a reasonable jury could conclude from that evidence that there was an inference of discrimination and let's take a case come out differently if the roles were reversed the person was fired kept the person who is saved  is fired which is and i'm going to give the person who was saved as well that what ends up happening is everything's the same except your models fired and most of all he stays in the job and everything else about the case is the same what i'm getting at is this funny thing we have in our circuit you ask whether someone is the type of person that discriminates against people of majority race which is as i just find to be a little odd but i'm guess what i'm really trying to say is does this case come out differently if the person is fired is african american the person who stays in the job is why i would certainly be due to a different color to that case but no i don't think it would come out any differently on the evidence that was presented below so let's let's continue wanna take a guess where judge white's concerns the there is no racial animus backup plaintiff admitted she had no information to suggest that  discriminates based on race she has admitted that there is no evidence that anybody in the h r department discriminates based on race record jackson i believe in her deposition said she was unaware of any  racial animus in any of the decisions that were made the uncertainty that there was evidence in past practices right and not wanting to fire some is african american that i think when you look at the district court said that because it is that evidence too old is that the wrong area no specifics it is a vague generalization from something that purportedly happened in the past we're not agreeing that it did that they brought out that it was initiated by the union and it yeah and it may have had some union component different decision makers that the way to think about it doesn't other way to think about it certainly it wasn't any c e o making those decisions whatever those decisions were but they were nebulous nonspecific situations that have occurred in the past and the authority that we have in the circuit and from other circuits is in cases where you have the atmosphere of discrimination there's a lot more that goes on you've got the in the gender context you've got you know the degradation of women the comments women will never hold a position those are the kinds of atmospheres that we're talking about and they included the same decision makers in this case melanie gaby look was was not involved there's been evidence that she was involved in any of these supposedly job assignments or retentions or layoffs in the past involving african americans the ultimate point that we hope to to make is that this is a situation where at most there was confusion or uncertainty on what to do i think because asked for assistance shows that there were some uncertainty but that uncertainty alone and the cases in our circuit i think judge moore you were actually on one of the panels as it was a feed failure to promote unpublished decisions in our circuit that come down kind of the same way and like just more you indicated there are other circuits which have talked about errors in reductions in force but there's also a thread in the fifth the seventh tenth and eleventh circuits where they simply where they do acknowledge that merely making a mistake in applying your rift in and of itself is is not evidence of discriminatory honesty that alone is not evidence of discriminatory analysts at most that's what we have here is that there was a mistake in following this this policy however you want to interpret well response was she didn't want anybody to lose her job followed up by the specific question well did she want jamal the lose his job no she didn't want nancy ms rush of all to lose he job either and i apologize we do a lot of work for this this for early medical center so we refer to all their first names since i've worked with them occasionally so i don't think that this is a case where there's been any evidence presented below which would allow a reasonable jury to conclude that there was an intentional discrimination discriminatory animus by ms gave you look the claim one hundred eighty three claim is against her only that she had any discriminatory animus in making the decision about who who was to be laid off consequently we would ask that the lower court's decision on summ judgment be affirmed and you know less or any other questions i think that's all i have to say thank you you thank  getting to the ultimate issue of whether race was a factor is one of the thing i wanted to point out which was briefly touched on in your pallies argument and that was the discriminatory atmosphere of the past practices of discrimination that was a d five by ms jackson and her affidavit and when you look at rochelle's which is the twenty thirteen six are good opinion and it's not the only case to talks about it but it does talk about it it talks about even the conduct of non decision makers may be prohibitive of whether an adverse action directed at a plaintiff was racially motivated and they go over and go on to say moreover management's consideration of women and an impermissible factor in one context may support the inference of the impermissible factor and to decision making process in another context so you're saying there was a discriminatory atmosphere based upon this jackson's test statement in her affidavit which was attached to our response for some reason it was a discriminatory atmosphere against designate someone for layoff and then the union would come back and say no we classify the person we don't want that person laid off actually i have directly what she says in my brief and she doesn't mention anything about unions she talks about only medical center made great strides to retain african american ploys during reorganizations and layoffs caucasian employees were not given the same consideration as african american police with respect to reorganizations and layoffs within the hospital right that's her af the number and during her he was actually deposed right wrecked correct yes correct correct and believe that's the context that she put it in she clarified the context but it that's a different decision maker however rochell says that the actions of non decision makers are prohibitive in terms of whether that's what rachelle stamp you know stands for the proposition it also stands for the proposition that how management dell in one contact one context could be carried over to the the to another context in certain situations and i understand that shell's is against a corporation this is against an individual i do understand the stench and but the holding still does still hold would