wiles claims of failure to promote and terminations in two thousand and thirteen i'd like to start by just going briefly through the factual background to this to say you don't have a lot of time i'm going to tell you that i think the court is familiar with the facts so if you want to move straight to the argument i think it's a better use of your time but very well you may use the time anyway you want but that's my advice very well thank you hunter concerning the the claims that have been brought to talk about the failure to promote claim there are two categories of evidence that were offered by mr while one category was the direct evidence of discrimination admission by a manager who had been involved in the hiring process homegrown to mr while who told us for a while you have three things going against you your form you're not white and you're not female let me ask you this question about that so i can understand the fact is my understanding that holmgren at the time that homegrown made this statement was not a supervisor at the time she her job had had changed she was then and moved to a specialized role where she was no longer in charge of hiring for the position that's my understanding but nobody reported to or at the time that is that was mr weill's understanding as he so testified his statement was made after being mission or transferred whichever yes this was made after and then she was terminated in june of that year that's my understanding yes it does record reveal why it is not ok did you we did not and why not because she is in another part of the country and the decision was made not to not to depose her but we don't have a declaration from or we did not and is discovery now that's wrong ok i'll tell you why i think it's wrong why it's wrong is that there are two prongs to what needs to be shown under it a one two d and that is that the statement concerned something within the scope of the of of her employment and the statement did because even frontier witnesses admitted that she was involved in the hiring of if she wasn't involved at the time he was hired that she was fired she was moved to another position some two months role in january two thousand and thirteen and even the district court in this recurrence really so the fact that she was not a decision maker was not was not controlling on this she that this did concern an aspect of her agency of her employment and a second prong and i think what well i would judge snared it concerned a part of her employee former employment with the company it cannot bring with what she was presently doing or what she had been doing it concerned and this goes to the second prong and what we need to establish i believe is that we will we need to establish is that her employment relationship still playing relationship with friend here at the time of her statement we believe that the the reason he set out in mccormick i guess what i'm trying to focus you on is that then i think it matters whether this existence of the relationship applies generally as an agent or as an agent with the scope of having that person to employ because there's no question she didn't have that scope when she made the state at the time of the statement but going to and the district court said that's hearsay and i'm not letting it in that's right now what's my standard or review believe that your standard of review is to review that review the question to no vote no it isn't vote from talking about a hearsay rule an exception to your say rule those are rules of evidence and i have a discretionary review no there i am i'm now between whether that person as an agent can merely an agent can because they were in a situation where it was the scope of her agency but not now can say something that makes it not an exception to the hearsay rule isn't that what i'm doing we i would just like to like to turn to the to the standard of review if i could if i could just revisit that we scope of the agency is determined at by the time at the time of the statement and basically say what what we have cited to is the reasoning and mccormack is why why should this  statement fall within the admission standard and what what mccormick talks about is that you're looking at a question of reliability and the reliability comes through the continued employment relationship but doesn't come through the continued employment relationship in the exact position in which this person acted so for example if if his home going to had been promoted if she'd been if she had made this made a statement about her vice president and she became president of the company is is there a question of whether that statement should be allowed because it was hiring would not have been part of her duties at that point  the question goes to whether again her employment relationship existed at the time of the statement and not that we needed to lay a foundation that while she still at the time of the statement had this particular responsibility particularly considering that this responsibility had been exercised this was but the hiring had been done at this point so no one had the responsibility of what used to me that what you're really suggesting is not that the district court had a bad rule or that the district court had a rule that wasn't the rule but that there was a misapplication of the rules now in my book i i guess i would have to say you'd have to show me a case that says in the application of evidence rules the district court doesn't get a discretionary review and i don't think any case you just showed me says that they're saying if you're going to you're going to interpret the rule that's one thing but we're talking about we got the right rule on the book and now we're applying it in this situation right now and we had we eight where the courts and the circuits case was not entirely clear regarding whether we reviewed a novo and district court's decision that statement is or is not hearsay and so i think that's that that appeared like the so you have to first of all show that your client belongs to the class of people protected that they performed their work satisfactorily that they severed an adverse employment action  certain side of the barry case from the district of oregon and we would ask the court to apply the reasoning that's satisfactory job performance all the evidence that we have that he was that he was performing his work satisfactorily it was evidence but it was from prior years and there was a downward trend and there was no evidence that he was performing satisfactorily at the time well what what we have we have argued we think what the what the beurre versus home depot cases is satisfactory job performance has to be viewed before the period of discrimination because if you view it if you do it after the period of discrimination basically that's that's when the harm has been right impose set to get to that to get to discrimination is not just satisfactory to say well here's that here's the period where we allege that you're going to have to show some discrimination right but that this is this is the evidence of your indirect discrimination the only evidence of the direct discrimination is holmgren i just find it inexplicable that that you didn't depose miss home it's well because the district what the district court said was look she may or may not have been within the scope of her employment the district or didn't knock you out on that point but just of course and that's a possibility but you didn't lay the foundation to show for her statement after if if if mr while had said miss holmgren told me i was never going to make it to final consideration because in december january she was in meetings where it was said who worked for her he works for horizon he worked for horizon he's not white and he's not a woman there's no a way that will hire him that's a whole different that's a whole different set of circumstances i would just address it in this way first it is our position and we believe that is supported by the case law that again the foundation for eight zero one d or eight zero one two d two for there are but but this particular rule the found the foundation it's not required the illustrate the persons job duties at the time of the statement there simply is no we have to have something to put it in in context and if you don't have that then you run the risk that you haven't laid the foundation for the hearsay and you had the opportunity to get the statement itself and it would have been hearsay all right so you know you now run the risk that you haven't laid the foundation to have a hearsay statement coming we do believe that we have laid the foundation because again we have shown in front here has admitted that she was still employed she was still in employment relationship with frontier and that's what the rule says is it refers to w made by the parties or employer in a matter within the scope of that relationship and while it existed and we and what we are saying is the it the it there is the employment relationship and again we go back to the reasoning of the cases that we have  have no context for what miss holmgren was thinking when she said this is she saying the reason you didn't get this in march is because you you work for horizon you're not white and you're i mean you're you're you're not white in you're not not a woman because then she's not within the scope of the employment she was not a part of that decision making process she wasn't in any meetings she was part of a team that was interviewing in december and january actually but there's no context for that in that statement that she made to your client you haven't laid the foundation to show that that statement relates to the time period when she was a part of that decision making process so you run the risk that you haven't laid the foundation that's what the district  not disagree with you that she was that she was relevant to this that the district court disagreed with us in what we did to lay out as as a foundation and that's our that's that's the argument that we presented in our briefing belong in the protected class what is the evidence of that the evidence of that is that no white female director or manager of a call center at frontier was given a developmental action plan a performance improvement plan or terminated during the period issue and that the standard that the district court applied was it went to the basket case but the basket case did not concern the fourth element of the only official only the only way that the company can show that it's not discriminating against your client is to is to go fire a white female employee now it's it's it's was was my client treated worse than people outside of his protected class that what similarly situated well the similarly situated is that no no white female employee was treated this way and the only two black male managers or directors and this was are our testimony and evidence about mr arnold is that basically the same thing happened to them at the hands of the same manager and the evidence regarding the the role of ms laufer is critical in this and you believe that the district court simply missed the evidence associate with the same manager doing basically the same thing a high performing manager the director of a french or call center did the same thing to another to this other manager where he was high performing and all of a sudden he's got performance position problems and he's run out of the company this law for its wool is critical here and i think it also goes to a consideration application of reeves here is what what do we need to do and we need to do is show we have a theory discrimination we have evidence in support of that theory and we believe that we have we have done that and what the district court did was basically say friend here's evidence trumps your evidence and so we're going to disregard it so we believe that a full reading of of our evidence because that's what we didn't have any evidence there was no evidence of a woman getting this same kind of treatment there's no evidence the woman was in that kind of a situation but the only evidence she had was that another black person had received treatment well is that your best evidence our best evidence is that is that the only two black manager directors of call centers receive this treatment no white female did and  act and so i understand now so the fact that the company hired a white female to fill a job really is irrelevant i think it's terribly important because it's important it's important because mr wild was praised about his leadership in two thousand and eleven two thousand and twelve and then all of a sudden was not promoted based on lack of leadership and he was it wasn't promoted but this white female didn't have in her background the same thing he did right but but it's looking at what evidence trying to figure out why it makes any difference on this similar situated employee outside the class treated more favorably well the similarly situated goes to the fourth the fourth  turn terminations on the failure to promote what the evidence the evidence that we had was that ms brown was rated lower in her two thousand and twelve performance evaluation the mr while three point three as opposed to three point four and  while had a bachelor's degree was which was a preferred qualification that is our evidence frank here has its evidence french or has its argument and its evidence but we are here about today we would assert is our eviden morning on the morning you're on it so i should say lindbergh porter on behalf of the employers and the case along with three and tail on behalf of the employers as well i'd like address a point that the court asked about ms holmgren right away that the discovery did go forth as a court observed and depositions were taken in fact they were taken across the country i believe in five different states and so when it is said that she was in a different state didn't affect plate it's taking depositions and all the other states where other witnesses were in this case your point is they could have done more to strengthen their claim in this one statement made that is correct is this one statement made simply a stray remark case versus hicks years ago and a similar pattern to what we have here with respect to what happens when you have a person who was once a supervisor and then between the time of being a supervisor and having some responsibility for  then current plan of lese and is leaving voluntarily and then the employer is put in the position of having to rely on that person who is now just well that's a that's the question of judge scalia with respect to the information that we have here and that's on page five thirteen in five fourteen of st mary's was that hicks decision which which the parties cite so that that's not an unusual circumstance that you have somebody who was involved earlier who leaves and  employment or we're really determining is whether was made during the existence of the relationship is that while we're determining well that the employer employee relationship existed that but the duties the agency the responsibility that ms ho en had in april had nothing to do with any employee in fact as well but if i read the rule burl more broadly and suggest that if she was an agent or employees and just because she was doing it making this statement and then transferred her employment in the company she still could speak about what happened while she was in the proper agency relationship then i'd have to let the statement in with well if she if the hypothetical that the court set potentially but she was not just told by was an employee fall of twenty twelfth and determining which one would be the counselor and determining among them how they were ranked she ranked three people he was ranked second and her her e mail from jen didn't miss home grin wasn't she in fact his direct supervisor she was until and didn't she wasn't she involved in determining who would take over as the counselor the during a set period of time only the only thing we've got here is that she was involved in doing this for a set period of time but then she was transferred just before she said this statement so what we're really saying is why is this not an exception to the hearsay rule is this a interpretation of the hearsay rule that we're after here is this an application what is it they that the judge hobart's decision should be reviewed under the abuse of discretion well because it's an application but i'm now saying why is this not an interpretation of what the rule says at all which is not an abuse of discretion well the  the plaintiffs like the wagner case from the from arizona and they that court traces and deals with several of decisions of the ninth circuit making the distinction between evidentiary ruling and an interpretation of the this hearsay rule it's not an abuse of discretion standard wants the rule has been properly interpreted and put in action the application there of is certainly an abuse of discretion standard but to interpret the rule in the first place or your opposition suggests that's the novo and cites the cases and i said well come on and then they got then they kept coming back saying no this is the no vote because in interpretation of the rule judge tell me what i'm going to say to him that is an interpretation of the rule well the construction of the rule yes i the construction whether this person can talk about the scope of their what they did in their former job when they're still an employee of the company that's the question that's definitely a determination of scope while you're on to the questions that were asked of my opponent i think got at the heart of this and namely that that the statement were not within the scope of the employment at the time of the agency at the time they were may let me ask another question then supposing this statement comes in that we go back we do the summary judgment we do we do not undo the summary judgment and i call to the court's attention the memorandum it's an exhibit and been discussed it's eat our five ninety five it's a january and thirteen e mail from his home ground herself regarding his stats just evidence that comes in as well but if there is a statement in the record by someone who was his boss that says your race and your gender is against you and it comes in it seems to me on summary judgment i've got to send it back i can't say it's a harmless especially on summary judgment it certainly will show a pretext so why don't i send it back news holmgren was not a decision maker with this back to the promotion or the terminations yawn of what happened here was miss home ground is out of the herself that she is still considering other candidates and there's someone else to edit you and that in her evaluation he missed a while needs further evaluation i have also asked him to present some material to the broader team and this will be our time she refers to somebody else to study further how he presents his leadership style and some of the data we still going to end of you know the candid it this is her assessment of him the person he's relying on and so she had not made a decision of the interviewed others he was not the top candidate it was the candidate they were meeting in fort wayne that wasn't just around the well to my god it was it was not ms brown and miss brown had not been interviewed at this point that had not been interviewed by ms home that's correct keep in mind that miss home is out of a job she gets replaced entirely never never does interview miss brown she never does and and  she does keep in mind this is in january she's gone new person comes in who now i believe this is ms potts who supervising two different several different senate one of them is under the temporary acting control was running to senate and she's observing them contemporaneously with her making a decision and she determines who is better qualified and she makes that decision and ms home ho has nothing to do with it she's long gone and so that's why i say that even if one were to receive this statement it would not change the outcome because this was not the decision maker the admission that the record shows who the decision maker was the decision maker says i had no influence by ms holmes homegrown there's no other connection at all there's no other prohibited statement there's no on the statement implicat merit case which says that the decision maker in this instance can use the decision makers own perception of what is going on do we know who made the decision to hire brown  decision based on her knowledge operations review and up of asians of the k two candidates if she were considering mr while that quote but suddenly of the two guests i want you to think again about what judge question that potts was the plaintiff's supervisor and there's no pots no question that potts became a director but it's huntly or to me that she was the only one making the decision with johnson and others who were in h r and i said i think the record will show at the at pages one fifty four one fifty nine to one sixty one through the whole was also the decision maker his home game was not a decision because she was in that position at one point she had been through it up until january she it's likely then that she would have been the sole decision maker i can't say that's not in the record she it appears from all that we know that she would have been the decision maker but she she left right and it was the person in the position who was the decision maker so it's only a reasonable inference that ms holmgren would have been had she been in the position at the time she was not keep in mind also that changes were made she was asked she left from that position and then ultimately left and at this point this is a dynamic business that a browns term a nation of mr while and again essentially undisputed mr while i other said that he didn't know or he agreed with him and his the same thing with respect to p i p a going to those issues as well so that the record stands the question is was mr wilde discriminated against in the transfer because he is east indian east indian descent that's the american case which we sent to the court last week and i would encourage the court to read the case it is on all fours what the case of that we have here such evidence may still be insufficient to create a fact for a jury to talk about circumstantial evidence that must be evidence supporting a rational inference that intention no discrimination on grounds prohibited by statute was the true reason and that's on page eighteen and then in short the context is key when a plaintiff alleges discrimination based on circumstantial evidence considering the context of this case and they go on she made the statement is not dispositive on whether the statement relates to a matter within the scope of her employment so even the district court says that right but then but then the district court goes on and says the next paragraph says you just didn't lay the foundation here and what we're saying is that there's there's no what the would be for saying that that should be part of our foundation that all of the cases that we we have to have some kind of context for all of this we have we don't know we don't know what period she's talking about we don't know what she's referring to but we don't know whether she's talking about her own motivation or whether she's talking about somebody else's motivation that she's heard about so i mean we're just left with all kinds of questions and this is it this in the ball game and these are the questions that mr wild would face trial mr while right would would make the statement at all and so so do all he could do was just was just repeat exactly what he said and mr while was quite uncertain about all of this he wasn't even sure that this that something inappropriate had been said to him he's quite equivocal in answer to the question and when  would i wouldn't want the court to lose sight of the significant evidence of pretext both in the failure to promote case and in the in the terminations case just very briefly the failure promote telecom services is submitted