my problems and most usually with my own name so the half of the e e o c i am share because my client was denied the right to a jury trial the facts in this case are so you know from my own perspective where i think you would spend your time more productively i mean i think that one of these provisions is a disparate impact provision i think this is a disparate treatment case also think that the constitutionality of summary judgment in title seven cases is really not a productive oh area for us this morning but i think you may very well be entitled to a reversal here i'm wondering why it is the evidence that the decision maker said i want to korean in this position is not direct evidence and you don't even argue debate that that could have been part of the confusion for the district court is that he didn't characterize that as direct evidence i made maybe there's a reason for that and maybe maybe it's not but it  struck me as maybe it is but your honor i would think it's direct evidence as well they don't have it you haven't said that but they haven't argued there why because the courts have held that in order for it to be direct evidence it must be that it comes from the mouth of the decision maker i thought this was the decision maker that supposedly said that well no it was actually coming from an intermediary who said the decision maker said that and so at that point we have removed it from direct evidence but i would point out your honor that if it comes in it becomes an because it's a statement of the decision maker related by another member of management right act so if it's not hearsay it said miscible right it's and it's still the statement of the decision maker it is your honor ok yes your honor and i think one of the issues that is before the courts now is the idea that there is a difference between evidence and summary judgment cases they idea that there is a parsing between direct evidence is circumstantial evidence so that we must meet some sort of rigid task in which to prove that discrimination occurred i think this case is a simple case and in this case we have that we want america told  that she was not getting the i t position because she was not korea and because they wanted to put a korean in that position she complained about that and one week later she was fired and that this case was dismissed at summary judgment shows how far we have come from the broad remedial intent and the plain statutory language of title seven that states an employer shall not discriminate because of sex because of race before you today are three issues your honor is the first one is did the lower court error in granting summary judgment in this case the second as does the application of title seven provide the second provision a to allow for disparate treatment cases such that no adverse action is required and then third which i will touch on your honors with your indulgence is that does the practice of summary judgment at least as how it's been applied violate the seventh amendment right to a jury trial first finding that the lower court erred here should be simple there can be no doubt the congress intended to protect against the type of conduct that occurred here this court has already held and weidman vs wal mart that exactly this type of conduct where there was a for refusing to fill a position because of race was not only illegal under title stephen but was also the basis for a reasonable good faith belief additionally in t on that as well as i mean you have speaking for myself you have a very good argument i think in the sense of the promotion opportunity and i gather your position and we'll hear from europe on it is that that here the transfer of the benefits were somewhat similar this was still a higher quality job absolutely your honor and and she does not get that job and let's assume that you have a viable claim that should survive summary judgment that there were discriminatory reasons that she does not get that i think the retaliation question though is a much closer won and a much more difficult one for the speaking for myself and that is that with these evaluations that were done for her but two women who knew nothing about about the korean com and knew nothing about anything that was going on with that and it was that which didn't her it's that which caused her to get fired these bad evaluation didn't even occur until we're not meant to occur until after the ninety day period expect had expired so the first set of reviews that occurred happened after ninety days expired the second set of reviews occurred one month before the ninety days expired it was started by mr horton who in fact was the one who had received the complaint of discrimination who provided are saying the timing that he requested an evaluation early in itself suggests something as amiss yacht yes your honor an addition to that that she failed these evaluations is not clear at all a jury could reasonably find that these idea that there was some magic number in which to cut off the plaintive is is isn't clear there's been in fact was true there was multiple different numbers and so the number was at one point one thirty five and then it was thirty two point five it was thirty four and thirty five so there's no consistency to what that number was as to whether or not there even in fact was anything instead what a jury could find is that a this was used as a pretext to cover up the fact that they wanted to dismiss her because of her complaint of discrimination and it is the jury that should be making that decision testified should never filled out this type of it you ation for anyone else or reprimanded anyone else for the same kinds of conduct issues in her evaluation of jefferson correct your honor and jefferson she had also testified th jefferson was performing heard job duties will correct on the same day she completed the negative evaluation correct and mr horton said that they wanted to terminate her whereas they said they did not want to terminate her ye it written down anywhere no you're right where did that come from that came after she had been already offered the job told she was going to start and in response to what mr john that the h r person had said not only was it not written down any where it was not in any job postings that they had provided nobody else ever had a five year experience and so this was an afterthought after the fact justification in order to take away the rights of my time is up yes court my name is philip cobb that i'm with the e e o c and i'd like to just jump right in on the retaliation claim and really the focus of our brief is whether the district court erred in finding that mr jefferson did not engage in protected opposition activity under the anti retaliating provision under title seven the critical point to make at the outset about that is that to establish protected activity mr jefferson does not need to establish that the denial of the transfer was itself a violation of her rights under title seven she just has to establish that her complaint was motivated by a reasonable belief that it was a violation of title seven and a classic example as judge pryor indicated of employment discrimination is when an employer denies an opportunity to an employee and tells her she is being denied that opportunity because she is not of a certain national origin and that's what occurred in this case jean chung told mr jefferson after reviewing her resume and indicating that she might be in the running for the job he told her that she could start the job the following week but then rescinded that opportunity and told her that she could not have the job because she was not korean and so when she complained about that to ken horton the human resources manager that constituted protected opposition activity under title seven the district court found otherwise for two reasons instead of focusing on this direct statement of discriminatory intent the district court focused on whether the transfer or the denial of the transfer was an adverse employment action under title seven and on whether mr jefferson was qualified for the i t tech job but taking whether or not the denial was an adverse employment action that really asked the wrong question because it is not whether that denial is in fact an adverse employment action it's simply whether she had a reasonable belief that it was any jury could easily agree with mr jefferson that going from a entry level clerical position in the finance department to and i t tech position which she described as her career goal which required her to study classes in which c one now says required five years of experience to possess i mean that in and of itself a stablish is that it is a superior job under title seven if i understand your position your position is even if it turned out that maybe she suffered no real harm because she wasn't going to get the job anyway that it was proper to fire her for these about your life is she still listened gaging and protected khan she says that she had been tell she wasn't hard because she wasn't korean and whatever the outcome later on might have been and she was engaging in protective conduct to complain about that and your argument that discourse is wrong to say otherwise that's correct your honor and you the focal point of the analysis is what information is jefferson had at the time that she made the complaint and she was well within reason in believing that she was be being denied this opportunity at least in part based on the fact that she was not korean and that is sufficient to give rise to reasonable belief and therefore establish protected activity the other issue with respect to qualifications that the district court focused on it's our view that the qualifications are irrelevant in a case like this where there is direct statements from one of the decision makers that at least part of the reason the person is being denied the job is s characteristics such as race or national origin so we disagree that that should have even been addressed in the protected activity part of the analysis i think i will turn to the pretext portion of our brief because i think judge carnes indicated some concerns there the critical point here is that the c one says that the reason it fired miss jefferson is she failed to reach this minimum score on her evaluations but a but just building i would miss fair hon he said mr horton was the one who received the complaint and he was the one who made the final decision to terminate he says that he was basing it on the supposedly pre determined score but discords that it didn't matter because she didn't have any of those scores but that's not really the point the point is that they've been so inconsistent that a jury could find that this is a cover up for what was really retaliates or emotive and there was one portion of miss kim's evaluation which indicated she was getting a lesser score because ms jefferson had gone to a char to complain it's not clear whether she was referencing the specific complaint about the i see my time is up man just finished the sense it's not clear in behalf of say one i could start at any one of these directions moment start with a retaliatory discharge claim and move to the causational not because i think things are sort of misunderstood at this point in time the had there is no competent proof that there was a causal effect between the protected activity and the adverse employment action discharge what we have is a lot of speculation  ms jefferson admitted there deposition there was a policy in place that said introductory employees will be evaluated and doesn't provide a precise time near the end of their and i'm paraphrasing near the end of their probationary period the timing is close because she was evaluated by or supervisors three weeks before the end of her probationary period at the same time she was going around her finance department supervisors to i t trying to get this other position without telling them that she was doing so the timing was natural based on both the policy for the evaluations and there's no record evidence anywhere showing that these evaluations were performed either before or after the norm of probationary employees at the time so the evidence shows this evidence shows where the numbers come from their number has lots of numbers were they written down the record shows that the numbers were pre established by the h r department that when the supervisor scored i don't know if they're written down anywhere  deciding what the numbers are no the record evident shows that they were established for every introductory employee and there is no evidence that shows those same numbers were applied to every other introductory employment but when if you had a standard or numbers wouldn't surely you they'd be written down a piece of paper somewhere right not necessarily there's a lot of employment policies that aren't written down on pieces of paper and i don't think these are very specific numbers although they changed right you say in your brief there was an  don't understand what there are was but how can you be applying these very specific numbers to and then say you didn't pass or you did pass without there being a standard that you're judging and against stuff it's a fairly simple process of if the threshold score is thirty five and you take the numbers assigned by the supervisors for the performance evaluation added together average it out divide it by four i believe and there's all sorts of explanation the record for how this happened and then that comes up either above or below that thirty five number and i guess my question to you as where is thirty five written down it's not written down that i know of there's no record evidence of it being written down but there's no record evidence of being applied any differently to any other employee any other introductory employee so what we have are two supervisors in the finance department who evaluate mr jefferson here's the question  counsel says normally one would expect to get the whole ninety day period should have thirty more days to get better this is sixty days if what does the record say as to what prompted them to evaluate her at this particular time there is no record evidence other than the supervisors knew that the end of her probationary period was coming up she did have some recent performance problems which she had made it to that form the basis of their evaluation there's no record evidence and there's no this falls under the super personnel series of cases i believe in the title seven does a dictate you know when you perform the evaluation it just requires the appellant to prove that we somehow discriminated against her it earlier or later i guess what they're trying to suggest and maybe this is your speculation argument they're trying to suggest that somebody got to these two women horton or someone else that let could you go and do your evaluation early and there's no evidence there's no evidence and did either of them testify why they decided at this point to do the evaluation they weren't asked a question i don't believe they can they if they did my memory and i'm going from memory is that they testified that they knew the end of the evaluation period was coming up and they did it in this case but the record evidence does show that these supervisors were not in any way influenced by mr horton they did not know as your honor mentioned they did not know anything about this alleged complaint that was denied by the company about one thing a korean in that position what about the progressive discipline policy now you're follow the policy of say one says that they will evaluate introductory employees and that they can be discharged at any time for any reason also the say one progressive this is an disciplinary policy against the typical language that says we may or may not follow this so introductory employees they didn't necessarily follow the progress of discipline because it's a ninety day period and if you give a warning after warning after warning it doesn't make sense the whole purpose of an introductory policy such as that is the make sure everybody is aware during that time or under maybe a little closer scrutiny than they normally would be about can't testimony that she was performing the job well on the same day she gave her a negative evaluation i believe that testimony is that she was performing in certain areas like her subsequent functions were fine her problems that she admitted in her deposition were that she would show up to work late she would take long lunches she was counseled regarding using her cell phone in the finance department she went around and there's no there's very little doubt here that her going around the finance department sort of try to get this i t job without telling them that she was planning on leaving just follow up on the evidence regarding and i ask you the same question i asked your opponent one of the reasons cited originally at least if you look at the evidence like most favorable to the plaintiff which is  of the reasons that was given for her being told she could have the job and then being told she couldn't have the job was that she didn't me a five year experience requirement or i'm going to ask you the same question where is that written and where did that policy come from i don't know that that policy is written down it's not there's no record of it being written down anywhere it was the company's decision that they needed somebody in that i t position with five years of experience i will say that the evidence is your opponent says the job postings for those positions did not did not say you needed five years of experience is that so there's no there's no competent evidence of that what what mr jefferson's counsel proposes is that she submitted a linked in profile of the income but that doesn't show that he and find i understand that and that's probably not good enough but i thought i thought i read that the there were job postings for these positions that did not contain that requirement there's nothing in the record there's no record evident showing that the those postings were for that job ok the the the five year  john pardon me they work for the same kind of job now there weren't that many folks in the i t department there was only one opening and there's no evidence anywhere connecting the so called dots showing that that particular job was filled by this particular person my opponent also are well you say you've let me ask about that because you say that the position it ended up being filled by an african american male correct but as i looked at the timing the timing involving the plaintiff wasn't twenty thirteen august the position if i read your brief riped was filled by the african american male in may of two thousand and fourteen so almost another year later is that right it was quite quite a few months i don't remember it was almost a year but that's not unusual for a position to go vacant while they're looking for a qualified person to fill the position well that was that i obviously if they fill if it was clear that positions filled with an african american no matter what people say about koreans she didn't have an adverse action because somebody of her same racial group fill the position that's him and morton question i thought there was some evidence that there were two other positions in addition to the one filled by the african american was phil black koreans you know there's there's no competent evidence that those positions were filled at that particular point in time i think i believe the evidence decision is that position she applied for was lying vacant for a year and the person who then ultimately killed it was an african american correct but that i thought that person that was a contract position which is really not the same as the jobs she was applying for it was a contract position the company decided to hire the most qualified contract person because they couldn't find anybody non contract to fill that position now to your point judge carnes there there is a citation i think in the brief by opposing counsel that says question of who is currently employed in the i t department that was two years after mr jefferson applied for the job and she cited to those two folks nowhere does it show that those two folks filled the eventually hired a korean male for the position i i may be mistaken but i thought the magistrate just ruled that all other issues besides the retaliate tory discharge were immaterial and he did not address th m that seemed to be evidence that had not been excluded as part of that affidavit that would support a finding that in fact agreeing was hard for the position well like a genuine issue of fact like almost portions of mr dies are most portions of mr di's affidavit nowhere does he described how he has personal knowledge of that who the person was what job they filled he provides no detail it's just a general stayed to post no it was not i mean it's a little bit unusual to have a former employee who is an h r give an affidavit for the plaintiff an employment discrimination case and i understood he'd left on good terms so wasn't that right i think that in h r specialists might in fact know it was hard for a position well there are very different varieties and different duties for h r specialists mr di was not associated with making termination decisions or really anything to do with mr jefferson until the unemployment hearing took place now and my guess was he probably didn't anticipate this because he testified for the company at the unemployment handed to us on the very last day of discovery and of course we had a choice at that point in time we're going to move for an extension so forth because of the expense of the case and so forth i reviewed the affidavit i saw that there was no basis of personal knowledge that was making fact that an african american fill the spot is is what it is that there's testimony was certainly an african american was hard year later what is your evidence to indicate that that position for which he was hired was the one for which the plaintiffs was not given the job the testimony of mr horton is thirty six deposition and he says and he says that an african american contract employee was hired to fill that job several months later i don't remember the exact  was hard for that position why isn't that enough to create a genuine issue miss kim's testimony is not that two koreans were hired to fill that position she was identifying the two korean employees in id department two years after all of this occurred we know that according to this thirty six testimony that it's a much later hiring right you're saying were we were to believe that it was for that position but we have we have an affidavit from an h r specialist that says as a korean for the position plus we have testimony from someone who identify the job in fact mr jefferson herself never identifies the particular job she was applying for distinguishes this thing which is it from any other job in i t the burden is on miss jefferson here well how many jobs were open and i t at the time she applied just that but there were other job openings after that and that is my my point when i when i talk about the identity of the folks in the i t department at the time of the deposition are different than they were at that time could you help us out on this whether as i said before no matter how whatever comment was made about koreans if actually you know the next day that pick somebody is african american we don't have an adverse action that one because somebody in her group got the job so what is the evidence as to who fill this position what your honor there's there is a lot of evidence that there was both from this cam who said that no one else but koreans have ever been in this position i don't care about all that i want to know there's a job there's an open job there's a vacancy who got that job and what was their race qur'an and who was that person we don't know the names of that individually or are they what we didn't even discovery try to find out exactly who was working there and their ethnicity and who got what job when well we did actually ask who was replaced and mr di told us that it was replaced by a korean a miss kemp told us that it was replaced by a qur'an and that was sufficient for us we did not need to know and the thirty six deposition that would seem to me to be an apt question to ask m straighten some things out for money see if we have some agreement about this and that is your client didn't get the job right correct that's the adverse action correct did not the job correctly or good period a that here yes another would be a circumstantial case you can use for example the mag donald douglas framework it which case if you used mcdonnell douglas that's one way of doing a circumstantial case you would you would show that someone of your race actually got the job correct that's the way that becomes relevant you don't have to prove though in a direct evidence case that someone of a of a different race got the job that is the record that the african american male that was hired was he hired in may of two thousand and fourteen like nine or ten months later or is or what your understanding of the record the th did testified to that but of course that is they interested witnessed and undervalued should not be considered or can not be considered under eighty two your honor the inclusive community is a justice kennedy and justice thomas both agree that under eighty two that the second provision is a disparate treatment claim and not only has the supreme court agreed with that but the seventh circuit recently has addressed it in a disparate treatment claim which was in the e e o c versus  autozone case there is absolutely no case law that says that the disparate treatment per that a two is not a disparate treatment provision nor has the defendant pointed to any law that says