mr greene was a branch manager for a kinko's here in anchorage prior to his discharge you know early two thousand and four mr green appeals from a summary judgment issued below the court below found that he had not facia case you know on on the evidence that was presented we believe that the case law by this court and by the united states supreme court is that some guidelines that call for a different result in the matter could get to the point it's bothering me sure that is this it seems to me that you you have an argument if collins was treated differently and you can determine from that that it was because of racial i am an animist but i was having difficulty on the record indicating where collins was treated differently your client testified that he understood he was but i didn't find anything in the record that he was treated differently and maybe you can point to me in the record where that that would help me well i believe mr collins in his testimony had indicated  client this questions whether its racial or you just didn't like it and so that testimony doesn't help what i'd like to find out here's where he treated him differently where is the evidence and the  record well i think the evidence on the record goes through several different points in which there was testimony by lisa sagers who was the branch manager in fairbanks and there was testimony by scott you asshole who was a salesman both from green's testimony and out of scott yeah school that the northern lights branch was terribly understaffed during the two thousand and three timeframe and i believe the testimony of m difficulty of your case and see if you had any response as i read this case your client was promoted again and again given a a prejudice against african americans but let me let me address that in two parts if i could first with respect to the poor performance issue i've talked about staffing and i've about equipment and those are really key concerns because the scoring system that they're utilizing that there are they're basing their terminations on is one that is based upon customer expectations a culture on time done right mystery shopper evaluations and customer surveys if you don't have adequate equipment if you don't have enough staffing you're not going to be able to keep up with things when you're not going to get them done on time if you don't have the staffing to doublecheck jobs are going to be errors if there are errors and if things aren't done on time the customers are going to be dissatisfied and the surveys are going to come back poorly and they all tie back to the ability of mr coon the the come comes out of the fact that mr clooney in the back of the room where only mr green is looking at him does the mimicry of a monkey yes it is a light hearted situation up until that point in time that very quickly turn and the testimony was that meaning became very tense thereafter and as a result of that particular event you could not be that he that mr coon was doing that mimicry for the benefit of the others because they weren't looking at him but given the historical context of the use of the monkey term with respect to black americans in this country it's not surprising that he would have taken that type of offense and indeed tells the story he's obviously very well and i don't think he was expecting that with that kind of reaction from from the supervisor and i don't think it's ever appropriate for a supervisor with respect to a black employee to make that kind of a actual person who dismissed your client was clark and i think i'm looking i was looking in the record how this ties in miss park as far as i can tell from the record there's no indication that she was involved at all in these episodes dealing with you know on just is the record evidence that she had racial animus when she terminated him i cannot point to a specific racial remark mr clarke however miss corke acted after there was a complaint by the white green that was not fully investigated because it was an ambiguous investigative decision they said we don't often happen or not  she nonetheless went forward and implemented of variety of disciplinary steps against mr green and she reintroduced mr cuban into the supervisory relationship after a short hiatus aside from that before doing so she approached mr green and said can't we just drop all of this and we'll move on yeah instead of when mr green's but it happened i can't you know i can't just forget it she proceeded with the the racial animus that we see with respect to mister at the time that you actually terminated him or decided to terminate him she decided to keep him on for a while so that he could get stockroom benefits when kicker was merged with correct that doesn't sound like racial animus so what you're saying in spite of that she somehow is tarred by what this very very inappropriate conduct coon who obviously didn't like me obviously he did not and yes i think there was a policy within the company and i don't think it was her policy that they were keeping people on and they were they were not title seven of the civil rights act and even though the alaska supreme court often looks to federal law for guidance this case is in fact brought under state law not title seven they don't really  they do not materially depart except structural same structural framework framework with the exact i thinking we shouldn't use this ninth circuit cases or now to look at alaska cases now in fact we cite numerous night circuit cases in our brief but one point where i think there might be a difference is on the prime aphasia case as the court i'm sure is aware the crime of place a case burden under federal law is slight but in this case the and if there's one fact in this case that is crystal clear that is that is that mr green was not performing his job according to the lead gentleman expectations of his employer he struck he's he and those scores could not be influenced by mr clune these are well these are scores that come from customer readings mystery shoppers computer generated right information about on time performance councils argument is that you can't rely on the m m s because toon has taken away the opportunities of green could be a superstar by not providing him the opportunity for the people he needs by getting other people equipment he doesn't get the equipment therefore it's late and he gets a bad rap for that what's your response to my response to that is person bob there is not any clear and persuasive evidence in the record that that affected the m s m source at all the only evidence that it occurred there the only evidence in the record has that mr greene said there was one point two or three years prior to two thousand and three when he didn't get a computer a faster computer that he wanted and he asked mr ca and mr coon said i can't get you on their computer until the lease expires and there's absolutely no rebuttal of that explanation none and with regard to the staffing mr green said he had to get approval from mr clune in order to hire additional staff and mr kim says yes that's right because you have a history of making poor staffing decisions and again that explanation has never been rebut so that's new evidence counsel said that there was some evidence by collins that columns that he got equipment when green didn't i haven't found that in the record i haven't found that the only thing i found on the record on that  record that mr collins did not have to get approval to hire assistant managers and the explanation for mr coon is because mr collins had n s him scores that were in the high ninety's well above argument on that but i am if i understand correctly used a columns to your recollection the record columns did not testify that he got to quit when green did and he did not get employee used when green didn't except that green has to get approval that's correct because if that's so if if those that evidence is there seems to me there's a good argument that there's enough evidence that the m and s are skewed because of tinkering in advance by by june but your argument is there's no such evidence and there's no evidence like that and secondly there's no evidence that even if there was a delay in getting a computer are there was a delay in getting assistant managers there's no evidence that that directly affected the m s m scores and keep in mind that mr green's him asim scores were persistently low over a period of three years this didn't just happen overnight it wasn't because of one year mr gr was repeatedly warned at least five times in writing that his m s m scores were low at the same time he was being highly praised for the financial performance of his bright and during all of that time for  scores and in response to that mr green never says well you need to get me a faster computer you need to let me hire more managers in fact in this deposition when first asked about this his response is well i don't really believe the m s m scores matter i don't think it's a valid measure of customer satisfaction but that's a decision that the company is entitled to make not mr gree as well as the i'm asked them or just the m s m the company just relied on the m s m is far disciplined from the warning letter and the ultimate discharge the audits are reflective sometimes of what goes in the m s m and  actually are used as an exercise to try to improve the m s m scores but they did not play a role in the decision to discipline our discharge mr green mr green retaliation claim well mr green's retaliation growing claim i think suffers because the evidence shows that he was on the verge of being discharged in may june of two thousand and three before he ever submitted an internal claim of discrimination and after that was submitted that ex kinko's even removed mr coon from supervising mr green from up for a period of t months the undisputed record evidence is that they did that to take a second look at mr green's performance with mr clean out of the picture and the conclusion they came to after that three month period visited the store then according to her observation mr green was not managing the store according to company expectations and so she could see why he was embarrassed and scores were low so so it scores during that period why isn't when ms clarke goes to green and say says why don't you just forget this claim against us and let's start over why doesn't that show some evidence of retaliation when he says no i'm not going to do it well first of all i don't think she actually said why don't you forget this claim what she said was can we you know can we work this out are you willing to try to work together again with m and he says no and i fail to see what's retaliatory about that she was asking him are you willing to give mr community a second chance and mr green says no w was the during that conversation was his claim mentioned his claim based upon race and religious discrimination i don't believe the testimony is that it was mentioned but i store but when that complaint was initially filed the undisputed testimony is that green was not informed that it was a discrimination complaint he was just informed that it was a complaint about ron completed just a couple things first with respect to collins and his testimony i think what you will find in that testimony is he said that he had the ability to hire i don't think he commented on mr green's ability to hire  with respect to the retaliation issue goes way my earlier i have my notes here and i could have them wrong that you indicated that if i read columns test morning i would find out that i think you'll find in green's testimony i was not able to hire i was not able to get it quickly so it isn't just in columns testimony and that he didn't make the commitment not the whole story i think you have to look at them together with you can see that from the affidavit of heather clark which was submitted as part of their materials and summary judgment your voices draft i'm sorry i keep thinking about this i think you will find the testimony that in heller clarke's affidavit that there was not authority to terminate mr green as of july two thousand and three the performance during the third quarter of two thousand and three when there was an interim manager with respect to mr green i think you will look if you look at the scores and i've outlined those in our brief i think you will find there was a significant improvement in his performance when he was under a different manager from ron q and i think that is  largely because the scoring of these things is very subjective and if you can't something that's wrong it's because one person can subjectively evaluate it much differently you're talking about the audits now i'm talking well i believe the most significant element of the real tally goes to have the clarks approach to go green let's move on let's forget about this and  the fact that wind white declined to do that the terminations efron's went forward with forward very quickly there was some suggestion that maybe they would meet and talk about it but after he had declined there was no meeting council correct in his description of that discussion that it had to do with can you work together with well i expect that that is mr tunes impression of that discussion no no i counsel indicated that the actual statements were made can you work together with putin and move on that's not your understanding as i don't think that's not my understanding that and i think