may have please the court my name is scott blankenship i'm here on behalf of a ruse shokri i'd like to reserve five minutes for about this is not a case where you have a poor performer or even a decline in performance this is a case about an employee that spent twenty nine years made substantial cost savings and did an excellent and superior job council you have record to support everything that you just said i understand that but as i understand the law it would be just fine and nothing to take to court for boeing to fire shokri as a pure stupid mistake great employee and they fire him just it's just a stupid mistake or a nasty supervisor or something the only thing they can't fire him for is discrimination on the basis of race nationality and so forth and my difficulty with your case on that is you've got two things that suggest that they did fire him because of because of race and nationality one is garrity saying where you're from and the other is garrity saying at the same time and with something else that could be taken is referring to his nationality but i didn't see where you had anything else and i was kind of struck that garrity didn't fire show kerry's wife or his brother even though they were just as rainy and as he is well your honor there's a after the st question there is ample evidence of a pattern of hostility even mendacity and lying that the pretext is unworthy of credence here but with respect to the other show crease junkyard you never supervised his brother or his wife during that time period the rest so it's plainly irrelevant didn't care to have authority to refer one of the two of them i can't remember whether it was never the brother lee no absolutely not that's a false that's a lie he did not shokri was not under the supervision and for eva shokri was under much the mcewen supervision so brave right that's a false it i mean this may be outside the record but i thought at a later time you're arguing during this time and that's right but two or three years after what was in the brother supervised by garrity he was supervised later and this is outside the record and he testified that your discriminated against him but that's not at issue here we're talking about a rift that occurred when the defendant misrepresents that the show crees were somehow going to guarantee supervision that's evidence of mendacity and pretext if you asked me what we have here is almost an exact cause and effect we this is we have a case where south carolina or north carolina and the just met in person once and on there that one st meeting shokri picks a fight with them and tells him although lousy supervision training and credit that he's rendering basically demonstrates two things one he wasn't competent to do the performance review in the st place he didn't have knowledge didn't have any background but moreover it's what is your nationality where are you from and then mr shirky respon like if somebody cut you off and they're black and use the n word because you're frustrated that's what this is this is picking the greatest weakness they could see in mr shokri they had a disagreement he went racial and that's acceptable then five years after that i have a question it as far as i can tell in the a d r complaint that mr shokri brought he doesn't say anything about discrimination is that right that's not right ok where is it in the record does he say that it's about discrimination well there's admissions in the record john if you look at the eighty or complaints the later on in your complaints you will see him in the e o one's the ok so i'm trying to distinguish there's a t r and there's as i understand it i don't see anything about discrimination the a t r complaint well there's we have documentation that in december and think it was in december when he filed the st a v r paperwork that he tried to include something about this where you from statement we have we have something later been rated like he had in the past he would have never been part of the riff it wasn't for the performance management plan which john go to did not have the foundation of the compass even give but then let you get in the riff that's what we've got the evidence of pretext where with and  kept coming to mind is that read your brief on this and we have discussions with law professors all the time about prospective law clerks locker kaplan's and professors are always complaining to me i can't give somebody an a minus without giving somebody else a flat b because of the curve and so they change grades downward so that they can give somebody else a high grade why isn't this just like that i didn't understand the racial aspect well it's there were tell a story aspect which you can look at as racial aspect but you've got basically just good news not causing him to to reduce his grade suggests some kind of discrimination or animists he had to distinguish it from those law professors telling me they had to redo somebodies grade to give my evidence contemporaneous similar to mcgill that there should be leaving a job in the job review in i think it's december but it might have in late november it actually says i'm lowering your grades because of the curve and don't take  relevant to the conversation but the january conversation happens after the job review that says this thing about the company policy no but the but if you look at the progression your honor you basically have the meeting with mr shokri where he attacks his what your nationality where you from and  and performance which simultaneously says the thing about the curve but it's only forty percent of the review the testimony from to nelson that says i didn't get feedback to guarantee about the ref which is sixty percent and the reason i didn't adaptability that's your evidence more than that i'm ok what is the more than that because what i don't understand is if he was going to go in trying to get this guy fired why didn't he just lower the scores more in the st place why do we wait for the meeting the consensus meeting with the other managers w prior to the ref and they don't even allow it to finish that's absurd i mean there's all these things blowing doesn't do any investigation he complains thirteen times i can't find a case your honor there's anything close to this and if you look at him against this just the  circuit overturned based on the fact there was no contemporaneous document for a for a hiring freeze you look at the left cases and this is so much more extreme than the situations with guy that saved the company ten million dollars that's why we didn't know what the other employees save the company with but what we what we do know is what's in the record and to nelson said he couldn't think of anyone else who would save the company that money it's now let most favorable to boeing if you conclude require assistance sounds more like a jury argument i mean it is it should be should be but oh always companies have people in place with supervisory authority who do a bad job and the civil rights provisions have nothing to say that i agree where's the bad job they offer but no they don't offer no specific evidence here except your whole jury argument putting garrity a man who doesn't know what he's doing as far as supervising and reading people in charge of supervising and reading this department having them do it with a free hand even though you hardly ever goes there and not appreciating just what a valuable employee shokri is all that stuff company can make a fool of itself and it's fine not only thing that is not fine as if they're doing it on a racial basis or there are basically taking no measures to investigate which is what boeing did time and time again they don't repeatedly on the record that he in complete panic that he was so necessary for the job that you've got letters and letters going out trying to keep them and we have mr gary doing with no foundation whatsoever doing the kind of stuff like he did with with mckeown where he didn't even know what  saying that picking up from where judge kleinfeld has stated what is an absolutely correct proposition of the law undisputed that you can be a jerk but you don't necessarily violate  provisions you could do something for a wholly on professional unjustified reasons as long as they aren't one of the reasons covered by the act it isn't discrimination you say you have these am messages that prove that this was described what with these message well it's basically the messages that show that good he was a manager to be want to keep their employees instead he sabotaging the employees and we provided exhibits  that there were only two people at risk it wasn't mr shokri it was why did we have to assume that a manager would always want to protect their employees maybe a manager in this situation needs to find people the company can lay off because that's the company's goal because a reasonable inference in this case where somebody complains about each actually got it investigated they did nothing in fact what they were trying to do and is is basically have him sign a release and take six months pay that was their idea of how to deal with the  discrimination not investigate it force him into a situation despite all the high level managers going to keep him and have him sign a release and when he didn't they acknowledged in writing that there was going to be a lawsuit this is a very strong retaliation case much stronger than the cases that the courts reversed in the past we're taking you over your time we'll give you a minute for about oh thank you  he was the victim of intentional discrimination based on his race or national origin or retaliation after all that's what this case is about it well let me focus on what to me anyway is what's the greatest concern with your argument you've got these two remarks when shokri makes garrity man garrity says where are you from and what is your nationality why isn't that enough to put absolutely so so those statements on their face appellant tries to turn them into direct evidence of discrimination they're certainly not that and that argument was forfeited below why aren't they because you heard that hypothetical case of the bad driver that your adversary posed why aren't they have a chance of discriminatory motive in that hypothetical your honor there was a racial epithet that was directly directed at an individual here we have against you because you're that's evidence but if he says are you sir estrie and that's not is that what you're telling me it could be judged quite felt a certain way the hypothetical you gave is direct evidence of discrimination i am going to discriminate against you because his juries are allowed to draw inferences they're not limited to direct evidence in fact one of the boilerplate instructions that we give juries is you're allowed to consider inferences from the evidence and circumstantial evidence can be just as probative as direct evidence you're right judge point thought but this court has also said that were a point of attempts to establish pretext by circumstantial evidence they have to come forward with specific and substantial evidence and that's because the remarks are it so why aren't they we disagree that that's the case judge kleinfeld i don't know if we disagree you don't know my views yet well i'm trying to find out what your views are because aside from telling me unless it has a question mark at the end of it it's not evidence of a discriminatory motive that strikes me as weak argument if you have other arguments for why those two remarks are not evidence from which you jury could infer discriminatory motive tell me to be fair judge kleinfeld i'm not simply saying that it's the fact that it's a question ok it's in order to get to the point that those remarks are discriminatory you need an inference therefore it's not direct evidence of discrimination and this court held in the rushed down case which we cited in our briefs that a supervisors question to a dental student about where are you from in referring to report a procedure as rd world dentist rule or question wasn't questions rushed on is your best case but there are questions and then there are questions for example if two people are eating lunch together and they don't have any adversity in their relationship at all and one arm has a  but in other circumstances there may be back in the sixty's if you were going into a store and maybe a little town in alabama and you spoke with a new york accent where you from might very well be evidence of a discriminatory motive so i don't know whether to follow and extend rashed and or limit and distinguish rashdan i think the best you can say for opponents position here would be what chief judge martinez said below that the question itself isn't discrimination it's conceivable that considering every inference in mr show grease favor that the circumstances he describes surrounding it might allow a jury to weakly infer an inference of discrimination  for a different reason you have a situation here where i would say that your case would be substantially better  substantially better if these two remarks had not been made and if the two remarks had been made and very little else occurred your case would be much better my concern is this and i've heard this described in in of themselves these things might be just because he's an incompetent manager if he is or he just doesn't like the guy for whatever reason but when you take these two seeds and you keep putting water on them with every single one of these instances where he has taken what appears to be in some instances at least to me somewhat pointed action against the man for reasons that could be suggested by a jury to be related to the offer what did we hear we heard that mr garrity was a bad manager the law doesn't protect that and that would apply just the same to everyone else who will evaluate him mr garrity was just a bad manager they said mr garrity did everything in his power to in isolation might be absolutely innocent but when you have something is pointed and is making  overreacted or suggested things or made garrity mad but nonetheless mr garrity comes back and makes what are but at least one totally unacceptable comment by asking somebody what's his nationality what does it have to do with a conversation where you from what does that have to do with it has nothing to do with it shokri was exactly correct in that respect it had nothing to do with it we're not talking about his nationality having anything to do with that meeting and then he subsequently takes a number of actions which boeing really has nothing in itself boeing itself has nothing to do with it's all garrity doing stuff kind of unsupervised these kind of like out of the wild west here doing whatever he wants to do and he's in these meetings and he's downgrading shokri and he sending i am is back and the rather unfortunate comments made by mr garrity to say the least at the beginning of their relationship i'm just having a hard time under th circuit at least figuring out why this isn't a jury trial so answer your question judges st of all boeing disputes that mr garrity made the comments that are alleged certainly in the context we're here on summary judgment so we're not going to get  that i understand i just want to make that clear for the record so so but but in any event the subsequent issues in terms of mr garrity being off the reservation so to speak that's just not borne out by the record what you have here st of all he evaluated him and his to be sure the rd world reference was an offensive insensitive and politically incorrect jab it was directed however at the procedure not rash dan's national origin the procedure was rash and messed up on a or was it a reconstruction failed crown setting that's it failed crown setting and they gave her some remedial dentistry work and she didn't do any better so it looks like what the opinion is doing they're saying  that despite the offensive reference to rush and doing rd world dentistry and asking where are you from nevertheless that's not why they flunked or the reason they flunked her is she was a bad dentist and harming patients at the question for me is does rashdan mean where you from was ok in rashdan so it's ok here or should rashdan be distinguished our position is that here and at st the court does mention that it was a common in reference to the procedure the court the get then goes on to say that a different supervisor referred to the plaintiff directly as t w which is short for rd world so we think that applies i do want to get back to judges question in terms of these other follow up issues by mr garrity and as judge friedman pointed out in the performance review the scores were lower not because mr shokri did a worse job but because boeing in this is undisputed was asking its managers to force greater differentiate differentiation among its employees that's in the review itself other managers testified to that in the record below that's in our brief at that time there is no evidence that mr garrity was aware that there would be a reduction in force coming down the line so the idea that he did that in order to set him up for a layoff is not supported by the record there's no evidence of a nd did during the process and turning to that then judge us or you get to the reduction in force process mr garrity prepares the scores independently at st and if you look at the actual competency scores he gives mr shanker credit in a lot of respects he has to force for customer service and adaptability which are the points that mr shokri likes to be proud of and rightfully so but mr garrity recognize that in the scores he also scored i'm at a three originally and it was only during the consensus beating when he needed the approval and input of all the managers there that that was  reclassified to a two and other employees in that same rift group by the way had their scores altered at that stage in the process so to suggest that he scored him in these competencies to torpedo him the record just does not bear that out mr garrity had no idea what the other managers were going to be scoring their people at that time and if you look at the threes and fours that he gave to mr shokri those just aren't the sorts of scores where you could say i'm going to score this guy the sway selected gets laid off at the  of november before he knew about the risk that's exactly right just freeland so i guess we dispute that the comment carries and does the work that they suggest that it does but even if you take that it's a scintilla of evidence and a reasonable jury would have to look at the record as a whole and the other points that have been brought up don't show any sort of discriminatory or retaliatory motive and on top of that the jury would also have to look at the other undisputed facts in the record that negate a finding of discrimination so this was a department wide reduction in force impact of the whole i t group it was the latest in a series of reductions in force so everybody that's left is talented we've already kept the freshman team we've already kept the j v team this is the varsity the starters and so it's not surprising that mr shockley has accomplishments he can point to so did everybody else i'm not suggesting for a moment that he has a hugely strong case i mean this isn't the strongly cases some cases i've seen but let me put it this way  you have emmett it's hard to say there's just a scintilla of evidence where you have a very subjective process going on you're your mr gary he is the guy who is the supervisor so he's  dentist who just can't do the work and everybody agrees she can't do the work it is given another chance to do work and she can't do the work nobody suggesting mr shokri can't do the work when they're suggesting is he can do  work as well as other people based on our subjective evidence much much of the input coming from mr garrity who ha said these very discriminatory things about mr joker and there's other things along the way as i said there's if you take them all in isolation then you have a picture you can paint but if you take the whole picture and look at it i'm just wondering whether there isn't but more than a mere scintilla and under th circuit law you don't have to give this man a jury trial but if you take the whole record as a whole which is what you're required to do and you look again at the evidence that refutes any notion of discrimination here this is reeves versus sanderson from the supreme court  bama fours who mr geraghty supervised four of them were identified as at risk for a layoff one ultimately took a voluntary layoff but eighty percent of mr garrett is bama force were eliminated here that all the other people who are  getting you know i i was at the university of virginia jag school and i walked over once and saw and i taught law school for thirty five years thirty four years and i went over their grades and their grades were like really high i mean i just couldn't believe it i mean everybody was getting a's and there was a b ok so i looked in isolation you know if a professor theoretically had said something discriminatory about a particular student and had done some other things along the way that indicated a dislike for that student and then gave them a b you could take in isolation c g a b that's a pretty good grade but when you look at everybody  he had forced into categories that no one else who was laid off got so it's just not quite that clear cut and when you look at the evidence in totality is as a reasonable jury must as you must there's just no basis to conclude that there was intentional discrimination or retaliation here this this court is correct that under our call discrimination got a look at the constellation of circumstances under basically white the berling write the bill and you have to look at context matters but here if we look at the th circuit case law that is similar like davis the reason that davis got over turned because there was nothing in the record showing why she was laid off there was and it's very similar here where that was a case where each was actually looking and they basically said if you don't allow them to come up with some specific reasons for that person suffering the layoff then any employer with quote unquote the slightest guile could layoff an employee that's what we have here he's well he's great he's an a plus everybody's an a plus he just didn't make it this time moreover if you look at winter sheeba basically said thing you've got him doing their job unlike boeing that did nothing and they said that when they investigated as they put the riff on hold that they considered only the ref and ignored evidence of retaliatory mode of from the review we got balloon doing absolutely nothing the other thing that i want to clarify from the record is that if you look at that that i am between mcewen and mr sharp what you'll see is that he was tied with his wife who had a sixty seven and we presented this in the brief sixty seven want to be a passing grade he got downgraded twice and if you look at the exhibits you'll see that there were only two people and it wasn't mr shokri and it was two other from you think that it is protected activity itself absolutely in fact you're a he says this is the undisputed facts that give them more complaints from me that for sure is protected activity should we didn't just sit there he called him out on it that is protected activity but if you leave it for that so i thought you had a good point that the january conversation where he said i think you're discriminate against me it's protected activity but you have a case that says that that october conversation would be protected activity  you could say you know she's got a nice rack you could be talking about the spice rack but it's the context of how mr sugary basically discusses the issue and i think that's protected activity but what i want to remind the court is that even if we started on january  were if you look at the assessment rating on it which is you have four hundred and nineteen dollars he didn't even comply with the with with the policies plus they violate the for example you need to have him put in the rift competency and and if you look at tonight's game you're way over time at this ok i'm going to say that's plenty of the evidence here your honor that supports this is a powerful case and i haven't seen anything like it in the th circuit where a summary judge was upheld with these kind of facts