consideration in the motion for summary judgment and second about improper standards of the plaintiff's burden of coming forward with evidence and standards related the mcdonnell douglas burke shifting analysis i'd like to start with the admissibility of evidence issue and with that the trial court swept aside a great volume of it miscible and highly relevant evidence that established the mr train year had been subjected to  racial discrimination in the workplace specifically when the court made the nonspecific blanket ruling that h r generalists derives testimony was quote riddled with hearsay and therefore swept out entirely statement attributed to mr roux if it's not are for the truth there and then what relevance does it have well that's my point is that it was being offered for the truth and every single statement ma hearsay rule it's almost impossible not to find an exception here's a robot don't we which is actually my point your honor here every single statement attributed to mr roux or that she testified about when people were all listed under f r e e rule in one relying on d two d which provides that a statement is not hearsay if the statement is offered against an opposing party and was made by the parties agent or employee on a matter within the scope of that relationship and while it existed if that sits if that situation exists it's not hearsay and i would suggest to you that every single statement that  had presented that we presented to the underlying court from ms de roof fell into that exception talking about mr matthews right certainly that's one of them and one of the biggest ones but there are several others there perhaps two dozen statements  one of them are a situation where the statement is being offered against host was made by an employee of host was made within the scope of that employee's job responsibilities for host and was made at the time that both both actors the speaker and the listener were employees of host so for instance if we talk about ms de roos specifically the records establish that she was an h r generalist responsible for the l e x property part of her job duties were to handle grievances doing investigations for employee relations and handling hotline calls that she received race complaints that she talked about in her testimony through the hotline which was a stablished as a policy by h m s for purposes of employees reporting race discrimination complaints and specifically the complaint she talked about were complaints they were received through that hotline in that situation it was squarely within her job responsibilities to be certain issues to corporate a chart to ms meghan zip who is the regional regional man of the h r for the company the point is that every single one of her communications was squarely within her responsibility and were speaking to people that also had within their responsibility the job of dealing with race discrimination in the workplace by sweeping aside all of ms to roost statements by claiming it being riddled with hearsay was simply a misunderstanding of the two d which says that those statements are not hearsay they feel like it of course unless you you look specifically to  of material fact as to each of the elements of my potential cause of action my cause of action for my client was a violation of the firm plummet housing act but as the justices are certainly aware there that we can also look at the case law regarding title seven the essential jury instructions are the same there in that specific case there are two different ways that the plaintiff can attempt to establish a genuine issue of material fact regarding the elements regarding the that the adverse employment action was motivated by the my client's membership in a protected class one is through direct evidence and want to start circumstantial evidence we can do either or both we have that option is the plaintiff and what i would suggest to this court is that we did to both to the underlying court as to the direct evidence the godwin case decided by this court says that when the plaintiff offers direct evidence of discriminatory motive a tribal issue as to the actual motivation of the employer is created even if the evidence is not substantial and in fact there are there is a lot of authority out of the ninth circuit godwin mcgines was not being offered the position she said they did not want another black person in there even the trial court called that statement a significant piece of admissible evidence in direct support of the plaintiff's discrimination claim and those two had a hiring authority they brought a third manager and it just shows it so she is making a statement that references statements made by look at both levels of the kind of arguing with your idea agree that it's sort of hearsay i do agree it's two levels of communication but i would not say it's two levels of hearsay because both are subject to f r a rule eight zero one d two d because any of the communications made in the conference after the three of them i was or i was really off their slice of the question ok you could take her statement saying look they said we don't want another black person here or they could it could be a statement as you know with your honor if we look at the case law as to what is considered evidence of direct discriminatory animus we don't have to prove that there was direct animist toward my client simply that there are statements made or actions that occurred that suggest that there's a discriminatory animists in the heads of the decision makers and so whether or not they specifically said them is matthews we don't want mr train here because he's black would not matter if she as a result of her perception of the panel meeting our panel interview and then the discussions there after which the defense says that she was part of those that discussion of decision making process if she came away from that and then walked out and made the statement to  de route that they don't want another black person that would be more than sufficient evidence to establish direct evidence of a discriminatory animists with regard to the decision makers here somehow i forwarded you get to the to this that if the evidence of mr ruin matthews was improperly excluded then summary judgment should not have been granted that is absolutely my argument yes and the reason is because as a plaintiff in a discrimination action the case law is replete with references to the fact that all the plaintiff has to do is provide very little evidence not even substantial evidence your best shot or versal right it is it is now that doesn't get you past the there's one more hurdle which you have to get past and that is that is that we get to the other side give them an opportunity to explain this and then you have then you have to show that there's there was there was not a textural  i respectfully disagree your honor if we do the mcdonnell douglas burton shifting analysis that's true if i come forward with evidence of direct intent animists then i go down what i call call and we don't go through the burden shifting analysis of the mcdonnell douglas test we only go through the burden shifting analysis of the mcdonnell douglas test if i'm bringing only circumstantial evidence to the table then i have to prove the first four elements my prim the burden shifts to the legitimate business reason and then the burden shifts back to me to prove a little bit of evidence of pretext but i although we did i believe do that if your purpose is given significant is there anything else says that there is or there are issues between hispanics and african americans at all levels and that's a report generated by mitt meghan's it a regional director of h r mr crisman one of the decision makers said has never recommended the hiring of african american store manager host did not hire a single african american store manager during its massive hiring in twenty third will you got the you know these a lot of these things have have real problems with them because they have you have no baseline you have no idea of no comparative statistics here to show you how many people apply for these positions and what the race was of the applicants and i do agree with you in that regard but it's for my plaintiffs the burden to overcome being so small all i have to do is have the evidence that creates the inference discriminatory animus and i've satisfied my bird and so that's why these are pieces of evidence of philip and your argument is if you presented this this evidence and the other side didn't say anything that we would that we would have to see the grand jury judge want to give a directed verdict if the other side didn't say anything no that's not what i'm saying all i'm saying is i am trying to say and how do that satisfy your burden of proof if that's not the case i don't have a burden of proof i have a burden of producing evidence and that's the key all i have to do is come forward with it with evidence that is very small not even substantial in order to allow me to take this issue to a jury and that's all i'm arguing today you don't you don't have to have provide enough evidence that if a jury believed you that would be sufficient to persuade the jury all i have no all i have is a burden to come forward with evidence that is not even substantial not even preponderance of the evidence that would suggest a discriminatory talking about the very small minimum non substantial burden that i have at this stage as i understand you brush aside mcdonnell douglas you're saying by god that evidence should come in and about ms matthews i'm home for that is exactly true we only talk mcdonnell douglas if we go to our secondary what i call call in the i'm not really talk that much about it because i believe we have very strong evidence of direct discriminatory animus and if anything that matthew statement them we didn't want to put another black person in there because christmas hernandez i only decision makers i would submit that would be problematic for granting summary judgment but she did say that in the first one matthews didn't say that all but put that aside f see helpful to have it here to look at which would have if you had cited it i don't have it to look at i have to take your word for it opposing counsel doesn't have it to dispute but it serves well let's just talk about the general principle so that we so when you have an employee who's testifying about what another employee is testing not what another employee's test is testifying or has stated and the rule is that in order for that statement to be non hearsay or an exclusion under either one of the today which is the provision that mr patterson was speaking about it needs to be something that's within the scope of the individuals and when it so there we're not sitting there you know talking about baseball they were talking think if you take a look at what mr rowe as an each other manager and i think mr patterson fairly states that when she would receive complaints perhaps raise complaints during the course of her of her job that that might be something that would be in the course and scope of employment but she this communication but we are presuming of course at this communication occurred well assuming for the sake of our you don't think i understand that you think that you're giving me news we have to presume that to be able to talk about this is  question with respect to that statement was not whether or not there's hearsay or whether or not there was a problem with the district court's ruling he just record did consider the question was whether or not speculation about what the decision actually was predicated on w sufficient evidence to show discrimination and in this situation where you have a non decision maker mr o testifying about what another non decision maker speculated about the decision that was insufficient to show direct ms matthews was on the panel that interval apparently but ultimately didn't have to sit in making authority that was as as mr patterson stated below the only individuals who are decision makers in this case and i believe it's uncontested arma let me ask you a question if that evidence was improperly excluded you lose wasn't excluding you and we when it wasn't excluded it was considered by the district there's a there's a doctrine and in employment law that says that if the panel that is accused of making an adverse employment decision he's also the one that has made a positive and on a decision that there is an inference that the ac not done in a discriminatory fashion and that is a principle that is a ninth circuit principle that was articulated ok assuming it does apply here well because mr tregear was hired for a managerial position same panel that is alleged to have committed discrimination also in also being the same panel that hired the plaintiff that there is a strong inference that it was not committed based on discrimination and you know obviously the i think that bradley's to i think the way it's articulated is that an employer's willingness to hire an employee provides strong evidence that just wrong in the for its strong inference that there is no bias towards the protected class of which the employee is a member but not compelling it's not all it does is it shifts the it shifts the quantum of proof to an extra i think that the the phrase is an extraordinarily strong showing for discrimination so in mr patterson's reply brief in this case he states that this strong actor inference is not the law of california which is obviously relevant here since we're dealing with an f h a case and not a title seven but that is i would submit not an accurate statement was the case that mr patterson let me try again i'm not saying that the judge because the plaintiff has insufficient evidence to make out a plan especially case whether the strong say matter in france applies or not because the because the evidence in this case is only speculation by non decision makers didn't have a vote but she's been in there for the interviews in the discussions and she walks out and she says when told that the decision well i'm not surprised together is evidence is the testimony of a non decision maker about what other individuals who are not decision makers said or speculated about the decision making process and under this court's case law and under the case law of the f e a in cases such as king nonce in order to get past the prime of his case much less to get past the showing of pretax you have to show specific articula or because there was insufficient showing a preview and you know risk that all of the findings of a court even to the extent it would articulate a front page a case with certainly not rise to the level given the same actor inference of discrimination i'm running out of time if your honour's are of a mind that believe same employee in other words the predicate for the rationale is that if i hire you and then i fire you and you claim that i discriminate against i say so this is a hiring and firing this is comparing hiring firing sector is a failure to promote case so that individuals hired but then isn't promoted but by by the same individual or individuals so there's a little bit of a different scenario well consider consider hypothetically that instead of offering mr turner the managerial job that he got at that they had hired him for the managerial job that he wanted and then had demoted him a week later to the position that he got under that's factual scenario where mr turner would end up in the same place within the organization the same actor in france would say that because hosted hired mr tregear was willing to hire m the fact that he ultimately ended up in the job did not end up in the job that he wanted but nevertheless the same actor in france what a pawn and although these two are essentially collapsed into one hiring decision analytically i think there are the same there has to be sung something some effect that that host decision to hire mr tregear the individual accusing them of discrimination to our managerial job at host where he was supervising more than thirty employees and running two restaurants has to be some to address number one the new the word decision maker is nowhere in the federal rules of evidence eight a one b two d i already talked about the what the requirements are i think that my opponents are making a much higher standard to somebody is an employee you know it's of witnesses meeting the board oh yes you know some some group and then goes out and has coffee with another employee and says well you won't believe what happened you know what i was that would still be a conversation between two employees but it wouldn't be in the scope of client because there's nothing that the conversation for ms hernandez or the five four to five complaints these are all complaints that came in on the hotline that was her job to take those calls and to process those complaints and report them to her boss and his full art when we're talking about speaking to her manager about a bad hiring decision his decision that was may stop made on unlawful grounds related to discrimination that's part of her job and part of her boss's job we're not talking about a couple of people that are talking and having juice after racquetball game they're talking about the interaction in the office in reaction to their learning of this particular hiring decision all of these facts of the conversation have to be promoted in the employer's purposes i mean just sort of having a reaction to something is not the same as saying we're having a meeting where we make decisions that advance employ those purposes is i think that that's reading too much into f r e e into one d two d because when you read the plain language of that it they merely have to be employees and speaking about a subject with that which is within the subject matter of their responsibilities with the company that i'm paraphrasing what was mr ruin volved in this in this process at all by the problem in the long process so she called mr cheney on the phone to invite him and she had reviewed his resume yes she was the one that did the initial review of the resume and did it initial she didn't she was only employed by host for about six months is that correct she was a short time i'm not sure if it was that short but it was a short time and she was terminated by host yes but do you know why i don't know if that's in the record i don't know i'm sorry the only other thing i wanted to raise was the idea that the same actor doctor and it when you're talking about i want this level job and they later hired him for this level job that's not the same actor doctor and in fact that's evidence of an adverse employment what is the time for many of your position yes but i would take it before i was a lawyer i was a grocery man i was in the produce department and you have a store manager you have a department head and then you have an assistant department that this would be akin to saying you're not you can't be the store manager but you can be an assistant department head and work yourself up some day and that is an adverse employment action if you didn't get that upper level position but was offered a position to levels below the one that you were trying to get and should have gotten had there not been race discrimination involved thank you very much thank you