non african american employees by the boys and girls club were handled differently than the situation with him i'd like to reserve a minute and a half for a rebuttal essentially it is our position that summary judgment we had promises of specific treatment in specific situations that certain steps would be followed if in fact there was a performance issue the record indicates that there was an effort by mr johnson's manager gene anderson and rick eld who was the chief operations officer to paper on this johnson's file on the date of the terminations by creating documents that reflected the counseling sessions that had occurred now the boys and girls club policy specify that when there was a performance issue for an satisfactory performance and this is a page one  but with the exception of i don't believe that mr johnson has acknowledged that he understood the app and will prove vision after he had completed his initial period of employment because  consideration of the conduct of the parties in consideration of the other conflicting language that can change within the manual and specifically the conflicting applied for a non white employee  guess i think your strongest argument here is has to do with his wrong full terminations based on race discrimination and what i would like for you to tell me and you started to talk about the papering there's also indications in the record over that there were there were requests and discovery and it wasn't i never got to the next you know allowing them to justify it you never got the pretext right not having the program up and running this is done to this after he had access to the bottle after he was continued to do this duty uses the athletic director he was assigned  to indicate that they had given him these warnings when in fact that had not been done they were being told to make sure that the financial match in these things documents that they were putting in and that again they were they were told in the e mail from rick field the chief operations officer make sure the fonts matched and include lack of recruiting we know that he was not on the lack of recruiting is false because the person that he had recruited was the person that they put the to replace  won't the fact that this document appears that he was supposedly given in september prior to the battle lab even being open prior to him even being removed of his duties of the recent discrimination the racial discrimination is you know comments by mr anderson i don't understand you people i don't understand their kind of american standing around a photograph of an african american woman saying that this is not what we're all about to the other people in the organization that's an indication of some bias we have the issue of mr french saying you know he lost the skill tech disks and mr johnson saying i didn't lose them you never gave it to me except promise and given to me and i had to create my own criteria you've got these false reasons being advanced for is determination and these are for a jury to sort out these are issues that are not appropriate for summary judgment mr johnson on the claim that you didn't have rules and regulations yet people who are in the court are in the computer lab said that he did and that they were in force and they were posted on the wall the fact that he had a one hundred seventy five kids out of two hundred twenty involved in his program sir all things that suggest that discrimination was motivating their behavior in the fact that they were creating these documents that he was denying he attempted to get his personnel file the next day and he was put off saying you know you can't have your personnel file you have to come back later and he insisted that no i want to see my personnel file now and then these documents that he was supposedly given use i save your time  of the members of the club racially mixed of the members of the club is very diverse yes there are very diverse very racially mixed more so in the other clubs than this club this has a number of discrimination one of them is retaliation and the last is failure to comply with the terms of the handbook it's those supply and you address questions as to both of those i think i'd like to start out with what  old was the strongest argument and that was that there was race discrimination against i'm just i'm not speaking for the panel i'm just saying and looking at it that's the one that's giving that's the one that's giving me the most trouble in terms that that if let's just say if i mean obviously making a presentation case is not that hard and if if if let's just say if we assume i think is primus facia case was ok he gets terminated and then he also puts in evidence that a caucasian gets fired over an african american that are several ways to two aged two to replace him and that's the way i understood the justice prime a facial case and then there are justifications made by the boys and girls club about his performance and the way i understood the body of pretext the things that i was picking out  time there were some comments that were that were made over i don't understand your culture i don't understand you people this sat there or this that in the other there was a picture that was put up there was testimony  about handling the children differently then there was the personnel issue in terms of well the company justified same what we have to get everything drop from the out you know drop things from the get them into the main personnel file absolutely and i i don't think there is any indication that any of this relates to race in any way the comments fine mr anderson don't actually show a discriminatory animus they may show a lack of person but ca or they may show that he doesn't understand the culture but that doesn't show that he discriminate discriminated on that basis nor was he the only one making the decision john french was involved in the decision as well as indicate in the record john any discriminatory animus by these people involved i think in fact he relies more upon the circumstantial evidence approach that this is a mere pretext by showing things in regard to whether or not the memos were in his file at the time whether or not this is this reference to font which i think if you take a look at the memo refers only to a collaboration by a number of people on a trauma nation letter and whether or not the don't think i don't think that meets the standard but here's what i think is the important consideration in all of this in the ninth circuit and other jurisdictions as well there is a strong inference and i'm using i'm quoting that term a strong inference that there is no discrimination if the people who have hired that person are also the same people who have fired that person within a short period of time there's the bradley case in the ninth circuit there's also the coleman case in the ninth circuit and the bradley case sized to the low versus j v hunt case which is of the fourth circuit i believe judge trott said that in quoting yet another  hiring seem irrational from the standpoint of the putative discriminatory it hardly makes sense to hire workers from a group one dislikes thereby incurring the psychological cost of the so shooting with them only to fire them once they are on the job and then he goes on in his own voice judge try to say we therefore hold that where the same actor is responsible for both the hiring and firing of a discrimination plain of and both actions occur within a short period of time a strong inf arises that there was no discriminatory motive and in that bradley case there was no rebuttal for that and as a result summary judgment was uphill which does not apply to your case he started in ninety five yes he started in ninety five anderson was a supervisor at a certain period of time there's nothing to indicate that there was any problems between them i mean johnson was under threat well i guess the other thing is it seems like he did really well as that manic director of the problem started  correct and i think that's exactly the problem as that director he was very capable as he was not and therefore although he was promoted to that position and was promoted that position by anderson and french together it was their decision and they promoted him and you don't pay raises leading up to that they promoted him to that position and six months later they pulled the plug there is a strong inference that under those conditions under those circumstances there is no racial discrimination involved and i think that's perfectly clear why wouldn't there be some conflict between them before that time or why would they have promoted him to buy if they were intending only to fire him because of his race he was exactly the same rates on the day that they promoted him as he was on the day they terminated there is no basis to overcome that strong  inference and that i think alone is enough in this case to prevail on that question so although there are fact questions and i think you have a great deal of problem finding in those fact questions whether or not there's any discrimination in although there are fact questions as to how those documents may have been created or whether he was in fact doing the good job or whether he wasn't in fact in the lab when they thought he wasn't in the lab and whether or not he was concentrating  as opposed to concentrating his efforts on the athletic part of the program all those facts questions are raised they are they do not overcome in any way or even come close to overcoming the strong inference that there is no discrimination when these same people hired him and a short time later fired him for what the record shows was his reluctance to leave the athletic program and to develop for all of the of the levels the computer programmin arises and it's not rebutted it's appropriate for summary judgment in those circumstances those are the circumstances we have here i certainly wouldn't say that you decide all cases in favor of defendants on the basis of common sense well i have to appeal of the common sense of the bench certainly and i think that's what the bench proposes to use but in this case isn't it common sense it doesn't defeat common sense do here this is not the argument i'm making your honor the argument i'm making is that these gentlemen hired him to be bought by a manager and they knew the day they did that that he was black but he was african american six months later and there's there's there are things in the record which support why they did this six months later they terminated him from that position how does that make any sense in the someone is hired and then shortly thereafter fired and promoting and then shortly thereafter firing isn't the promotion of pumps or political and i would say no not in this case because here you have somebody in the organization and you are putting him into the position he is intitled to certain protections under the manual i would say swanson versus liquid air and the case that the manual provisions are in a loser e they've got to be followed and then he is not in a probationary employment under the promises of the manual and you have mr johnson acknowledging or rather mr anderson acknowledging that two of three on the record that you know let's do this before the six month probationary period this out so they can put him into a position he created the nationally recognized athletic program at that branch he was not vulnerable that they move them into this new position that he applied for and then they boot him out before six months as well so you find a false pretense put him into a position where they can have a probationary period so that they would not have to follow the procedures they would have had fun and i think that's what they thought they had done but they were wrong but i don't want to set the record that supports that and the record that supports that you know as exhibit one ninety three in the record that describes the probationary process dealing with them satisfactory and probationary employees have this procedure that applies to them and so by moving them into that position and also the timing on the documents creation of the documents things that nature i would submit that there are questions of fact that are for the jury to sort out as to what was motivating these individuals in view of a strong track record previously contradictions in the record i think both of you for your argument this matter will now stand submitted the court's going to take a short recess of about five