says that she submitted one of three screenplays for the lincoln valise for t v movie and that one of the top three screenplays that were under consideration for the show was hers wasn't selected for whatever reason but that no i was i thought work and i was discriminated against well she's played more than that with regard to the happy program she's shoot she thought the work she was directed into this half pay program there's a have knowledge that the defendants say the program is not exactly as we say just not an issue that should be addressed in a motion to dismiss as judge let's did in this case he dismissed and took out the heart of the an independent producers and that goes to partially the summer one of the summary judgment issues for contention he should be actual employee or an agent for c b s in that regard and that's what the second charge is about and there was a third charge and that had to do with land the writers guild did not stop speaking to the plaintiff based on her charges and her other act protected  read through all of his discourse and he didn't seem to say you know damn the torpedoes i'm going to do what i want to do i don't care what the ninth circuit says he might have expressed some views but of course the ultimate test here is whether he follow the law which is what we're trying to look at rightly and a summary judgment contest so you know there was discussion about his law clerk which turned out to be kind of a red herring in terms of the which which claims the focus and sort of already addressed that with them when i was talking about the charges the charge number one covers the discrimination right where what about the retaliation but there wasn't anything that evidently in the discussion or the description of the of the allegations that would have led somebody the e e o c to think that there was a retaliation claim here we didn't file a second we didn't file a second complaint with the e e o c or anything else that would sort of clarify what we're alleged to have done or what we did do that it's clear from the record is that in one thousand nine hundred three we negotiated access program with c v s which assigned to our industry wide agreement of respects as to the amount of kind people can be kept in the trainee classifications that they can only go through sort of the training program once both importantly that if they do real sort of journeyman the n f t h a n a so again after all these years we really are here wondering what it is that were alleged to have done this isn't a hiring  tapes unions can violate the discrimination laws in the operation of the hiring hollerin those cases where contractually they do exert some power or authority over hiring much it's made about membership about things that may have been harrison and of course there was never any administrative complaint filed about racially hostile work environments or anything that could be construed as har one of the issues that was raised last by counsel for morning and that is the craig anderson issue because that is an issue that i think illustrates the defects that continue to afflict this faction can lead to very dismissal and lead to the summary judgment motion it deals with in this case the question of exhaust the exhaustion of the administrative remedies with respect to the craig anderson issue should be deemed to have occurred back in nineteen ninety five with that  complaint well if you step back and you look at when the craig anderson incident occurred late one nine hundred ninety nine what happened in the interim what happened in the litigation in the litigation when the crane andersen incident occurred the case in the district court had been dismissed already been issue years earlier the complaint had been dismissed over a year had passed between the incident and the case having been dismissed and i'm not sure that's what led to our appeal of that we think that the judge gave you any and he didn't give any written reason for the idea that i have seen to give any oral reason he gave no oral reasons no written reasons we believe that it's clear i think that the them on to dismiss and the summary judgment motion that disposed of the case i think as far as he was concerned and i think that he never had to reach those other issues and i don't think he ever did but again there discrimination because all of the the hondo all of the allegations in the complaint are incorporated into the retaliation cause of action and the count and so to that retaliation claim and also dealt with the frank dawson incident there was a record with that was created with respect to the craig emerson issue and there was discovery that was record that would support a cause of action i think that there is no disputed issue of fact with regard to the craig anderson issue craig anderson never ever heard is nothing in the record that would dispute that and the record is clear that mr anderson made a decision among three writers and he picked the one that he thought was best for that particular project and there is nothing that would dispute that so with respect to the summary judgment on that case not only does the exhaustion i think dispose of that but a summary judgment motion is a motion that should be affirmed because there the judge correctly decided that the issue on the record this machine if is the is the third that are not before the court today that are still alive there are there are no other claims that are alive there are no claims at all that are alive because the judge disposed of all of the issues the disposed of the entire  case even though he did not decide the case on exhaustions he did decide all of the cases all of the issues on either the motion to dismiss or the summary judgment motion now let's let me ask you then about the motion to dismiss the cause of action the only decision the court the ninth circuit made was to give the plaintiff an opportunity to go back to amend and the allegation that the plaintiffs counsel referred to was an allegation almost almost verbatim it appears in paragra fifty fifty eight fifty nine and sixty of the second amended complaint he juggled the allegations insufficient and the district court recognizing that that allegation had previously been determined to be insufficient said to the pla what what do you have on that do you have anything in addition what did you do to a man to state a cause of action and they did nothing because the the allegation that the plaintiff counsel talked about in talked about her being qualified but he never ever said anything about what she was qualified for she actually apply for what qualifications were necessary what qualifications did she have that fit that position what position was not filled by hiring her but was dismissed the complaint because they the decision had already been rendered that the complaint was insufficient the court in very clear terms that we agree with the case that's correct ok that's correct and you know again without knowing precisely what the judge said or just thought because he did not in any of his rulings or in any of the hearings that occurred prior to the rules coming out he did not express a view one way or the other with respect to the exhaustion issue just as judgment we don't have to reverse judge left on the ground because correct and that is an alternative ground that we we raise because we thought that the exhaustion issue was dispositive and that was  i mean there are so many issues here let me also address the individuals because the individuals are a little bit different from the entity itself there is nothing anywhere that is a d there is no evidence nothing regarding the individuals and the individuals after the first appeal were only left in on the state to hog case and  we have cited whole verses animal valley four of the proposition that clearly the exhaustion issue with respect to the individuals means that they are out of the whole case very clearly says that you  did deal quite extensively with the motion to dismiss and the the context of the summary judgment motion should be you should keep in mind what the summary judgment motion did when the summary judgment motion came in and i recommend that the court go back and look at the frank  of that happened the the things frank doctor says are amazing he doesn't speak that he can't recall saying anything  like that to the plaintiff while i do not remember it it is possible that i received a call at that time from miserables art and she said something to the effect that hey can i come in and i said something to the effect come on in and in paragraph nine he talks further about this meeting that the context of this case certainly has to be kept in mind this case is a case that has been pending for a long long long time this report so kept that in mind when he for required that they point to come up with real allegations and some real facts to the extent that it had any they have had a funny of opportunity to amend the complaint to allege isn't change paragraph this is the same case there's going to be paragraphs in allegations that are the same it would be fraudulent for us to come in and file a complaint that was completely different because it wouldn't be the  of discovery and these are just facts that only defendant can know she stated in the complainer it's written in the complaint that she applied for a position and to go beyond that under a case of such a sparrow