good morning the st case for argument this morning is questionably versus team county and mr parker you may begin although i'm sure you will correct me on the pronunciation also are you able to link in to the video so that you can see yes i am that i don't have the capacity to do that where i am right no problem i will give you this kind of  i thank your honor them a please the court this is a case where the district court ruled that there were no material facts in the issue as to whether john quinn sally was discriminated against because of his race at the time  at the time i presented my my written briefs i was proceeding under the assumption that in i'm one hundred and eighty one case the standard was motivating factor and that issue has been decided by the united states supreme court so then it's no longer motivating factor as announced by the th circuit but it's it's a but for a cause but i think it doesn't make that much of a difference in this case but that's not what was argued in the briefs i just want to point that out you maybe maybe you could then because the recent case from comcast came down require you to plead and prove that that was a but for cause tell me then do you believe that the evidence of the records satisfies a buck or causation standard i do that i do because because i think if it were not for mr quinn sallies race or ethnicity he'd still be working for king county it's difficult because when i briefed the issue and i argued in the written format i was making the i was using the motivating factor language and that of course is not the language that we're going to be using cover you still seeking the whole the defendants personally liable or are you intending to sue them slowly in their official capacities about both  i believe so all right let's change to king county you stated in your complaint that king county is strictly liable for conduct how does that square with the federation of american african american contractors which helps a plaintiff must show that injury resulted from either the official policy or  custom well actually i think my argument is that think how he had not noticed both by from ms tippett selling his complaints and by complaints from other employees that the environment the work environment was infected by discrimination and they didn't take any action but the problem is that if you're going to go against king county and follow our prez of them in the one thousand nine hundred and ninety six you've got to show that the injury result of either from an official policy or custom at the municipality has and you didn't alleges and i don't find any evidence there that supports it well i agree that we did not allege it but i think the evidence is there because what is going on with the evidence what is the evidence then that you think could support the finding well for one thing we submitted declarations and from congress podium franking and ground showing that on several occasions management was informed of racism away up until two thousand and fourteen if you're aware for a long period of time that racism is existing and you don't investigate you don't do anything about it that becomes the custom of the in this apology and that's your argument that's my argument with that much of that goes to what you earlier said is really a hostile work environment but as i understand it there you don't have a hostile work environment playing here isn't that true that's true but this is a very unusual case in that much of the racism or discrimination that was being practiced mystic or sell it was not directly aware of it he would he was not aware that people were making fun of him and calling him monkey he was aware of some of it maybe he was not aware of how widespread it was and he certainly wasn't aware that other people had reported this to the higher ups including the head of the department so i don't think that from what he actually experienced it would qualify as a hostile work environment but when you look at all of the other information that was given to management including the person who made the decision to fire him i think it's enough certainly to be is enough to survive summary judgment yourself this is judge when asked to your claim again tell me it's really based on a failure to act i certainly individuals within different supervisory positions is there any indication in the record that any of those one who made the decision he actually fired him but you didn't sue mr vestal did y i don't believe so definitely tom jones and over mr valorous i mean that i think the judges questions pretty important because frankly i don't find any evidence that they have any final policy making authority or where in the record is there any well the head of the agency at the time was mic great is there evidence that they have a policy making authority well i don't know who else there would be that's the very top of the agency when you when you go after these defendants you seem to treat king county and all the defendants as one rather than making a direct argument about each defendant and so we kind of have to parse together what you're really could have direct authority but he did have something to do with the stars i don't think that if work if we're going to try to impute blood below the county i don't think that the people who are supplying king county with the information that i consider to be discriminatory have to have a set making authority if that's how can county make this decision by taking a look at what other people are saying what his evaluators are saying about him and then make a decision as to whether or not he's competent i see let me ask you this then use again you're alleging all these against king county and all of the family says one what it's just a minute let's take the st extension he was one who was involved in the st extension right he was the one who was involved after the horseman issue sally was arrested on the train he was the one who had to make the decision and he said in that situation that the officers who were asked the  the train were the ones of fault and the only reason that your clients conduct was even at issue was that it was not appropriate for what they would expect an officer investigation unless he made a report to him which in no way indicated that an expansion of the i r s like the probation was in an order in fact this is the st time and probably the only time it's ever happened where someone's probation was extended because i don't see how he could have done that have you had about a four and a half minutes would you like to save that for my final yes thank you thank you for king court property dismissed the discrimination claim because he failed to present a prima fascia case on two elements he failed to show he was living up to the employer's legitimate expectations and he failed to show that any similarly situated not protected employee received more favorable treat the retaliation claims he did make complaints which are protected acts that were adverse actions but he failed to show a sufficient causal connection between is protected conduct and the adverse actions do i do what do i do with the evidence in the record that rhodes may have attempted to cover up an think what you might be referring to is some of the hostile work environment information i don't know that there's any corroboration for d those statements but both but just a minute is wasn't this offered as as as statement made an offer to against rhodes therefore not hearsay and i guess i'm trying to figure out why there would be any objection on foundation because the witness karen rispoli had personal st hand knowledge of the statements so therefore i'm trying to say to myself if i'm decision roads participated in well your honor i don't think so and the reason is this st of all karen rispoli is not a speaking agent of the county and she's not a party i don't believe that well but just a minute she doesn't need to be f a county she's a witness she has personal firsthand knowledge of what roads have done ok and i believe you're probably speaking of something that occurred in mid to early two thousand and thirteen there's an allegation of some squabble that happened and there was a request that something to the effect that i won't lie for you or something that  employee's racist remarks and gestures directed at the plaintiff and instead reports that the plaintiff was the aggressor in the ads and it also suggests he was rude to another african american in that operators interview so those seem to me if i construed them in the light most favorable the plane have at least put together a tribal issue in fact motivation in the decisions he participated in which is i understand it is only the nd extension of that relates to discrimination but it also may relate to that as it relates to retaliate and claim well your honor there's a couple things that i'd like to point out about that and that is st of all in order for there to be a tribal issue of fact on  discrimination or retaliation claims discrimination have to be a but for cause of the terminations under contest there is no racial component to any allegation that mr rhodes or avery might have set up this is an uncorroborated allegation there's no basis information to support it and essentially there isn't be a standard that we look at trial in terms of credibility that issue was raised by a witness and it would seem to me that it's lies and th a basic summary judgment standard whether there is a trial issue of fact you may be right that this woman is not credible but we don't know that the allegation is raised as to a cover  anything that happened there's a very very little in the record about that and the thing about it is that again i don't believe there is any evidence three whatsoever of any racial animus or any retaliatory animus on behalf of the supervisors and this was not emphasized below to any extent it was not investigated it was not corroborated there is not a racial component to what happened there may well be things in the record that does have to be a but for racial component to the retaliation claim as well as the discrimination claim now unless there is evidence direct evidence or circumstantial evidence of a racial animus by mr rhodes  making his decisions in these cases in this case he doesn't create any kind of an issue of fact there have to be a nexus to the racial component could understand your argument i guess i was trying to say it seems to me that what these demonstrated that there is a causal connection and we're just arguing as judge mc is just about the credibility of the witness who made the statements and i can't get around them on hearsay and i can't get around them on foundations so i'm worried that that's a problem that your argument i understand as i situation it seems to me that your argument there is that these are all rails supervisors not probationary employees wanting to be a rail supervisors that right that's correct but if in fact this is a probationer who wants to be the rail supervisor why are these not at least on summary judgment giving every benefit of the doubt to the blade of at least similarly could be argued to be similarly situated well your out of the primary reason is there is a distinction between probationary and permanent now there is a case in the th circuit that does state this it was decided in nine hundred and ninety nine it was not published however it does have a footnote that cites to a number of other authorities in other jurisdictions that do draw this distinction between  probationary and permanent and so really what of yours so really what you're arguing is that in order to make this point i've got to rely on a case that is not president here and or make new law well your honor yes there is a there is one case that is not published and does cite to a number of other jurisdictions that uphold the rule i think that the reason the rationale for the rule is that there is a lot of different procedural protections accorded to permit as opposed to probationary employees these are employees who have passed their probation they have a history they have a record they have established themselves to some  extent disciplinary decisions with respect to permanent employees are much different than with probationary employees you do not have collective bargaining agreement protections under the collective bargaining agreement if there is any kind of an adverse action against a career service individual there's typically three steps they have a to the right to under the contract they can they can say you know i dispute this they can go up to three levels in management if they're still dissatisfied with the decision they can go to arbitration there may be a number of reasons why that disciplinary process does not play out identically to a probationary situation and that is by marilyn i understand what your argument is let me go to one of the remake one of their argument a tough time understanding why the petition problems are worse than shields and james having sex in iraq or worse than more rules with the doors on the wrong side of the train failed to attend the schedule different well you know there's a couple reasons and one is those are very clearly defined infractions and in a collective bargaining group and they do give the probationary employ some of the benefits accorded to the career service in that respect there is a mandatory one day suspension for running an amber light or opening the door on the wrong side of the train they both received that discipline these incidences occurred very early in their probationary period probably in the st two months there was no further allegations against them inability to multi task under pressure to think clearly no safety concerns with the right of way no problems with failing to abide by your supervisor's directive and so i think that they're just not anywhere close to the performance issues that mr quinn do you experienced over the course of his twelve months probation and as the district court concluded that was probably an incident in and of itself sufficient to justify terminations short of that i think there were a lot of difficulties in the late control center that was established by chief dunn who is not tainted in this case in september  he made a very interesting quote that is placed in the brief about two is is his concern is that mr quincey would not be able to deal with a lot of confusion or problems that might result in the system he's like an air traffic controller on the ground and there seem to be a lot of difficulties in his ability to navigate those situations now mr dunn made the same remark again in december of two thousand and thirteen indicating i still wouldn't feel safe john was in the l c c by himself called but collapsing and making poor decisions when things get complicated so there's a number of individuals who have no taint in this case who certainly contributed to this and i think that the right away incident was the final straw as it relates to retaliation seems that nobody disputes that the dictionary against a protected activity that he suffered an adverse floorman action we're really talking about the causal connection between the two as to the st probation violation that extension that was a week after the or the pitcher complained to jones as the terminations that was a mob that after the petitioner filed the secret play those seem to show a causation as to the  legitimate non brutality or reason but when we get to pretext what are we going to say about roads well you're one of the thing about this this this thing with  of an intense retaliate because he made a complaint and so that critical factor is missing from the section one hundred and eighty one dollars analysis and i would also emphasize that this was barely touched upon below and that it is uncorroborated and  o i think it should not be given any weight in the in the process now mr quincey they did have some protected activities and there were some adverse actions all of them however his performance  was troublesome all through his probationary period it's not as if he simply was doing fine he makes a complaint and suddenly he's getting all kinds of infractions and write ups this was a continual pattern of performance concerns that were not there's not a scintilla of evidence in the record that supports this other than a comment by somebody now there's just nothing here that any case there's any substantiation to it and i think the other part of that is that really like to emphasize again this was not a basis for his terminations the bases for his terminations were all spelled out they're all corroborated and they're all substantiated and they were never rebut it and so i believe that certainly they incident with foreign force meant which i consider the been an act of racial profiling he wasn't just voted mr jones i mean mr jones said that the officers did not act appropriately that they were at fault but he says the only reason i'm giving you this extension is because how you react is there after which if we look at the record we know exactly what he did he did not i mean he didn't do what they officer didn't try to deal with the officers he opens the door of a give the bar operator component and locked himself in there and won't come out until two deputies come to get him now that's mason that's the reason they got the dumont they got the extension and he was saying that's not how we would act under the circumstance yes that that could be that's one possibility of a possibility is that had he not complained what would have happened that he would have been disciplined as as the other people who open the train doors on the wrong side of the tracks and who had missed ample lights early on in their employment this incident happened a minute but just a minute those guys to go open the doors failed to attend they were not suspended there but what actual was given a suspension more wasn't but this this person was not suspended at all all he was done was given extra probationary dime that's it for the same kind of conduct the difference well it's not because what you've got or you're well i guess i'm front figure out how come it's covered different it seems to me if he had acted a different way then to run into a vacant operator compartment or lock yourself in there not come out until two deputies would come and all involve the train that event point jones would have done anything because he said right in his report the officers were fault mr parker whether the remedies if at the end of the where he was going to get is from patients st extended if they had said you know we just can't have somebody who acts in a high headed way and lock himself in the train and process this kind of a disruption on a rail but they have terminated him then what kind of protective rights did he have at that point do you trade the extension as negative but in fact it gave him an opportunity that might have prevented his being fired isn't that true well except for the fact that the longer you stay on probation the less time you have where you're protected by the union and that's the argument that they were making that we can't compare mistake with selita other supervisors because the other supervisors were permanent and they're protected by the union  not paying attention but there's one more point that i'd like to make before i know i'm running out of time there's one more point that i like to make with respect to the primus basic case it seems to me that the th circuit's prim was actually and the summary judgment analysis because if part of the problem a face a case is that that the employee has to show that there are other employees who are treated differently because of their race if that's part of the problem face  case that would end the analysis because if you have evidence of disparate better treatment between yourself and other employees of different races there is no way the summary judgment could be granted and so the going further w time but i want to see if there's any additional question it appears not and i was just saying both counsel for your argument the phone argument quite well we could hear you understand you and appreciate your arguments the cases with sally versus the is and then we'll take a short break here well we get the counsel for the next case and i