good morning steven montoya here on behalf of the appellant chris morehead you know i've been doing this for almost thirty years and i'm still always anxious when i come before this court  i'm less anxious however in this case because i feel the facts are especially clear and i also feel having reviewed most of the case law of this court regarding the issue of direct evidence of a discriminatory or retaliatory intent that the court's case law regarding that is relatively clear especially when applied to the facts of this case this is an interesting case it does span over many years however let's start with the clearer part of the case first because the clear part of the case really takes place in a much more limited timeframe and that is the time frame of late two thousand and eleven and early two thousand and two it really starts or becomes important in july of two thousand and eleven because something important happened in the month of july two thousand and eleven namely my client had a birthday sharon sixty years old but the for that for months and after that for months her direct supervisor who became her direct supervisor in late two thousand and eleven and who also obtained the authority to tremont her when he was promoted from chief merchandising officer to chief operating officer that would be j h oprah he became my client's direct supervisor with the authority to terminate in late two thousand and eleven when he was promoted to see however before that he was my client's direct supervisor she also reported at that time to the owner and founder in c e o of high health who passed away in january of two thousand and twelve and that was mr simon chapman ms moore had started working as a buyer having decades  experience with high health way back in one thousand nine hundred five up she didn't have a perfect record starting back in one thousand nine hundred five she was placed on an improvement plan which she satisfied buyer nor was she ever suspended she was placed upon a new performance improvement plan before she was promoted and that was in approximately one thousand nine hundred seven but she continued to do well continue to get bonuses got a few races but when she started to approach her sixtieth year her direct supervisor mr cho praagh started to make remarks and i think that the marks were  especially important because all of the marks had two things in common they all prefaced the substantive remark with a comment regarding her age and they all followed with the remark criticizing her work performance and linking her work performance to her age for example i know you're older but you need to come into the twenty first century quote i know you've been around a long time and you're older than the other buyers comparing her to her younger peers but you should still be able to come up with some new ideas once again i know you're older than the other buyers but that shouldn't stop you from being innovative and creative now remember age discrimination is just another form of discrimination the same rules that apply under title seven apply in age discrimination cases the same rules that apply under section one thousand nine hundred one apply to age discrimination cases let's let's analyze these in the general context of discrimination  well maybe you could use a drug for guess zero in on the point that you started with which is that you contend those statements are direct evidence yeah i saw and i guess i'm not inclined to agree with that so let me hear what you have to say on that yes judge wofford i think there are direct evidence of discrimination suppose a purple person someone purple skin or green skin was applied assuming under title seven for discrimination based on color i know that your group i know that you're green person but you still need to come into the twenty first century i know that you're a mexican person and have been but you still should be able to come up with new ideas i know that you're a woman but you still have to be innovative like your male peers if we were to substitute the remark regarding ms more heads age with the remark regarding her color or her religion or her gender i think that this would be an easy case and i think it's room unfortunately thank you so i certainly agree with you that evidence is helpful for your client's case but i'm i'm just focusing on the distinction between direct evidence and i guess circumstantial or indirect as well and here's it's because one of you just tell me that my understanding of the definition of direct evidence is that it's evidence from which no inference need to be drawn it's just you if you believe the statement you know that the reason for the firing was the protected ground and each of those statements you do need to draw an inference between what was said and then the ultimate reason for the firing don't you i don't think so your honor respectfully and i'll tell you why each of these statements go to the allegedly defective nature of judge moore of ms more heads work performance and the alleged effect of work performance is the very reason why she was she was fired for deficient performance she was fired for not being innovative she was fired for not keeping up and each of these statements links rage explicitly with her failure to keep up her poor work performance and your honor that is under this court's case law in mind you direct evidence of discrimination i'll give you a couple of days in cases when we go to trial in cases when we have held that statements about the protected ground are enough on their own usually it's more of a racial slur or something really inflammatory that has been said can you explain how these comments fit into that case law yes your honor the comments are discriminatory oh i've had enough women here for example that this court's decision an e o c versus boeing that's really not a slur even though it is derogatory in the o c boeing interesting list this is a stronger case of direct statement that applied to all women not this particular women moreover it was even more indirect because not only did it not apply to this particular woman but it also didn't apply to terminating her in this case these remarks applied to this particular woman and her allegedly poor job performance that led to her termination that's why we think it's a stronger case of direct evidence than the o c versus boring here's another case a relatively famous case for what i do and that would be cordova versus state farm in that case you have a supervisor just one supervisor who refers to one mexican mulder nodded oh as a dumb mexican had nothing to do with ms cordova and it had nothing to do with ms cordova's work performance but nevertheless the entire panel in an opinion as you know written by judge hawkins said that is direct evidence of discriminatory intent done mexican even though to apply to another mexican employee in another context this court said it was direct evidence of discrimination here's a third case versus university of california at decision makers in reference to the push out said hey we have he made a racial slur regarding nation americans but it wasn't dr it wasn't professor chong it was another professor what do you do when you make of the fact that miss morehead was not satisfying the performance metrics that high health had established for the buyers department well a couple of things feinerman first of all  it was the alleged discriminator who crafted the performance metrics and the performance metrics that he crafted only applied to ms more had there wasn't one standard that applied to the three buyers i didn't i didn't get that from the record it seemed that all of the three buyers were subjected to the performance metric that looked at how much the gross profits year to year judge feinerman when i said when i sit down all find that portion in the record because it's actually in defendant's statement of facts and i haven't underlined but when i come up for my reply more experience and she got paid more imply she was a senior buyer so the other one's work so she did have a unique metric it was a uniquely higher metric there isn't there is an innocent explanation but that's why when when you cannot let him make that metric for example it would be unfair to let someone who called an employee a dumb mexican or a dumb green person to make the unique metric for the only green green employee on a three person team is there anything in the record about who replaced her no no however there is something in the record interesting lee one of the ladies who didn't perform objective morehead when she didn't meet her second performance improvement plan she wasn't terminated they found another place in the company for her unlike ms morehead moreover this individual her name was p instead of being only given two months to come up to snuff she was given three months when she she did complete the first improvement plan successfully the second one she didn't complete successfully in future shouldn't when she didn't complete it she was record cites for that last proposition yes your honor thank you you don't have them to know but when i stand up i will tell you i'm going to write them down i'm going to recycling both of those records i said to thank you thank you let's hear from counsel for the defendant thank you one the williams on behalf of the high health i'm going to enlist the call the panel has questions can confine my comments to the claim which was addressed earlier to the extent the question is whether or not this is direct evidence or not it is a little different argument than was presented to the court at summary judgment and you get that a little bit from their brief but it's a little different but i'll address that here we do not hand the type of we dick eula statements that you have in many of the cases that counsel cited i f we give ms morehead the benefit of the doubt we have statements that yes her age was referenced in terms of younger people but we also have a history here and for example the record shows in the district court found that going back as early as one nine hundred ninety seven before anything happened the record shows she was criticized for her technological skills and threw out the employment there are numerous references to her having problems in terms of technology but it seems that she got promoted she got raises it seems like her problems couldn't have been that significant the issue is not judge the issue is not whether they were significant the issue is they all predate any alleged ages statements because in order to evaluate the direct evidence you have to put it in context and that's the reason why it's not direct evidence because when you look at the statements in the cases coun cited these are statements that are offensive they are jokes they are negative statements the one case counsel mentioned were there laughing about the pronunciation of someone of of  asian descent that is not what we have here we have three or four comments over a period of time she alleges that those are just examples of comments that she made that were made to her over and over and over again right she has every opportunity to tell the judge and summary judgment what comments were made it is not the time to withhold it only give examples but but didn't she allege that there were so many of these that she couldn't even remember all the dates and times and examples exactly because they were all of this nature and they were repeated yes there's a difference between not being able to remember when the statements were made versus whether or not statements were made in other words a jury or judge can consider the fact that she believes there are other quote ages statements that were made that this court or the district court doesn't have the ability to determine whether they're straight comments whether they are in fact direct evidence in other words if we don't know what the statements are then how do we determine whether they're direct evidence and if we can't determine whether they are direct evidence then we go to a different analysis which i believe counsel even in the briefs and based on his argument can see that the mcdonnell douglas test was not met in this case let's just focus on the statements that we do have before us because obviously that's what your opponent statement was a direct statement showing by us toward a specific group of people there's no way to interpret that statement and as the court mentioned a moment ago that statement in itself shows a bias toward a specific group of people but the statements here don't show a bias toward people who are above a certain age i disagree and so do the district court these case that i know of that i can find were statements such as these were found to be direct evidence as opposed to straight comments because they don't go to the heart the statement itself doesn't lead you to say this person has a bias toward people of the sort of their they're definitely not as inflammatory as the statements in some other cases but why i talk about age at all i mean it i was trying to think of what exactly what kind of epitaph there would be for aids i mean i'm not sure exactly what word would have been inflammatory in the way that some of the words in other cases were inflammatory in this context it seems like at least the employer was mentioning a context where it doesn't seem like it needed to be mentioned at all and outside this court room i would probably agree with you but if you make that jump that any statement related to a protective group gives you direct evidence then we're basically throwing away all of the case law that makes a distinction between straight comments that don't get to direct evidence and those comments which courts all across the country have said our direct evidence but we have more we have more than that here it isn't just straight comments about it it's straight comments suggesting that because of her age she can't do her job i know you're older but you need to come in the twenty first century what that's conveying is you're old you can't do this job anymore because you're old i do not believe i believe that comment in of itself does not raise to the level of  it's old major piece of wood just fell on my leg but everything but we do not believe that these comments why not stand because they do not show direct negative implication of someone who is ages they are quite different than saying you are a dumb ass you cannot say i know you've been around for a long time you're older than the other buyers but you still should be able to come up with some new ideas what that saying is you're old you have old ideas you can't come up with new ideas because you're old in all due respect i disagree i think that says that you've been here a while but you need to continue to grow you need to continue to perform as others are performing and we can differ about this other people in the company as well as myself look around and wonder whether or not can keep up with the other younger buyers the younger when you're old so you can't keep up with the other younger buyers and therefore it's not that you're a bad employ it's you're a bad employee because you're appropriate because you said that's one interpretation means that there's another interpretation i and then it's for the jury to decide which interpretation is correct i disagree what i've said is that the statement in and of itself does not lead to the direct evidence stance or matter what circumstantial evidence you know just because he doesn't have direct evidence doesn't mean that summary judgment is granted such summary judgment can be forestall based circumstantial absolutely what i am pointing out is that if the statement in itself leads can lead to a situation where it gives credence to considering everything else we're not in the direct evidence standard we're in the analysis on the mcdonnell douglas again these statements are not close to what we find in the ninth circuit where you have found the direct evidence and that's really what the a cases about here is if you find direct evidence no one's going to argue that summary judgment would be appropriate because i have no argument there because i know this is a different case it's true we don't have a case that has statements exactly like this but why isn't it enough to have statements where you're inserting a description of a protected ground that is totally irrelevant to the comment about the work that's being made if you would you would increase the likelihood of direct evidence and you're changing the case law because comments like this in the district court in analyze this numerous cases these are stray comments these are comment that you can feel differently about they not ages comments in that sense but if this court believes any comment that you make where you insert someone's age or in many of these comments scuse me you  someone was saying you may be mexican but i want you to keep up with the white people i i can't imagine that we would instead that's direct evidence but that's that's not what was said what was said is you've been here a long time and you're not keeping that's not the way that i was that is that you're all i mean you're you've been around a long time sounds like a way of saying you're going to live a long time see that's the difference between direct evidence because being saying you've been around a long time simply means could also simply you are the most sick tenured person here you could be thirty nine and have been that somewhere for twenty years as opposed to someone who had only been there five years we're not i'm not saying these are great comment but what i'm saying is there's a distinction in the law between whether or not these comments in of itself in aids case get you to a jury as opposed to going through the make down the double standard and making that how about this how about this statement a hypothetical statement i know you're mexican but you still need to keep up with the asian buyers if not this job might not be for you can  summary judgment if that statement was made one time yes why is that because i don't think one statement like that under the law of the ninth circuit is direct evidence of this criminalization to get you to a jury and what this how about this one other people in the company as well as myself look around and whether or not you can keep up with the white buyers sent to a mexican can we grant summary judgment if that statement was made single statement yes how about together with the other statement when you start getting multiple statements like that that might be direct evidence ok well we have to i just you're reading that statement quite differently and there's a difference in the sense that when you're talking about race when you're talking about race in that context of your example there's no mistaking there's no cheney of employee there's no you can have worked ten years versus two years in making that distinction but when you're talking about aids various and there is a difference and no i don't agree that you can simply substitute the word age or older and younger for white black mexican so you are making an argument that age is different somehow no i'm making an argument that the statements in the context because when you say to an employee you're not acting like the white employees that you as a black man aren't performing like the white employee there's no way around that there is no other thing that can be set we're talking about a situation where if you have workers who have worked for a long time who are thirty eight who someone else who may have been there for three years and is forty five those statements could also apply to many of those situations so yes i do believe that in the context of the examples the switching of the younger versus older or tenured versus white black mexican i do believe there is a difference and i believe there's a difference simply because it is a different situation and it is a different that in fact in terms of that so i do think it is different the i believe the analysis that you have to apply the mcdonnell douglas and i think in that situation we presented significant evidence that she was not performing at the same level and in contrary to what can or she alleges that these goals that were set for her were  sentially just a pretext or a way to fire her well the record shows in their record is can be found at and these were all at mit and one of the keys is that the district court found that these issues were not in dispute and those can be found in plaintiff's response or statement of facts forty five to seventy sets and it's important because she met that the a standard provided they were objective and they were applied to all employees whether or not she liked the standard whether or not she believed the standard for fair is not relevant and last there is some evidence that these standards although they apply to everyone were in put in place simply to get rid of her and there's no argument she admits all of that the district court found that those facts were not disputed and i did not believe there will be any citations to the contrary so it is different with you have objective standards were you got to meet the numbers and so you're not doing different things for different people the numbers were different for the different employees the numbers weren't different m number of products that were assigned to her were different the standards were the same but because of her tenure because she was a senior buyer she had more she was also  so that the stink sion without more doesn't tell us anything in she can't simply come in nor can any employer and say i don't like the way you have assigned me my tasks as long ananas the tasks have been assigned objectives and in this case they were assigned objective lee as opposed to based on you have to go do something in the other employees a different class to not have to do that and here the record is not in dispute that they were objective lieth assigned in terms of that i believe i'm not sure that this tells me i'm over my t over now do you have a concluding my only concluding statement is i think the case law answers this question the court asked some very interesting questions really this is direct evidence i believe the precedent in this court shows it's not because the case law in the ones that my worthy opponent references are even close you can not compare those statements to what we have here and based on that using the other standard the district court summary judgment should be a far thank you thank you counsel of some time for a bottle thank you i'm looking at the excerpts of record this is your page to seventeenth and that's from volume three it's paragraph eighteen of the defendant that our police statement of facts to the district court so this isn't coming from the lines fourteen through seventeen i thought you said to seventeen i said to seventeen if i misspoke i apologize is that two seventeen is the right number yes e r to seventeen paragraph eighteen lines fourteen through seventeen mr chopra testified quote now as a buyer i could have a greater amount of responsibilities and plaintiffs being a senior buyer had the greater responsibilities of having a bit more categories and a bit more gross profit dollars than peggy as an example who in salary in her position was not the same so they had minute doesn't show went doesn't show what you say it shows well shows the the amount of gross profits it doesn't show that a different matter can terms of the increase in gross profits year to year was different well it does show that the gross profit metric was different between peggy and chris and the amount of product categories is indisputable different chris had almost twice as much product categories than any other buyer in she generated almost as much as both of the other buyers combined so it does show judge feinerman a different metric no the metric that the defendant says that it used is you look at the increase in profits year to year the percentage increase in profits and i was expecting you to show me something where  more a greater percentage increase was expected of more head then of the other two and this doesn't show it well it does sure but it does show more categories and it does show more gross profit dollars th peggy but that wasn't the metric that they use well according to mr cho oprah that's the only met you you saying that that's not the metric used however that's the only metric of record that you can  believe that is the only metric point in the record there is no other you're suggesting there was a different percentage metric or there was a standard percentage metric of increase that's not in the record this is the only evidence record which we are to construe in favor of the moving party which goes to a point that you made here's i think a point that the district court forgot you're supposed to believe the plaintiff's facts as true and if you if you take those facts is true there was a pattern of these discriminatory ages comments that persisted for a period of months and months and ms morehead goes into that  first century yes how many times did mr cho perceval once a month for years ok twenty times maybe i know you've been around a long time and you're older than the other buyers but you should still be able to come up with some new ideas unquote yes he did how many times did mr cho precede that something like that either that exactly something similar to that again or at least once a month for at least a year or two  so there is a way of these comments in on the issue of a different standard for age that read that wreath that is contrary to this court's longstanding case law that treats age discrimination the same way that it treats any other type of discrimination and the language they're all that there are racial epithets for minority groups and for other and majority groups too there aren't that many epithets for a just comments in because direct evidence is so rare discord in other courts have commented hey most people are not stupid enough to give you direct evidence that's a reason not to narrowly in trooper it direct evidence because it is so rare and and when you construed these agents remarks in mean is more heads favor i think that you first have to follow the traditional summary judgment rules take them is true and construe them in favor of the nonmoving party if you construe these which are it's easy to do biased remarks as as one way then they're clearly direct evidence of discrimination but repeatedly said for decades that because discrimination goes to motive that any evidence of discrimination precludes summary judgment so applying this court's traditional rules we believe that although this case might be a tough case to take to a jury this case was not a summary judgment case thank you thank you counsel case just argued will be submitted