morning your owners may please the court managed eric anderson i represent the appellant tammy franks i'd like to reserve three minutes for a bottle what this case boils down to is that the district court failed to apply the appropriate standard of review of review by failing review the evidence in the light most favorable to the appellate and also by failing to draw reasonable inferences from that evidence that would support a finding of discrimination and hostile work environment the reason that is is because the proffered reasons by the city are not credible when looked at in conjunction with the evidence presented by the appellant first of all the appellant presented evidence that there is a contradiction between the chief of police carlos rojas and the city's human resources manager and need a queen regarding notice of the prior complaint and that's a very significant because if chief rojas was aware at the time the complaint was received in two thousand and fourteen that it was the same as the complaint received in two thousand and eleven and that complaint had been submitted  tammy franks then there would have been no basis to put her on administrative leave and to subject her to the pattern of treatment that she was subjected to there after because he would have had doubts and known that that original complaint as well as the subsequent complaint were false there's also evidence that chief rojas was aware that the employee who submitted both complaints against tammy franks had threatened her although chief rojas denies that however there's a clear  difference between the evidence presented by tammy franks in which she clearly states that she fro haas who was her direct supervisor at the time the two thousand and eleven complaint was received that she came to him and complained and said this employee is coming to me and saying that things hanging over your head and you better not to quote fuck with me or else i'm going to get you so she was aware that this employee had previously made these threats against his supervisor and based upon the fact that he knew that the fact that he immediately requested the prior complaint upon submission of the two thousand and fourteen complaint shows that he actually did know those things were related although he that raises a very strong air prints that his stated reasons for placing her on leave were not credible because he knew at the time the two thousand and fourteen complaint was received that was not worthy of that complaint without speaking to anybody else unless he thought those two things would be related to the previous chief of police paul walters also testified that he had believed that the two thousand and eleven complaint had been investigated and determined to be without merit and that's also significant because she fro haas to justify his decision to take adverse action against him the franks claimed that he didn't think that the prior complaint had been notified the city's human resources chief ed riaa of the complaint although ed riaa testified that he was notified of the previous complaint by chief rojas again these are significant contradictions up a discriminatory modem there's also a significant discrepancy between ad right and chief rojas regarding when they talked about the similarities of the two complaints mr ryan testified that this is something that i discussed with schieffer rojas at some point after the investigation had been going on for a while after receipt of the two thousand and fourteen complaint although chief rojas testified that he discussed the similarity between those complaints immediately when the investigation was undertak it's also not credible she for asa's explanation that he needed to place tommy franks administrative leave and have this complaint investigated was also not credible in light of his subsequent decision to remove her leave even though he testified that i didn't think the investigation was complete and the city had a duty to complete that investigation and makes absolutely no sense that he would release an employee to go back to work if he  thorough investigation had not been completed and the city had a duty to protect both the person being accused as well as others who may have been harassed by her if he felt that those people were somehow at danger or anything like that based upon all of the foregoing factors that gives rise to a tribal issue material fact that the reasons offered by the city for taking adverse action against him franks by putting her on administrative leave were simply not true and that requires denial of summary judgment because there's a travel issue of material fact about whether or not there was a valid reason for doing so and the lack of credibility supports an inference that there was a discriminatory motive for doing so with respect to the hostile work environment claims the appellate also presented evidence to draw an inference of harassment based upon numerous factors first of all placing her on administrative leave without even conducting a preliminary investigation which the record is clear had never been done before for any employee much last an employee who was accused of misconduct through an anonymous letter the chief and the city also failed to provide an investigative file that the point that the appellant was essentially begging for to be able to clear her name when the record is clear that as a matter of policy other employees accused of misconduct were provided those investigative files immediately upon the conclusion of their investigations secretary it took three months or even worse than the investigative file the appellant and her attorney were both requesting shouting from the rooftops please notify the fifty employees who are under non contact orders with me that this investigation has been concluded yet in spite of requesting that repeatedly over a significant period of time that announcement was not made to those employees for a period of five months and that's really significant when you put this in the context of talking about a command staff member of a police department who needs to have the lead of her subordinates and needs to know that her subordinates need to know that she is credible and you know that she's someone that they can trust with all of these allegations swirling around and in spite of the fact that an investigation had been completed that she had not committed misconduct it would have been very easy for the city to simply tell people the investigation is completed and there were no findings yet in spite of that they failed in spite of repeated request to even make that very simple announcement commander franks was also the only employee eversleigh subjected to a blanket non contact order as opposed to a non contact order that said simply you're not to discuss the case and as a result of that it's very easy to understand why she would be able to perform in her role because essentially people were afraid to go up to her lest they might get in trouble for violating an order from the chief regarding his very broad non contact order  the claims of the chief about not being aware that plaintiff was experiencing trouble upon her return to work are also not credible to the extent that like i said both plaintiff and her attorney had contact not only the human right the city attorney but they had also contacted the chief himself and mentioned the problems that he was having and he didn't deny receiving that request from him from them yet in spite of that he did absolutely nothing for significant period of time  the fact of the matter is the city knew about the entire intolerable conditions that commander franks was being subjected to yet they did absolutely nothing about it and in that context that supports her claims for hostile work environment and related lee it supports your claims for constructive discharge because as i mentioned as a commander in a police department she needs to have credibility with the barriers but also with her subordinates and the record is clear that and even she rojas agreed with those statements and that she also would need to feel that the city had her back and would back her up if she was put in a difficult position that's part and parcel of the nature of police work in order to be in effect a police officer and especially an effective police commander the city needed to have commander franks back in in this case they showed over a period of eight months that they did not have or that in fact it was quite the opposite over a period of eight months what they did to her was that they denied her employer employee benefits put her on leave she was shunted avoided by coworkers based on allegations she could not dispute and which were not shown to be lacking in credibility until more than five months after the investigation had been completed and she was subjected to the humiliation that w severe that she was required to seek medical attention it's it's interesting and this is more anecdotal than anything but the trial court judge when we're arguing that summary judgment he asked me and this is the record that for seventy nine he asked me would you agree the world has changed quite a bit in the last twenty five years with respect to acceptance and identification of gay people and as a general proposition i agreed with him although in this case there was significant evidence before him that this particular woman this particular gay person was treated differently than every other employee of the santa ana police department when she was charged with misconduct and all anybody has to do nowadays is turn on the news and one of the leading stories that you're going to hear is going to be about rampant harassment discrimination and things of that nature in the workplace what i'll say is one of the great highlights of my career as i have a published decision from this court that was authored by harry progress and and harry progress and he let his jurispr guided by based on the recognition of the dignity of each person the record is very very clear in this case that the dignity of tammy franks as a police commander for the santa ana police department was not recognized and there's significant evidence that the city was dishonest regarding the reasons that that put her on administrative leave and the reasons about not giving her the administrative file not notifying the employees under non contact and not doing the very simple and basic things that she was asking for and that the chief said he actually would have done had those things come to his attention as a result of that she was humiliated she wasn't able to do her job and that's the exact sort of behavior that will title seven are designed to protect against on behalf of people like tammy franks who have a protected characteristic good morning your honor diana field representing the city of santa ana pelley in this case as i listened to mr anderson's argument i was struck by the complete lack of recognition of the standard in this case when applying the burden shifting standard to the discrimination case which is miss franks needed to present substantial and specific evidence the district court was very clear in its order that the evidence that was submitted did not come close to inferring that any action was taken against her on behalf of either gender or sexual orientation there seems to be no dispute with the law that was cited by the court or the law that was cited in our briefs that the burden shifting standard applies and that these are did it did occur on this pretext or on pretext yes and that is what this these substantial and specific burden applies to and not so much a totality of the circumstances that that appellant would ask the court to buy into that is not the standard i know it was  brief and it seems to be what is being unseated here but it is specific and substantial evidence and i would like to cite the court to thought i did not ok could you just write down the cite for the case and hand it to the clerk afterwards yes yes i will and this case had to do with an age discrimination case and applying the specific and substantial evidence burden and it indicated that the plaintiffs are often fond of quoting the standard for summary judgment articulated in the case versus the unite it f university of california davis board of trustees and in this case the because the because the plaintiffs like to cite the burden that it's a very minor burden to get past pre yes but i think in order to do you don't have to prove it at the summary judgment stage they just have to show that there's some genuine factual issues in dispute but in order to do that you need to meet the burden of specific and substantial evidence you can't just come in and hang your hat on the argument there is no other reason that we can cite to the court other than miss franks is a lesbian miss franks is a woman there is nothing to infer from the record that any action was taken against her because of her gender because she was a woman or because she was a lesbian if you look at the record and the declaration of chief rojas and commander revere you will see that that throughout her career nothing but praise and commendations were ripped upon miss franks rojas and with regards to the investigation what is seemingly being asked of this court is that because she was a commander and a high level position she has some type of special standing or immunity from investigation and mr anderson himself brought up what's going on in society today we see people very high ra see congressman we see national newspeople we we see very high ranking c e o s being accused of conduct that was the type of conduct that was in this anonymous complaint you can't just say this person has a special standing this person wears a white hat i like this person better than the i think you have to engage in a biased  investigation and there has to be an investigation and their argument seems to be there should have been no investigation because of her status because she was the person who was liked and the department known and unknown witnesses and victims so it was very very broad in terms of what it was alleging and it is not something that the department could ignore and say well we frank so we're not going to have an investigation that would be the proper action for the chief of police so he did what he could in terms of removing himsel rear revere memo talk about what she did as a lesbian as what they are complaining of well that doesn't mean she was treated differently by the department because of it those are the allegations that were that were written in the complaint that doesn't mean the department acted against her in a different way because of that she was treated exactly as other investigations were treated and she was given her information with regard to the conclusion of the investigation in a very timely manner much more timely than other investigations if you look at the declaration of chief rojas if you look at the declaration of christopher revere if you look at the declaration of that raya they go through several instances where white males were investigated by the human resources department and they received far less material than miss franks did and non contact order as opposed to a you're not supposed to discuss the investigation but could still talk about other subjects that detail i do not know but it complaint and noncontact is is generally only with respect to the investigation and miss franks order was modified to state that shortly after she was placed on leave and there is an instance of a high ranking city a female being placed on an administrative leave immediately who was an employee of the city she was not employee of the police department but she was an employee is that in the record that is in the record that is and christopher reve declaration and with with regard to the statements that were were made and this franks did receive the redacted version of the investigation on june twenty eighth she was brought back to work  came back on may twelfth she received the investigation the redacted version on june twelfth along with a letter from the city attorney saying the allegations against you have been deemed to be unfounded now the city is not a position where this is information that is in a police officer's personnel file they cannot without an express waiver by miss franks release information from her personnel file that is california statute they she her attorney sent a letter saying she needs to be publicly exonerated however the city cannot do that without a waiver of her confidentiality that is california statute they asked for a waiver to the city as you know the city did not ask her waiver franks work internal affairs for a number of years that this statute this requirement was not foreign to her she was very well aware of it and she did not the waiver she had the letter from the city attorney she had the investigation the redacted version she could have shared with anyone she wanted those documents the city cannot i'm sure th banks worked internal affairs for several years and she appeared on these kind of motions that seek information from his office of personnel files that she is very well aware of the city can't disseminate this information  never have in the past they have never done that in any investigation they don't release the they could not have said anything to the fifty employees on the no contact list  unfounded the no contact orders rescinded they cannot they cannot send out of a letter to fifty employees saying the allegations are unfounded because that is disclosing the conclusion of the investigation which is confidential and her personal fight about the second you know contactors rescinded that was ultimately done yeah after five months that is true however in this type of investigation and it's in the declaration of chief rojas and christopher reeve air and possibly an ed raya that with regard to these kind of investigations when they're over and someone is returned to work the orders just dissipate never before in the history of the department has there been an order sent out rescinding an order it's not mandated it's not policy it's not is a different kind of order that never before in the history of the department been issue carding to the testimony well that is the testimony according to mr franks no i think it's rojas or i was looking at all their depositions to well the order was modified to be the standard order that goes to any bully who is the focus of an investigation you will not contact witnesses or discuss the case with anybody until the conclusion of the investigation now i would like to touch briefly on the hostile work environment claims because the argument is made that she was subjected to intolerable conditions i think that you need only look at her performance evaluation from the year two thousand and fourteen which was the evaluated her performance for the time period which she was off of work the three months and then she came back she was actually given a  assignment when she came back a very coveted assignment to work with the district attorney's office on cold cases and she worked through her retirement wrote her own a valuation speaking about all of the things that she accomplished all of the progress she made how she ran her department and it was her best evaluation basically of her career you cannot have control over that force you from a job and perform at the top of your game that those two things are inconsistent and if you look at the the performance evaluation that's in the record you will see her own statements as to how she was interacting with other agencies she was leading her department she was accomplishing the goals of her department and receiver her best evaluation ever that is not the facts of the constructive discharge and we would we would submit for the court that selma's order and his analysis of the lack of evidence leading to his granting of the summary judgment should be affirmed in that she'd never tried any action to her based on her gender or orientation she just said there's nothing else i can point to so it must be this and in  judge gould's cases the france case but had to do with a border patrol agent in an age discrimination suit where it was reversed on summary judgment that was a case that included direct and indirect evidence here we have only indirect evidence and i think judge bill found that to be a close case in writing his opinion but he was able to cite to direct evidence to infer discrimination against the border patrol agent where there were discussions had with him about his retirement and there were statements made in staff meetings that they wanted young energetic border patrol agents but here we have nothing but first of all your honors there is evidence of the racks there is direct evidence of discrimination in the form of the male deputy chief who is accused of abusing his position to have sexual relationships with four female subordinate under the guise of mentor ing and the record is clear that that individual was not subject to being placed on administrative leave without a preliminary investigation or the same things that commander franks was subjected to now with respect to the issue about whether or not there is any evidence that this is related to her gender or her sexual orientation judge ward last a great question and pointed out the fact that the anonymous allegations that were made against commander franks were based upon her status as a lesbian and following those allegations she was immediately subjected to treatment that was distinctly different from all of her male and heterosexual colleagues and so that in another self shows that she was treated differently as a result of allegations of misconduct relating to her status as a lesbian now to the extent the evidence allows an inference that the proffered reasons given by the city  were not credible that gives rise to a tribal issue of material fact regarding whether or not her treatment was based upon discrimination and it rose to the level of harassment  in this case it's very it's very clear that nobody was treated the same way that commander franks was treated she was the only one placed on administrative leave without a preliminary investigation there is no record that anyone else had to wait several months for their investigative file there is no evidence that anyone else was ever subjected to a blanket non contact order there is no evidence that any other employee had to write the city attorney and the chief of police and wait