try to speak up mr mcdaniel in this case has dropped off at brought forth evidence not only of discriminatory statements by the decision maker but also ample evidence of  pretext the discriminatory seatmate you're not white stop acting white the jury couldn't find that the reason that the supervisor made that statement was because she didn't think that he is a black man should be behaving the way he was behaving that is race discrimination a jury could also dismiss it as a stray remark but your honour's that is for the jury to decide  anywhere near the summer time in other words he was let go in july and it was he was pretty bitter about when the remark was made but it was not made in june or may or at least the record doesn't you know it wasn't made right before we're going under the mcdonnell douglas frey our strongest evidence is evidence of a pretext we don't need any racial remarks even to get to a jury on on th every know there's there is actually i'm four types of evidence that are offering one is the statement and the fact that she falsely denied making the statement which shows a guilty mind the second is in the beginning she says she had problems with his performance she told h r person that it was his work that she was concerned about and when it became apparent that she wasn't going to be able to back up that statement because he had gotten a good performance evaluation that's when she switched to conduct and there's also the fact that the evidence of his misconduct is not specific at all she can't say what he did  not say specifically what he had done what was his misconduct the court has held that you can find such a vague accusation unworthy of credence because there's no specifics the only specifics that were given were that he rolled his eyes he sighed and he had a loud voice you don't get f yes but enough not afraid for violence and also what i think is an important it's what the jury thinks of that and finally a very important fact is that the supervisor made the decision she said that in her affidavit that's not true and this court has held in evans vs sebelius that even just controversy over who made the decision is agency employees discussed whether they should call security several female staff members testified that they felt afraid of mr mcdaniel particularly because they believe he was allowed to carry a gun for his duties i mean judge making a comment about someone's race like stop acting white you're not white and you have her whining about making the decision why would she say she didn't make this decision she was the supervisor she has no reason to say she didn't make the decision other than the fact she didn't want to be tagged with it because she had been on lawful reason for making that decision i see my my time is up because i i need to reserve i don't i'm happy to answer anything further we'll the morning may please the court jane lines from the u s attorney's office on behalf of the secretary of agriculture u s d a ended opponents probationary employment because some of his coworkers and supervisors at times perceived his conduct as disrespectful less than professional the district court properly entered summary judgment after discovery because the undisputed evidence in the record supports the nondiscriminatory reasons for the agency's action and does not permit a reasonable fact finder to infer an unlawful one i'd like to start with a simple proposition perhaps but miss reno argued that the denial of responsibility for the terminations by the state somehow prevented summary judgment here and that is not the  case that she denied the statement in an affidavit she explained in her deposition at fairly considerable length what she meant there was i didn't have the authority in my position at the time to sign the terminations letter and so  i just to her signed it because she had the authority but she accepts responsibility for being the person who chaired the meeting even put at the meeting and then made the decision she agrees with being the principal person she says she's the final the site or she says it's a collaborative decision and so far she had feedback from other people but she accepts full responsibility for the decision to terminate mr mcdaniel and providing more detailed information once the litigation against does not create a genuine issue and material fact in the record and that's the harrison case and terms of the issue of the conduct there there's quite a unrebutted information in the record about his conduct at this meeting it was a performance standards meeting and sort of the highway and mr mcdaniels account of that meeting is on page sixty of the joint appendix and he doesn't any of the language that his coworkers reported that he sat with his arms crossed he made inappropriate comments which in this state described as smart alec he during her deposition another employee described him again as sitting with his arms crossed and having a sharp stare and miss debtor who sat directly across from him said he threw himself back in his chair he rolled his eyes he sighed and she she described that conduct as disrespectful and negative an argumentative so  apply when you're probationary hence why i wondered why you qualified your state i highlighted a bit because there is a difference if this were a case where he was a permanently tenured employee it might be a slightly different picture i don't think it would come out differently  that the statement quote for a young black man smart like you we are happy to have your expertise i think i'm already paying you a lot of money and that and there in our court concluded that that was sufficient direct evidence to go to the jury yes your honor and that's because it's directly tied to the decision that is under review it's a person who is seeking a promotion and that is what he is told basically is the reason he's not getting it so it's directly tied it is it's direct evidence of animals for one thing for a young black man under the supreme court's decision was tyson foods a young black man is particularly problematic and there's also evidence and that i see a tow case that  the majority of work had been used by another employee so with those two facts that's a very very different case than what we have here which is at most and a big us comment made by a decision maker but unrelated to the decision of and no your honor because in light of all of the evidence on this record it would be a reasonable inference that there was an animist that infected the decisional process and some of the other evidence that makes that  unreasonable is that myspace recommended the determination of a white employee for very similar conduct that is how he conducted himself at meetings with management and she is also an african american that doesn't prevent of course an inference but course of it's in the course of dealing with him as a supervisor on some things perhaps the sort of remark that is designed to try to help him let let him know that she is having difficulty with him and he describes having difficulties with wasn't trying to be coy or smart with her so there are a couple other occasions where he's having difficulty communicating and he knows he's being perceived but doesn't that last statement he didn't see the benefit of the reasonable inference that at this point i'm sorry which is the last statement what he said he wasn't trying to be  with her he gets the benefit of a reasonable inferences based on the record but it's hard to draw any reasonable inference from that remark out of his mouth other than if you put it in the context that he was having difficulty communicating with people at least  finish sorry you can be fired for any reason so long as it's not unconstitutional or a violation of title seven and maybe there's a mother statutory provision of distinguish that on the ground well tell me how you distinguish i try to distinguish it because the statement is a statement on its face for young black man smart like you we are happy to have your expertise i think i'm already paying you a lot of money is directly connected to the decision not to pay him more money to promote him and it is direct evidence that and unless particularly because of the use of the term young black man whereas in this case we just have an a s remark about race and title seven doesn't prohibit mention of race in the workplace so do we know in that other case what the timing it's connected with the explanation he's given for why he's not getting a promotion or when did it occur i don't know how far into his employment that's one point yeah i don't know how foreigners employment he saw the promotion i can't recall that much i don't even mention it in the record  viewing the employee and then when the employee comes up for promotion he doesn't get it and that was enough to say in summary judgment is an appropriate  i'm asking you whether you view the cases that way or not i just want to be clear about that i view the cases as requiring a director when there's direct evidence of animus what you're i think you're talking about there it's direct evidence of an unlawful bias then i think you're in the category of cases were summary judgment is not allowed and it almost doesn't matter in terms of the timing of it if there is a yes if there is direct evidence by a decision maker i think that's an important clarification a strong remark by a coworker who has nothing to do with the decision does not take you out of summary judgment but that is a very very different from what we have in this case which is a right thank you it's ok you know i think it's very important that you have to look at the totality of the evidence the statement that we're offering we of knowledge it is directly connected the first case arm was taleb there of verses four in two thousand and eleven and on promotion was an issue and the bias statement was a how men bonding in the office over serving in the military had nothing to do with an arm or motion the second case morris versus mccarthy just last year in two thousand and sixteen it was decided that the statement about another employee that a white woman won't give him a promotion therefore i'm going to give him the promotion that that statement was part of the quantum of evidence that needed to be considered because it was the decision maker who said it just as it is here  so you don't really get employed employers decision makers saying i'm going to suspend somebody because they're white or i'm not going to do this because he tries to act white but here you have she made this statement to him in private that gives you a window into her mind but what is the evidence that it just had to do with his delivering something as opposed to e mailing well that we don't know why she said it but mr mcdaniel task why ok i'm trying to get the context in which the senate yes that is the context in which in which she said it i mean what what could a reasonable jury think that statement meant that in that context that the way he behaved was to proper for a black person and she didn't appreciate i mean that was the impression that he had that she didn't appreciate that his acting properly yes yes that that he was behaving businesslike and handing her a formal document instead lawyer because of this condo and the statement on with your ally is where she's saying he is acting to properly to respectfully so i'm trying to understand how you're connecting that to racial discrimination you know i would trust the jury to sort out how i'm stan but juries have to be reasonable and we have to understand that a reasonable jury could and that's why i was asking what your theory was what if you could go with another theory that she thinks because he speaks loudly and rolls his eyes that that's acting white i don't know i'm just focusing on the evidence and you write a trial court decision on your own saying where we have to be able to prevail upon those findings when clearly erroneous i'm sorry it's a do novo review so what what i'm asking is that this evidence be considered in the context of the other evidence the shifting from performance to conduct right and that's my mistake but i still don't understand the connection between the statement and the race rate being terminated because of his race will she heard that statement i understand the disrespectful condom to be the only the reasonable inference to be drawn and it's not the only one would be stop acting white means whatever she's doing i don't know which thing she thinks is the equivalent of acting white she's saying she's making a racial statement that you're not acting the way that black people should act and you remember she's african american also so she is telling him but is summary judgment right so you have a burden here we have the burden to show an issue of fact right and here we have in addition to evidence of pretext we have evidence of a racially in me i mean it's obviously based on race because she said stop acting white if he was white she couldn't say that to him he would be just fine to her  inference is she's saying what because he's black he would be lazy and he just rely on the e mail as opposed to delivering the document personally i that that could be an inference that i just i have to tell you i wasn't sure what was ended here i don't your honor i'm not sure either but i do trust the jury to figure out what what it why she would make such a statement in the she denies making it so that that's another fact gender situation and you have a woman who was talking too much like a female you act more like a man or or you're acting too masculine you're it you're acting too manly you should wear nicer dresses or something you racial she was thinking about race when she was thinking about the way he acted in the workplace and then she shifts reasons she denies that that she made the decision and yes she may have an explanation but the jury gets to decide whether they believe her explanation for your time so thank you