the first case this morning and her first is pasadena unified school district and produces direct or circumstantial evidence of discrimination very little little evidence is required to survive summary judgment and a question of fact almost always exists this part has also recognized that when plaintiff produces direct evidence of discrimination the question of fact as to intent necessarily exists indeed even a single derogatory comment by a supervisor or a decision maker suggesting a discriminatory motive can be sufficient moreover even if an employer's proffered reasons are legitimate or true if a jury could reasonably conclude that discrimination was at work summary judgment is not warranted here cooper respectfully submit that the record contains both direct evidence of bias and circumstantial evidence of prote specifically the record shows that even before cooper applied for the college of teacher's position the person in charge of personnel at the district mary and mary had a palmer expressed by was against cooper on the basis of his disability and on his perceived need for you his complaint as he should have gotten a certain position all right that's fair enough but in getting this position it wasn't the targets that you mentioned that you gave him that turned him down it was a s board and i didn't find any evidence that the targets had influenced that board there were some may have been there why isn't going to decide the case for us as far as that position is  concerned well your honor our position is that the direct evidence of dr parm home bias combined with the circumstantial evidence that the district was attempting to terminate mr cooper at the very same time that h applying for the position so that's that's well not good but where's the evidence that this independent board was biased against your client and didn't recommend if you didn't make the cut where's that evidence the record is under speed at the outside screeners were unaware of mr cooper's disability that is true our position with respect is that the fact that the outside screeners were unaware of his disability doesn't necessarily preclude a question of fact when you have a record such as this when you have a decision maker in a position of authority who's expressing biased remarks on the basis of a disability and you have evidence of the record that the district at the very same time he's applying for the position had already determined that there were no jobs available for where's the evidence connecting the two well our position is that the the question of fact is in the very fact that one can't for klute the other let's assume for sake of argument that this independent board was not tainted and he didn't make the cut they didn't know about disability they just said he wasn't going to qualified need to set aside that was a decision that was made now how is that changed it seems to me that's where the decision is that there has to be some type between the alleged bias and that board's decision which i don't find in the record again  position is simply that that the circumstantial evidence does create a question of fact and furthermore i believe that this court has has recognized that when a decision maker or a person position of authority with respect to employment actually makes  remark that the question of whether they are involved in the ultimate decision making process is a question of fact in the dominguez case i believe this court actually held and even if that supervisor is not involved in the ultimate decision  screeners they had told him basically two weeks before he even apply that there was no job for him and his then if it's to be terminated two days after dr palmer construction firm receipt of that location the district lawyer sent mr cooper a letter saying there are no jobs for you and if you don't resign we're going to fire you and in fact they did fire him on the basis of his disability because he couldn't classroom teach so when you look at the possibility of events and the timing of of of  how the terminations proceedings were initiated i believe that it's reasonable to conclude that the proffered rationale that this so called outside screener rejected is that the case in independently doesn't hold up we also did proffer evidence that created a exhaustion it seems to me maybe we could go there i've read through the papers that went to the o c and frankly the first term if you will a record is that have dealt with being not getting the court made her position and the second one dealt with the evaluation process from los angeles i didn't find anything in there and i guess i'm trying to find where do i find anything dealing with being terminated the record doesn't seem to give any idea that he even was complaining about that so why did he not have why was he not outside of what the court could allegations and also whether it is likely that the e e o c investigation would have reasonably discovered the excluded allegations so that even if the claims in the complaint regarding termination are not expressly included in the charge so long as a reasonably related or could have reasonably grown out of the us the investigation this court will consider those claims to have been exhausted well would you look at the record and point to me where in the record you're going to find the o c able to find where we can deal with terminations proceedings i mean i have really looked over this record that was sent to the o c and i did frankly didn't find anything there and so i'm trying to figure out how the o c would have had any idea that he was even allegations of incidents occurring after the charge and during the pendency of the investigation will be exhaustive they're reasonably related to the theory is the case here is that he was not hired because he was in the process of being fired and the district had already determined there were no jobs for him mr cooper couldn't possibly have include a determination proceedings because they happened a week later also the demands the may fourteenth i'm sorry the june eighteenth demand that he resign or face termination did happen within within that seventeen month period between ninety six and july ninety seven so it's reasonable that the e e o c would have discovered that demand and would inquire what happened after you didn't get this job he had been a district employee for ten years and our position is it's very reasonable to assume that the that the that's the e e o c would have investigated and i see i have thirty seconds left i'll just and if with the court's permission on the point that even if the court finds that these are not exhausted and you know eleventh two thousand three thousand unified school district properly noticed a motion for summary judgment and produced significant evidence to show that the decisions made relating to i believe it's fairly well settled case law under price waterhouse coopers be hopkins a us supreme court decision that straight comments by decision maker not in the decisional process does not provide the basis for animists in a discriminatory context and therefore i believe that that comment should be not considered at all when making the decision whether or not any of this isn't made by passing flight school district where on the basis of mr cooper's disability there's also no other evidence other than that straight comment that there was any type consideration of mr cooper's disability at all in the record for this court and that's why the court's not consider that comment when making its decision here today why don't we deal with this record that we have in front of us the judge evidently made his decision based generally on something suspect you were one of your so should send him and he crossed out some things didn't cross out other things and i guess i worry about this order to some extent and always happens when we cross out things where does this order deal with the term a nation proceeding so your honor i do not believe it does deal with the term nation proceeding well if it doesn't deal with determination proceedings why shouldn't i send it back for him to deal with that your honor  school district argued at the trial court level and also as we argued before this court we believe that mr cooper failed to exhaust his administrative remedies and the e e o c compliance how do i know that how do i know the judge thought that your honor i don't i mean i look at his order i'm trying to find out where in the record good we have any idea of why he didn't want to deal with determination proceedings regarding the a regarding the rehabilitation act there's nothing in there that says what he did or he didn't do and i have a tough time knowing then how to affirm him are not right always happen when we cross out things and we don't put everything we're thinking but i haven't looked in the record otherwise to find and couldn't find any think the way i understood the record and the order from the trial court was that the trial court found that they had failed to exhaust their own rights not exactly i'll be honest i'm not entirely familiar with the order and right now i don't remember right off the top of my head i apologized to the court the way i understood the order at the time drafting are concede that according to my research that there is not a requirement for nonfederal floyds to exhaust the remedies in regards to rehabilitation act so you're taking you're conceding that it let's let's assume that the district court found that that both the a da and or a needed to be exhausted we now find that they are a doesn't have to be exhausted counsel raised this counsel could have races for the decision maybe the issue would be taken care of but it's when his phrase for the first time on appeal we ordinarily don't address it except in certain circumstances which we've outlined in our case law and i suppose the issue of whether from your point perspective whether or not you could be if the trial court would be affirmed on this issue would determine whether or not it meets those standards one of them is purely a question of law you agree that that's true but surely a question of law yes i don't know whether or not i agree with that statement your honor respectfully i believe that the i believe that the record was not developed in that area and therefore my client prejudice at some level i say only to you you're skipping over whether or not it's a question of law and going to one of our other tests which has to be whether or not the record is fully developed ok if you want to go that direction then tell me why it wasn't fully proud counsel to my knowledge developed a record as to the circumstances surrounding the wrongful termination claim your honor this was a summary judgment correct that is correct it is the judge wallace points out some very serious problems for me and as i read the record it seemed to me that he limited the claims in his decision to the ones in the orders but he gave no no reason for limiting the claims to the ones in the order and therefore given that one my one certainly has to deal with the a da in the rehabilitation claims as determination and i can find out what he does how do i know whether to affirm or even based on the exceptions that might come under the circuit as i can't find him that's my worry right and both of them but the judge didn't even say that he just limited the claims and then talked about other claims he did not talk about her own full term nation and any of his or mind that's the way i read the order for the coordinator position and for the evaluation at los angeles but he never talked about the wrongful termination at all right now the wrongful termination claims were never referenced in either one of those law and the court erred thank you assistance this is in our judgment in the highest traditions of lawyers and we want to compliment you on doing this for us we thought this need to be ventilated by competent tourney's on both sides and you've lived up to everything that we'd hoped when we developed this program we thank you for your service we know that you're not being paid for this but you can accept at least go back with the with the appreciation of the court of