decision and summary judgment dismissing claims claim against the standard appellee spanish lake casino trucking casino plaza which we believe discriminate against her based upon her race and or color direct evidence of non direct evidence and to tell you the truth the questions are we have most i think of counsel option you can lay out just use some of your time here and then if you think you need it for  they please the court is rather surprising to be up here this quickly while we have less of the questions if you're going to feel that you've got i mean you've got there one thing yes the the two black in other words that is i guess you can see how do you that that is a violation of title seven to refuse to hire someone for a particular position because they are too black to qualify for   it's about a nice woman who who was not discriminated against and did not receive a position because she was not qualified that is what this case it's just i mean it's more than that because at least from their point of view and that's what we're talking about this is summary judgment right yes all right some are judgment she says look i mean the argument i support her that's true or not i don't know but she cites evidence to support that so then she says and then you say well somebody else was hired because she was better qualified well that may be so the other one may have been better qualified but the man if you're never got a chance to even offer her qualifications she was never considered from the get go so it doesn't really matter you didn't have this other woman because she and i'm talking about from some was not hard because she was better qualified she was the only qualified person you know the record makes it clear that the qualification issue was considered that is to say that mr barnard waitress desires and her waitress abilities but that he also knew and he had been told by her and by her supervisor miss johnson that miss eighteen never wanted to work nights this was a position for a night manager was not a position for a day manager and so he also had been with her for over four years and was well aware of the fact that she had none of the experience that this other lady had with regard to doing the things that a manager was qualified to do as manager i'm not i'm not i agree with you if if if him to be extent that there was no incriminating evidence and you know any statements and it may  thing in this record that even raises a tribal issue this is the only thing that could even come close to doing that and we suggest to the court that the long affair circuit is clear that conclusion re allegations speculation and unsubstantiated assertions are inadequate to satisfy the non movement non movements burden in a motion for summary of an affidavit about it she's given have testimony to black to be considered for this the mody was better publications but it was a mixed motive case because race went in and in the case because she was too black and then the jury gets to decide which of the mixed motives and then the johnson affidavit where the two black comes from is not from this a t m she gives a self serving affidavit that is after the fact i mean the horse is already out of the barn at that point she testified previously under oath that there was no discrimination she testified specifically that there was no discrimination at the spanish like to say no and there was a myriad of testimony in the record that there was no discrimination at this casino she testified that the reason that all of this happened that the reason she filed her ios e complaint was because they did not respect her loyalty they did not respect the seniority that she had that they made her feel like a what did she say my service wasn't worth nothing that's what happened as she testified in the unemployment benefits case that's why i filed the e e o c complaint that's why she filed it there was no discrimination the only again i go back to this johnson affidavit where the two black t whatever that is to black's objective criteria by by this affiant when in fact the affidavit itself is immaterial and it has no probative value and i say that affidavit are you considering and to parse are you saying the fact that she says in there that the statement in the affidavit as i understand it said that your clown had on occasions said that  was too black to occupy positions some of the one that is issue now that you said that is totally irrelevant are you saying the fact that well that may have been a reason  that's what i'm saying i'm saying that there is no underlying fact factual support for these subjective statements that she's making she she is making statements about about what presumably are observations but yet she gives no those specifics relating to suit to what she did to the underlying facts there are no underlying facts to support this and that's the problem with the affidavit are they are you saying that there are no underlying facts to support the allegation that the management whoever runs the gun was said that she was she was too black to occupy th that this hiring event occurred the ratio was they had six total managers and the ratio of the managers in this business was five minority managers to one white manager when  was hired to change it to forty two but again a simply another indication that this record is is just totally overwhelmingly descriptive of no discrimination other than this subjective it for a few minutes because i think it's important there's no temporal relationship that is to say that when she talks about these various things that mr bernard teradata presumably said  allegedly said she she doesn't state a time frame when these things were supposedly said or how when or under what circumstances such statements might relate to the hiring of there's no statements that are really directed towards hiring practices you have waitresses and you have managers and you have all these people working at this place and some are black most of my black as a matter of fact and some are white and you have a circumstance where each person has duties and responsibilities miss a t n as a waitress had duties and responsibilities she specifically denied and her sworn testimony that her duties or responsibilities were in any way different than the duties and responsibilities of any other waitress on that step specifically denied it she admitted in open position we're concerned about the manger it's about the one position from which she was not considered ok ok and again the position for which she was not considered was i go back to where we went at the beginning and that is that she was not considered because our manager knew and i think if you go to the assuming that there's a problem a facial case which i really shouldn't assume because she's not qualified to begin with and therefore she doesn't meet the first the second leg of the mcdonnell douglas test but if the court goes as far as to assume that she was qualified which is the record does not support that in any shape manner or form then the articulated reason for the hiring decision is is unequivocal i mean the the record is absolutely clear that the hiring decision was made because this individual who was hired had been previously worked there as an assistant manager on a weekend she had gone to another competing casino and was being trained as an assistant manager there she had received training on a myriad of all of the different gaming machines that were available at the same at the spanish like the scene as they were over at the road bridge casino as we indicated in our brief and she would come back and actually bring customers with her when she came back to spanish lake and that was a be in the new iberia area i'm not even really sure but in any event  the i think that the point i'm trying to make is that when the court reviews the record in these proceedings and sees the overwhelming evidence of no discrimination and i really you know if the court says i'm wrong then i'm wrong but i suggest to this court that there is overwhelming evidence of no discrimination including the plaintiff's own sworn testimony not to mention all the other affidavits the deposition testimony and so forth that makes the johnson affidavit without any underlying factual basis for her subjective assertions completely immaterial and irrelevant ok we're going i think we've got your argument and we're going to give you a little time for  the conduct of the city after she was denied the opportunity to apply for the night manager's position complaining to her supervisor mr barnard tear it out that she did not that she in fact wanted to position that she was all of this is in the record all this is in the record in addition counsel points out of fact about qualifications when mister under oath testified that the only difference between the night manager's position and the waitress bartenders position is reconciling the single receipt handling casino money and which just involves adding and subtracting casino receipts already disqualified from receiving any type of training when it came to handling casino receipts and simply because of the color of her of her skin but counsel makes a lot do about miss janine johnson johnson who is the author of the affidavit it counsel disparages in his argument was the individual who was in charge of running the casino since the casinos inception in two thousand and four she was in fact in charge of the entire casino operation with mr terry and his wife anna teradata she was responsible for evaluating the employees job performance as she is she has no bone she did she was fired from a position she has no no no skin in this matter no beef in this matter she just offered an affidavit based upon the information that she was familiar with in daily conversations with the  four or five year period and during that time it was very very clear that and would is also in the record and is that all of the the counsel makes mention of that the african americans  african americans that are in managerial positions but african americans of counsel should be able to they're all fair lighter skinned than i am that are in these managerial positions and in the casino in this particular area new iberia if you haven't been there it's a beautiful area from that particular area myself but it is steeped in the plantation style  mentality where you kind of divide and separate dark skin folks from white skinned folks where you have a shock i was cautious social class and so this is not unusual it sounds unusual if you're not from that particular but that is not an unusual event that occurs and has occurred in this particular case i think as the court is mention although the qualification of the lower court indicated that the main issues dealing with qualifications we we vehemently disagree with that but the main issue is not so much about how whether or not miss it was qualified but that she was eternally disqualified from ever being  you have a couple of minutes or so to respond to what we just heard the respective counsel much of what he said today record in this case and i think the record of this case demonstrates clearly we have for example on qualifications we have this affidavit first off mr terabyte who explained his reasoning as to why he hired this lady  dobby the actual manager who came on but we also have an affidavit from mrs l well with the brokerage casino who was involved as the h r representative and who was involved in the training at this lady and as bernard teradata had testified to the casino manager the general manager testified to he kept up with this lady over the two year period that she was gone from our casino from spanish lake and he knew that she was doing a good job and he knew that she was that she was progressing on this managerial train and so the deposition sets forth what miss davida was capable of doing and the reason why she was hired net was that she was a capable involved accounting machine operations machine diagnostics transfers of funds and drops buyouts customer issues with tickets use of hard meters i don't even know what that is and all of these are related to the exact same machines that they had at the spanish league because there was some relationship with those machines in the spanish lake machines and so mr terra dot it's conceivable to me that he was excited and i think we argued that he was excited about the prospect of having this person come in immediately step onto the floor and take over and not have to train somebody over some period of time mr terra that was clearly aware that miss a t n again a nice lady was not capable of running a casino she was just not capable and also he had been told that she didn't want to work at nights and as i said earlier this was a night job and so if you look at the mcdonnell douglas situation and if you if you go back and mr bernard talks about that she had been she didn't miss johnson had been involved with mr teradata for four or five years and she stayed there for four or five years listening supposedly to this rant as that's what he's telling this court and in fact over this four or five year period there was there's no evidence in the record of any sort of issues at this casino related to race not a one what i think is very important about ms johnson's affidavit is what she did not say what affidavit a missed johnson does not say and there's no evidence otherwise in the record does not say that she trained mr eighteen for a manager position even though mr johnson was a manager it does not say that miss a t n was qualified as a manager it does not say that she told miss a t m that she was quitting and that the job would soon be available so go tell somebody that you're interested because at that point nobody knew she was interested it does not say that a t n ever expressed an interest in the affidavit does say that it does not say that a t n was too black to be a manager it doesn't it doesn't say that she was too black to be a man says she was too black to do certain duties and responsibilities that's what the affidavit does not say she was to bla responsibilities i don't know what she's saying in the affidavit because there's no underlying facts duties and responsibilities a waitress duties responsibilities a manager she just simply says she was too black she was she was i think too black i can't remember duties and responsibilities in general ok so that so that she's condemning basically everybody at the place and there's no evidence in a record as to how black these people were or what hue they were anything else and i'm not sure  what sort of a floodgate the court opens up when we start going what if for example spanish lake had hired a black person for this position but the black person happen to be a lighter black person what does the court do something like that i mean that's the problem i'm having with all of this it's not an everyday situation but we can deal with it and i think unless court has other questions i think that's all and i thank you very much for a spirited argument