apologize to you for my not being there today and for the inconvenience you've had with the changes and i was already through the prep and then i found myself in the emergency room on friday and that they let me have to do this but they won't let me travel for a couple weeks so i'm doing it for their banks and that you probably have a sixty or eighty degree temperature advantage over us and enjoy it health just as good morning my name is randy andrews pleased to represent helen keller in this matter which comes from the eastern district of california sacramento mr miller this case essentially is about mr miller's employment rights he had while he was to have been employed with the state of california specifically the governor's office the criminal justice planning just certain reinstatement rights that he had with his employment it participate in certain investigation involving some discrimination with coworkers he provided some testimony  and witness interviews in that capacity for counsel where seek counsel yet where is the evidence in the record that the people involved in his  hire at knew anything about whatever participation in may have had in other workers title seven claims let me address that is that was the very point i think the district court granted the motion for thirty and thirty three there's several places where he says they were both away me how do you know that and he doesn't quote a remark as far as i can tell showing executive director who at the time was mr grimes well he has to have a person if it's hysterical ration to relying on he has to have personal knowledge of some evidence of what was in their heads now what comes sense that i'm not sure of the standard he would have to prove the negative except that they all submitted declarations saying affirmatively that they didn't know anything about his fact that they did now well that's that's up i guess the dispute the dispute he says the light was green they see the light was what it has and he have to have some basis for say for example if he said it i looked all over the record to see if he had ever told sawyer levy or someone that he had testified on behalf of the rand paul and there was no indication of that he said we were in the in the same office and i'm not sure if that's tantamount to saying we both worked in the for example did know and did have the pretext so whether mr miller what were exactly where setting the record were set that is in the arbitration decision which begin page fifty eight it doesn't say anything in here about i don't see that compliance  i don't know and i'm trying to i thought i saw the language i can't put my finger on it right now but it seems that the problem with the light is green light is red thing yes everybody is looking at the light you can see with your own eyes whether it's red or green so if you're paying attention and  terminated it's undisputed that there was an arbitration decision the problem that i have with the district court's decision even if they buy it ok where is the evidence that mr miller simply caught words coming admissions coming out of  the boss is likely not to know maybe never to know who talked the employee into making trouble for more than anyone talked the employee into making trouble for me act because the person who did it is probably trying to keep it secret but sometimes the boss knows and if the boss knows i want to see the evidence and record in this case the boss the executive director did know and  mr grimes was aware and he indicated that the matter would be corrected so from if it rolls downhill from the executive director and he knows and then not only that but you see that the problem i ha of the state knowing if they didn't know maybe back before the terminations they certainly knew what the combination they certainly knew in the interview they certainly knew at the arbitration proceeding and they certainly knew based on the dynamics of what happened after that th man mr miller had engaged in unlawful activity and that he was asserting that he was retaliated against and given those multiple apps not just the one act alone of the retaliation in the termination but the it was litigated to a conclusion in front of the arbitrator he never even mentioned any of this title seven stuff no i think that he did mention it the discussion came up the title seven was a discrimination type right and that right was not adjudicated per se in that proceeding that he did he grief was part of his greed instead he was retaliated against because he helped somebody else's title seven case ye the first paragraph indicates that the union alleged that the office of criminal justice planning failed to appoint miller and even on your permanent positions in retaliation for engaging in protected activity reapply yes it was that permanent right that was grieved and that's if you're that's not race to scream a nation correct the race discrimination right is what we're getting in this case he filed a you'll see action on obtain a right to sue letter and filed this action in district court for that right that that discrimination right was not the right that was being adjudicated in the arbitration but that's re ask yes and so after that point in time also give rise to this claim and the discrimination is based on the zeal to complain and then the second one isn't the projected activity at issue in the in the federal court action  yes you can plead that you only splat in this case as far as i can tell trashing he was a surprise against based on the protected activity namely his testimony on behalf of those other two employees don't think that's correct is going to fifty three is the second charge of discrimination filed with can tell now maybe a morphed into something else i don't know that but that's what your complaints to ask a if we get to this issue if i remember the record correctly and i may not they did offer him a position backing in accord with the arbitrator's agreed the arbitrator's decision and he didn't show up and it in show up repeatedly i think they offered it five times or something like that and he said i'm not selling this so you pay me a million and a half dollars set right that's the way position they didn't there was a hiring freeze a statewide hiring freeze and the question was would they seek a waiver from the freeze the state wide hiring freeze for so and they said yeah well and then they went back and forth and he be evaporated with the dismantling of the governor's office criminal justice planning department so it was not a bona fide offer and that's our point that that was that kind of intent denied my client his rights to permanent point that he had been done and certainly when they did that and the invasion that kind of conduct they knew the history of this and they certainly knew of his participation all along the way in the investigation but yet they system and that cut him off he was cut off because of the conduct there are two issues in this case and obviously the court understands the well eason office of criminal justice planning position that there is no evidence in this record that surely wang waynes down for michael levy or mr sawyer had any knowledge of title seven protected activity and that's exactly what the court found the union grievance process was about union for attempted activity there is not one word in those documents and grant a summary judgment of the noble but as to the court's decisions on the evidence we have jackson's those are to be reviewed for an abuse of discretion and as i said the trial court did find that mr miller's self serving got a ration swer no more than conclusions and speculation and speculation is particularly important here when we're talking about the job but there is no evidence in this record that shows that any person was actually laid off as a result of the o c j p closing and in fact none were there were jobs and they were all spread around budget cuts were under consideration that the folks who offered the job knew it or that for sure he would be laid off and they were offering him the job for that purpose is the same causal link probably he's got in his underlying ca because i testified against malling tor and they still haven't given me a job well i understand from that two of the two of the allegations are all refusal to comply with the arbitrator's award was certainly already and in the federal case and the argument that the position was to be eliminated and therefore it was really not a good faith effort but then there was also an allegation about denial of accrued vacation didn't have that before them at the time of summary judgment in addition to that the stipulation had been filed with the court in january of two thousand and four and it was self executing it said we get the right to sue letter within thirty days it correct that if we accept the proposition that there is no genuine issue of fact that the all the people involved in the decision had no knowledge that  no reasonable basis for the appellant to have declined that offer is not a fact the arbitrator said something to the effect that what you should do is go back to work and then argue the details but and the c s e a going back and forth about what he should have and what he shouldn't be awarded under that under the arbitration award most of the declarations that were filed by the decision had ever participated in any discrimination or employment related investigation and stumper's as late as his declaration as late as october twenty eighth old four were there any only that he can't arguing that the job offer wasn't bonafide putting back to work and at that point was arguing that these were  somehow connected but no the drama for had already been made the offer to settle had already been made the i did a timeline or at least i asked so many in my office to do a timeline in this time and just number twenty nine two thousand and three and i was just wondering if there were any just agents that were made by the state of which mr miller feels aggrieved that would've post dated the declarations of these individual san as at me back in a bona fide position and speculatively that that would have been a lemonade good night i lost my job ok it was just those kinds of arguments it's court has no further questions for me i'll soon do it with the request that included in the complaint were included let's take up some of the other issues that were raised by the state kind of in random order i guess first do you agree that your client was making more money as a teacher  loss and you said there are many positions where you can do two jobs now on the second part i don't know if that would be true with jobs that take place during the day but we'll leave that aside for a moment it's first part you know there was an economic loss it struck me when i look at this guy's claims of economic loss he was saying big part of my comic loss is if i had been kept on  one i would have bought a house and the house would have gone up in value a whole lot and i would have made a whole lot of money on the real estate so that's why economic loss but you weren't asked about economic loss by judge thomas you were asked about salary was the salary is a teacher lower or higher than the salary as a c j one that i don't know honestly whether it was higher or lower understood the question of whether he suffered economic loss the answer yeah no i didn't ask if he suffered economic loss yes if he was making more if he was making more that i don't know thank you i do know fact for a bona fide position in title here i don't know that that's binding in this court at all and i would state that it sounds like they feel the arbitrator as well at the time that the arbitrator made that i could determination it was not discovered until after that when mr miller kept pressing and pressing and investigating on his own as you indicated in his declaration that the offer was bogus the state was never forthcoming with a number that is associated with permanent positions and that kind of continued conduct existed right up to the filing of the complaint and now this issue of the third e e o c complaint that was pending and  one of course is this information we now have that the the offer in physician that was being delayed to him was less than honest we also have the situation where lean evelyn a similar situated employee was allowed to use her vacation and sick leave and other benefits to bridge the gap to something complaint and mr miller's decoration which is extensive doesn't he come to the conclusion that this is all related to the fact that he testified for  and that because of that testimony the state of california through its minions decided that he was dangerous and had to be got rid of and so forth and so on so if if if the there's any discriminant take discriminatory or retaliate tory intent behind the decisions is the follow up decisions that were made no i think course maybe the floodwater started back there with that those ball and entering an investigation and that isn't that what the complaint says isn't doesn't the complaint say that my life terse turned south when i testified for ball inter and i'm entitled let's say you're right and what he meant in this complaint was all the crack protected activity of every kind why would we care act has federal action for retaliation under title seven perhaps just california law and no look no such laws alleged in the complaint so i don't know exactly that it was are we traded this is separate proceeding title seven does not prohibit retaliation for union activities other why does the title seven doesn't and that i don't i don't see where there's get that slice right i think i think george clinton was addressing your argument that he that there were acts of retaliation based on protected activities and one of the activities you cited was his union activity which can't be part of the issues that it's right to sue i just wanted us in closing that the comment the council made that there's there's nothing evidence in the record so it must all fall that just simply not true the record is is there the complaints are in the record with the see that he made and those complaints those allegations of discrimination do raise tribal issues of fact and therefore the trial court was a mess in