discrimination claim here and where where is the racial animist to be found you have students who evaluated over a number of years you have a faculty committee from and would argue that notwithstanding the clear terms of the collective bargaining agreement a different decision should have been made with regard to professor maria yes i would first of all i think intelligent man has to greece are very impressive but the students just don't like just teaching any gets these really bad ratings now they may be being unfair it may be totally unjustified it may be that they just don't like all the work that it issues out but it gets really bad ratings and it looks like a requirement for tenure is you have to have much better ratings than he gets from the students for teaching and case that would bring us over to judge leighton's question about the racial animus let me know that we accept your point that the university did a lot of dancing around  justification was it seems as likely that they were they were discriminated against because he was a cigarette smoker and they don't like cigarette smokers as they were discriminating against him because he was  earlier there's case law in california and elsewhere including this circuit there's wrong in friends arises that there was no discrimination where the individual who terminated further i just don't understand why this book was not provided to me you know i would have gone out to get it but i got the impression that it was deliberately excluded from these materials so i don't i did not reveal what i think that but pretext can be used for tabasco whole lot of different maybe you simply didn't like your client maybe there's something else what in the record is your best evidence that it was a racial animus as opposed to any other kind of animals don't like him because they think he's smarter than them he's got tremendously impressive degrees for us a professor it seems like any other imprints that's why i mentioned cigarette smokers any other unfri pretext you're right on the lock about pretext leaving open the possibility but all three of us are trying to find out why should we believe even if the university is lying that the real reason is ethnicity as opposed to anything else well this is a question that the jury would have to decide this is a question that must be decided based on the fatality of the evidence and i stood there is substantial and  morning your honour's may please the court my name is jonathan martin and i represent the university of san francisco i want to start by responding to some of the arguments that the professors counsel has made today first in connection with the u that there may be instances and we believe that this is one of those instances where where the record conclusively revealed either some other nondiscriminatory reason for the employers or action well as we believe i teaching ratings comparable to this i don't believe so your honor and i'm just going to restrict myself to the record here and i'd be happy to actually address that point because i know miss davis talked about other professors who supposedly had teaching scores that were comparable to the professors let's take a look at that what the appellant's expert did is not look at the collective bargaining agreement standard he made up his own standard he said we're going to count up just the number of scores below the average average for the school and for a superior rating in teaching the scores have to be consistently significantly above the average for the school so the question is did the appellant's expert look at whether evaluations of all the other professors with all the other professors at least in the years immediately preceding the decision i tenure those professors scores were at or above the average for the school so maybe they started off early on with a lot of scores below the average but they improved to the point where on a consistent basis in the years prior to the take your decision they had reached the level of act or above the average for the school the parents exploit didn't perform that analysis at all  is construed the scores this way we don't think that's fair but at this stage why should we take the plaintiff's experts well i understand that the court has to resolve the ins inferences in favor of the nonmoving party when i don't think that means that you completely disregard the standards under which the professor was supposed to be judged within that time text i understand that the arbitrator decision is not binding on the issue of discrimination certainly is that if this case were to be sent back to decide issues that arise under the contract and whether professor maria well met the standards for tenure is entirely a creature of contract it's decided entirely by the collective bargaining agreement so at least on the issue of whether he was qualified yes i believe that the arbitration arbitrator's decision should be given conclusive effect now i understand that that may make the the appellant's case that much harder but again i the traitor who decides whether the contract was breached here and again the whether he met the standard is entirely an issue of whether of whether he satisfied the standards under the contract and the arbitrator does have the s that dean williams refused to give professor maria's book to the outside of us and that's just not true the evidence shows that he discussed the issue with the three outside reviewers one of them said that he would try to find it at his own library the other said that he would try to find it is own library and if he wasn't able to find it he'd contact dean williams and the third professor said he probably wouldn't read it because it was outside his field so to the extent that they're claiming that dean williams deliberately withheld the book that's just not the case of a good authentic claire reviewer say that he or she regretted that the noriega mass the book had not been santa did not seek to find it because they assumed that it had been left out the libera y that professor also at the conclusion said that he or she would rate professor morel in comparison to junior scholars in other fields at the bottom thirty percent i think regarding the issue about the reviewer speculating as to why the book wasn't stan i believe that's just that speculation and i think the reviewer said in his in his or her review that or suggested anyway that the reason be lower well and again that gets back to the point that was previously made which is that even if that's the case where's the evidence that it's because because of his national origin or that quite frankly what i can tell you is that and it is in the record that the university has hired or given tenured professors of many different races and nationalities and they've also denied tenure to professors of many different races or nationalities in the record i don't believe there's any indication that there has been anyone given tenure who was specifically asked for a latino or panamanian that's that's what's in the  upon the recommendation of the dean now that's not to say that other people didn't have involvement in this decision but certainly it does mean that dean williams was very much in favor of professor real being hired and this takes us to the same actor inference that came up earlier where is there any evidence in the record that whether it's a seven year period or a two year period whatever period it is that on the one hand when he hired him dean williams was supportive of profess marino because of his race or national origin wanted to increase diversity at the university where's the evidence that seven years later all that thinking went out the window and dean williams decided that diversity wasn't important anymore that his national origin now going to be a hindrance rather than a positive factor there's just no evidence that dean williams changed his opinion on that point in any way and that's why i think the same actor in france is so compelling here especially  because he was his his national guard and arjun was considered as positive upon hire so where's the evidence that he would have done a complete one hundred eighty degree turn and decided that that was going to be the determining factor in the decision to deny him tenure there's just no evidence that he made that kind of for fear of his opinion is there any evidence that he was shot down dean williams throat by other people i mean it's possible doing well yes would send him a glowing letter inviting them to come work for even though he opposed them and other people accept them down in williams throat well the evidence in the record is that dean williams wanted to hire professor marino in large part to increase the diversity at the university whether there's evidence that that it was shoved down his throat by others i just can't answer that there's no evidence in the record all i have is what i'm asking yes there is no evidence that's what i'm asking ok i know of no evidence in the record that indicates that  this higher was shoved down his throat in any way i just i just don't know of any evidence in the record that suggests that of opinion the bottom line is that the peer committees aren't merely advisory in nature they don't represent the decision of the university so the fact that the majority of the committee members may have been supportive  professor maria candidacy is not it's not a factor here they were advisory and that's all and i would also point out that there were even members of those committees that were not in favor of him receiving tenure for example if you look at the college wide opinion was these peers agreed with the university on that point so it's not as if the university took an overwhelming mountain of evidence of unanimous support for professor maria oh and through all of that out the window and decided well we're just going to do something a plea different there was some peer support for the university's decision and then in terms of the teaching issue the head of the college wide  professor huxley admitted that all five members of that committee unanimously unanimously agree he'd professor maria's teaching was below average well under the terms of the collective bargaining agreement that means that they should have voted him in adequate on teaching and that means that they shouldn't have recommended that he move forward for tenure but for whatever reason they decided that his teaching record was adequate and they move them forward i can only speculate as to why they did that but that's what they did and then in terms of the research if only one of the three people who voted in superior had switched over to adequate then they would have had to decline to recommend him on that basis as well so this was a very close vote in the college wide  review committee i just point that out because like i said before it means that reasonable people could differ here as to whether he was qualified for tenure it was at least in the mind of some people a close decision and it's one of those academic decisions that i think courts and juries just aren't going to be in a position to to reverse absent come from my school acted on the teaching school what that means basically is what the students said about them and their course questionnaires that's correct when i refer to teaching scores or teaching evaluations that is specifically what i'm referring to yes so he's actually a brilliant professor and a great teacher but these are people that work during the day and they go to school at night or they work part time and go to school part time and it just pushes out more work than they can do and and so they give an awful scores that means no tenure well potentially yes and that if of course is a risk inherent in the use of these student teaching evaluations but i would point out that the system that they used was required by the collective bargaining agreement there's no evidence that it was applied differently to profe as compared to other candidates it's the one that they have and yes there is evidence in the record that there was some dispute over the efficacy of these reports but it's the one they had and they had to use it otherwise the university would be in violation of the collective bargaining agreement threshold determination as to the sufficiency of the plaintiff's evidence for the purposes of defeating a summary judgment motion so the court's job is to decide that perhaps certain facts that a plaintiff may present just aren't enough to create an issue either regardless of his methodology whether it's sound or not takes a position that supports his stance then the district court has to throw up a stand throw up its hands and let it all in and that's just that's just not the rule the district court does have to make a threshold determination qualified for tenure the university took others who would be similarly unqualified and in fact grant them tenure and the difference in treatment was a result of race well that's certainly their argument whether it's their showing that the other professors were truly similarly situated again in terms of the teaching it's not an issue of the number of scores a lot of the average is the issue of whether they were consistent do we have any kind of chart or graph or anything that shows or what they looked at and then in terms of the use of the work consistent you're right it's not entirely clear what that means i think the argument could certainly be made that it's not just the number it's how it how those numbers progressed over time sure no brown skinned person has ever been granted tenure at the business school of the business school other places the u s or not i think that's that's correct and there are and there was a reference to many different races and nationalities there are