[00:00:00] Speaker 00:
The next case on calendar for argument is Armstrong versus WB studio enterprises.

[00:00:23] Speaker 00:
Councilor Pellin, please approach and proceed when ready.

[00:00:26] Speaker 00:
No rush.

[00:00:31] Speaker 01:
Mike Freiman, I speak for Brian Armstrong.

[00:00:51] Speaker 01:
Martin Luther King said, injustice anywhere.

[00:00:54] Speaker 00:
To introduce yourself.

[00:00:55] Speaker 00:
Oh, you did.

[00:00:56] Speaker 00:
I'm sorry.

[00:00:58] Speaker 00:
You took a break.

[00:01:00] Speaker 01:
Injustice anywhere is a threat to justice everywhere.

[00:01:04] Speaker 01:
Martin Luther King said that.

[00:01:06] Speaker 01:
Martin Luther King also said you should judge a person not by the color of their skin, but on the content of their character.

[00:01:12] Speaker 01:
This is a case about a large corporation admitting they are judging people on the color of their skin.

[00:01:19] Speaker 01:
And the injustice before your honors today is disposing of a race discrimination case without a trial by jury.

[00:01:28] Speaker 01:
And that is the injustice that we are here to discuss.

[00:01:32] Speaker 00:
Well, counsel, on the particular facts of this case, what is the evidence that there was a race-based decision?

[00:01:40] Speaker 01:
The evidence comes from Christy Cecil, who was in charge of approving all the positions on the show, admitted to the employee that

[00:01:57] Speaker 01:
the illegally vicious rumors he heard were true, and that they had to replace Steve Silver, the director of photography, with Patty Lee.

[00:02:09] Speaker 00:
And because of that, he wasn't being- How was that discrimination against him, though?

[00:02:13] Speaker 01:
Because they replaced Steve Silver because he was a white department head.

[00:02:18] Speaker 00:
And Al Higgins, the executive producer, sent an email saying- So what evidence is there in the record

[00:02:25] Speaker 00:
that he was replaced.

[00:02:26] Speaker 00:
Mr. Silver was replaced because he was a white man.

[00:02:30] Speaker 00:
What evidence in the record is there?

[00:02:32] Speaker 01:
Right.

[00:02:32] Speaker 01:
The evidence in the record is as follows.

[00:02:33] Speaker 01:
So Steve Silver was a director of photography, which is a department head.

[00:02:43] Speaker 01:
And Al Higgins, the executive producer, sent an email saying, I don't want all the department heads to be white.

[00:02:52] Speaker 01:
and so after he sent that email Steve silver was replaced by a person of color patty Lee and Christy Cecil admitted to the plaintiff that you weren't on the next show because Steve silver was replaced by patty Lee so I guess Who is the hiring authority?

[00:03:12] Speaker 03:
for Mr.. Armstrong or for for the next production I

[00:03:15] Speaker 01:
There were several individuals, including Al Higgins, Chuck Lorre, Christie Cecil, Robin Green.

[00:03:25] Speaker 00:
But all of those would have to have been involved in the actual hiring decision.

[00:03:29] Speaker 00:
I'm sorry.

[00:03:30] Speaker 03:
So to pick up on that, where is there evidence that there's even a genuine dispute that any of them had authority over whether to hire Mr. Armstrong?

[00:03:41] Speaker 01:
It's it's in my it's in the evidence.

[00:03:44] Speaker 01:
I submitted before the court that so let's see Chuck Laurie and Al Higgins approved of the selections is brought to them by Christy Cecil and Robin Green and That's in the evidence They they all admit that there's the evidence in the record that they approved specifically of the hiring of the person that Mr.. Armstrong says was selected instead of him and

[00:04:11] Speaker 01:
That's... So, I'm sorry, can you repeat the question?

[00:04:19] Speaker 00:
So, generally, in a racial discrimination case, you show that you're a member of a protected group, there was an open position, you were qualified for the position, and someone who was not of your protected group was hired in place of you.

[00:04:33] Speaker 00:
So, who is the person that was hired

[00:04:37] Speaker 00:
instead of Mr. Armstrong.

[00:04:39] Speaker 01:
Correct.

[00:04:40] Speaker 01:
Her name is Michelle Crenshaw, and she's African-American.

[00:04:45] Speaker 00:
And she was the- So she wasn't the only one hired?

[00:04:49] Speaker 01:
Correct.

[00:04:49] Speaker 01:
So there are four television camera operators for these Chuck Lorre shows.

[00:04:55] Speaker 00:
Three of them identified as white males, correct?

[00:04:59] Speaker 01:
Two are white.

[00:05:02] Speaker 00:
They identify as white males, regardless of how you would characterize them.

[00:05:07] Speaker 00:
They identify themselves as white males.

[00:05:10] Speaker 00:
And so you're saying those three were not hired in place of Mr. Armstrong, but the African-American woman was.

[00:05:18] Speaker 00:
So what proof do you have that the African-American woman was the one who was hired to replace Mr. Armstrong, instead of Mr. Armstrong?

[00:05:27] Speaker 01:
So they were both in the same camera position, which is camera operator X. There's four different... All four of them were.

[00:05:32] Speaker 00:
So what's the evidence that this particular one of all of the four who were hired was the one who was...

[00:05:39] Speaker 01:
How to replace mr.. Armstrong, okay, so you have to so to answer the question I have to give a little history the facts the factual circumstances so here Mr.. Armstrong was a TV camera operator one of four TV camera operators for every single show on two and a half men He was a TV camera operator operator for every single show on the big bang theory one of four he won an Emmy for his work on the big bang theory and

[00:06:04] Speaker 01:
after being, and specifically there's four different camera, I think it's camera operator X, A, B, some other letters or references.

[00:06:14] Speaker 01:
Something like that.

[00:06:15] Speaker 01:
And here the African American person replaced, got the job instead of Mr. Armstrong because

[00:06:27] Speaker 01:
It was the same.

[00:06:28] Speaker 00:
It was camera operator X. You're saying he was camera operator X. She was hired as camera operator X on a different show.

[00:06:36] Speaker 01:
Correct.

[00:06:36] Speaker 01:
And it was on the same set.

[00:06:37] Speaker 00:
Now, what is that in the record?

[00:06:39] Speaker 00:
That she was hired in the same camera operator position that he was?

[00:06:44] Speaker 00:
I didn't see that in the record.

[00:06:45] Speaker 00:
Where is that in the record?

[00:06:46] Speaker 01:
I could pull up my brief real quick.

[00:06:49] Speaker 00:
Well, your brief doesn't help me.

[00:06:50] Speaker 00:
I need something from the record.

[00:06:51] Speaker 00:
You're saying that in the brief doesn't raise a material issue of fact.

[00:06:55] Speaker 01:
I think I mentioned camera operator X in the brief.

[00:06:58] Speaker 00:
But I'm interested in where is the evidence in the record that this particular camera operator was hired in the position that he would have been hired in?

[00:07:10] Speaker 01:
There are four TV camera operator positions.

[00:07:12] Speaker 00:
I heard you.

[00:07:14] Speaker 00:
But what I'm asking you is, where is the evidence in the record that she was hired in position X and he was eligible for the position in the

[00:07:24] Speaker 00:
In other words, they had parallel camera positions.

[00:07:28] Speaker 00:
Where is that in the record?

[00:07:29] Speaker 00:
I didn't see that.

[00:07:30] Speaker 01:
Let me pull it up real quick.

[00:07:47] Speaker 03:
So the June 9th, 2019 email from Ms.

[00:07:53] Speaker 03:
Lee to

[00:07:54] Speaker 03:
Green and Cecil identifies ABC and acts with Ms.. Crenshaw in the X camera operator, but Why does that tell us anything about whether I mean in a world where mr.. Armstrong had?

[00:08:13] Speaker 03:
Not expressed any interest in it there are legitimate racially neutral reasons for Ms.

[00:08:23] Speaker 03:
Lee to hire

[00:08:25] Speaker 03:
Either people that she'd worked with or had been Interested in working with there's no I don't think there's a genuine is there any dispute that she'd also expressed interest in working with Mr.. Armstrong Why does that establish?

[00:08:40] Speaker 03:
The requisite race-based hiring decision if we're just looking at it at Ms.. Lee because I'm just not sure that the higher-ups At least that you've established at the higher-ups

[00:08:52] Speaker 03:
that their decisions would kind of be covered by Section 1981 if the record shows that Ms.

[00:08:58] Speaker 03:
Lee made the decision.

[00:09:00] Speaker 01:
Well, if Ms.

[00:09:01] Speaker 03:
Lee is following orders from higher-ups... Where's that in the record?

[00:09:07] Speaker 03:
Again, I'm trying to stay close to the record here, and correct me if I'm wrong, but the sequence that's actually in the summary judgment record is that Ms.

[00:09:18] Speaker 03:
Lee's hired,

[00:09:20] Speaker 03:
And Ms.

[00:09:21] Speaker 03:
Lee goes out and hires four camera operators, two or all of them through outreach before she hears any contact, before Warner hears any contact from Armstrong that he's interested in the position.

[00:09:38] Speaker 03:
And all four of them, Ms.

[00:09:44] Speaker 03:
Lee says she hires for

[00:09:48] Speaker 03:
Again, not knowing that Mr. Armstrong is out there and interested in the job is hiring for perfectly legitimate, non-racially-based reasons.

[00:09:57] Speaker 01:
Yeah, so this is a very... So you had... Could you... Before you do that, could you answer my question?

[00:10:01] Speaker 01:
I ask you, where in the record... So on... Yeah, on page 27 of the brief, I cite to... Lee understood that Michelle Crenshaw would become Camera Operator X.

[00:10:17] Speaker 00:
What's the record side?

[00:10:18] Speaker 01:
I think it's for er 662 Okay, I have to double check to make okay.

[00:10:24] Speaker 00:
I'll check it for you So you could you proceed well?

[00:10:27] Speaker 03:
I guess just to square that up, and then where's the record site that Mr.. Armstrong is had Just generally been an x camera operator Just it let me pull that up real quick

[00:10:44] Speaker 01:
Let's see if this is on the record.

[00:11:12] Speaker 03:
or anything establishing that, again, we have to kind of take the industry as we find it with respect to Section 1981 in terms of what their hiring practices are.

[00:11:21] Speaker 03:
And I'd like to just better understand why there would be an expectation that there's a pool of X cameramen and then a pool of A cameramen, B camera operators, C camera operators.

[00:11:50] Speaker 03:
Well, maybe you do have a chance to come up on rebuttal, so that might be something you can look for.

[00:11:55] Speaker 00:
While you're looking for that, counsel, I'm at ER 662, and that's a disputed fact, the fact that Michelle Crenshaw was a person of color to become camera operator X. Correct.

[00:12:12] Speaker 00:
Right.

[00:12:12] Speaker 00:
So that was a disputed issue of fact.

[00:12:14] Speaker 00:
It's not a fact.

[00:12:16] Speaker 01:
Right, and it's up to the jury to decide the facts.

[00:12:18] Speaker 01:
I mean, and that's why we're here on this number judgment.

[00:12:19] Speaker 00:
But you have to raise a material issue of fact before you get to a jury.

[00:12:23] Speaker 01:
Yeah, and look, and so here you have, if you look, you have to look at the whole policy of increasing the amount of people of color, but not increasing the amount of white people, and encouraging Warner Brothers to hire people of color instead of white people.

[00:12:42] Speaker 01:
And that starts with the policy, the commitment that was posted on the door,

[00:12:46] Speaker 01:
Then you have the emails, the executive producers, how many black people are on your list.

[00:12:50] Speaker 01:
I don't want them all white.

[00:12:52] Speaker 03:
This appears to be a novel issue.

[00:12:53] Speaker 03:
The question of the commitment.

[00:12:57] Speaker 03:
We have some district court cases on this.

[00:12:58] Speaker 03:
Do you have any kind of authority from other courts of appeals or kind of what your best

[00:13:05] Speaker 03:
Case will be, I know lawyers don't love that question, but how we would, if for example in a world in which we might view Ms.

[00:13:13] Speaker 03:
Lee as the only relevant decision maker and the only question of fact in the record is she didn't have contact with any of the higher ups about any of these issues other than suggesting that she supported or might have agreed with the commitment.

[00:13:33] Speaker 03:
What's your best case saying that the commitment itself

[00:13:36] Speaker 03:
without any other evidence, is enough to create a genuine dispute of material fact as to whether that was a race-based reason that Ms.

[00:13:45] Speaker 03:
Lee incorporated in the hiring decision of Mr. Armstrong.

[00:13:49] Speaker 01:
Yeah.

[00:13:49] Speaker 01:
Chrissy Cecil said the illegally vicious rumors you heard are true.

[00:13:52] Speaker 01:
Robin Green.

[00:13:53] Speaker 01:
I just want to hear about the commitment.

[00:13:54] Speaker 01:
Oh, sorry.

[00:13:54] Speaker 01:
The commitment.

[00:13:56] Speaker 03:
So lots of companies, right?

[00:13:57] Speaker 03:
The district courts say this.

[00:13:59] Speaker 03:
Lots of companies have statements, diversity commitments like this.

[00:14:04] Speaker 03:
Do you have a case that said that that's enough to establish that, that a hiring decision maker who subscribes to that diversity commitment at least raises a genuine issue as to whether any hires that she makes are race-based?

[00:14:21] Speaker 01:
You're right.

[00:14:21] Speaker 01:
So look, you start off with the University of Michigan case with Sandra Day O'Connor, where she said affirmative action was OK.

[00:14:26] Speaker 01:
That was only to remedy past discrimination.

[00:14:29] Speaker 01:
But that's not.

[00:14:30] Speaker 03:
This is not.

[00:14:31] Speaker 03:
So there are two kinds.

[00:14:33] Speaker 03:
Affirmative action is a pretty broad term.

[00:14:36] Speaker 03:
This is not Are you asserting that there's anything about this that that would that particular hiring decisions?

[00:14:43] Speaker 03:
This is not a policy that says That there any particular decision must be based on race.

[00:14:50] Speaker 01:
It's a general inclusion policy It's not a general it actually says that we are going to work with our writers directors and producers to take steps to implement this commitment and they posted it on the door which is essentially saying whites not welcome here and

[00:15:02] Speaker 01:
and he took a picture.

[00:15:03] Speaker 04:
Essentially he's doing a lot of work in that sense.

[00:15:08] Speaker 04:
What is the evidence that the commitment committed them to any particular action?

[00:15:14] Speaker 01:
Well, Patty Lee admits in her deposition that she followed the commitment in staffing the show.

[00:15:18] Speaker 01:
But not with respect to any hiring decision.

[00:15:23] Speaker 01:
She was hired because of the commitment.

[00:15:25] Speaker 01:
I've proven that.

[00:15:27] Speaker 00:
You haven't proven anything.

[00:15:30] Speaker 00:
Understood.

[00:15:31] Speaker 00:
You haven't had a trial, so you haven't proven anything.

[00:15:33] Speaker 01:
Right.

[00:15:33] Speaker 01:
And that's really why I'm here.

[00:15:34] Speaker 01:
It's just the right to trial by jury for this.

[00:15:37] Speaker 00:
You're saying you raised the material issue of fact that Patty Lee was motivated to hire someone other than Mr. Armstrong, even though she hired three men who identified as white males.

[00:15:53] Speaker 01:
Yes, because she understood one of the males to be racially ambiguous.

[00:15:59] Speaker 01:
So she admitted that in her deposition.

[00:16:01] Speaker 01:
So he identifies as a white male after Warner Brothers lawyers have them write a declaration saying that.

[00:16:07] Speaker 00:
Well, counsel, that's not fair.

[00:16:09] Speaker 01:
I understood.

[00:16:10] Speaker 00:
It's not fair to say that counsel had him write that.

[00:16:13] Speaker 01:
Well, I assume that it was done by the law firm.

[00:16:17] Speaker 01:
Maybe I'm wrong.

[00:16:18] Speaker 01:
But I don't, so anyway.

[00:16:20] Speaker 03:
But you've said followed the commitment.

[00:16:22] Speaker 03:
And the testimony is that maybe at best it's a pretty choppy deposition, but at best that she may agree with some or all of the commitment and that she believes in having an inclusive set.

[00:16:35] Speaker 03:
So follow, I think as you suggested, is a command.

[00:16:37] Speaker 03:
I guess I'm still not seeing where the commitment is viewed as a command.

[00:16:41] Speaker 03:
company policy that should affect a particular hiring decision and and I guess I don't maybe I don't read the 14th amendment cases about affirmative action kind of the same way in terms of what the courts looking at I'm looking for and just an employment action where there's a diversity commitment and that that has been used as a basis for racial bias in hiring yeah and so here the

[00:17:07] Speaker 01:
You have the Harvard admissions case, which essentially said you can't use race as a factor.

[00:17:11] Speaker 01:
You have the voting rights case that's coming up.

[00:17:13] Speaker 03:
Oh, there is a genuine dispute there based on a lot of statistical evidence, which I don't think is present here.

[00:17:18] Speaker 03:
OK, so there's SFFA.

[00:17:22] Speaker 01:
Yeah, right.

[00:17:23] Speaker 01:
And then you have the direct evidence, though, that they were implementing the commitment by replacing Steve Silver.

[00:17:31] Speaker 03:
So is every employer that has a diversity commitment

[00:17:37] Speaker 03:
Why wouldn't every employer as a diversity commitment face trial?

[00:17:44] Speaker 03:
Trial anytime an employee who doesn't get a particular position is able to show that Someone else got it.

[00:17:54] Speaker 03:
I mean that that how do we draw that line?

[00:17:56] Speaker 03:
That's what that's what I'm worried about I hope you understand how where we draw that line because we don't even have to get there because of all the other direct Well, if we're just looking at Lee in the commitment.

[00:18:04] Speaker 01:
Yeah, yeah, just leave the commitment

[00:18:07] Speaker 01:
I've shown through circumstantial evidence that the real reason Lee selected persons of color and the real reason that they increased persons of color was to make the cast feel comfortable, because it was a black African-American cast.

[00:18:23] Speaker 00:
Not all?

[00:18:24] Speaker 01:
Not all, no.

[00:18:25] Speaker 01:
But I'm not making this up.

[00:18:26] Speaker 00:
But you say it was a black African-American cast, and that's not true.

[00:18:29] Speaker 01:
Warner Brothers producer.

[00:18:30] Speaker 00:
I've watched that show.

[00:18:31] Speaker 00:
It's not.

[00:18:32] Speaker 01:
Yeah, I understand.

[00:18:33] Speaker 01:
Warner Brothers producer admitted that she was instructed to find people of color to make the cast feel comfortable.

[00:18:42] Speaker 01:
And then she said, it's like getting the food they want in craft services.

[00:18:46] Speaker 01:
It's like getting the dressing room they want.

[00:18:48] Speaker 01:
You want them to be happy.

[00:18:50] Speaker 04:
The question was about the commitment.

[00:18:52] Speaker 04:
And so this other evidence may be helpful to you, but I'm also interested in the answers.

[00:18:57] Speaker 01:
Yes, I'll tell you.

[00:18:58] Speaker 01:
Right.

[00:18:59] Speaker 01:
So essentially, you have to look at this specific commitment.

[00:19:03] Speaker 01:
U.S.C.

[00:19:05] Speaker 01:
1981 says you cannot discriminate on the basis of color, period.

[00:19:11] Speaker 00:
There's an intentional requirement, correct?

[00:19:13] Speaker 01:
For U.S.C.

[00:19:14] Speaker 01:
1981?

[00:19:15] Speaker 01:
Yes.

[00:19:16] Speaker 01:
I don't know that there is.

[00:19:19] Speaker 01:
But I think either way we have sufficient facts.

[00:19:23] Speaker 01:
Here, the commitment on its face is discriminatory, and Patty Lee admitted to following the commitment.

[00:19:31] Speaker 04:
But why is it that the commitment, I mean, paragraph two of the commitment, which seems to be in paragraph one is just sort of, I mean, it's all fairly vague and aspirational, but the closest it comes to something concrete is in paragraph two, where it says that they're going to use best efforts to ensure that diverse actors and crew members are considered

[00:19:52] Speaker 04:
for film, television, and other projects.

[00:19:58] Speaker 04:
It doesn't say anything about the ultimate hiring decisions.

[00:20:02] Speaker 01:
If you look higher in the commitment, it says you need to increase the amount of people of color behind the camera.

[00:20:07] Speaker 01:
And then we're going to work with our writers and producers to implement this.

[00:20:10] Speaker 01:
So by saying we're going to increase one group, you're excluding another group.

[00:20:15] Speaker 01:
And it doesn't matter what the color is.

[00:20:18] Speaker 01:
Race discrimination is, John Roberts said,

[00:20:21] Speaker 01:
If you want to stop discriminating on the basis of race, stop discriminating on the basis of race.

[00:20:25] Speaker 01:
So the law has evolved to a point where this is no longer legal, and it's no longer lawful.

[00:20:31] Speaker 01:
And so a lot of these diversity programs, excuse me, there's nothing wrong with diversity.

[00:20:36] Speaker 01:
There's something wrong, though, with trying to increase one group at the expense of another group.

[00:20:41] Speaker 04:
A lawyer reviewing this with awareness of what was coming in SFFA would probably have advised them to write it a little bit differently.

[00:20:52] Speaker 04:
But that doesn't mean that it shows that they took any particular action in any particular case, because it doesn't, despite its name, it doesn't actually commit them to do anything in particular in any particular hiring decision.

[00:21:09] Speaker 04:
That seems like the evidentiary gap that is a significant issue in your case.

[00:21:13] Speaker 01:
Well, I think when you post it on the wall, you put in every new hire paperwork, and then you have people of color on a cast that need to feel comfortable with having people of color behind the camera at the same time the commitment comes out, while also having emails, as I said before, how many white, black people are on your list, I don't want them all white.

[00:21:34] Speaker 01:
It shows circumstantially that they were following the commitment.

[00:21:38] Speaker 01:
I can use circumstantial evidence, especially on a motion for summary judgment when you're looking for all reasonable inferences in favor of the nonmoving party.

[00:21:48] Speaker 01:
At the trial court, it feels like all the

[00:21:52] Speaker 00:
It kind of felt like all the differences were on the moving party, which is the opposite of what the trial courts had done.

[00:22:13] Speaker 00:
Uncircumstantial, but for you have to show that it's the actual cause.

[00:22:17] Speaker 01:
I agree with you.

[00:22:18] Speaker 00:
I think you raised a material question of fact about that.

[00:22:21] Speaker 01:
Yes, I do.

[00:22:23] Speaker 01:
I definitely do.

[00:22:24] Speaker 01:
I've shown that it's the but for cause because Ben Steeples admitted that he was instructed to start with to start finding people who were black male or female and then go from there.

[00:22:34] Speaker 00:
But Patricia Lee, I mean, but I'm sorry, I'm thinking of somebody else.

[00:22:38] Speaker 00:
Miss Lee didn't say that and she was the person who hired.

[00:22:42] Speaker 01:
Correct.

[00:22:42] Speaker 01:
This is evidence coming from her predecessor that was instructed to follow the commitment by the same higher-ups that were managing Patti Lee.

[00:22:52] Speaker 01:
So it's a group effort, and we can't just look at Patti Lee because she has pressure from higher-ups to do this.

[00:23:05] Speaker 01:
I mean, are we just imagining that this didn't happen, that the cast didn't say they want black people behind the camera?

[00:23:11] Speaker 04:
I mean it like did this happen this this is real and can I ask you the the sentence the next sentence in the commitment after the one I just read Says we'll engage with our writers producers and directors to create a plan for implementing this commitment It just does the record contain the plan for implementing the commitment

[00:23:31] Speaker 01:
The record contains the email showing that they were implementing the commitment by how many black people that's not I mean the the commitment seems to contemplate some more formal plan Did are you aware of or?

[00:23:46] Speaker 01:
It does the record contain evidence of such a concrete plan yes, the emails from Al Higgins the deposition test the email from

[00:23:58] Speaker 00:
You mentioned some of the affirmative action cases there are actual plans that talked about how to weigh different factors and What the goals were in terms of percentages that right that would be like a plan?

[00:24:10] Speaker 00:
That's written down with all of these criteria in there was there anything like that in the record nothing like that no But you know I think you know the

[00:24:25] Speaker 01:
The fact, though, that they are talking about how many black people are on your list.

[00:24:29] Speaker 01:
I don't want them all white.

[00:24:31] Speaker 01:
Here are our African-Americans as of now.

[00:24:34] Speaker 01:
This doesn't touch upon our other racial minorities.

[00:24:37] Speaker 00:
So under your view, any time a person of color is hired instead of a white person would raise an inference that there's discrimination?

[00:24:45] Speaker 01:
Never.

[00:24:45] Speaker 01:
No, and that's not the case I'm bringing.

[00:24:47] Speaker 01:
I'm bringing a case of direct evidence of race discrimination.

[00:24:49] Speaker 01:
I'm not just saying this is what the trial court said.

[00:24:51] Speaker 01:
This is what Warner Brothers is trying to say I'm arguing.

[00:24:53] Speaker 01:
And I told the trial court this.

[00:24:54] Speaker 01:
I'm not making that argument.

[00:24:56] Speaker 01:
I'm not saying every time there's a diversity policy, there's a legal violation.

[00:24:59] Speaker 01:
I'm saying, in this case, I have specific emails of direct evidence.

[00:25:03] Speaker 01:
I have Christy Cecil saying that the illegally vicious rumors you heard are true.

[00:25:09] Speaker 01:
We had to replace Steve Silver.

[00:25:11] Speaker 00:
Was there any evidence that Ms.

[00:25:14] Speaker 00:
Crenshaw was less qualified than your client?

[00:25:19] Speaker 01:
Yes, he was an Emmy Award winner.

[00:25:21] Speaker 01:
He had filmed every single episode of The Big Bang Theory and Two and a Half Men.

[00:25:26] Speaker 01:
Patti Lee had never worked with Michelle Crenshaw before.

[00:25:29] Speaker 00:
She had never worked with Mr. Armstrong either.

[00:25:31] Speaker 01:
That's correct, that's correct.

[00:25:33] Speaker 01:
But it's not, it wasn't just, my argument is that it wasn't just Patti Lee's decision.

[00:25:37] Speaker 01:
This was a group effort of pressure to hire people of color.

[00:25:42] Speaker 03:
Is there something in the record that would show us that hiring policy?

[00:25:45] Speaker 03:
So I guess, we have an email where,

[00:25:49] Speaker 03:
She says here's who I've hired and I don't recall any other I mean maybe there was approval or but but is there any policy that that tells us that anyone else made this decision is chargeable with having made this decision.

[00:26:05] Speaker 03:
Other than Ms.

[00:26:06] Speaker 03:
Lee?

[00:26:06] Speaker 01:
Yeah, it shows that the decision was, the people who were involved in the decision start with Patty Lee, then it goes up to Robinson Green and Christy Cecil, both of whom made direct evidence of discrimination comments.

[00:26:17] Speaker 03:
Right, but they weren't involved in the hiring, right?

[00:26:20] Speaker 03:
It could be true.

[00:26:22] Speaker 03:
I think the cases tend to draw a distinction.

[00:26:23] Speaker 03:
Who's the hiring authority?

[00:26:26] Speaker 03:
She was the one who chose these people.

[00:26:28] Speaker 03:
And then there's no kind of further, is there any further discussion about

[00:26:35] Speaker 03:
In either kind of before or after charging patty Lee with in hiring the in making this hiring decision Here's what you have to do it's just a kind of reporting up thing is Am I missing something in the record that that establishes that it was Warner Brothers policy that?

[00:26:56] Speaker 03:
Somewhere that she had to hire.

[00:26:57] Speaker 03:
I mean again set aside the commitment that she had in her decision.

[00:27:01] Speaker 03:
She had to hire these other

[00:27:04] Speaker 03:
She had to hire particular people.

[00:27:06] Speaker 03:
Because the record seems to just say that she decided to hire and then other people kind of signed off but weren't involved in the process.

[00:27:14] Speaker 01:
Yeah, right.

[00:27:14] Speaker 01:
So this is a reasonable inference on a motion for summary judgment that the... But it's not quite a matter of fact.

[00:27:24] Speaker 03:
It's more of a matter of kind of law or the practice in terms of who had the authority.

[00:27:30] Speaker 03:
And I guess I'm wondering, why is there any dispute as to whether Patti Lee had authority?

[00:27:37] Speaker 03:
She was the sole person who picked these people.

[00:27:39] Speaker 03:
These people did not interview with a board with Cecil and Green.

[00:27:44] Speaker 03:
They did not have to sign off.

[00:27:46] Speaker 03:
She hired them.

[00:27:48] Speaker 03:
And usually, at least in the Title VII context, as you pointed out, Section 1981, and the law's a little thinner.

[00:27:53] Speaker 03:
But we have to be able to separate, because the person

[00:27:59] Speaker 03:
showing discrimination that intent has to be a person.

[00:28:04] Speaker 03:
You have to point to who actually has that authority.

[00:28:07] Speaker 03:
And I guess I'm just missing where you're seeing that other people informed her decisions made her hire those people.

[00:28:15] Speaker 01:
Yes, it was.

[00:28:17] Speaker 01:
My argument is that Warner Brothers instructed Patty Lee to hire people of color to make the cast feel comfortable.

[00:28:22] Speaker 01:
As I've shown through circumstantial evidence, even though I don't have the smoking gun,

[00:28:26] Speaker 00:
You know a recording of okay, I'm saying it we've taken you way past your time.

[00:28:31] Speaker 02:
We'll give you a minute for rebuttal May it please the court Adam Levine for the defendants and appellees There there's a lot to unpack from my friends initial arguments, but I would like to start with this I

[00:28:52] Speaker 02:
There are three very crisp dispositive issues which ultimately undermine Mr. Armstrong's claims of discrimination and retaliation.

[00:29:04] Speaker 02:
The three issues, I'll list them and then I'll discuss them, are one, he has not been able to identify evidence of an open position

[00:29:12] Speaker 02:
Two, he has not been able to identify evidence that he actually applied or let it be known that he was interested in an open position.

[00:29:21] Speaker 02:
And number three, Mr. Armstrong has submitted no evidence that he was denied an open position for which he applied based upon his race.

[00:29:31] Speaker 03:
So as to the open position and applied, I know that some of our cases have said that, but that can't possibly be

[00:29:40] Speaker 03:
An element of establishing under section 1981 at least a discrimination and making performance modification termination of contracts I mean as I understand it so that the some parts of the movie industry are different that there's not an application process but so you're saying that if if someone even with discriminatory intent and

[00:30:09] Speaker 03:
through affirmative outreach picks people based on their race.

[00:30:15] Speaker 03:
It's non-actionable under section 1981 because there wasn't an application or an open position.

[00:30:19] Speaker 02:
Well, Your Honor, if there is no open position, I think as a matter of logic, a plaintiff cannot demonstrate that but for his race, he would have gotten the position because there is no position.

[00:30:30] Speaker 03:
The open position might be slightly different than the application because I think the claim here is that he was not considered by Ms.

[00:30:39] Speaker 03:
Lee.

[00:30:40] Speaker 03:
But none of the other people applied either.

[00:30:43] Speaker 03:
Some of them had reached out.

[00:30:43] Speaker 03:
Some of them didn't.

[00:30:45] Speaker 02:
Your honor will let me if I may address the application Requirement we believe it's a requirement, but I think the requirement of section 1981 that you can't If I mean in other words that there has to be an open procurement process or something for contracting for 1981 Well, here's the reason why your honor and I believe it's baked into the concept of pretext because if the plaintiff is going to prove that but for his race he would have obtained the position and

[00:31:13] Speaker 02:
then the plaintiff has to prove that the decision maker knew about him at a minimum.

[00:31:18] Speaker 02:
Now, could it be a formal application?

[00:31:20] Speaker 02:
Yes.

[00:31:21] Speaker 02:
Could it be other ways of applying?

[00:31:23] Speaker 02:
Because I think Your Honor is correct in suggesting that in the entertainment industry, unlike perhaps other industries,

[00:31:29] Speaker 02:
people don't mail in their resume or their CV.

[00:31:32] Speaker 02:
But instead, in the entertainment industry, the decision makers, through one way or another, become aware of an interest on the part of, and we'll call them applicant.

[00:31:42] Speaker 03:
All four of the operators who were hired here affirmatively express an interest to Ms.

[00:31:47] Speaker 03:
Lee when she was under consideration.

[00:31:49] Speaker 03:
She just reached out and hired some people.

[00:31:51] Speaker 03:
She might have had good, perfectly legal reasons to do so, but that happens.

[00:31:56] Speaker 03:
Does Section 1981 not have

[00:31:58] Speaker 03:
I mean, in other words, she's making a contract offer to these people before they are soliciting the offer.

[00:32:04] Speaker 03:
Why isn't that equally actionable under Section 1981?

[00:32:07] Speaker 02:
Well, so there's several layers to the onion, if you will.

[00:32:12] Speaker 02:
The first layer is that Ms.

[00:32:14] Speaker 02:
Lee was aware of all four of those individuals and was aware that all four of those individuals were interested in camera operator positions.

[00:32:23] Speaker 02:
In contrast, she testified that she doesn't recall ever even meeting Mr. Armstrong.

[00:32:27] Speaker 03:
Well, he says that they might have, and that would create a dispute, whether it's material or not.

[00:32:31] Speaker 03:
We'll see.

[00:32:33] Speaker 02:
He says that they might have met or that they did meet, but she doesn't recall ever meeting him.

[00:32:37] Speaker 02:
She didn't have him in mind at all when she was filling the position, and that's in the record, Your Honor.

[00:32:43] Speaker 02:
Consequently, how can she discriminate against a person who's not even in the list of applicants that she's considering?

[00:32:50] Speaker 02:
Again, there are no applicants.

[00:32:52] Speaker 04:
Sorry.

[00:32:53] Speaker 04:
Are you, by chance, familiar with our decision in Calderon against Circle K?

[00:32:57] Speaker 04:
It was just last week, so they would know.

[00:33:00] Speaker 02:
No, Your Honor, I apologize.

[00:33:01] Speaker 02:
I'm not.

[00:33:02] Speaker 04:
No, that's totally understandable.

[00:33:04] Speaker 04:
So that was an ADEA case.

[00:33:07] Speaker 04:
And we said there that what I

[00:33:10] Speaker 04:
I think was consistent with the law all along as Judge Johnston was just articulating that if the employer doesn't solicit applications and doesn't announce that the position is available, then you're not required in establishing a prima facie case to show that you applied for the position if the employer didn't have a formal application process.

[00:33:34] Speaker 04:
So I guess I have the same question, which is,

[00:33:38] Speaker 04:
Why do we think that 1983, or 1981, excuse me, includes the submission of an application as a requirement for bringing a case?

[00:33:50] Speaker 02:
Your Honor, and I want to also answer Judge Johnstone's question about the other four, and I'll do that.

[00:33:56] Speaker 02:
But I'll answer this one and then turn to that one.

[00:33:59] Speaker 02:
I think that the application requirement, whether it's part of the prima facie case or baked into pretext, is implicit in the standard that needs to be applied.

[00:34:09] Speaker 02:
And the reason for that is that ultimately it's the plaintiff's burden to prove that but for, in this case, the fact that he's white, he would have obtained the position.

[00:34:19] Speaker 02:
And if the decision maker didn't even consider him, didn't know of him, doesn't recall ever having met him, he expressed no interest, whether it be a formal application or even saying, hey, Patty, if you have a job, I'd like it.

[00:34:34] Speaker 02:
If none of that is in her consciousness, how could she have made a decision to hire somebody else because of their race?

[00:34:43] Speaker 02:
because Mr. Armstrong wasn't even in the array of people under consideration.

[00:34:49] Speaker 02:
And to go back to Judge Johnstone's question about the other four, two of them, Davidson and Purdy, had previously worked

[00:34:58] Speaker 02:
with Miss Lee as camera operators on productions in which she was the director of photography.

[00:35:04] Speaker 02:
Michelle Crenshaw, the target of Mr. Armstrong's issues, had previously spoken to Miss Lee about working on her productions.

[00:35:15] Speaker 02:
And Miss Lee had previously sought to have her work on one of Miss Lee's productions, but Miss Crenshaw wasn't available.

[00:35:23] Speaker 02:
And Mr. Hinojosa,

[00:35:26] Speaker 02:
had affirmatively sought out Ms.

[00:35:29] Speaker 02:
Lee to ask if there were any opportunities on her productions.

[00:35:32] Speaker 02:
So all four of them were in the pool that was being considered by Ms.

[00:35:38] Speaker 02:
Lee.

[00:35:38] Speaker 02:
Mr. Armstrong was nowhere in the pool.

[00:35:40] Speaker 02:
And if there's no requirement at all that the decision maker know of the plaintiff, or at least be aware of the plaintiff's interest in a position, then it would open the floodgates of potential plaintiffs.

[00:35:55] Speaker 03:
I guess the converse concern is that if an application or if we look at only the pool is available, you could have a situation where there's, for purposes of Section 981, racially biased outreach, or that the pool is just defined by, incidentally defined by that.

[00:36:23] Speaker 03:
You know that that's the pool and then the fact that Someone is not in the pool I mean I can't be that they didn't that she didn't know about mr. Armstrong if there were a situation where the pool itself was constructed on a racial basis I don't think that's quite the allegation here, but you're you're you're taking a position here that that that section in 1981 contains some sort of baked in

[00:36:49] Speaker 03:
job hiring process where it only talks about contracts and whether you're going to offer I mean I think his complaint simply framed is you offered them a contract and you didn't offer me a contract and that was based on race.

[00:37:02] Speaker 03:
Why isn't that form enough?

[00:37:05] Speaker 02:
Well, we could take this outside the employment context and just look at contracting.

[00:37:09] Speaker 02:
If somebody were claiming under 1981 that they were denied a contract because of race, but yet the person, the other contracting party had never even heard of them at all.

[00:37:21] Speaker 02:
Let's say it's a cake maker.

[00:37:24] Speaker 02:
And the cake maker happens to be a Caucasian-owned cake business and is claiming

[00:37:30] Speaker 02:
that the restaurant isn't buying cakes because they're Caucasian-owned and that there was a desire to diversify, but that the restaurant had never even heard of this baker.

[00:37:39] Speaker 02:
The baker is some obscure bakery that had never sent marketing materials, solicitations, and was nowhere on the list.

[00:37:47] Speaker 02:
How can that bakery prove that, but for the race of the owners, they would have gotten the deal with the restaurant?

[00:37:54] Speaker 03:
I guess this takes us to this next level in terms of trying to understand

[00:37:58] Speaker 03:
this question of who the hiring authority is, which I spoke with your friend a little bit about.

[00:38:05] Speaker 03:
So why is it wrong, at least for purposes of summary judgment under Section 1981, that the higher-ups could taint somehow in terms of the policies and the discussions that they're having?

[00:38:21] Speaker 03:
Again, for purposes of creating a circumstantial case, Ms.

[00:38:25] Speaker 03:
Lee's hiring decisions, that she was feeling that pressure from higher ups.

[00:38:31] Speaker 03:
In other words, when we look at a hiring authority, do we just draw the line in the org chart?

[00:38:35] Speaker 03:
for the person who's making the decision maker?

[00:38:37] Speaker 03:
Or do we include the CC line?

[00:38:39] Speaker 03:
Do we include the BCC line?

[00:38:40] Speaker 03:
Do we include the reporting pieces?

[00:38:43] Speaker 03:
Help me figure that line out in this context.

[00:38:46] Speaker 02:
So Judge Johnstone, in a hypothetical case where higher-ups direct the decision maker, you must do X, Y, or Z, I think that a case could be made that the racial animus of higher-ups would be imputed to the decision maker.

[00:39:04] Speaker 02:
That's not the case here.

[00:39:06] Speaker 02:
Patty Lee testified that no one told her who to hire.

[00:39:10] Speaker 02:
No one told her to consider race or gender or any other factor that she made the decisions primarily based upon the fact that she'd worked with certain people in the case of two of the camera operators and that she had always wanted to work with Crenshaw.

[00:39:26] Speaker 02:
And in the case of Hinoza, that she knew through referral sources that he was quite good and that he was seeking out a position.

[00:39:35] Speaker 02:
So this is not the case where a higher up has directed the decision maker to discriminate.

[00:39:43] Speaker 02:
And there's doctrine to address that, the cat's paw doctrine.

[00:39:48] Speaker 03:
Is there a genuine dispute here as to whether Cecil and Green could have said,

[00:39:54] Speaker 03:
if there had been a different slate presented, could have said, no, go back.

[00:40:00] Speaker 03:
Do it again.

[00:40:00] Speaker 03:
Remember the commitment.

[00:40:02] Speaker 02:
There's no evidence of that in the record, Your Honor.

[00:40:04] Speaker 02:
That's a hypothetical, what they may or may not have done.

[00:40:07] Speaker 02:
The case here is that they didn't even know the races of the people that Miss Lee was putting forth.

[00:40:14] Speaker 02:
That's in the record.

[00:40:15] Speaker 02:
And so Miss Lee selected her candidates.

[00:40:19] Speaker 02:
No evidence that she selected those candidates based on race at all.

[00:40:23] Speaker 02:
in terms of the commitment She there's no evidence that she'd even seen the commitment Did you know the answer to the question?

[00:40:31] Speaker 04:
I asked plaintiffs council, which is that the commitment contemplates?

[00:40:34] Speaker 04:
There will be some implementation plan.

[00:40:37] Speaker 04:
Is there anything in the record about whether there was such a plan?

[00:40:39] Speaker 02:
There's there's no evidence of any plan your honor

[00:40:42] Speaker 02:
And I will also add that this issue of camera X and Ms.

[00:40:47] Speaker 02:
Crenshaw being his replacement is completely incorrect.

[00:40:52] Speaker 02:
And it is incorrect for this reason.

[00:40:53] Speaker 02:
There's evidence in the record.

[00:40:56] Speaker 02:
supplemental excerpts of record 68 paragraph 4, that in fact on the ranch, which was a prior production that Mr. Armstrong worked on, Mr. Armstrong was camera A and Ms.

[00:41:08] Speaker 02:
Crenshaw was camera X. The exact position that Mr. Armstrong claims that he should have received on Bob Hart Abishola.

[00:41:18] Speaker 02:
And so he is elected to argue here that Miss Crenshaw, quote, replaced him because Miss Crenshaw is African-American.

[00:41:28] Speaker 02:
If, in fact, Ms.

[00:41:30] Speaker 02:
Crenshaw were on a different camera, and one of the Caucasian identifying individuals were camera acts, I imagine that Mr. Armstrong would have pointed out that Crenshaw is on camera A, and I should have been hired for camera A. He has selected Ms.

[00:41:46] Speaker 02:
Crenshaw as his target, because that's the only way he can support his Section 1981 claim.

[00:41:53] Speaker 02:
So in short, though,

[00:41:58] Speaker 02:
There is some evidence of racial-related remarks on the pilot.

[00:42:05] Speaker 02:
And the plaintiff has repeatedly conflated those remarks with the series.

[00:42:11] Speaker 02:
There is no evidence at all of any racial-related motivations on the series itself.

[00:42:18] Speaker 02:
And the pilot had different producers than the series.

[00:42:22] Speaker 02:
And the pilot had a different director of photography than the series.

[00:42:27] Speaker 02:
They were treated, and as a matter of evidence in the record, they were completely separate productions.

[00:42:34] Speaker 02:
And so the, quote, circumstantial evidence that Mr. Armstrong relies upon to try to buttress his claims is actually not evidence at all, because it was an entirely separate production.

[00:42:48] Speaker 02:
And the evidence here is that on the series itself, Patty Lee's decisions were entirely grounded on the skills and abilities and experience and referrals that she received for the four camera operators that she selected.

[00:43:05] Speaker 02:
Unless the panel has any other questions, I'm prepared to submit.

[00:43:14] Speaker 00:
Thank you, counsel, if here's not.

[00:43:15] Speaker 02:
Thank you very much.

[00:43:18] Speaker 01:
through one minute.

[00:43:25] Speaker 01:
So the other side has just conceded that where you have racial animus with upper levels, you can impute that to the lower level person who's actually making the offer.

[00:43:39] Speaker 01:
So they've conceded that point.

[00:43:41] Speaker 01:
And there's so much evidence in the record about the higher ups with that unlawful motivation.

[00:43:48] Speaker 01:
Next, you have to look at the promise that Chuck Lorre and the president of Warner Brothers made to the plaintiff that he would continue working on to the next show when you look at the actions of Patti Lee.

[00:44:03] Speaker 01:
So that further shows discriminatory animus of higher ups because you have the president and the most successful executive producer of the studio promising him personally that he would work on the next show.

[00:44:17] Speaker 01:
Then the commitment comes out.

[00:44:18] Speaker 01:
And the person of color has the position instead of him.

[00:44:23] Speaker 01:
After all the other evidence and the emails that implementing the commitment.

[00:44:31] Speaker 01:
How many black people are on your list?

[00:44:32] Speaker 01:
I don't want them all white.

[00:44:33] Speaker 01:
That's implementation of the commitment.

[00:44:35] Speaker 01:
And then further, you don't even have to isolate Patty Lee as the decision maker if you look at the but for cause.

[00:44:45] Speaker 01:
of plaintiffs not working on the show because Steve Silver was replaced by Patti Lee in the first place.

[00:44:51] Speaker 01:
So let's say you have a team who's an all-white team, and you say, because of this new policy, I want more people of color.

[00:45:02] Speaker 01:
And I know that this team works together.

[00:45:04] Speaker 01:
And by getting rid of the leader of the team, I'm going to get rid of the subordinate of the team.

[00:45:07] Speaker 01:
That's still but for if that initial decision to get rid of the leader was made based on race.

[00:45:12] Speaker 01:
And as Christy Cecil admitted in the email,

[00:45:14] Speaker 01:
He didn't get the job because they replaced Steve Silver with Patty Lee.

[00:45:18] Speaker 00:
All right.

[00:45:18] Speaker 00:
Thank you, counsel.

[00:45:19] Speaker 00:
We heard that.

[00:45:19] Speaker 00:
We heard your argument.

[00:45:20] Speaker 01:
OK.

[00:45:21] Speaker 00:
Thank you.

[00:45:22] Speaker 00:
Thank you to both counsel.

[00:45:23] Speaker 00:
The case just argued is submitted for a decision by the court.