[00:00:00] Speaker 00:
Good morning.

[00:00:01] Speaker 00:
May it please the court, Joshua Watson for the plaintiff and appellant, Brian Brown.

[00:00:06] Speaker 00:
I'd like to reserve five minutes for rebuttal.

[00:00:11] Speaker 00:
The parties in this case agree that Brian Brown is a person who has a disability.

[00:00:17] Speaker 00:
They agree that he is able to perform the essential job functions either with or without accommodation.

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They agree that he applied for employment, and they agree that he was not a hire.

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They agree that the rubric that was used by the employer to decide whether or not he would be hired was restricted to a five question standardized questionnaire.

[00:00:39] Speaker 00:
So all of that is agreed upon by the parties.

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And then where we diverge is what was said during that interview and what legal significance is there that there are two different stories.

[00:00:54] Speaker 00:
So what I would first point out is that if we were to go through, certainly when I go through and I look at the evidence that's been provided in terms of what Mr. Brown says he said and what CEMEX says he said and then what CEMEX says the scoring rubric was.

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If I take what Mr. Brown says he said and I compare it against the rubric, he picks up enough points to end up somewhere

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16 to 20 score as opposed to the nine that he had.

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So that's why the difference matters.

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So to give an example, for example, I think that the questions that matter most are questions two, four, and five.

[00:01:38] Speaker 01:
And so for example... Before you get into that, I just want to ask a sort of foundation question.

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Is it possible, I understand you don't think that this is this case, but I'm asking just generally.

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Is it possible that there could be a discrepancy in how the rubric was applied but not have that be evidence of discrimination?

[00:01:58] Speaker 01:
It seems like your case is built on the idea that

[00:02:02] Speaker 01:
It doesn't look like they actually followed the process.

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They said they were going to follow the criteria.

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They said they were going to employ and figure out who to hire.

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And so this, my client is disabled and everyone knows that.

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And so we're going to have that inference that they didn't follow it for him because of his disability.

[00:02:20] Speaker 01:
I understand that's your argument, but is it possible that you could just have not following the criteria and not having that be connected to disability?

[00:02:31] Speaker 01:
Or is it your position that in a case where you have a person seeking a job who is disabled, then that is the necessary inference?

[00:02:40] Speaker 00:
I understand, Your Honor, thank you.

[00:02:42] Speaker 00:
I believe that that is entirely possible and that it is a question of fact for the jury.

[00:02:46] Speaker 01:
Okay, so in that kind of a scenario, your position is you can just never resolve this at summary judgment.

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You've got to go to trial and let the jury weigh that.

[00:02:53] Speaker 01:
And whether they think that the failure to follow the criteria was connected to disability or some other benign reason.

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Well, I think that our case is a little different from that, and so I would hesitate before making that categorical of an assertion myself.

[00:03:06] Speaker 00:
I think that this case is different because we have the corollary information about what the plaintiff represents are misrepresentations by company witnesses about what they knew and perceived about Mr. Brown's disabilities.

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And so that's the line of testimony that talks about the time that Mr. Skulik, the vice president, Mr. Ramirez, an operational supervisor,

[00:03:29] Speaker 00:
came down to the Tykert plant that was in Roseville that was being switched over to becoming a CEMEX plant.

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And so there's the testimony there about how Mr. Skulik and Mr. Ramirez both visualized Mr. Brown when Mr. Brown was getting off of work and he had gone through a locker room change.

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And so he had come out and instead of wearing his regular work clothes, he was wearing shorts and his prosthetic was very visible.

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And when he was in the process of doing that, he had an interaction with Mr. Skulik and a separate interaction with Mr. Ramirez.

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And that is something that those two gentlemen say did not occur, that the CEMEX folks say did not occur.

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And yet there are the declarations from the other employees.

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They say, to be clear, they say that they weren't even there for that.

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And then we look at the employee declarations to say that they were there for that.

[00:04:24] Speaker 04:
But there's no dispute that all sides knew he was wearing a prosthetic device.

[00:04:29] Speaker 00:
The question is to what degree, yes, the question, what there's no dispute about is that Mr. Skulik knew and that Mr. Skulik had learned through a process where he talked about it with a union rep.

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But there was a dispute as to whether Mr. Ramirez knew.

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Mr. Ramirez did not acknowledge that he knew.

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And both of them I think is important in this case because it's going to be viewed in the totality of the circumstances if it goes forward.

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Why is it that Mr. Skulik is downplaying the degree to which he knew?

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Why is Mr. Ramirez saying that he never even went to the facility, never even saw the issue with the leg?

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And so then that adds to the context.

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So I wouldn't come to you or any other court and say that because of that testimony simply that we have from Mr. Skulik and Mr. Ramirez that we prove discrimination.

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But it's the totality of the circumstances.

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We have the company saying we have a standardized way that we score things.

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We have their notes about what happened.

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And we have very importantly, we're not just saying that they didn't score fairly.

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We're saying that they didn't apply the facts fairly.

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according to their own notes, were saying that they misrepresented what the facts were, misrepresented what the words were that were communicated by Mr. Brown.

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So you have people on the panel who are saying, Mr. Brown said A instead of B, and then they score him low.

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And those same people are saying, oh, no, I didn't even meet the guy and see his leg with the amputation and the prosthetic.

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And so the position that I'm advancing is that,

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And in that full context, a jury could reasonably say, you know, I don't think that the employer here, the employer's representatives are being honest.

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I think that they really did have a discriminatory intent.

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And, you know, we do have that case authority that talks about the idea of mendacity.

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And so when we talk about the Reeves and the St.

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Mary's cases,

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you know, it is a somewhat limited space.

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But if the employer is basically caught in lies, if they are saying, and it underlies sort of a red line, but it's employment case.

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So, you know, if the employer's representatives are misrepresenting.

[00:06:47] Speaker 04:
What were the lies of the employer's representatives?

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So there it is the distinction between what Mr. Brown says he said

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and what the company representative said he said in the interview.

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So, for example, those are the ones that I would focus on would be questions two, four, and five in the record.

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So, for example, question four talks about Mr. Brown being asked, when did you encounter a particular problem with a customer and how did you resolve it?

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And Mr. Brown says,

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You know, that he gives this very detailed example.

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He names a customer.

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He names what happens.

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And the account from Semex, it doesn't have that.

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And then they score him very, very low.

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On that one, they gave him a 2 out of 5.

[00:07:35] Speaker 01:
Question 5 talks about a time that you had a, or Mr. Brown had a... So I know you're going to do the totality, but let's focus on just that one for a second, because I'm still sort of wrestling about how I think about this analysis.

[00:07:47] Speaker 01:
So yes, if we take his evidence as true as we have to at this stage, there's a discrepancy.

[00:07:54] Speaker 01:
He gives a lot more detail and flavor to the answer.

[00:07:57] Speaker 01:
The legal standard is that we have to have a because of disability inference.

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We have to connect it to his disability.

[00:08:05] Speaker 01:
There's nothing about question two.

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that gets at his disability.

[00:08:09] Speaker 01:
As far as I understand, there's nothing about the question or the answer that relates to his disability or his status as an employee or anything that would sort of bring a whiff of that into this.

[00:08:20] Speaker 01:
So again, I understand the totality, but if I'm just looking at that, the fact that he's a disabled person and that there was, we'll say, an error in how they assessed this interview and how it went, that doesn't automatically

[00:08:35] Speaker 01:
Provide the link.

[00:08:36] Speaker 01:
Would you agree with that?

[00:08:37] Speaker 00:
I do agree with that.

[00:08:38] Speaker 00:
And I think the question here, and why I think it's a question for a jury, is when we do put it in the totality of the circumstances, how do we interpret the subjective intent of the interviewers when they write the notes the way they do?

[00:08:52] Speaker 00:
Because I agree with you.

[00:08:54] Speaker 00:
There are circumstances in which a juror might say, a finder of fact might say, you know, people take notes differently.

[00:09:01] Speaker 00:
And maybe these notes just aren't good notes, but maybe what really happened here is we're just talking about a different evaluation of an interview.

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And there's another world in which a finder of fact can look at the same set of information and say, no, no, like you're omitting key information.

[00:09:18] Speaker 00:
What is this business about?

[00:09:20] Speaker 00:
You know not admitting that you know about the leg Why are you downplaying that and infer from that mendacity and the context that there's a discriminatory intent?

[00:09:31] Speaker 00:
But as in many discrimination cases the not all of course but but as in many discrimination cases the discriminatory intent

[00:09:39] Speaker 00:
needs to be inferred in this case.

[00:09:41] Speaker 00:
And I would agree that in this case, there is not an email that said we're not going to hire this guy because he's an amputee.

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Nobody expressly said that to him.

[00:09:50] Speaker 00:
We don't have expressed jokes about his disabled status or anything like that.

[00:09:56] Speaker 00:
So it really is a question of whether you can infer from the totality of the circumstances.

[00:10:00] Speaker 01:
So I want to make sure I understand your position on the record.

[00:10:03] Speaker 01:
So the legal standard, as I understand it, is at this point, the plaintiff has the obligation to produce some evidence

[00:10:09] Speaker 01:
suggesting a discriminatory intent, some evidence.

[00:10:12] Speaker 01:
So you would point to there's a discrepancy on how many of the interviewers knew he was disabled because they're denying it or suggesting that they didn't see when there's evidence that they did.

[00:10:24] Speaker 01:
You would say that a couple of the answers, unlike the one that we just were talking about, the omission did have something to do with his disability.

[00:10:33] Speaker 01:
He says that he referenced his being disabled in an answer and then there

[00:10:36] Speaker 01:
Summary of the answer to that question has no inference of disability, so I guess you would point to that correct yes You would point to the fact that he's disabled and he wasn't hired What am I missing?

[00:10:49] Speaker 00:
There is the notion that in an appropriate business activity, absent some sort of animus, there is no reason for the interviewers to misrepresent what Mr. Brown said in their notes.

[00:11:08] Speaker 00:
And the fact that they misrepresented what he said in their notes in order to give him a low score, because if you take their rubric and you take what he said, he gets a much higher score.

[00:11:19] Speaker 00:
And so the fact that they misrepresent what he says and then give him a lower score raises the question,

[00:11:25] Speaker 00:
Why are you doing that?

[00:11:27] Speaker 01:
But why do you draw that inference?

[00:11:29] Speaker 01:
That's the thing I'm struggling with.

[00:11:30] Speaker 01:
I understand that argument entirely.

[00:11:32] Speaker 01:
But there could be all kinds of reasons, as you admitted just a minute ago, there could be all kinds of reasons why the notes are bad.

[00:11:37] Speaker 01:
These interviewers are sloppy.

[00:11:38] Speaker 01:
Their intent is to just kind of shorthand summary, not detailed recounting of what was there, right?

[00:11:45] Speaker 01:
There could be all kinds of reasons why there's a mismatch between his memory

[00:11:48] Speaker 01:
and their notes that have nothing to do with discrimination.

[00:11:51] Speaker 01:
So I'm looking around for what is the thing that tells me that the jury could say the reason, the explanation is discriminatory.

[00:11:58] Speaker 01:
And what I'm mostly finding is this is a disabled applicant.

[00:12:02] Speaker 00:
A disabled applicant and the employer who misrepresented their knowledge of the level of his disability, well, the level of their knowledge of his disability.

[00:12:12] Speaker 00:
Why are they misrepresenting?

[00:12:13] Speaker 01:
What do I do with that fact when it's undisputed that one of the three interviewers in the room did know and wasn't denying the fact that he knew?

[00:12:21] Speaker 01:
Couldn't we just assume that everybody in the room knew?

[00:12:23] Speaker 01:
At least one of them did.

[00:12:24] Speaker 00:
Oh, one of them says that he knew and the others say that they did not know.

[00:12:28] Speaker 00:
Mr. Ramirez says that he did not know.

[00:12:34] Speaker 00:
I'd say that he does not know when he does know and he saw it.

[00:12:36] Speaker 00:
And then there is this notion of Mr. Skulik testifying that Mr. Ramirez had never visited the plant.

[00:12:43] Speaker 00:
So if we take Mr. Ramirez and we acknowledge that he's saying that he didn't know.

[00:12:48] Speaker 00:
But Mr. Ramirez, according to the testimony of the plaintiff and those two witnesses, came to the plant in Roseville, observed Mr. Brown with his prosthetic exposed.

[00:13:00] Speaker 00:
And so he knew.

[00:13:02] Speaker 00:
Why in the world would Mr. Ramirez say that he didn't know?

[00:13:07] Speaker 00:
Why would he say he wasn't there?

[00:13:09] Speaker 00:
Why would Mr. Skulik say that Mr. Ramirez wasn't there?

[00:13:12] Speaker 00:
And in the context of this case, it's sort of strange to think that he wouldn't be there, Mr. Ramirez.

[00:13:17] Speaker 00:
because Mr. Ramirez was an important operational manager, and they're buying out this big plant that's, you know, it's a big transaction.

[00:13:23] Speaker 00:
Of course, the regional operations person is going to take a look at it.

[00:13:26] Speaker 00:
And then the two folks who were the witnesses, the employee witnesses, said that, yeah, he came there, he moved around equipment, he made a bunch of trips.

[00:13:33] Speaker 00:
And so it is that appearance of misrepresentation, it's not the appearance, it's an actual misrepresentation,

[00:13:39] Speaker 00:
that provides a taint that moves into a reasonable question where a reasonable juror could say, you know, I just don't believe him.

[00:13:46] Speaker 00:
I think it goes back to this idea of, you know, when you're at trial, as we instruct jurors, you're at trial if you don't believe a witness about something.

[00:13:54] Speaker 00:
You don't have to believe them about anything.

[00:13:56] Speaker 00:
And so there's something odd going on here.

[00:13:58] Speaker 00:
There's something odd about the way that they're not

[00:14:01] Speaker 03:
Fairly document let me just I just want to clarify one point before you sit down Which is that this I want to make sure I'm not missing anything here, but the district court said that he failed to meet on his prima facie burden At the third prong that is the causal connection the because of right yes and I

[00:14:24] Speaker 03:
I gather your response to that is that certainly there was enough evidence to get beyond a prima facie case.

[00:14:32] Speaker 00:
That's right, Your Honor.

[00:14:34] Speaker 00:
And I realize I've talked all night.

[00:14:37] Speaker 00:
If I can, I guess I'll just close.

[00:14:39] Speaker 00:
Is that, you know, here there is this, in the factual pattern that we have, there's this sort of factual unity between the prima facie case and then the proposed, you know, alternative business reason for why he wasn't given the job.

[00:14:51] Speaker 00:
And it's not as though we have one set of facts that we say, oh, you know, perhaps in an interview you made a joke about, you know, disability or something, and so we infer animus, and then separately the application process comes back and cures it.

[00:15:04] Speaker 00:
It's that those things are factually intertwined.

[00:15:08] Speaker 00:
If the interview process is unfair and biased and discriminatory, it cannot be the thing that cures the privatization case, because it's factually the same thing.

[00:15:20] Speaker 00:
It's the same transaction.

[00:15:22] Speaker 01:
All right, we'll give you a little bit of time for a bottle.

[00:15:24] Speaker 01:
Thanks.

[00:15:24] Speaker 00:
Thank you, your honor.

[00:15:36] Speaker 02:
May it please the court, Patrick Burns on behalf of the appellee.

[00:15:40] Speaker 02:
Appellant's position in this appeal here today and in his brief all boils down to the main contention that the interview scores were wrong, that they were graded incorrectly, or that somehow there's a disputed fact as to what was said in the interview.

[00:15:53] Speaker 02:
But ultimately, the law provides that the wisdom or the correctness of an employer's criteria does not establish an inference of discrimination under the prime efficient burden in step one of McDonald Douglas.

[00:16:05] Speaker 02:
And that's especially true where the employer makes the determination in good faith.

[00:16:10] Speaker 02:
So the Weill case from California talks about that.

[00:16:13] Speaker 02:
This court's decision in Dodson is directly on point.

[00:16:16] Speaker 03:
He's saying that it wasn't in good faith.

[00:16:18] Speaker 03:
There's a factual dispute.

[00:16:20] Speaker 02:
Your honor there's he's brought forth no evidence that it was not made in good faith every one of the interviewers has testified that that they scored them You know has already pointed out one of the interviewers Definitely one and possibly two of the interviewers didn't even know he had a disability and their scores were similar to the other one So where's the evidence of this this lack of good faith that they really did know about the two of them You know he talks about Ramirez at Ramirez

[00:16:44] Speaker 02:
Well, Your Honor, the awareness alone is insufficient.

[00:16:48] Speaker 02:
I mean, age discriminations, you can tell someone's age or certain other protected categories, right?

[00:16:53] Speaker 02:
You often have an awareness.

[00:16:55] Speaker 02:
But many cases, including the Chisholm case that we cited in our brief, says that an employer's awareness alone doesn't establish discrimination.

[00:17:03] Speaker 02:
And Judge Forrest really touched on it in one of the questions, which is it has to be a connection, a bridge, a nexus to discrimination.

[00:17:12] Speaker 02:
He has failed to show that.

[00:17:14] Speaker 03:
All he... So let me ask you this.

[00:17:15] Speaker 03:
So he says, this is what I really said during the course of the interview in answer to these questions, right?

[00:17:21] Speaker 03:
He says one thing.

[00:17:22] Speaker 03:
Right.

[00:17:23] Speaker 03:
And the notes show something else.

[00:17:28] Speaker 02:
He claims that, yes, Your Honor.

[00:17:29] Speaker 02:
Right.

[00:17:29] Speaker 03:
I mean, he says that they didn't really account.

[00:17:31] Speaker 03:
They didn't really record or make note of my answers.

[00:17:37] Speaker 02:
That's irrelevant, Your Honor, because the fact... But why isn't that a factual dispute?

[00:17:42] Speaker 02:
Well, Your Honor, that factual dispute doesn't matter because the correctness or the wisdom of the internal application has to connect somehow to the discrimination.

[00:17:51] Speaker 02:
It can't just be, you were wrong, you didn't record what I said properly, I said something different.

[00:17:57] Speaker 02:
All of that is insufficient.

[00:17:58] Speaker 02:
Dodson is directly on point.

[00:17:59] Speaker 03:
There was an... Well, why don't you just take his argument.

[00:18:03] Speaker 03:
His argument is, well, there was other evidence you need to look at in the totality of all the circumstances.

[00:18:10] Speaker 02:
Your honor, there really wasn't.

[00:18:11] Speaker 02:
All he's raised is that his interview scores were different, and that's insufficient.

[00:18:17] Speaker 02:
Dodson instructs us that.

[00:18:19] Speaker 02:
And then this issue of one or two of the interviewers might have had an awareness, Chisholm says that's not sufficient.

[00:18:26] Speaker 03:
But you did it all together.

[00:18:28] Speaker 02:
But two things that are zero don't add up to anything.

[00:18:30] Speaker 02:
I mean, there has to be a relationship.

[00:18:32] Speaker 01:
Well, I think his argument on the awareness is that they're lying about their awareness, which is a different thing than just plain awareness.

[00:18:39] Speaker 01:
Why are they covering it up, right?

[00:18:40] Speaker 01:
That's the fact that he wants to bring out and say that maybe we could draw some sort of inference from that.

[00:18:45] Speaker 02:
That's not true, though, from the record, Your Honor.

[00:18:47] Speaker 02:
First, Mr. Skolnick did say he was aware.

[00:18:50] Speaker 02:
I mean, he found out about it before the interview.

[00:18:52] Speaker 02:
And then as far as Mr. Ramirez, the fact he spewed about that, it's not whether he's lying or not.

[00:18:58] Speaker 02:
he I think said he couldn't remember if he was at the plant that day or he wasn't at the plant that day and there's a couple of employees that say he might have been at the plant that day but whether he was there that day or not it doesn't mean he knew about this disability that he saw this person that he interacted with there's just no evidence in the record and actually if you go back to the briefs he doesn't cite to these alleged lies it's not even cited in the brief in the record he points to those declarations by the employees but he doesn't even

[00:19:25] Speaker 02:
Explain what what the lie is and so there really isn't a lie here and all these disputed This is really just a plaintiff trying to manufacture an issue of fact to survive summary judgment I mean imagine how easy it would be for a plane You know our case law is pretty generous in these employment discrimination cases that at the prima facie on summary judgment the plaintiff has to present very little evidence and

[00:19:50] Speaker 02:
Your honor, that is true, although I would just add there is sufficient case law that even on prima facie, if you don't connect it to discrimination, it fails.

[00:20:00] Speaker 02:
I would also say that this court can easily affirm on the alternative ground that he's failed to show pretext under step three.

[00:20:06] Speaker 02:
So even under step one, step one is where the district court... The district court didn't go there though, right?

[00:20:11] Speaker 02:
Correct but this court can affirm on a different ground which is the district court held there was no prima facie case made out and that was the proper decision because there's just no bridge no nexus at all to discrimination but even if you said okay we're gonna sort of infer this based on a few of these pretext sort of discussed at the district court and the district court just opted not to reach it because it decided to just do it on prima facie case or was was your motion focused just on the prima facie case

[00:20:36] Speaker 02:
No, all of this was addressed below.

[00:20:38] Speaker 02:
It's just the district court stopped because it didn't have to go further.

[00:20:41] Speaker 01:
Did the plaintiff rely on any additional evidence beyond what we've been discussing today for pretext beyond what was presented?

[00:20:47] Speaker 01:
No, Your Honor.

[00:20:48] Speaker 02:
No, Your Honor, including in this appeal.

[00:20:49] Speaker 02:
We brought up, we ultimately analyzed, our brief analyzes all three steps of McDonald Douglas, the other two and the alternative, and says, we've satisfied step two by coming forward.

[00:20:59] Speaker 02:
Even if we get past prime efficient on to step two, CEMEX has satisfied that by showing there was a nondiscriminatory reason.

[00:21:04] Speaker 02:
It was the low interview scores.

[00:21:06] Speaker 02:
Now the burden shifts back to him to show pretext and under pretext there's really two things the st.

[00:21:11] Speaker 02:
Mary's case talks about this you have to show the employers explanation was wrong and Then you have to show that it connects to discrimination.

[00:21:19] Speaker 02:
It's that second part especially that he really fails right and and there's no dispute here that the interview scores were the only thing that was used to Have these drivers rehired when the acquisition was happening, so I want to just did he work a full day and

[00:21:35] Speaker 02:
I'm sorry, Your Honor.

[00:21:35] Speaker 03:
Did he work a full day?

[00:21:36] Speaker 03:
Did the plaintiff work a full day?

[00:21:38] Speaker 02:
Work a full day when, Your Honor.

[00:21:40] Speaker 02:
I'm not sure.

[00:21:40] Speaker 03:
How many hours a day did the drivers work?

[00:21:44] Speaker 02:
I'm not sure, and I'm not sure if that's in the record, Your Honor.

[00:21:46] Speaker 02:
But the context of this is important, and I do want to point out one thing, which is a lot of this court's case law talks about how the court shouldn't, quote, intrude into the zone of business judgment.

[00:21:55] Speaker 02:
This was ultimately a business judgment case, because when the acquisition happened, only a certain amount of drivers could be rehired.

[00:22:01] Speaker 02:
They only had a need for a certain proportion of them.

[00:22:03] Speaker 02:
What CEMEX did, they knew the drivers could drive, right?

[00:22:06] Speaker 02:
Because they worked for Teicher.

[00:22:08] Speaker 02:
They were acquiring this company.

[00:22:09] Speaker 02:
It was a competitor.

[00:22:10] Speaker 02:
They knew they could drive.

[00:22:11] Speaker 02:
So it wasn't a skills contest.

[00:22:12] Speaker 02:
What they set up with this interview is sort of like an ability to test the soft skills.

[00:22:16] Speaker 02:
Because these drivers, they do more than just deliver concrete to a plant.

[00:22:20] Speaker 02:
They have to interact with dispatch.

[00:22:21] Speaker 02:
They have to get to the plant and interact with a manager at the plant and talk to a maintenance employee.

[00:22:27] Speaker 02:
They have to troubleshoot certain ideas.

[00:22:28] Speaker 02:
Sometimes when there's a subjective interview test and it doesn't really connect to the job at all, then you're getting down the road of inferring discrimination because what does it really have to do with the job performance?

[00:22:39] Speaker 02:
Here this interview was a way to separate these employees by those soft skills.

[00:22:44] Speaker 02:
CEMEX knew they could all drive.

[00:22:45] Speaker 02:
It was just who can deal in customer relations the best, who can answer these questions about safety the best, and there's no dispute here

[00:22:53] Speaker 02:
that the interview scores were the sole reason whether somebody got hired or not.

[00:22:57] Speaker 02:
Everyone over 15 out of 25 was hired on to work with CEMEX and the acquisition.

[00:23:02] Speaker 02:
Anybody that fell below that, like Mr. Brown, who scored a nine, didn't.

[00:23:05] Speaker 02:
And that was simply the reason.

[00:23:07] Speaker 02:
With all that, when we get to the pretext prong, if we are past the prima facie, which I would not concede, but if we are on pretext, he has to show both that that was wrong, that they didn't use the interview scores as a basis not to hire him,

[00:23:22] Speaker 02:
and that it connects to some kind of discriminatory intent.

[00:23:25] Speaker 02:
He has no evidence whatsoever of discriminatory intent, and each one of his points is just refuted by either one of this court's cases or a prominent California case.

[00:23:35] Speaker 02:
In the Dodson case, there was an interview given to the employee as to whether they would promote her.

[00:23:41] Speaker 02:
She scored low on the interview.

[00:23:42] Speaker 02:
They didn't.

[00:23:43] Speaker 02:
When she brought her claim, it was dismissed on summary judgment and then affirmed by this appeal.

[00:23:47] Speaker 02:
I mean, it's on all fours with our case.

[00:23:50] Speaker 02:
It's an interview score.

[00:23:51] Speaker 02:
The employee was claiming they said different things, that it was wrong.

[00:23:54] Speaker 02:
And this court re-emphasized, as it has in the past, the incorrect application of an internal process using that kind of criteria to make a hiring or rehiring or promotion decision is insufficient.

[00:24:07] Speaker 03:
So in your view, what do we do with the fact that he says, well, here was my answer, and they just

[00:24:16] Speaker 03:
It doesn't matter, Your Honor.

[00:24:17] Speaker 03:
Even though his argument is, well, they didn't include it because they wanted to minimize what they knew about the effects or the consequences of my disability.

[00:24:30] Speaker 02:
That last part of what you said, Your Honor, is what's lacking.

[00:24:33] Speaker 02:
There's no evidence that they wanted to minimize it for that reason.

[00:24:35] Speaker 02:
You have to have something.

[00:24:36] Speaker 02:
And look, there's many ways you can show this, right?

[00:24:38] Speaker 02:
It can be direct evidence.

[00:24:39] Speaker 02:
You can have testimony from someone, maybe not just these three interviewers, but maybe you interview someone else who had a conversation with them.

[00:24:45] Speaker 02:
And this is how a lot of these cases.

[00:24:47] Speaker 03:
I think when he went through several of his, I think several different times when he stated what he said,

[00:24:58] Speaker 03:
You know, like to the EEOC and then his own notes about what he said.

[00:25:03] Speaker 03:
He does make reference, I think, I can't remember in which context.

[00:25:07] Speaker 03:
I'd have to look at my notes.

[00:25:08] Speaker 03:
But he does make reference to, he said, one of them, he says, my disability, I was aware of my disability.

[00:25:14] Speaker 02:
well okay that's that's a good point to that I want to raise your honor his own subjective assessment or his assertion that it was discriminatory is also insufficient that's from the US Supreme Court Palmer versus the US he has to come forward with more if there was a testimony from an employee who overheard one of the interviewers say

[00:25:32] Speaker 02:
Oh yeah, you know, we knew about his disability.

[00:25:34] Speaker 02:
That's not what he's saying.

[00:25:36] Speaker 03:
He's saying, this is, this is what I said, you know, he said I was, I guess it was the one, question number five, is that, is that the one about safety?

[00:25:43] Speaker 03:
Which is the one about safety?

[00:25:45] Speaker 02:
The first one is about safety.

[00:25:47] Speaker 02:
I think five is.

[00:25:49] Speaker 03:
Yeah, I guess it was, I think one was about safety and he says, you know, because of my disability, I was very sensitive to safety.

[00:25:58] Speaker 02:
Again even if what he's saying that that wasn't recorded down because they wanted to downplay But that wanted to downplay wanted to downplay part is what's missing here?

[00:26:09] Speaker 02:
No direct evidence by the way this can also be shown through circumstantial evidence You're not just limited to finding testimony from the interviewers you can show Different treatment from similarly situated employees or vice versa like there's other ways to show it circumstantially and he's never shown that

[00:26:23] Speaker 02:
And if this court holds that all an employee has to do is say, I didn't say that.

[00:26:29] Speaker 02:
And because I didn't say that, you must have discriminated against me.

[00:26:32] Speaker 02:
There won't ever be a case decided on something like that.

[00:26:34] Speaker 03:
He's saying, this is what I said.

[00:26:37] Speaker 02:
Correct, Your Honor.

[00:26:38] Speaker 03:
But even if what he said... And we should have gotten a district court... Essentially, this all goes to the fact that the district court ended this case on the prima facie requirement.

[00:26:50] Speaker 02:
I understand your honor and I get the sense that perhaps on prima facie you're not totally convinced but when we when this court gets to pretext it's very clear there is no there's no no discrimination and that's where you actually have to come forward with evidence of discrimination.

[00:27:04] Speaker 02:
Prima facie burden is one thing but CEMEX has established a legitimate non-discriminatory reason for not hiring him.

[00:27:10] Speaker 02:
He scored a 9 out of 25 and only employees who scored a 15 out of 25 would advance.

[00:27:15] Speaker 03:
The burden is on him to show pretext.

[00:27:18] Speaker 03:
Was question five also, he says that he made a reference to his disability, or to his leg?

[00:27:24] Speaker 02:
The questions didn't ask anything about this.

[00:27:26] Speaker 03:
No, I know, but his answer.

[00:27:27] Speaker 03:
He said, this is my answer.

[00:27:29] Speaker 02:
I don't believe so, Your Honor.

[00:27:31] Speaker 02:
There's nothing, it's undisputed, one of the undisputed facts in the record.

[00:27:35] Speaker 03:
It was the one where they had to do with, where he said, I don't know, where the,

[00:27:45] Speaker 02:
There were no there it's undisputed.

[00:27:48] Speaker 02:
This is in the record on page 101 second volume There's no questions about his disability and his disability.

[00:27:54] Speaker 02:
I believe did not come up his explanation was he was especially conscious of safety considerations because that alone cannot simply because the employee Raises that in the interview doesn't lead to any kind of discriminatory that the discrimination and the discriminatory reported

[00:28:14] Speaker 04:
by the executives who are examining him, doesn't that lead to an inference that they were against him because of discrimination?

[00:28:26] Speaker 04:
No, Your Honor, because again... They don't want to mention discrimination in their answers because they don't want a disabled person on

[00:28:34] Speaker 02:
That is an extremely tenuous inference, Your Honor, to draw.

[00:28:38] Speaker 02:
And it would be one where any employee could survive this standard if the court were to hold that.

[00:28:43] Speaker 01:
On that particular question that we're talking about, we also have the fact that each question was a maximum score of five, and they gave him a four out of five on his answer to that question that we're talking about.

[00:28:53] Speaker 01:
Also, that's a problem in terms of raising an inference, isn't it?

[00:28:57] Speaker 01:
If they were trying to bury his disability and use that as an excuse, why were they giving him a high score on that question?

[00:29:04] Speaker 02:
But your honor, they probably give him a high score because he answered that one better than the other questions.

[00:29:08] Speaker 02:
I mean, if anything, that cuts the other way and says that he scored high on that, so they actually appreciated that question from him in talking about his disability.

[00:29:17] Speaker 03:
Again, his... I guess the one I was thinking of was five.

[00:29:19] Speaker 03:
What's five?

[00:29:19] Speaker 03:
Question five.

[00:29:20] Speaker 03:
Do you have question five there?

[00:29:21] Speaker 03:
Yes.

[00:29:22] Speaker 03:
What he put in his notes.

[00:29:27] Speaker 03:
Yes, but again, Your Honor, even... He said, I guess some people get... When he's talking about, he's talking about a co-worker named Doll.

[00:29:35] Speaker 03:
And the plaintiff said, Brown says, Doll said, I guess some people get special treatment around here.

[00:29:43] Speaker 03:
Why couldn't somebody... If they believe that's what he said, why couldn't they reasonably infer?

[00:29:48] Speaker 02:
That was his subjective statement.

[00:29:51] Speaker 02:
That's not what he said he was reporting from somebody else.

[00:29:54] Speaker 02:
And a mere assertion of discriminatory...

[00:29:58] Speaker 03:
Is that if you rewrite not rewrite it, but when the heat is the pronoun that he's talking about is dull Yeah, but even if all that were true, and that's exactly how the interview took place There still would not be an inference of discrimination here.

[00:30:15] Speaker 02:
I mean there's nothing this was a soft skills test It wasn't testing anything about his physical physical abilities to drive in fact It's uncontested that he doesn't even have a request for an accommodation and

[00:30:24] Speaker 02:
this company or with this former company.

[00:30:27] Speaker 03:
The sentence before this says, I mentioned to coworker David Dahl and shared an incident when I called on the radio to request rock and David made a comment on the radio that bothered me.

[00:30:39] Speaker 03:
He said, I guess people get special treatment around here.

[00:30:42] Speaker 03:
Now when he's talking about rock, he's talking about rock that goes into the cement, correct?

[00:30:46] Speaker 03:
They're talking on the

[00:30:48] Speaker 02:
Believe your honor to have to look at that particular statement, but even that would not be sufficient to show any kind of discriminatory intent again It's his self-reported assessment of what?

[00:30:58] Speaker 02:
Somebody believed which under Palmer versus the United States is just simply not enough There's got to be some kind of circumstantial evidence, and it's also an inference that he's getting preferential treatment discriminatory if anything it's

[00:31:12] Speaker 02:
It's different on that basis.

[00:31:13] Speaker 02:
And I think the fact that he didn't request an accommodation, not only from Semmix, but from his former employee, really kind of underscores here that there was no basis to discriminate against this person.

[00:31:22] Speaker 02:
In fact, Semmix has carried its burden of showing that legitimate nondiscriminatory reason, which was his interview scores were low.

[00:31:29] Speaker 02:
It's undisputed that this interview was not testing his physical ability or going into his disability in any way.

[00:31:36] Speaker 02:
And that's where a lot of these cases go wrong is

[00:31:40] Speaker 02:
The interview is either so subjective and vague and loose, like they're asking strange questions that you can kind of infer.

[00:31:45] Speaker 02:
We don't have that here.

[00:31:46] Speaker 02:
They were testing the customer relations skills, what you knew about safety, all those things.

[00:31:51] Speaker 02:
And he scored low, and that was ultimately the reason why he wasn't hired.

[00:31:54] Speaker 02:
So whether this case is affirmed either on the prima facie step one or under the step three pretext, either way, this court should affirm.

[00:32:03] Speaker 02:
I'm happy to answer any other questions, but I see I'm over time.

[00:32:06] Speaker 02:
So thank you.

[00:32:10] Speaker 01:
Put two minutes on the clock.

[00:32:13] Speaker 00:
Thank you, honors.

[00:32:13] Speaker 00:
I appreciate it.

[00:32:18] Speaker 00:
Just a couple of quick factual things.

[00:32:22] Speaker 00:
Defendants take the position, appellees take the position that all of the scores from the different interviewers were the same.

[00:32:30] Speaker 00:
That's not the record here.

[00:32:31] Speaker 00:
There was only one unitary score that was arrived at by the panel.

[00:32:36] Speaker 00:
So there's no cross-checking there.

[00:32:37] Speaker 00:
with respect to the story the account of Mr.. Ramirez and Mr.. School it coming down to the plant and observing Mr.. Brown's leg that is detailed with citations to the record in page 18 to 19 of the opening brief Question number five is a really good window into into what the place cases and

[00:33:03] Speaker 00:
In question number five, the plaintiff is asked about problems with coworkers.

[00:33:09] Speaker 00:
He talks about an experience in which a specific coworker talked about him getting preferential treatment.

[00:33:16] Speaker 00:
He talks about how he resolved it.

[00:33:19] Speaker 00:
He talks about how he thinks it's important in his term to resolve the issue man-to-man, one-to-one.

[00:33:25] Speaker 00:
How he's not creating a ruckus.

[00:33:27] Speaker 00:
He's going to go and talk with his other employee about the conflict that they had.

[00:33:31] Speaker 00:
He's talking about preferential treatment, some people get it easier than others, as a person who's an amputee.

[00:33:38] Speaker 00:
Talking to a room of people, two of which have seen him with his amputated leg, and don't want to talk about the fact that they've seen him in deposition, won't talk about the fact, won't admit that they saw him with his amputated leg.

[00:33:52] Speaker 00:
There's a nexus there.

[00:33:53] Speaker 00:
in the circumstances as they actually occurred, Mr. Skulik and Mr. Ramirez, they misrepresented the degree to which they knew about and observed.

[00:34:02] Speaker 04:
So your argument is because he mentioned he was getting preferential treatment.

[00:34:08] Speaker 04:
Company individuals who want to eliminate preferential treatment are discriminating against him because of his disability by not giving him preferential treatment?

[00:34:17] Speaker 04:
No.

[00:34:17] Speaker 00:
What I am saying is that there is an indication in the interview

[00:34:23] Speaker 00:
that the topic of disability is known, topic of disability as related to this particular employee, Mr. Brown.

[00:34:33] Speaker 00:
We know that from the deposition testimony when I deposed Mr. Skulik and Mr. Ramirez, we know that they took quite extraordinary steps to try to deny the degree to which they knew at the moment that they were in that interview that Mr. Brown was an amputee who used a prosthetic.

[00:34:50] Speaker 00:
So we go back to the idea that

[00:34:53] Speaker 00:
an inconsistent story that simply does not make sense, plus some indication of protected class and mendacity by the employer, can raise an inference of an animus.

[00:35:07] Speaker 01:
And I think we understand the argument.

[00:35:08] Speaker 01:
Yes.

[00:35:08] Speaker 01:
Are there further questions?

[00:35:09] Speaker 00:
All right.

[00:35:10] Speaker 00:
Submit.

[00:35:10] Speaker 00:
Thank you, Your Honor.

[00:35:11] Speaker 00:
Thank you, Counsel.

[00:35:12] Speaker 01:
All right.

[00:35:12] Speaker 01:
The case of Brown versus Samek's construction materials is submitted.

[00:35:17] Speaker 01:
And that completes our argument calendar for the morning.

[00:35:19] Speaker 01:
We're in recess.