[00:00:00] Speaker 02:
Good morning, Your Honor.

[00:00:02] Speaker 02:
My name is Alan Yee.

[00:00:03] Speaker 02:
I represent the appellant Arlene, Jr.

[00:00:06] Speaker 02:
I think this case really focuses on a very important case on how to apply the U.S.

[00:00:12] Speaker 02:
Supreme Court's holdings in McDonnell Douglas and more recently in Reese v. Sanderson Plumbing and how to, one, determine

[00:00:23] Speaker 02:
employment discrimination when employment discrimination involves mainly indirect evidence, and two, how evidence should be considered in a summary judgment motion, as this case involved a summary judgment motion, and how the evidence should be evaluated by the court in a summary judgment motion.

[00:00:47] Speaker 02:
Here we have our appellant Arlene

[00:00:50] Speaker 02:
uh... jr who was the ceo of sudombra county superior court for over five years

[00:01:00] Speaker 02:
She was considered an exemplary employee.

[00:01:03] Speaker 02:
Two presiding judges who supervised her for more than four years said that she was professionally exemplary and an honest person, and they definitely would not have terminated her in this case.

[00:01:21] Speaker 02:
Unfortunately, there was a situation that led to her termination.

[00:01:30] Speaker 02:
She had a subordinate, Margaret Smith, who was basically insubordinate.

[00:01:37] Speaker 02:
She refused to follow Miss Junior's directions, Miss Junior being a black lady.

[00:01:44] Speaker 02:
And Miss Smith would not basically agree to be supervised by a black lady.

[00:01:52] Speaker 02:
So Miss Junior did consult it with the presiding judge and

[00:01:59] Speaker 02:
an attorney for the Sonoma Superior Court.

[00:02:02] Speaker 04:
Counsel, it seems to me that a key about this case is the reasons that were given for the termination and whether those were a pretext or not.

[00:02:12] Speaker 04:
So I have a couple of questions on that issue in particular.

[00:02:14] Speaker 04:
First of all, the decision maker for that determination decision, was that the presiding judge at the time, which I think was Judge Averell, or was that the executive committee of the court?

[00:02:26] Speaker 02:
It was the presiding judge at the time, Ms.

[00:02:30] Speaker 02:
Averell.

[00:02:32] Speaker 02:
It was the executive committee who were consulted, but many of the judges on the executive committee didn't even read the investigating reports.

[00:02:44] Speaker 04:
So it seems the record indicates that Judge Avril had the ability to unilaterally make the decision, but that she presented the issue to the executive committee and there was a vote on that.

[00:02:55] Speaker 04:
Am I wrong about that?

[00:02:56] Speaker 02:
That's correct.

[00:02:58] Speaker 04:
So then what do we do with that?

[00:02:59] Speaker 04:
Your position is that because she had the unilateral authority to make the decision, we just disregard what happened with the executive committee and that she chose to present it to them?

[00:03:09] Speaker 02:
Well, it should be considered, but we should also consider all the evidence of pretext that was presented by Ms.

[00:03:16] Speaker 02:
Junior in this case, because that goes to the heart of how the procedure set up in McDonnell to Douglas and Reeves is used to determine whether there was discrimination in this case.

[00:03:29] Speaker 03:
And what do you consider the best evidence of pretext here?

[00:03:32] Speaker 02:
Well, OK, there were two issues.

[00:03:36] Speaker 02:
she claimed there was a claim that she was a mismanaged the subordinate uh... margaret smith both of those

[00:03:47] Speaker 02:
issues that she was alleged of doing were based on the advice of the Superior Court's attorney that told her that, look, she should meet with the subordinate and discuss ways of amicable separation.

[00:04:03] Speaker 02:
And in the second case, where there was a discussion regarding the merit pay raise, the email that was sent

[00:04:11] Speaker 02:
to the employee was actually written by the superior court attorney and not by Ms.

[00:04:20] Speaker 02:
Junior.

[00:04:21] Speaker 02:
So that shows that was for her to be then punished for that when she was simply following orders.

[00:04:29] Speaker 03:
But the reasons for the termination apparently there were four.

[00:04:33] Speaker 02:
Right.

[00:04:34] Speaker 03:
And the first one,

[00:04:37] Speaker 03:
was that she was using abrasive, sort of hostile language, screaming, I think, at the employees.

[00:04:52] Speaker 03:
And there was an investigation done by a firm, and they basically made that finding.

[00:05:02] Speaker 03:
So that's one of the bases that Judge Averill relied on.

[00:05:07] Speaker 02:
Is that not correct?

[00:05:08] Speaker 02:
That's not exactly correct.

[00:05:10] Speaker 02:
Tell me what's... The investigation investigated that, but then found that there wasn't sufficient evidence for that finding of being abusive behavior.

[00:05:20] Speaker 03:
I thought it said it didn't find that there was abusive conduct, but they did find that there was conduct that Judge Averill and I guess the executive committee later found was in violation of the code of conduct for employees.

[00:05:37] Speaker 03:
So I'm trying to figure out what's the pretext surrounding that basis for determination, because there were four, basically.

[00:05:48] Speaker 02:
So number one is the investigation report found that wasn't an abusive behavior.

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Number two, the other two reasons that was given was regarding

[00:06:03] Speaker 02:
misrepresentations made to Judge Averell by Ms.

[00:06:06] Speaker 02:
Junior.

[00:06:07] Speaker 02:
And in both of those cases, there was evidence that those misrepresentations were just not true.

[00:06:14] Speaker 02:
And then in addition to all of that, we have evidence of favoritism by Judge Averell toward Margaret Smith, the complaining employee, where she allowed Margaret Smith to bypass the then presiding judge, Judge DeMollo, and

[00:06:31] Speaker 02:
and made the complaints to her instead of to the presiding judge in clear violation of court laws.

[00:06:37] Speaker 03:
But didn't Judge Avril then go to the presiding judge and say, hey, they brought it to me, but it needs to go to you?

[00:06:44] Speaker 03:
Didn't she do that?

[00:06:46] Speaker 03:
No, she took care of it herself.

[00:06:48] Speaker 03:
Well, I thought that she brought it to the attention of the presiding judge, and we may be talking about two different incidents.

[00:06:55] Speaker 02:
Yeah, I think maybe two different things.

[00:06:56] Speaker 03:
Tell me which one you think she took on herself.

[00:07:00] Speaker 02:
about the alleged refusal to follow Junior's orders and instead follow the orders of the judges, saying that she is an employee of the judges and not the employee of the CEO, and therefore she didn't have to follow Ms.

[00:07:16] Speaker 02:
Junior's orders.

[00:07:19] Speaker 02:
So that was the first issue that came up.

[00:07:23] Speaker 04:
I want to follow up on this line of questioning with a different point.

[00:07:31] Speaker 04:
You're making arguments for why the four reasons given in the termination letter were not correct.

[00:07:37] Speaker 04:
But the analysis that we have to apply in a pretext situation is that the person who gave those reasons knew they were not correct, knew that they were relying on or knew that they were asserting false reasons for taking the action that they took.

[00:07:52] Speaker 04:
And I don't hear anything that you're saying suggesting evidence that Judge Averell or the executive committee had reason to know that the explanations they gave for the action that they took were false.

[00:08:05] Speaker 04:
What evidence do you have of that?

[00:08:07] Speaker 02:
Well, I think the law doesn't say they have to have actual knowledge, but the fact that the reasons provided... You can do it by circumstantial evidence, but what is the evidence that you would rely on to show that these decision makers

[00:08:19] Speaker 02:
Had a reason new or had a reason to know that the reasons they were giving were were false well isn't I think the rule is not just knowledge, but the fact that these reasons were were basically wrong and and there's clearly evidence of that because this is Who is your position that they were so wrong it would have been obvious right?

[00:08:44] Speaker 02:
I mean we had I mean she was accused of

[00:08:47] Speaker 02:
mismanagement based on items that were done by the attorney for the Superior Court.

[00:08:56] Speaker 02:
The email itself was written by the attorney for the Superior Court.

[00:09:00] Speaker 02:
So how could she be punished for that?

[00:09:03] Speaker 02:
And then there are issues clearly new.

[00:09:07] Speaker 03:
The misrepresentation was clearly an issue between... Counsel, email was written based on information that

[00:09:17] Speaker 03:
Ms.

[00:09:17] Speaker 03:
Junior was providing to the lawyer.

[00:09:19] Speaker 03:
Is that correct?

[00:09:21] Speaker 02:
Well, it was an issue regarding a merit pay raise.

[00:09:23] Speaker 03:
I know, but it was all coming from Ms.

[00:09:27] Speaker 03:
Junior.

[00:09:28] Speaker 03:
So the email is taking everything that Ms.

[00:09:31] Speaker 03:
Junior is saying as true and then drafting that email.

[00:09:35] Speaker 03:
Is that correct?

[00:09:36] Speaker 02:
No, it was simply the fact that the reason why the issue of the merit pay increase cannot be determined at this time was because of the pending investigation regarding the first complaint.

[00:09:50] Speaker 02:
So that was all the issue was there.

[00:09:54] Speaker 02:
And they found that that itself was a retaliation claim.

[00:09:59] Speaker 00:
Weren't there two investigations?

[00:10:02] Speaker 02:
Right.

[00:10:02] Speaker 02:
The first investigation regarded her

[00:10:06] Speaker 02:
uh... complaint that the well margaret smith's complaint that uh... she was being retaliated against because miss junior following the advice of the attorney talk to miss smith about whether there could be an amicable uh... separation from employment that was an advice that the attorney for the superior court told her to do and she just simply followed those that advice there were four investigations

[00:10:37] Speaker 02:
Right.

[00:10:37] Speaker 02:
The other investigations were regarding Ms.

[00:10:42] Speaker 02:
Junior's claims of discrimination.

[00:10:44] Speaker 02:
Right.

[00:10:45] Speaker 02:
And there was other issues regarding those.

[00:10:48] Speaker 03:
Well, there was the hostile work environment investigation.

[00:10:51] Speaker 02:
And that relates to the claims of retaliation in this case.

[00:10:57] Speaker 02:
And this district court clearly was wrong on the retaliation claims.

[00:11:01] Speaker 03:
But let's look at that, because that's the one I was asking you about, the hostile work

[00:11:06] Speaker 03:
environment investigation.

[00:11:08] Speaker 03:
That was the basis of the first reason, I believe, in the termination letter.

[00:11:14] Speaker 03:
And it found that Junior, Ms.

[00:11:17] Speaker 03:
Junior, regularly engaged in behavior reasonably viewed as upsetting, abrasive, intimidating, and insulting, and pressured Smith to leave her employment in significant part because she filed a complaint.

[00:11:31] Speaker 03:
Yes.

[00:11:33] Speaker 03:
Okay.

[00:11:34] Speaker 03:
That's the first reason.

[00:11:35] Speaker 03:
There was also the racial bias investigation.

[00:11:41] Speaker 03:
And I think that was based on the comment that Ms.

[00:11:47] Speaker 03:
Junior made to Judge DeMeo.

[00:11:50] Speaker 03:
Is that correct?

[00:11:51] Speaker 02:
Correct.

[00:11:52] Speaker 03:
All right.

[00:11:52] Speaker 03:
And then there was the retaliation investigation.

[00:11:59] Speaker 03:
Is that correct?

[00:12:00] Speaker 02:
Correct.

[00:12:01] Speaker 03:
All right.

[00:12:01] Speaker 03:
And that's based on the Smith

[00:12:05] Speaker 03:
action.

[00:12:06] Speaker 03:
Is that right?

[00:12:06] Speaker 03:
And then there's the misrepresentation investigation based on the allegation or the premise that Ms.

[00:12:20] Speaker 03:
Junior had misrepresented information

[00:12:23] Speaker 03:
to Judge Avril.

[00:12:24] Speaker 03:
Is that correct?

[00:12:25] Speaker 02:
Right.

[00:12:25] Speaker 02:
Regarding what the Director of Family Law Division, Mr. Williams, told her regarding the reasons for one of the IT Director's resignation.

[00:12:38] Speaker 02:
All she did was relay that information.

[00:12:41] Speaker 03:
It's my understanding, but I wanted to give you an opportunity to clarify this for me.

[00:12:47] Speaker 03:
If any one of those has a basis that

[00:12:52] Speaker 03:
that we can accept under the law.

[00:12:59] Speaker 03:
Doesn't the defendants or the appellees here then win?

[00:13:09] Speaker 02:
We have to address each of those items in terms of the reasons for termination, and we have to show that they are a pretext.

[00:13:16] Speaker 02:
But we have to be given that opportunity in front of the trial of fact, in this case, a jury, and not be determined by summary judgment motion when there is evidence that these issues may be a pretext for termination.

[00:13:34] Speaker 03:
Do you want to reserve the balance of your time?

[00:13:36] Speaker 02:
Yes, please.

[00:13:36] Speaker 02:
I would like to reserve the balance.

[00:13:37] Speaker 02:
Thank you.

[00:13:53] Speaker 01:
Morning honors jeff michalowski for the apple e the superior court for the county of sonoma This is a case involving credible concerns about bullying retaliation and dishonesty by the court executive officer of Sonoma County Superior Court Which were validated by three separate investigations?

[00:14:15] Speaker 01:
After reviewing the reports of those investigations which are in the record hundred pages of material

[00:14:23] Speaker 01:
Half a dozen interviews with Ms.

[00:14:25] Speaker 01:
Junior, the presiding judge reviewed those investigations and decided to move to termination with the concurrence of all the four other judges on the court's executive committee.

[00:14:35] Speaker 04:
So on that point, following up on the question I was asking your opposing counsel, which, who's the decision maker?

[00:14:42] Speaker 04:
Is it the committee or is it just the one judge?

[00:14:45] Speaker 01:
The decision, Judge Avril made a decision and recommendation.

[00:14:50] Speaker 01:
So she had the authority.

[00:14:52] Speaker 01:
to make the decision, and this is undisputed from her declaration, paragraph 20.

[00:14:57] Speaker 01:
She made the decision, then she ran it by the committee.

[00:15:00] Speaker 01:
The committee also concurred in that.

[00:15:03] Speaker 01:
Decisions are sometimes complex like that, to identify a singular decision... Well, I'm asking because on the pretext analysis, if we have to figure out...

[00:15:10] Speaker 04:
I think that analysis is governed by what did the decision maker know about the reasons that they were giving and that depends on am I looking at just what Judge Avril knew and believed about those reasons or am I looking at the whole executive committee?

[00:15:22] Speaker 01:
I think you could be guided by plaintiff's contentions in this case and in the briefs which is that Judge Avril was the sole decision maker so we need not look to the others.

[00:15:33] Speaker 01:
However, if we do look to the others there's no evidence presented or argument even that they

[00:15:39] Speaker 01:
engaged in discrimination or retaliation.

[00:15:41] Speaker 03:
Well, but there is LaForge who was on the executive committee who apparently, you know, there's a claim that there was, that violated her ability or

[00:15:56] Speaker 03:
One of the claims by Ms.

[00:15:58] Speaker 03:
Junior is that because she reported him for an earlier incident, he should have never been allowed to be on that decision-making.

[00:16:07] Speaker 01:
Well, if you look to the undisputed testimony there as well, we do have the deposition testimony of Judge LaForge.

[00:16:16] Speaker 01:
Judge LaForge said he had no idea that Junior was involved in this process.

[00:16:20] Speaker 01:
He knew that she forwarded an email to Presiding Judge DiMeno that said, listen to this.

[00:16:26] Speaker 01:
But that's not protected conduct.

[00:16:27] Speaker 01:
It's forwarding information.

[00:16:29] Speaker 01:
It's not a complaint of anything unlawful.

[00:16:32] Speaker 01:
That's not something that would trigger retaliation protections vis-a-vis Judge LaForge.

[00:16:37] Speaker 04:
Well, the plaintiff argues that that would be a question of fact for the jury to look at and consider whether Judge LaForge is credible on that point or not.

[00:16:44] Speaker 04:
Why isn't that correct?

[00:16:46] Speaker 01:
Well, because we have only one source of information.

[00:16:51] Speaker 01:
It's his testimony.

[00:16:52] Speaker 01:
Plaintiff had full and fair opportunity for

[00:16:55] Speaker 01:
discovery to create that tribal issue of fact to undermine his credibility to present contrary testimony and Do that we don't even have any indication of knowledge by Judge LaForge of a complaint related to The the recording incident so that without that knowledge we certainly can't get to the causation Which is going to be one of the elements even though she claims he must have known do we look at that in the light most favorable to the plaintiff?

[00:17:26] Speaker 01:
We look at the evidence in the light most favorable to the plaintiff, not just their contentions or conclusions, right?

[00:17:31] Speaker 01:
So what evidence do they present that Judge LaForge was acting based on this earlier complaint?

[00:17:39] Speaker 01:
There's nothing, there's not even any foundational evidence of him having knowledge of Junior being involved in that complaint.

[00:17:47] Speaker 03:
I wanted to ask you some questions about the investigation and the quality of the investigations that went on here.

[00:17:57] Speaker 03:
The cases that you rely on supporting the adequacy of the investigation here involved different claims.

[00:18:05] Speaker 03:
Silva and King both considered allegations in the context of the standard for good cause and termination.

[00:18:13] Speaker 03:
decisions, and I'm trying to figure out why we should consider those cases here in the context of a discrimination claim.

[00:18:21] Speaker 01:
In the context of the discrimination claim, the focus needs to be on the decision-maker's state of mind, right?

[00:18:27] Speaker 01:
And so when they're relying on that investigation report, do they have any information that would cause them to doubt it?

[00:18:34] Speaker 01:
So when we look at the way that courts assess whether an investigation is adequate or not,

[00:18:39] Speaker 01:
They've provided some indicia of a good investigation, some indicia of a bad investigation.

[00:18:44] Speaker 01:
These are all aligned here with this being a good investigation where a presiding judge reviewing it would have every reason to reasonably rely on it.

[00:18:54] Speaker 01:
It interviewed all the witnesses.

[00:18:56] Speaker 01:
It provided fair notice to the accused of the concerns that were raised against her.

[00:19:02] Speaker 00:
It gave her- I'm sorry.

[00:19:04] Speaker 00:
Weren't there some complaints by other employees about how the investigation was done besides miss jr.

[00:19:11] Speaker 00:
I Want there some complaints about how the investigation was done by the law firm by people other than miss jr.

[00:19:19] Speaker 01:
There was a concern raised by quasi Williams who was one of the division heads not a judge but in an administrative role and what he said was that

[00:19:29] Speaker 01:
He was concerned that the investigation, two concerns about the investigation.

[00:19:33] Speaker 01:
Number one, that the questions were posed in a way that implicated a, quote, angry black woman stereotype.

[00:19:43] Speaker 01:
That's not a fair characterization of the investigation because the investigation was looking into concerns raised by Ms.

[00:19:49] Speaker 01:
Smith that were corroborated by five other witnesses indicating that Ms.

[00:19:57] Speaker 01:
Junior had raised her voice.

[00:19:58] Speaker 00:
Was Mr. Williams's concern given to the chief judge about the investigation?

[00:20:06] Speaker 01:
Judge Averill was in that conversation.

[00:20:09] Speaker 01:
And what she did was she relied on, so Mr. Queacy Williams's other concern was that the concerns that were raised by Margaret Smith were essentially being accepted without vetting, was the language he used.

[00:20:24] Speaker 01:
That concern was invalid because the investigation

[00:20:27] Speaker 01:
was designed to vet those concerns.

[00:20:30] Speaker 01:
It did vet them.

[00:20:31] Speaker 01:
It found some of them substantiated, and it found some of them not substantiated.

[00:20:35] Speaker 01:
It was a very measured investigation.

[00:20:38] Speaker 03:
Because based on my review of the records, it seems like Mr. Williams made Judge Avril aware of his concerns about the investigator asking, in his view, racially biased lines of questioning.

[00:20:57] Speaker 03:
didn't see, but I wanted to ask, how did she respond to that?

[00:21:01] Speaker 01:
I don't think there's evidence in the record of a... At deposition, Mr. Williams says that she didn't respond directly to that.

[00:21:11] Speaker 01:
How did she act in response to that, however?

[00:21:13] Speaker 01:
She let the investigation run its course.

[00:21:17] Speaker 01:
She conducted an additional investigation in response to Junior's concerns.

[00:21:22] Speaker 03:
Right, but she used the same firm, the same investigator, I believe, and so I'm just

[00:21:27] Speaker 03:
wondering does that create enough for a reasonable juror to conclude that Judge Averill knew that the investigation might be biased and was her action sufficient?

[00:21:44] Speaker 01:
She did not use the same investigator to address Junior's complaint of race discrimination.

[00:21:51] Speaker 01:
The first investigation was done by the Makis firm or

[00:21:55] Speaker 01:
The gentleman's name was Makis from the Maddox firm.

[00:21:59] Speaker 01:
The second investigation into retaliation was also done by that same firm.

[00:22:03] Speaker 01:
The third investigation into Junior's concerns of race discrimination was done by Margaret Bell of the Lagost Bell firm.

[00:22:10] Speaker 01:
They used a separate investigator because it was concerns that were related to the original investigation.

[00:22:17] Speaker 01:
At that point, the accused

[00:22:20] Speaker 01:
Judge DeMeo was walled off, and they let that investigation run its course, and it went back to presiding judge Averill to consider.

[00:22:30] Speaker 01:
So she received all four of those investigation reports.

[00:22:33] Speaker 01:
Some of the concerns were validated.

[00:22:35] Speaker 01:
Many significant concerns were validated, including the abrasiveness, the humiliating of other employees, the insulting of them, the fact of retaliation and dishonesty.

[00:22:47] Speaker 01:
These were all validated.

[00:22:49] Speaker 01:
The concerns of race discrimination that were raised by Junior, which were assessed by a separate firm, were not validated.

[00:22:56] Speaker 01:
And at that point, only at that point, after these four investigation reports, 100 pages of material, it was at that point that Judge Avril made her decision to rely on those reports.

[00:23:08] Speaker 01:
We do have plenty of law that talks about sufficiency of investigations, because investigations can always be second guessed after the fact.

[00:23:17] Speaker 01:
It's very easy to say that you should have interviewed this witness, you should have interviewed that witness, you should have altered the sequence, asked this question, not asked that question.

[00:23:26] Speaker 01:
An investigation can always be critiqued after the fact.

[00:23:29] Speaker 01:
But the question is, at the time the decision maker reviews that investigation, are they relying on it in good faith?

[00:23:36] Speaker 01:
When you read this investigation on its face, is there any indication from the investigation that would give the decision maker pause to think about,

[00:23:47] Speaker 01:
This is not a good investigation.

[00:23:49] Speaker 01:
The investigator's trying to pull a fast one on me.

[00:23:52] Speaker 01:
And if you look at these investigations, which I'm sure you have, these are gold standard investigations.

[00:23:58] Speaker 01:
They're in the record at 2SER 263, 294, 328, and 357.

[00:24:09] Speaker 01:
Judge Averill testified in her declaration, paragraph 21, that when she reviewed these, there were

[00:24:16] Speaker 01:
She thought about whether this was something that she could act upon.

[00:24:21] Speaker 01:
And she found the investigation thorough, credible, measured, balanced.

[00:24:28] Speaker 01:
It felt to her that it was something that was sufficient for her to act on.

[00:24:34] Speaker 01:
So if plaintiff had evidence that that was a bad faith explanation and she was lying about that, that would be sufficient to create pretext.

[00:24:43] Speaker 01:
But plaintiff hasn't made that argument.

[00:24:46] Speaker 03:
I want to, before your time gets to the whistleblower, the California Labor Code section 1102.5 issue or claim.

[00:24:56] Speaker 03:
Your briefing suggests that the legal standard is the same for FIHA and California Labor Code section 1102.5.

[00:25:05] Speaker 03:
Is that correct?

[00:25:09] Speaker 03:
came across a case from the California Supreme Court that said we do not use the McDonnell Douglas burden shifting framework to claims under the 1102.5.

[00:25:25] Speaker 03:
That under the statutory framework, Junior must only establish that retaliation was a contributing factor to the determination.

[00:25:37] Speaker 03:
And so I wanted to give you an opportunity

[00:25:40] Speaker 03:
address that.

[00:25:42] Speaker 01:
Your honor is correct.

[00:25:43] Speaker 01:
The standard is a contributing factor under 11.02.5, which is a lower standard than the substantial motivating factor in FIHA.

[00:25:54] Speaker 01:
But the problem for plaintiff here is it's not, we don't need to get to these fine points about the quantum of causation here because there's just no evidence of causation.

[00:26:04] Speaker 01:
There's no evidence that the reason was pretextual and that Judge Averill's stated reason

[00:26:11] Speaker 01:
that she was relying on these investigation reports that made these factual findings, that that was a lie.

[00:26:17] Speaker 01:
That's what plaintiff has to prove, is that she was lying about that and was relying on something else.

[00:26:22] Speaker 03:
Well, she has to prove that, ultimately, a jury at this point would try and figure out what does she have to show, how much does she have to show.

[00:26:36] Speaker 03:
based on the circumstantial evidence here that she's relying on for this to survive summary judgment.

[00:26:44] Speaker 03:
When we have to look at the evidence in the light most favorable to her

[00:26:50] Speaker 03:
But also I acknowledge the honest belief of the decision maker.

[00:26:55] Speaker 03:
And we also have law that says that the plaintiff here would have to provide specific and substantial reasons.

[00:27:04] Speaker 03:
I'm trying to reconcile all of our law here and figure out exactly what is there enough here based on the law that we have in our circuit that she should be allowed to go forward with a jury trial.

[00:27:19] Speaker 01:
I think the key piece of this is that to survive summary judgment, the plaintiff would need to come forward to present a genuine issue of material fact based on evidence, right?

[00:27:31] Speaker 01:
It's not based on a theory or a conclusion or conjecture.

[00:27:34] Speaker 01:
It has to be based on competent evidence.

[00:27:38] Speaker 01:
We learn from the Coughlin case from 2005 that the quantum of evidence in a circumstantial case is the substantial

[00:27:47] Speaker 01:
and specific and substantial standard that Your Honor referenced.

[00:27:51] Speaker 01:
So it's not just the need to come forward with evidence.

[00:27:54] Speaker 01:
That evidence needs to be specific and substantial.

[00:27:57] Speaker 01:
And the problem for plaintiff here is that there is no evidence that Judge Averill acted based on anything other than those four investigation reports that hit her desk and validated these very serious concerns about bullying and dishonesty by a court executive.

[00:28:19] Speaker 01:
Do your honors have any additional questions?

[00:28:21] Speaker 01:
I see my time is running short.

[00:28:25] Speaker 01:
I'll submit on that.

[00:28:28] Speaker 03:
Thank you.

[00:28:28] Speaker 01:
Thank you.

[00:28:37] Speaker 02:
Your Honor, I just want to point out number one is the discrimination laws apply both to explicit discrimination as well as implicit discrimination.

[00:28:50] Speaker 02:
And as an attorney here in California, we've all been doing MCLEs, you know, teaching us what's the difference between explicit and implicit, and that even though there may be an honest belief, doesn't mean there is not implicit discrimination.

[00:29:06] Speaker 02:
And we have the

[00:29:09] Speaker 02:
in evidence, our expert opinion regarding the fact that implicit bias was not even addressed in the investigations.

[00:29:19] Speaker 02:
So that is evidence.

[00:29:21] Speaker 02:
Again, what the court

[00:29:24] Speaker 02:
district court did here was ignore all the evidence that the plaintiff presented.

[00:29:31] Speaker 02:
This is a summary judgment rule, and the rule regarding summary judgment is there only needs to be little evidence presented.

[00:29:40] Speaker 02:
And number two, regarding the retaliation,

[00:29:43] Speaker 02:
District Court totally ignored all the evidence that was presented showing the nexus between the retaliation and the knowledge of the retaliator.

[00:29:55] Speaker 02:
I mean, Judge Advil clearly knew that Ms.

[00:30:01] Speaker 02:
Junior had reported a claim of the discrimination that was in the evidence on December 17th in a meeting.

[00:30:08] Speaker 02:
They discussed it.

[00:30:10] Speaker 02:
She clearly has suspicion that

[00:30:14] Speaker 02:
Ms.

[00:30:14] Speaker 02:
Junior was involved in the LaForge investigation because she had a conversation with Ms.

[00:30:21] Speaker 02:
Junior regarding that issue.

[00:30:23] Speaker 02:
So there was clearly evidence there showing that connection, yet the court dismissed all that evidence.

[00:30:30] Speaker 02:
So that's why summary judgment here is just inappropriate.

[00:30:34] Speaker 02:
I agree with you, those are issues that could be resolved, those are the standards that need to be resolved, but they should be before a jury to make those fact finding.

[00:30:45] Speaker 02:
And so here we have instead of the evidence being viewed in favor, most favorable to the nonmoving party, it was instead the evidence was viewed in favor of the complaining party.

[00:30:58] Speaker 02:
So that's why there's,

[00:31:00] Speaker 02:
The district court's decision was inappropriate.

[00:31:03] Speaker 02:
It should be overruled, and this matter should be referred back to the trial court for a jury trial.

[00:31:10] Speaker 03:
Thank you very much, Mr. E. I appreciate your oral argument presentation, Mr. Mikolovsky.

[00:31:18] Speaker 03:
I also appreciate your oral argument presentation here today.

[00:31:21] Speaker 03:
The case of Junior versus Sonoma County Superior Court is submitted.