[00:00:02] Speaker 03:
Good morning, Your Honors.

[00:00:03] Speaker 03:
My name is Gary Manke.

[00:00:04] Speaker 03:
I represent Appellant Jeffrey Toney.

[00:00:05] Speaker 03:
I'd like to reserve four minutes for rebuttal, please.

[00:00:09] Speaker 00:
So your clock shows you your full time.

[00:00:11] Speaker 00:
So just kind of watch the clock and we'll try to signal you.

[00:00:14] Speaker 03:
Thank you.

[00:00:16] Speaker 03:
For two main reasons, the district court was wrong to dismiss Mr. Toney's employment discrimination under Washington state law.

[00:00:25] Speaker 03:
The first reason is that the Washington law against discrimination contains a unique and broad standard of liability under which it's rarely appropriate to grant summary judgment.

[00:00:37] Speaker 03:
The second reason is that on this record, there were competing inferences of discrimination and non-discrimination, that is under Washington law,

[00:00:47] Speaker 03:
that a substantial factor behind the firing of Mr. Tony was either his age, his gender, or his race.

[00:00:56] Speaker 04:
So if I can try to pare down.

[00:00:58] Speaker 04:
So the race claims, it's my understanding you have two comparators who are both white.

[00:01:04] Speaker 04:
So how does a race discrimination claim survive?

[00:01:08] Speaker 03:
Yes, Your Honor, we think it still survives in the context of the DEI policies that Clorox was implementing.

[00:01:19] Speaker 03:
So it was kind of this broad desire that appeared to be implemented.

[00:01:23] Speaker 04:
But white individuals got the job, so how did the DEI policies

[00:01:29] Speaker 04:
play a role in that.

[00:01:30] Speaker 03:
We think it supports an inference that although the comparators are relevant to the age discrimination and gender discrimination claims, we also think, even without those, that that broader context illustrates that it was kind of a check the box thing.

[00:01:46] Speaker 00:
I guess I'm a little bit confused why you would advance it.

[00:01:50] Speaker 00:
I mean, you've got more, as you just acknowledged, you've got more direct evidence of the other theories, so why bother arguing about race?

[00:01:57] Speaker 03:
Because that's a claim that he believed was supported by the facts your honor and He believed it was important to highlight that under the framework that Clorox was using that Had he been of a different race he believes the outcome That would have been different that if he if he was that if he was 63 and a male, but if he had been black then they might have they might have retained him and

[00:02:23] Speaker 03:
That's right.

[00:02:23] Speaker 03:
And we believe that we're acknowledging that there is circumstantial evidence supporting competing inference.

[00:02:30] Speaker 03:
And Clorox has done a capable job of advocating for its side.

[00:02:34] Speaker 03:
And we can see how the argument would play out in front of the jury.

[00:02:37] Speaker 03:
But ultimately, that there's a competing inference that, given that context in which this decision took place, you're exactly right, Your Honor.

[00:02:45] Speaker 03:
Had he been 63 and male,

[00:02:48] Speaker 03:
but a person of color.

[00:02:50] Speaker 04:
What was the evidence to create a material issue of genuine fact, both as to race and age?

[00:02:56] Speaker 04:
I mean, so race, the comparators are also white.

[00:02:59] Speaker 04:
And in age, the fact that the two ladies that were retained were younger, apart from them just being younger, what evidence do you have to create a genuine issue of material fact?

[00:03:11] Speaker 03:
So as to age, as opposed to, say, his gender.

[00:03:15] Speaker 04:
Well, we think that the- I'm reserving the sex claim.

[00:03:17] Speaker 04:
I think that's unique.

[00:03:19] Speaker 04:
But I want to focus just on the race and the age.

[00:03:22] Speaker 03:
That the age claim is supported by the comparators.

[00:03:25] Speaker 03:
And that that is relevant evidence that allows a reasonable inference that his age was a substantial factor.

[00:03:33] Speaker 04:
Just their ages alone.

[00:03:34] Speaker 04:
And that's good enough to create an issue of fact, as far as you're concerned.

[00:03:39] Speaker 03:
Yes, Your Honor, under the substantial factor test under Washington law.

[00:03:46] Speaker 00:
So every time a person gets fired and a younger person gets put in their position, there's a jury question?

[00:03:53] Speaker 03:
No, Your Honor.

[00:03:54] Speaker 03:
We're not advocating for that broad of a standard.

[00:03:58] Speaker 00:
Because he was asking you, what is the evidence that creates the imprints for a jury that there was age discrimination?

[00:04:03] Speaker 00:
And your answer was comparator evidence and nothing else.

[00:04:07] Speaker 03:
I think that there's two things to look at that I think that are the most compelling pieces of evidence.

[00:04:11] Speaker 03:
The first is the strength of that comparator evidence that this was a person who was highly performing.

[00:04:18] Speaker 03:
He had the largest sales desk at Clorox.

[00:04:21] Speaker 03:
He had met all of his sales goals.

[00:04:22] Speaker 03:
He had introduced new products into Costco that you can see to this day when you walk the aisles of Costco.

[00:04:28] Speaker 03:
Alerts Hidden Valley Ranch Seasoning or

[00:04:31] Speaker 03:
Club packs of Burt's bees lip balm and then the other thing is the the DEI policies and that desire to set representation targets was coupled with Clorox funding these employee resource groups which come under other names in other contexts like affinity groups.

[00:04:48] Speaker 04:
Let's bring those apart here So at first I thought you were arguing and you argued below that

[00:04:55] Speaker 04:
about Clorox's index targets.

[00:04:57] Speaker 04:
And as I understand it, and correct me if I'm wrong, the index targets are merely sort of a gauge of just how the employees feel about the company and whether they like the place or not.

[00:05:08] Speaker 04:
It has nothing to do with targets in terms of quotas or goals or anything like that.

[00:05:13] Speaker 04:
Am I correct on that?

[00:05:18] Speaker 04:
The representation targets, I think have been the... So again, I'm trying to be very specific.

[00:05:24] Speaker 04:
The index targets.

[00:05:26] Speaker 04:
There's two things in this policy.

[00:05:29] Speaker 04:
There's representation targets, and there's index targets.

[00:05:32] Speaker 04:
The index is they're trying to gauge how well the employees feel about Clorox.

[00:05:37] Speaker 04:
The representation targets are a little more problematic, and I'll go into that with both of you all.

[00:05:43] Speaker 04:
I want to focus just on the index targets.

[00:05:45] Speaker 04:
How is that any evidence

[00:05:48] Speaker 04:
to support you getting to a jury in this case.

[00:05:51] Speaker 04:
under any of the three theories that you're advocating?

[00:05:54] Speaker 03:
Your Honor, I think it's a piece of the puzzle.

[00:05:55] Speaker 03:
If that was all that we had, I don't think that that would be enough.

[00:05:59] Speaker 03:
But it's a piece in the puzzle.

[00:06:00] Speaker 03:
So if we look at the DEI program that it had, it's the representation targets.

[00:06:05] Speaker 03:
It's the Clorox-funded and design employee resource groups.

[00:06:09] Speaker 04:
Now, your client with the resource groups, let's tackle that one apart from the policy.

[00:06:14] Speaker 04:
The resource groups, as I understand it, is employees, regardless of

[00:06:19] Speaker 04:
ethnicity, race, sexual orientation, religion, anybody can join anybody else's resource group.

[00:06:25] Speaker 04:
Is that correct?

[00:06:27] Speaker 04:
That's Clorox's perspective.

[00:06:29] Speaker 04:
Well, do you have anything to defeat that?

[00:06:32] Speaker 03:
Well, I think one of the things is that there's an indication in the policy that part of the reason that these groups were formed were business demand.

[00:06:39] Speaker 03:
In other words, that these were led by Clorox.

[00:06:42] Speaker 04:
These are the groups that we want to have.

[00:06:44] Speaker 04:
How did that impact, how did that play a role in the decision not to keep your client?

[00:06:49] Speaker 04:
I'm talking just about the resource groups.

[00:06:52] Speaker 03:
Yeah, it's part of it.

[00:06:53] Speaker 03:
Again, I think if that were the only piece of the puzzle, that wouldn't be enough.

[00:06:58] Speaker 03:
But it's one of the pieces of the puzzles.

[00:07:00] Speaker 03:
So just to use an analogy, if the test here is, is this a duck or a platypus?

[00:07:05] Speaker 03:
Well, it seems to look like a feather here.

[00:07:07] Speaker 03:
So perhaps I couldn't conclusively say, based on the evidence that this is a feather, that we're looking at a duck.

[00:07:13] Speaker 03:
Perhaps it's an eagle.

[00:07:14] Speaker 03:
But at least helps me to say,

[00:07:17] Speaker 03:
Well, we tend to know that it's not a platypus.

[00:07:20] Speaker 03:
It appears to be a bird of some kind.

[00:07:22] Speaker 03:
And so that's our position.

[00:07:25] Speaker 03:
It's a piece of the puzzle, not the only piece, Your Honor.

[00:07:28] Speaker 04:
So with regard to the representation, I'm sorry.

[00:07:30] Speaker 04:
I'm dominating here.

[00:07:32] Speaker 04:
My colleagues, please interject.

[00:07:34] Speaker 04:
You want to stop me.

[00:07:35] Speaker 04:
With regard to the representation goals, is there anything in the record to establish when those came into place vis-a-vis when your client was let go?

[00:07:47] Speaker 03:
My memory is that the representation targets had been in place for a few years.

[00:07:53] Speaker 03:
I can't tell you off the top of my head when the first date was, but that program and that desire to have representation targets and to achieve them predated the firing.

[00:08:06] Speaker 04:
And it seems to be the other side's claiming you waive this whole argument about representation goals by now not advancing them either below at the district court or earlier in your briefs.

[00:08:18] Speaker 04:
How do you respond to that?

[00:08:19] Speaker 03:
I don't think that's quite right.

[00:08:21] Speaker 03:
I mean, the part of the record that we cited is a page of

[00:08:26] Speaker 03:
this program that includes not just the index that we were speaking about earlier, but also the representation targets.

[00:08:33] Speaker 03:
And then the legal argument I was making was not based on an employer surveying the sentiment of its employees, but rather hiring goals, soft quotas, things like that, and how measures like that tend to allow an inference that in a specific employee's case,

[00:08:52] Speaker 03:
One of the factors behind the employer's decision was a desire to achieve these representation goals based on an impermissible characteristic.

[00:09:00] Speaker 03:
Not that it's impermissible to have those characteristics, but impermissible to take that into account in the decision.

[00:09:07] Speaker 03:
So we do think that that was discussed in the opening brief sufficiently to apprise Clorox of,

[00:09:15] Speaker 03:
of that position, and they capably advanced arguments to address it as well.

[00:09:20] Speaker 01:
Counsel, I'd like to come at this from just a slightly different perspective.

[00:09:23] Speaker 01:
So I'd like to distinguish between direct evidence and indirect evidence.

[00:09:28] Speaker 01:
So can you tell me what direct evidence of discrimination you're alleging?

[00:09:34] Speaker 03:
The case that we've advanced is circumstantial.

[00:09:38] Speaker 03:
Okay, so you have no direct evidence.

[00:09:40] Speaker 01:
They did not come out and say, at any point, I mean, Clorox is a sophisticated... You're not even relying on the statement from the woman who fired him that we're looking for the future, and he says, whoa, this sounds like age discrimination.

[00:09:53] Speaker 01:
So there's no direct evidence here.

[00:09:55] Speaker 03:
In my view, that would be circumstantial evidence, Your Honor, because one must draw an inference from that type of word to mean, okay, you're starting to talk about age here and impermissible stereotypes about what someone who's 63 years old, who is 63, is capable of learning.

[00:10:10] Speaker 01:
So what is your best circumstantial evidence that is Tony specific here, as opposed to sort of the general representation DEI goals?

[00:10:21] Speaker 03:
I like a lot of our evidence your honor, but if I might start with one is that his Supervisor for most of the time he was there and his colleague Dan Parker's to this day doesn't know why Jeffrey Tony was fired But he wasn't he wasn't part of that decision However, he did send that email to all of the decision makers and advocated for Jeff Tony and said why his record wasn't remarkable But he wasn't in the room.

[00:10:44] Speaker 01:
He didn't know how many people were being retained.

[00:10:46] Speaker 01:
He didn't look at this company-wide This was this was not a single decision.

[00:10:50] Speaker 01:
This was a series of decisions

[00:10:51] Speaker 03:
And I think that would be an excellent argument for Clorox to make in front of a jury.

[00:10:55] Speaker 03:
That's why we acknowledge that there are competing inferences.

[00:10:57] Speaker 03:
What I do think, Your Honor, that you can draw from Mr. Parker's knowledge is he sent out this email.

[00:11:04] Speaker 03:
No one responded to it saying, you're wrong.

[00:11:06] Speaker 03:
You have forgotten that he's not strategic.

[00:11:09] Speaker 03:
You have forgotten that you didn't help it along.

[00:11:13] Speaker 01:
But we can always, I mean, sometimes people have to make really hard decisions and they have two good choices and have to choose between two good candidates.

[00:11:22] Speaker 01:
If they decided they can only hire one, they can't keep two.

[00:11:26] Speaker 01:
So I'm not sure how that helps you very much.

[00:11:29] Speaker 01:
Have you got anything better than that?

[00:11:30] Speaker 01:
What else do you have?

[00:11:31] Speaker 03:
I want to make one more pitch from the inference that can be drawn for that and then talk about some of the other evidence.

[00:11:36] Speaker 03:
So the reason that there allows an inference is because, well, you can infer had there been respectful disagreement about the merits of Mr. Tony, someone would have responded to that email.

[00:11:48] Speaker 03:
But it's never been produced.

[00:11:50] Speaker 03:
Mr. Parker's had a half hour long conversation with Troy Dasher, one of the higher ups.

[00:11:55] Speaker 03:
And Mr. Parker still doesn't know why he was fired.

[00:11:59] Speaker 03:
So he would have known if it was, well, respectfully, we think that these are.

[00:12:02] Speaker 01:
He's retired.

[00:12:02] Speaker 01:
Nobody has to give him an explanation.

[00:12:04] Speaker 03:
He wasn't retired at the time.

[00:12:06] Speaker 03:
And I think it's reasonable to infer that if there had been an explanation forthcoming available at the time,

[00:12:15] Speaker 03:
It would have been given to him.

[00:12:16] Speaker 03:
So you're absolutely right.

[00:12:17] Speaker 03:
That's one of the arguments that Clorox is free to make to a jury.

[00:12:20] Speaker 03:
There's competing inferences that he can be drawn here.

[00:12:26] Speaker 03:
That while this is a bill, and this is an animal that lays eggs, this is a platypus, not a duck.

[00:12:32] Speaker 03:
But in our view, you can also look at that and draw from an inference that Clorox

[00:12:38] Speaker 03:
Had an impermissible characteristic as a substantial factor behind its decision and that's why no one told Mr. Parker's in any comprehensible way the reasoning behind the decision If I may I'd like to reserve the balance of my time for a bottle thank you

[00:13:06] Speaker 02:
Morning, and may it please the court.

[00:13:08] Speaker 02:
My name is Adam Charnas, and I represent Clorox in this appeal.

[00:13:11] Speaker 02:
If it's OK with the court, I'd like to start with the question of the representation targets, because it

[00:13:18] Speaker 02:
There are sort of three points I'd like to make.

[00:13:20] Speaker 02:
First of all, as one of your honors mentioned, plaintiffs waive reliance on their representation targets.

[00:13:27] Speaker 02:
If you go to their opening brief and you do a search for the word representation or representation target or target and look for all instances in which targets are mentioned, representation targets are not mentioned even a single time.

[00:13:39] Speaker 02:
Council said, well, we cited the page in the record.

[00:13:42] Speaker 02:
that discusses representation targets.

[00:13:44] Speaker 02:
Well, that page discusses a lot of things, including the inclusion targets, Judge Rodriguez, that you talked about.

[00:13:49] Speaker 02:
It's not enough just to cite a page in the record that mentions something if your argument doesn't contain it.

[00:13:55] Speaker 02:
The second thing I want to mention is that we don't even know from this record what the representation targets are.

[00:14:01] Speaker 02:
Plaintiff took no discovery of the representation targets.

[00:14:04] Speaker 02:
They're mentioned on a single page of the record.

[00:14:07] Speaker 02:
Now, that page exists in the record several times.

[00:14:09] Speaker 02:
So when you see in their reply brief that they – the reply brief, when you see what they talk about representation targets, it's got a number of page citations, but it's all to the exact same document, just different places in the record.

[00:14:24] Speaker 04:
And in that document, it says we're going to achieve our gender representation target.

[00:14:30] Speaker 04:
So doesn't it infer that there is a target?

[00:14:32] Speaker 02:
It does not, because it's got a goal and a status.

[00:14:35] Speaker 02:
If you look, one of the places it is is for ER 635.

[00:14:40] Speaker 02:
The column under goal, it says achieve our gender and race ethnicity representation targets.

[00:14:47] Speaker 02:
Status, it says commitment to establishing enterprise-wide representation targets in fiscal year 2022.

[00:14:55] Speaker 02:
Mr. Tony was let go, and the reorg happened in fiscal year 2021.

[00:15:00] Speaker 02:
So there is no basis in this record to conclude that the representation targets were in place at the time of the reorganization.

[00:15:09] Speaker 02:
Nor do we even know what they are.

[00:15:10] Speaker 02:
That's the only reference in this record to representation targets.

[00:15:14] Speaker 02:
Are they employment, hiring, promotion targets that have specific percentages?

[00:15:19] Speaker 02:
There's nothing in the record that even says what that is.

[00:15:21] Speaker 02:
It's pure speculation by Mr. Toney about what those mean.

[00:15:25] Speaker 02:
But that speculation is irrelevant because the targets were not in place in 2021.

[00:15:30] Speaker 02:
So without those targets, those representation targets, he really has nothing but speculation.

[00:15:36] Speaker 02:
And in fact, what the Washington courts applying in WLAD cases have specifically said is that speculation of conclusory opinions are not enough.

[00:15:47] Speaker 02:
You need specific and material facts.

[00:15:49] Speaker 02:
that tie the employment decision to discriminatory animus or bias.

[00:15:56] Speaker 02:
And there is really nothing here other than Mr. Toney's speculation.

[00:16:00] Speaker 02:
The fact that, and his disagreement with the company's judgment,

[00:16:04] Speaker 02:
that somebody else was better situated for the job than he was.

[00:16:08] Speaker 02:
And now it's perfectly natural and human for him to disagree with that.

[00:16:11] Speaker 02:
When the company says, you know, somebody else is better strategically than you are, we're going to give her the position over you, it's natural for him to disagree with that.

[00:16:20] Speaker 00:
Well, I mean, it's not just his opinion, right?

[00:16:22] Speaker 00:
He's pointed to some concrete facts that maybe support that inference.

[00:16:26] Speaker 00:
And so trying to figure out how much does Washington require in order to create a jury question, right?

[00:16:32] Speaker 00:
Because he presents evidence that he was a longtime employee.

[00:16:37] Speaker 00:
He had several promotions.

[00:16:39] Speaker 00:
positive employment or performance evaluations, and then his replacement has much more junior, much less experience, wasn't even applying for the position.

[00:16:51] Speaker 00:
So those are concrete facts that we can look at beyond just his opinion of, I'm a better employee, and to weigh whether that's a valid view or not.

[00:16:58] Speaker 02:
Right.

[00:16:59] Speaker 02:
Well, a couple of things, Your Honor.

[00:17:00] Speaker 02:
First of all, Ms.

[00:17:01] Speaker 02:
Blishok had as much tenure at Clorox as Mr. Tony did.

[00:17:05] Speaker 02:
Now, he was younger than him, but their tenure at the company was exactly the same.

[00:17:09] Speaker 02:
But the point is, and Washington cases, like federal cases under Title VII, are all clear about this.

[00:17:16] Speaker 02:
The question is not whether the company made the right decision.

[00:17:19] Speaker 02:
Mr. Choney comes in, most of his brief is, I was a great employee who thought really strategically everybody got me wrong except for Parkhurst.

[00:17:28] Speaker 02:
But even if the company got it wrong, that's not the question.

[00:17:31] Speaker 02:
With the Washington courts, for example, the Mackey case is a perfect example.

[00:17:35] Speaker 02:
Home Depot alleged that one of their salespeople, one of their cashiers, was giving improper discounts to customers.

[00:17:42] Speaker 02:
They did an investigation, they concluded she was, and they fired her.

[00:17:46] Speaker 02:
And she came to Washington State Court and said, I wasn't giving those discounts.

[00:17:51] Speaker 02:
You're completely wrong.

[00:17:52] Speaker 02:
And therefore, it was discriminatory for you to fire me.

[00:17:55] Speaker 02:
And what the Washington Court of Appeals said was, that's irrelevant.

[00:17:58] Speaker 02:
The question is not whether you actually violated the discounting policy.

[00:18:02] Speaker 02:
The question is whether Home Depot honestly thought that you violated the policy.

[00:18:07] Speaker 02:
Even if they were wrong, if they honestly thought that you violated the policy, there's no discrimination.

[00:18:13] Speaker 02:
They fired you.

[00:18:14] Speaker 02:
because of the policy, not because of your sex.

[00:18:19] Speaker 02:
And that's the case here.

[00:18:20] Speaker 02:
It doesn't matter whether he's right or wrong about whether he was highly qualified and strategic and better than Ms.

[00:18:27] Speaker 02:
Blishok at the position that she was going to be.

[00:18:30] Speaker 02:
The question is whether they honestly thought that.

[00:18:32] Speaker 02:
And there's not a shred of evidence

[00:18:34] Speaker 02:
that any of the decision makers did not honestly think that.

[00:18:38] Speaker 02:
The criticisms of Mr. Tony, again, the position changed.

[00:18:42] Speaker 02:
He was doing a perfectly adequate job in the position as it was originally defined.

[00:18:46] Speaker 02:
The reorg, the company said, we need somebody much more strategic.

[00:18:50] Speaker 02:
The position's going to change.

[00:18:51] Speaker 02:
They took everybody out of their positions, basically put them on a board, their names, and said, OK, we're going to put people where they belong.

[00:18:58] Speaker 02:
Ms.

[00:18:58] Speaker 02:
Blishok didn't apply for the job.

[00:18:59] Speaker 02:
Nobody applied for any jobs.

[00:19:01] Speaker 02:
They didn't even know this reorganization was happening necessarily.

[00:19:04] Speaker 02:
People were put in the positions that were best suited to them according to the company.

[00:19:07] Speaker 02:
And every single decision-maker involved

[00:19:10] Speaker 02:
testified in this case, in discovery, that they put her in that position because they believe she was more strategic and was a better fit for the revised position, the ritual position, than Mr. Toney was.

[00:19:23] Speaker 02:
And in fact, Mr. Toney, when he was asked at his deposition whether any of these people had ever expressed animus toward him or that he believed

[00:19:32] Speaker 02:
They held animus toward him based on his age, his race, or his sex.

[00:19:37] Speaker 02:
He answered, no.

[00:19:38] Speaker 02:
He had no reason to believe and no evidence that any of these people were discriminatory toward him.

[00:19:44] Speaker 02:
Unlike almost every other case that he cites, there is no evidence in this record of comments, discriminatory comments,

[00:19:51] Speaker 02:
of disadvantageous employment decisions or anything like that.

[00:19:56] Speaker 02:
And I think my friend on the other side conceded that in questioning when he was up here.

[00:20:00] Speaker 02:
There's really nothing that Mr. Toney experienced during his employment that would be supportive or even an inference toward discrimination.

[00:20:08] Speaker 00:
I think this is a really interesting case.

[00:20:14] Speaker 00:
You know, we could imagine, maybe at another point in history, maybe not, somebody not hiring someone and giving them the explanation, I just don't think you're the right fit for our clientele.

[00:20:25] Speaker 00:
And in context, you could draw an inference, oh, you're black and this is a white community and we don't want this person.

[00:20:30] Speaker 00:
You're not going to be a good fit for my clientele.

[00:20:33] Speaker 00:
Sounds like a business reason.

[00:20:34] Speaker 00:
You dig a little deeper.

[00:20:35] Speaker 00:
Maybe it isn't.

[00:20:37] Speaker 00:
Why isn't this case possibly of that vein?

[00:20:40] Speaker 00:
There's a business reason given.

[00:20:42] Speaker 00:
We're restructuring.

[00:20:43] Speaker 00:
We're trying to have a new approach to the future, whatever.

[00:20:45] Speaker 00:
But the undercurrent of that is, and with evidence of there is this DEI affirmative action interest goal, whatever, why doesn't that context matter in terms of

[00:20:59] Speaker 00:
Is this reason sort of not the whole story?

[00:21:04] Speaker 02:
Well, because you need evidence.

[00:21:05] Speaker 02:
I mean, Washington law is the same as federal law under Title VII.

[00:21:10] Speaker 02:
Conjecture, speculation, the employee's belief is not enough.

[00:21:15] Speaker 02:
And Washington courts have said repeatedly, an employee can come to court and say, I was doing a great job.

[00:21:21] Speaker 02:
I disagree with my employer's decision.

[00:21:22] Speaker 00:
So what evidence could he had that would make this different in your mind, other than just like an admission?

[00:21:27] Speaker 00:
Yes, we discriminated against you.

[00:21:29] Speaker 00:
That's not going to happen, right?

[00:21:30] Speaker 00:
So what other thing could cross the line in your mind?

[00:21:33] Speaker 02:
Well, let's look at some of the cases he cites.

[00:21:35] Speaker 02:
In the Scrivener case from the Washington Supreme Court, for example,

[00:21:40] Speaker 02:
The college president, who was the hiring decision maker, repeatedly made public statements about how he wanted to hire young people for positions.

[00:21:50] Speaker 02:
And in fact, he wanted to hire young people without any experience, because he was sort of like the young vibe.

[00:21:55] Speaker 02:
And he made discriminatory comments to the plaintiff about her age, made fun of her because of her age.

[00:22:00] Speaker 02:
And the Washington Supreme Court said, in that case, that was enough to get over summary judgment.

[00:22:06] Speaker 02:
In the Litvat case, which is the more recent case from the Washington Court of Appeals from last year, the plaintiff presented substantial evidence of on-the-job discriminatory treatment.

[00:22:16] Speaker 02:
She testified that women were talked over and cut off and condescended to during faculty meetings.

[00:22:21] Speaker 02:
She testified that the scheduling for surgery was biased in favor of men over women doctors.

[00:22:28] Speaker 02:
She testified that women surgeons were treated differently during quality and prudent meetings.

[00:22:33] Speaker 02:
And the main reason she was given for being fired was that she wasn't closing her charts and doing administrative stuff fast enough.

[00:22:40] Speaker 02:
There were male doctors who were slower than she was, and no action was taken against them.

[00:22:45] Speaker 02:
But she was fired on that basis.

[00:22:47] Speaker 02:
So all of that is circumstantial evidence that would lead, that would get you over summary judgment.

[00:22:53] Speaker 04:
What are we supposed to do with this language from the Washington High Court and gamble?

[00:22:57] Speaker 04:
WLAD claims typically inappropriate for resolution and summary judgment because the WLAD mandates liberal construction and the evidence will generally contain reasonable but competing inferences of both discrimination and non-discrimination that must be resolved by the jury.

[00:23:16] Speaker 04:
What do we do with that?

[00:23:18] Speaker 02:
I think what you do with that is you have to look at a specific case to see really whether there is any evidence of such inferences.

[00:23:23] Speaker 02:
The fact that these cases generally speaking

[00:23:27] Speaker 02:
are hard to dispose of at summary judgment doesn't mean that every case is hard to dispose of or should not be disposed of at summary judgment.

[00:23:34] Speaker 02:
And this is perhaps the unique case where the plaintiff really has no evidence at all about discriminatory treatment at all.

[00:23:44] Speaker 01:
Would it be sufficient if we sent this back for a jury to be able to see the faces and hear the testimony of Clorox officials who were in the room and made those decisions?

[00:23:55] Speaker 02:
No.

[00:23:56] Speaker 01:
A jury couldn't assess their credibility as they're being cross-examined?

[00:24:01] Speaker 02:
Well, certainly a jury could if the case went to a jury.

[00:24:04] Speaker 02:
But if that were the basis to get over summary judgment in employment discrimination cases, every case would go to a jury.

[00:24:11] Speaker 01:
Again, Washington seems to have a pretty liberal policy of suggesting that summary judgment is not appropriate and that these cases ought to go to a jury.

[00:24:19] Speaker 01:
I'm just asking if we were to send this back, sort of wondering what would a jury do?

[00:24:23] Speaker 01:
Well, one thing that they might do is look your client's managers in the face and see whether they thought they were credible, as they were testifying that it was all due to predictions about competencies and future capacity and so on.

[00:24:40] Speaker 02:
Well, I suppose that's true.

[00:24:43] Speaker 02:
That's what a jury could do.

[00:24:44] Speaker 02:
But again, if you sent every employment case to a jury,

[00:24:50] Speaker 02:
so the jurors could look at the defendant's witnesses and see whether they believe them, that all these cases would go to trial.

[00:24:56] Speaker 02:
And I want to emphasize the fact that this is

[00:25:00] Speaker 02:
a case applying state law does not mean that Rule 56 applies with any less force.

[00:25:07] Speaker 02:
In fact, as this Court has held, in diversity cases of all sorts, Federal Rule 56 and the Federal Rule 56 standards apply just as equally, even though the law is coming from state court.

[00:25:23] Speaker 02:
So Mr. Tony needs evidence.

[00:25:25] Speaker 02:
He needs evidence sufficient for a reasonable jury to rule for him.

[00:25:28] Speaker 02:
And we think the district court got it right that there is no such evidence in the record.

[00:25:32] Speaker 02:
There may be another case that this court hears.

[00:25:34] Speaker 02:
Maybe it's on your docket now.

[00:25:36] Speaker 02:
Maybe in the future regarding DEI policies and how they're applied in specific cases that would get to a jury.

[00:25:42] Speaker 00:
But that's not this case, because- Do you think that a company has decided to put a focus and emphasis of value on DEI objectives in and of itself as a relevant fact?

[00:25:52] Speaker 02:
No.

[00:25:53] Speaker 02:
And the Washington Supreme Court has said so.

[00:25:56] Speaker 02:
In the Scribner case, they say the fact that there's a diversity policy in place is not enough unless it specifically impacted the employment decision.

[00:26:04] Speaker 02:
In the Fourth Circuit in Duval, which may be the best case for the plaintiffs because of its context, the Fourth Circuit itself said the same thing.

[00:26:11] Speaker 02:
In a footnote, they said,

[00:26:14] Speaker 02:
in footnote 10, they said companies may utilize diversity policies.

[00:26:19] Speaker 02:
They just can't take adverse employment decisions based on race, sex, or other immutable characteristics using those policies.

[00:26:27] Speaker 02:
So the fact that there's a diversity policy in place is not enough to get over summary judgment.

[00:26:31] Speaker 02:
If it were, then every lawsuit against a Fortune 500 company would get to trial because virtually every company has a diversity policy in place.

[00:26:40] Speaker 02:
And so that by itself, that's not enough.

[00:26:43] Speaker 02:
The plaintiff has to tie that diversity policy to the specific employment decision.

[00:26:48] Speaker 02:
And that wasn't the case here.

[00:26:49] Speaker 02:
All the evidence is from all the decision makers was that diversity, race, sex, age had nothing to do with the decision at all.

[00:27:00] Speaker 02:
If the court has no further questions, I'll thank the court for it.

[00:27:03] Speaker 00:
Thank you.

[00:27:12] Speaker 03:
Your Honor, I'd like to quickly address Washington's legal test and then discuss the facts.

[00:27:17] Speaker 03:
So just to clarify under Washington's mixed motive standard for liability, which is a substantive standard, my client doesn't have to disprove every legitimate reason that Clorox has offered.

[00:27:27] Speaker 03:
So even if Clorox honestly believed one or more of the reasons that it's offered and could be deemed legitimate, my client still can win

[00:27:35] Speaker 03:
if an impermissible characteristic was nevertheless a substantial factor behind the decision.

[00:27:40] Speaker 03:
So Clorox's argument depends on a legal standard that we simply do not have to meet.

[00:27:46] Speaker 03:
Another point to further address Judge Bybee's discussion about what circumstantial evidence is available.

[00:27:53] Speaker 03:
We have a circumstantial case, and that's why we proceeded under Washington's version of the McDonnell Douglas burden shifting framework, because that's what's appropriate when there's circumstantial evidence that it's the basis for the claim.

[00:28:05] Speaker 03:
So if there were direct comments about discriminatory motives or about how Clorox decision makers didn't like people who were older or male or what have you, then that would be a direct evidence case.

[00:28:18] Speaker 03:
So that, again, is setting a legal hurdle that we simply don't have to overcome.

[00:28:24] Speaker 03:
Now, talking about the circumstantial evidence over here, and again, it's a puzzle and these are pieces, is that we have a high performing employee who is entrusted with the largest sales desk at Clorox with one of its most important retailing partners and was entrusted in that position for years.

[00:28:43] Speaker 03:
He met or exceeded all of his sales goals

[00:28:46] Speaker 03:
And while after the fact, someone from the business unit and sales planning in a litigation declaration said, well, there were always concerns about his collaboration with business units, the feedback that he received in his performance reviews was that he was collaborating well with the business units.

[00:29:05] Speaker 03:
And so that brings us to the question, well, don't we have to defer to Clorox's business judgment?

[00:29:09] Speaker 03:
Well, if that were the rule, it would be impossible to establish discrimination when you're dealing with a sophisticated employer.

[00:29:17] Speaker 03:
I think a competing inference is, well, this justification is so incorrect, a jury may find, that it wasn't.

[00:29:30] Speaker 03:
the legitimate reason motivating it, or it's merely trying to hide from the fact that there's a substantial factor that's impermissible.

[00:29:37] Speaker 00:
The state of the evidence in terms of the last point that your friend across the aisle was trying to make about there's no connection between this particular employment decision and the DEI policies or goals of the company.

[00:29:50] Speaker 00:
And your response to that is, I don't need a connection because it exists and we can take the inference that it's in the minds of all the decision makers?

[00:30:00] Speaker 03:
I have two responses to that, Your Honor.

[00:30:02] Speaker 03:
One is that the particulars of a diversity policy matter.

[00:30:05] Speaker 03:
So this isn't a broad statement of we value people of all backgrounds and we want people to be themselves and we're going to have a non-discrimination policy.

[00:30:14] Speaker 03:
We're going to provide equal opportunity.

[00:30:16] Speaker 03:
That was the statement that was at issue in Scrivener.

[00:30:19] Speaker 03:
Here we have a discussion about

[00:30:23] Speaker 03:
Representation goals and then we have the CEO Talking about come up with any evidence to establish that that was in place at the time your client was let go I'm hearing 2022 the termination was 2021 I think I'm gonna need to follow up with the court on the specific date because as I sit here I don't have memorized that the date that was on the written policy that's in the records your honor But

[00:30:49] Speaker 03:
I'm out of time, but if I may address the rest of your question about the DEI policy, is that there is a nexus.

[00:30:58] Speaker 03:
And again, it's one piece of the puzzle, and it is relevant.

[00:31:00] Speaker 03:
And relevance is a low threshold to me.

[00:31:04] Speaker 03:
If that was the only thing we had, maybe we wouldn't get to a jury.

[00:31:07] Speaker 03:
But we do think here, okay, you have this policy.

[00:31:09] Speaker 03:
We want to have representation targets.

[00:31:11] Speaker 03:
It's important to Clorox.

[00:31:14] Speaker 03:
All of the executives, the executive team has compensation tied to them meeting their ESG goals.

[00:31:21] Speaker 03:
The CEO has said this is important.

[00:31:24] Speaker 03:
We need to look out for gender parity and when the CEO speaks I presume that the people who follow who are underneath her follow speaking that statement She's making that like two or three years after your clients let go.

[00:31:37] Speaker 04:
Isn't that correct?

[00:31:39] Speaker ?:
I

[00:31:39] Speaker 03:
Think that's true, but that's certainly I think an inference can be drawn from that relevant information that this was an attitude That that she had beforehand right particularly when that's coupled with the broader DEI policies that are on paper so it's nevertheless probative just in the way if we had someone with a racial discrimination claim and

[00:32:01] Speaker 03:
Three years later, you know that the person who made the decision was making derogatory remarks on the basis of race Well, you could say, you know Zebra doesn't change its stripes.

[00:32:14] Speaker 00:
That's probative of what his attitude was at the time We've taken you over any other questions from the court Thank You counsel all right the matter of

[00:32:28] Speaker 00:
Jeffrey Toney versus the Clorox Company has submitted, and I thank counsel for their helpful arguments.