[00:00:02] Speaker 02: Good morning and welcome to the Ninth Circuit. [00:00:05] Speaker 02: I'm Bridget Beatty. [00:00:06] Speaker 02: I have my chambers here in Phoenix. [00:00:08] Speaker 02: I'm very pleased today to be joined by Judge J. Bybee and Judge Richard Clifton who are from Las Vegas and Honolulu. [00:00:17] Speaker 02: This morning we have two cases for argument and the other cases have been submitted. [00:00:23] Speaker 02: The first case for argument this morning is Melia Promotional Services versus the State of Arizona. [00:00:49] Speaker 04: May it please the court. [00:00:51] Speaker 04: My name is David Abney, here representing Amelia Promotional Services and Camilla Harris. [00:00:58] Speaker 04: She says it's pronounced Camilla, even though there was an I-A on the end. [00:01:05] Speaker 04: These kinds of cases are difficult because you cannot depend on one particular item of evidence, except in the very rarest of cases. [00:01:14] Speaker 04: There are a number of items that have come together in this particular case. [00:01:18] Speaker 04: to show a pattern of discrimination based on race. [00:01:23] Speaker 04: Any one of those individually probably would not carry the case. [00:01:27] Speaker 04: But if you add them up in total, it creates a situation where there is enough to go to the trier of fact. [00:01:34] Speaker 04: One of the strengths of this case was that we had an extremely good district court judge, well respected. [00:01:42] Speaker 04: But one of the weaknesses of being an extremely well respected good district court judge is a tendency [00:01:48] Speaker 04: to decide cases on the merits when they really need to go to the jury. [00:01:55] Speaker 04: All the reasonable inferences from the evidence are supposed to be taken in favor of the nonmoving party. [00:02:00] Speaker 04: All of the evidence is supposed to be viewed in the light most favorable to the nonmoving party. [00:02:06] Speaker 04: And actually, if you look at the Celotex Anderson Liberty Lobby cases from 1986 or so, they set the framework [00:02:16] Speaker 04: that we follow, even in our Arizona state courts under Orm School, that you're supposed to defer to the jury whenever there is any sort of reasonable dispute of material fact. [00:02:28] Speaker 04: And actually you're supposed to take as true, at least provisionally, what is being set out by the non-moving party. [00:02:35] Speaker 05: You take the facts as true. [00:02:37] Speaker 05: You don't necessarily take the inference drawn by plaintiff that this is discriminatory or reflects a hostile attitude as true. [00:02:47] Speaker 05: You look at the facts. [00:02:49] Speaker 05: And I have to say, I look at the facts and it seems like your client perceives any criticism of the services provided by her or her company as prima facie evidence of discrimination. [00:03:02] Speaker 05: And I'm not sure I can draw the inference that you say that I'm required to draw. [00:03:09] Speaker 05: The standard is... Did she do no wrong? [00:03:13] Speaker 05: Could she not fall short in providing services? [00:03:15] Speaker 05: Isn't she susceptible to criticism? [00:03:17] Speaker 04: We all fall short of the glory of God, no question about that. [00:03:21] Speaker 04: But in this particular case, she laid out instance after instance where she is being treated differently than white vendors. [00:03:29] Speaker 05: Well, not really. [00:03:31] Speaker 05: I mean, give us some particulars. [00:03:33] Speaker 05: I look at your briefing. [00:03:34] Speaker 05: You try to illustrate, well, there are these two white vendors that are treated differently in some way, but we don't know that that's a representative sample of vendors or white vendors at all. [00:03:43] Speaker 05: I mean, you can pick and choose things, but what evidence would you cite that should leave us with the impression that there is a genuine issue with regard to whether there was discrimination? [00:03:56] Speaker 05: Well, you had, for instance, the pay increase issue. [00:04:00] Speaker 05: Well, she wasn't cut when others were. [00:04:02] Speaker 05: Exactly how is that discrimination? [00:04:07] Speaker 04: No, she did not. [00:04:09] Speaker 05: Her pay increase... She requested a pay increase. [00:04:12] Speaker 04: It was denied. [00:04:13] Speaker 05: She was not cut at a time when they were asking 10% cuts from others. [00:04:17] Speaker 05: How does that reflect discrimination? [00:04:19] Speaker 05: There was no explanation to her for what had happened. [00:04:22] Speaker 04: Well, wait a minute, but how does that reflect discrimination? [00:04:25] Speaker 04: Well, at a minimum, we would expect you for being treated fairly by the government that you get an explanation. [00:04:30] Speaker 05: But we don't know that she's not being treated fairly when her fee wasn't cut and [00:04:35] Speaker 05: other vendors had their fees cut. [00:04:38] Speaker 04: But the other vendors were making much more than she was. [00:04:42] Speaker 04: And as far as the rate increase, there was no explanation or justification to her as to why her application was not granted. [00:04:50] Speaker 05: So if I go into my boss or Congress sets our salaries and say, give me an increase, and they don't bother to explain why they're not giving me an increase, that's discrimination? [00:05:01] Speaker 04: Well, suppose they falsely tell you that we did an audit, we're going to do an audit, and they don't do the audit, or they're going to say that you have errors in your rate increase form when there were no errors and they didn't identify the errors. [00:05:14] Speaker 04: And then later on, you find out when you get to the ultimate decision maker, I have no idea why you didn't have a rate increase. [00:05:21] Speaker 03: Mr. Abney, remind me how much what her rate was. [00:05:24] Speaker 04: It was 68? [00:05:26] Speaker 03: Yes. [00:05:27] Speaker 03: And how much was the rate? [00:05:29] Speaker 03: rates that she thought others were getting? [00:05:31] Speaker 04: Seventy-nine or eighty in that vicinity. [00:05:34] Speaker 03: And do you know whether the agency compensated for people who had more experience? [00:05:43] Speaker 04: I don't think that the record reflects that, Your Honor. [00:05:47] Speaker 04: But we do know that the Camilla was experienced. [00:05:52] Speaker 03: So your claim is that if somebody was making eighty and she was making sixty-eight, that's a difference of twelve dollars. [00:05:58] Speaker 04: It's a substantial difference on an hourly basis, Your Honor. [00:06:00] Speaker 03: Sure, but if they were taking a 10 percent cut, that would have narrowed it substantially. [00:06:04] Speaker 03: She would have been 68, they would have been maybe 72. [00:06:08] Speaker 03: And that still is the difference, but it may be explainable by other factors. [00:06:12] Speaker 04: It may be explainable, but they didn't provide the explanation. [00:06:15] Speaker 04: And at the end of all this process, the lady who is the ultimate decision maker explained to her what happened, so she had no idea. [00:06:22] Speaker 03: Do you have any evidence of direct discrimination? [00:06:25] Speaker 03: Do you have any direct evidence of discrimination as opposed to circumstantial evidence? [00:06:28] Speaker 03: Is it all circumstantial? [00:06:30] Speaker 04: I think that there is some direct evidence. [00:06:33] Speaker 04: I think the bus driver metaphor is direct evidence of discrimination, discriminatory thinking. [00:06:40] Speaker 03: How is that direct evidence of discrimination? [00:06:44] Speaker 04: Any black person of even moderate education in the United States knows about Rosa Parks and the Montgomery [00:06:50] Speaker 04: bus boycott and the habit in the South, where I grew up by the way, of making sure that blacks were treated as second-class citizens and sent literally to the back of the bus if they were able to get on the bus at all. [00:07:02] Speaker 02: Where that analogy fails is that the vendors were the bus stops, the customers or the clients were the passengers and the agency was the bus driver, something along those lines. [00:07:13] Speaker 02: It was not a great analogy, but it doesn't seem [00:07:16] Speaker 02: to fit with the suggestion of discrimination, that there was no suggestion that vendors were going to the back of the bus. [00:07:22] Speaker 04: It was not a perfectly expressed statement, and I personally attribute that to ignorance about exactly what happened with Rosa Parks. [00:07:30] Speaker 02: Or maybe the person was just using an analogy. [00:07:35] Speaker 02: Maybe. [00:07:35] Speaker 02: So anytime a bus is mentioned in any context, that's evidence of discrimination? [00:07:42] Speaker 04: No, but in this particular context, the way it was used to try to put her back and set her back, I would say that yes, that would be a reasonable inference could be that that bus metaphor was a revolution. [00:07:54] Speaker 05: But she's not described as a rider. [00:07:55] Speaker 05: She's described as a bus stop. [00:07:58] Speaker 05: I know. [00:07:58] Speaker 05: Bus stop in a bad neighborhood? [00:08:00] Speaker 05: It's not an easy inference to draw. [00:08:05] Speaker 05: And you have acknowledged that individually they may not [00:08:09] Speaker 05: amount to enough, but you've got to add them up, but you've got to have something to add up. [00:08:13] Speaker 05: What exactly suggests discrimination there other than a general reference to bus? [00:08:18] Speaker 05: There's no mention of back of the bus and she's not described as a passenger. [00:08:23] Speaker 04: Well, as I said, it's not a perfect metaphor. [00:08:26] Speaker 05: So give us another example of something that demonstrates discrimination. [00:08:30] Speaker 04: The description of Camilla as argumentative, combative, unapproachable, not easy to talk to. [00:08:37] Speaker 04: talks over people to get her point across. [00:08:41] Speaker 05: Okay, I'll apply that description to lots of non-minority people I know. [00:08:45] Speaker 05: Does that mean that somebody who is of a minority group can't fulfill those characteristics? [00:08:53] Speaker 04: It can be, but then again, this is really for the jury to evaluate her. [00:08:56] Speaker 04: Get her on the stand, let the jury listen to her, watch her, see how she behaves, see that she is a mild-mannered, educated, calm, reasonable person. [00:09:04] Speaker 04: as opposed to the description of an angry black woman. [00:09:08] Speaker 04: When I grew up in Florida, I was born in 53, moved to Arizona in 67, and this is just code. [00:09:15] Speaker 04: The word we used back then was uppity, and that's the way they're treating her, as if she was an uppity person. [00:09:20] Speaker 04: There was bad words that went with uppity, and I'm not going to say them in this courtroom, because I'm shed of that. [00:09:26] Speaker 02: I have, I guess, a more fundamental question. [00:09:29] Speaker 02: Looking at your [00:09:30] Speaker 02: In the opening brief, I didn't see any challenge to the district court's determination that plaintiffs had not established a prima facie case, which would suggest that that argument is waived. [00:09:42] Speaker 02: Can you tell me where in the brief you argued and challenged the district court's determination there wasn't a prima facie case shown? [00:09:48] Speaker 04: And I saw that in the answering brief, and I didn't understand the argument. [00:09:52] Speaker 04: I still don't understand the argument. [00:09:53] Speaker 02: I think the argument's pretty clear. [00:09:55] Speaker 02: Can you reference something in the brief that says the district court was incorrect, we did show a prima facie case? [00:10:01] Speaker 02: And if you can, that would be great. [00:10:02] Speaker 02: If you could tell me where it is. [00:10:04] Speaker 04: You're probably going to throw a shoe at me, but I think the entire brief establishes the prima facie case. [00:10:09] Speaker 04: It's going through this description of all these different circumstances, circumstantial circumstances. [00:10:17] Speaker 04: That seems redundant. [00:10:18] Speaker 04: All these circumstances that add up to a circumstantial case, they show there's a prima facie case of discrimination against her based upon racial animus. [00:10:30] Speaker 04: I think that's enough to say that they did set forward a prima facie case. [00:10:36] Speaker 04: Then it's to the government to say, oh, no, we have some justification for it. [00:10:39] Speaker 04: And then we go back to, well, this is all the pretext. [00:10:42] Speaker 02: Well, that seemed to be what your brief was about, countering the government's position that they had offered legitimate explanations for any adverse employment or contracting decision. [00:10:55] Speaker 02: And the brief was arguing, oh, no, this was all pretext. [00:10:59] Speaker 01: Yes. [00:10:59] Speaker 02: But I didn't see the brief saying, here are the elements of the prima facie case. [00:11:04] Speaker 02: This is what we approved. [00:11:05] Speaker 02: This is what we offered. [00:11:07] Speaker 02: The district court is wrong. [00:11:09] Speaker 02: We did establish a prima facie case. [00:11:11] Speaker 04: Well, I think under rule one, at least in our rules of civil procedure, the rules are supposed to be construed. [00:11:17] Speaker 04: All these procedure rules are supposed to be construed to do justice. [00:11:20] Speaker 02: Well, I think you're in bad shape if you're relying on rule one in general principles. [00:11:25] Speaker 02: I mean, you have to file a brief. [00:11:27] Speaker 02: You have to make an argument. [00:11:28] Speaker 02: You can't just make it so that we have to hunt for it, right? [00:11:31] Speaker 02: Like the analogy for, I suppose, Judge Posner or Easterbrook, one of them said that the pigs searching for truffles, whatever, we're not doing that. [00:11:39] Speaker 02: We need to have an argument put in front of us. [00:11:41] Speaker 04: I hate that metaphor, but no, and I'm not asking the court to search for trouble. [00:11:46] Speaker 04: So I think the opening brief itself establishes... So you are not able to cite me to particular pages? [00:11:53] Speaker 04: Well, the, yes, the statement of the case from page two down to page 15, including, and in the summary of the argument, that sets out what is really a prima facie case. [00:12:08] Speaker 04: These are the things that were done. [00:12:10] Speaker 04: And my predecessors talked about the denial of the rate increase, the disallowance of use of the logo, adverse action relating to clients S, M, and L, and other acts implying racial animus. [00:12:24] Speaker 04: That is a prima facie case right there. [00:12:26] Speaker 04: And then he shifts gears later on in the opening brief to talk about, well, this is a pretext. [00:12:32] Speaker 04: And here's why it's a pretext. [00:12:34] Speaker 02: So one of the elements of a prima facie case is you have to point to similarly situated comparators. [00:12:42] Speaker 02: Can you tell me who were the comparator contractors that you're using to establish that? [00:12:47] Speaker 04: Well, the other vendors that were mentioned in that description of what happened, the way they're being treated differently, and the fact that she is not. [00:12:54] Speaker 02: Can you be specific? [00:12:55] Speaker 02: What vendors? [00:12:56] Speaker 02: It seemed to me it was a generalized argument that we think others are being treated differently or better. [00:13:02] Speaker 04: Well, yeah. [00:13:03] Speaker 04: We talked about the vendors concerning the rate increase, the two white vendors. [00:13:08] Speaker 04: We also talked about in relation to clients SM and L, the way that she was being treated differently in her handling of those clients than other people were being treated. [00:13:17] Speaker 04: So I think that opening part of the opening brief sets out a prima facie case sufficient to go forward from that point to describe this is the bad stuff that has happened. [00:13:29] Speaker 04: And then later on they talk about, well, it's really a pretext. [00:13:32] Speaker 04: the excuses that the government is providing. [00:13:35] Speaker 04: If I may reserve my remaining time? [00:13:38] Speaker 02: Yes, thank you. [00:13:39] Speaker 04: Thank you, Your Honor. [00:14:04] Speaker 00: Good morning, Your Honors. [00:14:05] Speaker 00: Byron Babione and Rebecca Baines for the defendants. [00:14:11] Speaker 00: Your Honor, I would like to first, I really would like to address two points if the court wants to hear it. [00:14:18] Speaker 00: But I want to talk about the statute of limitations and the equitable estoppel argument. [00:14:23] Speaker 00: And I want to talk about the point that the plaintiffs have failed to show any substantial circumstantial evidence [00:14:32] Speaker 00: that the non-discriminatory reasons the defendants gave for their conduct was a pretext. [00:14:39] Speaker 00: But I want to address a few things that counsel for the plaintiffs said. [00:14:44] Speaker 00: He said that to find substantial circumstantial evidence, you have to find a pattern of discrimination. [00:14:52] Speaker 00: In all of these incidents that they cite, they involve different people, and in most cases, none of the named defendants. [00:14:59] Speaker 00: For example, the rate increase had nothing to do with the defendants. [00:15:03] Speaker 00: They didn't even work in that part of the agency. [00:15:06] Speaker 00: The people that denied [00:15:07] Speaker 00: plaintiffs Harris's rate increase were in the procurement office, Neila Henson, Laura Kotke. [00:15:15] Speaker 00: There's no nexus between them and the VR counselors that are named in the complaint. [00:15:23] Speaker 03: Okay, I want to make sure I get this right. [00:15:24] Speaker 03: So she alleged that there were other vendors that were compensated at much higher rates than she was. [00:15:31] Speaker 03: Now, is that fact true or is that not true? [00:15:34] Speaker 00: Well, it is true that other vendors had higher rates than her and the reasons for that are, [00:15:41] Speaker 00: because you do have vendors that have longevity. [00:15:45] Speaker 00: They may have more tools with their organization. [00:15:48] Speaker 00: There are a lot of reasons why they could have a lot of rates. [00:15:52] Speaker 00: Now Plaintiff was a relatively new vendor. [00:15:55] Speaker 00: Her contracts, I think, the earliest were 2015, 2016, and we're talking about a rate increase request in 2016. [00:16:05] Speaker 00: There are a lot of vendors that have been doing this for 5, 10, 15, 20 years, but the plaintiff never put on any evidence [00:16:13] Speaker 00: that she was similarly situated to those vendors with respect to the rate increase. [00:16:19] Speaker 00: Had plenty of time over two years to explore that on discovery, to determine whether or not that was true or not true, but they didn't prove that at all. [00:16:30] Speaker 00: They did not show that they were similarly situated, Your Honor. [00:16:35] Speaker 00: And of course, Judge Clifton, [00:16:38] Speaker 00: The plaintiff of course is susceptible to criticism. [00:16:41] Speaker 00: There's a lot of moving parts in this and she needs to be susceptible to criticism as well as the people that work for the agency. [00:16:51] Speaker 00: This is a business where there are a lot of difficult conversations. [00:16:55] Speaker 00: You have people [00:16:56] Speaker 00: with disabilities that are struggling. [00:17:00] Speaker 00: And on the one hand, the agency has to make sure that their money that's being paid to the vendors is being used effectively. [00:17:08] Speaker 00: They have to ask a lot of questions. [00:17:10] Speaker 00: Why isn't this person registered for school? [00:17:13] Speaker 00: Why haven't they not progressed? [00:17:15] Speaker 00: And that, of course, that's the case with client S primarily. [00:17:20] Speaker 00: And they had arguments. [00:17:22] Speaker 00: And there were difficult conversations between each other. [00:17:26] Speaker 00: But that does not infer racial discrimination. [00:17:33] Speaker 05: What about the objection or concern expressed that there was not an explanation for decisions made by the department? [00:17:42] Speaker 05: Decisions, rate increase being one, but I infer others as well. [00:17:47] Speaker 00: Yes, Your Honor, I would refer you directly to excerpt the record 78. [00:17:52] Speaker 00: That is the email from Nyla Henson, which specifically explains the reason for the rate increase. [00:17:59] Speaker 00: And she explained, we are seeking a 10% reduction in rates from all vendors. [00:18:06] Speaker 00: That's what we're doing this year, because they're doing, you know, tightening the belt. [00:18:10] Speaker 00: And what they said to her is they said, but we understand you want a rate increase. [00:18:14] Speaker 00: We're not going to give you a rate increase, but we're not going to ask you for the 10% reduction. [00:18:20] Speaker 00: And she didn't get a 10% reduction. [00:18:22] Speaker 00: So the non-discriminatory reason was given to her almost instantly when she asked for the rate increase. [00:18:31] Speaker 00: We're seeking a 10% reduction. [00:18:33] Speaker 00: We won't seek it for you because we're not going to give you a rate increase this year. [00:18:40] Speaker 00: And there has been no [00:18:42] Speaker 00: evidence on the record at all that that somehow was a pretext. [00:18:47] Speaker 00: The plaintiffs offer two reasons to say that, well, they offer this to say why the statute of limitations on that claim should be told, but they also offer this to say, well, that was a pretext. [00:19:01] Speaker 00: And they refer to an email from Barbara Abalos, who at the time she had nothing to do with [00:19:09] Speaker 00: the rate increase request or the denial. [00:19:12] Speaker 00: In fact, this is probably a year and a half or two years later. [00:19:16] Speaker 00: But she's researching the reason that Harris was denied the rate increase. [00:19:23] Speaker 00: And she was asked to do that. [00:19:25] Speaker 00: And she speculated in the email, she said, you know, I wonder if it was because the request wasn't timely. [00:19:31] Speaker 00: I wonder if there was insufficient explanation. [00:19:35] Speaker 00: And they say, see, that's not the real reason. [00:19:38] Speaker 00: Now they're trying to say it's because she didn't fill out the form timely. [00:19:42] Speaker 00: But in the same day, or I'm sorry, it may have been the next day, she looks into it and she comes back and in the record she says, oh, I looked at the records and the rate increase was denied because they were asking everybody for a 10% reduction in rates. [00:19:59] Speaker 00: but they did not reduce Harris's rates. [00:20:02] Speaker 00: So there's no evidence of that, you know, that's not fraudulent concealment and nor is it evidence of some pretextual reason. [00:20:13] Speaker 00: The other reason they offer is that that defendant Mackey testified in her deposition that there was a sunset audit that was done in January 2017, six months after the rate increase denial, and she said the sunset [00:20:29] Speaker 00: audit basically showed us what we already knew, that Arizona is paying more for these types of services and getting less results than 37 or 38 other states. [00:20:41] Speaker 00: And she said that definitely led to a tightening of the belt. [00:20:47] Speaker 00: But Arizona was trying to tighten their belt before that. [00:20:51] Speaker 00: There was an ADOA SPA initiative to try to spend less. [00:20:57] Speaker 00: on these vocational rehabilitation services. [00:21:00] Speaker 00: And in fact, you can see that in Avalos' email too. [00:21:05] Speaker 00: And that's excerpts of record 95. [00:21:09] Speaker 00: So neither of those reasons show that the non-discriminatory purpose for denying the rate increase was based on racial discrimination. [00:21:20] Speaker 00: There's no direct evidence of it. [00:21:22] Speaker 00: There's no substantial circumstantial evidence. [00:21:25] Speaker 00: There's no circumstantial evidence of that. [00:21:37] Speaker 05: I want to understand from plaintiffs, councils, your colleagues' argument a few minutes ago that much of the concern here arises from references made that could be interpreted [00:21:51] Speaker 05: well, what we've come to call dog whistles. [00:21:54] Speaker 05: And it's certainly true there are terms used that elicit responses that may not be automatically understood from the words used. [00:22:09] Speaker 05: In this case, you heard the reference, I'm sure, about the bus analogy and Rosa Parks and back of the bus and the description of [00:22:21] Speaker 05: plaintiff as an angry woman argumentative and the other terms used. [00:22:29] Speaker 05: Why can't those be used to make out a case for discrimination because they do send signals to people reflecting racial attitudes? [00:22:40] Speaker 00: Well, the courts have held not only in this circuit but in other circuits that [00:22:46] Speaker 00: These types of stray remarks that, you know, may be offensive at a particular level of generality are not, do not serve as direct evidence of discrimination. [00:22:59] Speaker 00: You really have to have something on point. [00:23:02] Speaker 00: For example, if you take the Lindsay cases, which both parties have cited, in the Lindsay case, there is, you have circumstantial evidence, you have people in similarly situated non- [00:23:16] Speaker 00: or white persons who were treated better than the plaintiff in the case. [00:23:23] Speaker 00: And there are direct references in a derogatory way to the plaintiff's nationality. [00:23:29] Speaker 00: You have to have something like that, like a racial slur or a racial epithet. [00:23:35] Speaker 00: You can't take these terms that may be offensive or somebody may subjectively suspect that is racially motivated. [00:23:44] Speaker 00: That is not enough. [00:23:46] Speaker 00: to make out a claim for Section 1981. [00:23:50] Speaker 00: And at the end of the day, essentially what defendant Poets was saying to Harris was, I find she's not easy to talk to. [00:24:00] Speaker 00: I find that she's difficult to talk to. [00:24:03] Speaker 00: I can't have a discussion with her. [00:24:05] Speaker 00: And yes, it's critical. [00:24:07] Speaker 00: But as Harris herself admitted under oath, she said, yeah, that [00:24:11] Speaker 00: combative, not easy to talk to, descriptors like that could apply to a person of any race. [00:24:18] Speaker 00: And there are no Court of Appeals decisions or Supreme Court decisions that would take any other context like that, you know, a non-racial epithet or a racial slur, and then call that evidence of discrimination. [00:24:33] Speaker 00: And Harris refers to the bus metaphor as the back of the bus metaphor. [00:24:40] Speaker 00: you know, trying to evoke Rosa Parks. [00:24:44] Speaker 00: But it wasn't a back of the bus metaphor. [00:24:47] Speaker 00: It was a bus metaphor where VR, the counselors, they're the drivers of the bus. [00:24:54] Speaker 00: In other words, they chart out the plan for the rehabilitation services. [00:24:58] Speaker 00: They work that out with the client. [00:25:01] Speaker 00: Then they take the clients and they bring the client to the vendor. [00:25:07] Speaker 00: That's all that metaphor said. [00:25:09] Speaker 00: Nobody in that metaphor is on the back of the bus. [00:25:13] Speaker 00: And in this case, Harris, the vendor, isn't even on the bus. [00:25:20] Speaker 00: At the end of the day, they're saying because you said the word bus, you must have meant this in a racially discriminatory way. [00:25:32] Speaker 00: That does not satisfy racial discrimination. [00:25:36] Speaker 00: under Section 1981. [00:25:39] Speaker 00: Also, well, pardon me, I addressed the not easy to talk to words, but counsel said, well, you know, this is, they're trying to say that she's uppity, you know, that she is an uppity black person. [00:25:57] Speaker 00: They refer to, [00:25:58] Speaker 00: They say they're calling her an angry black woman. [00:26:02] Speaker 00: They never said anything like that. [00:26:04] Speaker 00: Those terms were not used. [00:26:06] Speaker 00: That's why they have to take this common language that might be used in a difficult conversation with anybody, and then they have to transform it into phrases like angry black woman, uppity. [00:26:20] Speaker 00: None of these things were said. [00:26:22] Speaker 00: None of these things are on the record. [00:26:25] Speaker 00: And I would also like to address this. [00:26:28] Speaker 00: The plaintiffs did not show, with respect to all of these claims, that they were similarly situated to non-African American vendors. [00:26:46] Speaker 00: I already addressed that with respect to the rate increase denial, but in terms of being criticized at certain points, they have no evidence that a non-African [00:26:59] Speaker 00: American vendor does not get criticized at points, that there aren't difficult conversations with them. [00:27:05] Speaker 00: There is zero evidence that non-African American voters get to choose what clients they work with in perpetuity. [00:27:17] Speaker 00: There is no evidence that [00:27:20] Speaker 00: any non-African-American voters had static referrals or increases in referrals at the time that Harris claims her referrals went down. [00:27:31] Speaker 00: And those referrals, I mean, they can reflect so many things. [00:27:35] Speaker 00: The market, there's testimony in the record from defendant Mackey that, you know, there is no steady line of referrals to each vendor, you know. [00:27:45] Speaker 00: You work the business, your name gets out there, people request you. [00:27:50] Speaker 00: There's no steady line of referrals. [00:27:55] Speaker 00: A lot of times it depends on how much you work that much, how much you hustle or how many other clients are talking to other clients and bringing up your name. [00:28:06] Speaker 00: So, and under the contract terms, it says that, it says, hey, we don't guarantee any amount of referrals and, [00:28:14] Speaker 00: We don't guarantee that once you start working with a particular client, you can continue to do that. [00:28:22] Speaker 00: VR retains the right to make decisions. [00:28:25] Speaker 00: And if they think, well, there's not a lot of progress with this client, for example, with client S. And it's undisputed in the record that Harris had provided 360 hours of [00:28:41] Speaker 00: of work with Client S and of course what he's saying, it's all her fault, but he wasn't going very far. [00:28:49] Speaker 00: He scrubbed out of, he washed out of the nursing school. [00:28:54] Speaker 00: He continued to have problems reading. [00:28:57] Speaker 00: They did [00:28:59] Speaker 00: vocational rehabilitation evaluations and said, you know, he can't do the things that he's trying to do. [00:29:07] Speaker 00: You know, we can't keep putting money into trying to fit a square peg into a round hole. [00:29:14] Speaker 00: We need to adjust so he doesn't feel so frustrated and like he's being set up for failure. [00:29:20] Speaker 00: And that's what he said. [00:29:21] Speaker 00: He said, I feel like I'm being [00:29:22] Speaker 00: set up for failure. [00:29:24] Speaker 00: And so Poets and Doherty got him on another track. [00:29:28] Speaker 00: They said, here's what we think is a good thing for you to do. [00:29:30] Speaker 00: Keep your job, because you don't want to lose your job. [00:29:33] Speaker 00: Then go take some remedial reading classes. [00:29:35] Speaker 00: And when you're ready, come back to VR. [00:29:38] Speaker 00: And we'll see if we can set you up for some schooling and these types of employment that you want to seek, but you just need to have much better reading skills to do. [00:29:49] Speaker 00: That's all that happened. [00:29:50] Speaker 00: That's a non-discriminatory reason. [00:29:53] Speaker 00: And there's no evidence in the record that Poets or Dowry did that because they didn't like Harris or because of her race. [00:30:04] Speaker 00: Harris is upset because she doesn't get to bill on that client anymore. [00:30:10] Speaker 00: And sure, you know, you might want to have as many clients as possible and billing as much as you can. [00:30:18] Speaker 00: But that doesn't translate [00:30:20] Speaker 00: into racial discrimination. [00:30:24] Speaker 01: You are over time now. [00:30:26] Speaker 01: Would you like to wrap up, please? [00:30:28] Speaker 00: Yes. [00:30:28] Speaker 00: Well, if I'm over time, I'll stop there unless the bench has any questions for me before I sit down. [00:30:35] Speaker 01: No, thank you. [00:30:43] Speaker 02: And I'll ask the clerk to add another minute to Mr. Abney's rebuttal time because we let [00:30:49] Speaker 02: opposing council go over by about a minute. [00:30:51] Speaker 02: Okay. [00:30:51] Speaker 02: Thank you. [00:31:01] Speaker 04: There are appeals where I pray for inspiration and sometimes it comes. [00:31:04] Speaker 04: I hope it comes today. [00:31:06] Speaker 04: Uh huh. [00:31:08] Speaker 04: The summary judgment standard is so generous to the non moving party, but it's so often overlooked. [00:31:14] Speaker 04: One of the most important parts is not only to take all reasonable inferences in favor of the non-moving party and to view all the evidence in the light most favorable to the non-moving party, but not to weigh credibility, not to determine credibility, not to weigh the evidence. [00:31:29] Speaker 04: If there's any doubt, you let the case go to the jury. [00:31:32] Speaker 04: There are many issues of fact here that should go to the jury. [00:31:35] Speaker 05: We talked earlier about- What are the issues of fact? [00:31:38] Speaker 05: Yes. [00:31:39] Speaker 05: I distinguished already between fact [00:31:42] Speaker 05: and inferences drawn from the facts. [00:31:44] Speaker 04: Yes, Your Honor. [00:31:45] Speaker 05: And I don't see much in the way of dispute of events. [00:31:49] Speaker 05: I see different views of what inferences should be drawn from those events. [00:31:54] Speaker 05: That's exactly right. [00:31:55] Speaker 05: Well, what precedent tells me we have to accept plaintiff's view of the evidence in terms of the inferences drawn? [00:32:03] Speaker 05: We look at the evidence as favorable as we can to the plaintiff, but that doesn't mean we accept whatever the plaintiff's understanding [00:32:11] Speaker 05: of what should be demonstrated by that, because otherwise there could never be summary judgment. [00:32:16] Speaker 05: Plaintiffs always think that the evidence supports their case ultimately, and that's not the law. [00:32:20] Speaker 05: So do you have something to cite me to that tells me I need to accept the inferences drawn by plaintiff if we don't think they're reasonable? [00:32:28] Speaker 04: Anderson, Liberty Lobby, and Cellatex all say that all reasonable inferences from the evidence have to be taken in favor of the law. [00:32:35] Speaker 05: Well, that's different. [00:32:37] Speaker 05: Reasonable inferences. [00:32:38] Speaker 05: What inferences can be drawn by a reasonable jury? [00:32:40] Speaker 05: And I'm looking for what suggests to me that the inferences that plaintiff has drawn and that you think should be drawn are in fact reasonable inferences. [00:32:51] Speaker 05: Well isn't that itself a jury issue? [00:32:54] Speaker 05: No, it can't be because otherwise you could never have summary judgment. [00:32:57] Speaker 05: The question is what could a reasonable jury infer? [00:33:01] Speaker 05: Not what somebody else could infer and hope to persuade a jury to decide on. [00:33:06] Speaker 04: A reasonable jury [00:33:07] Speaker 04: could reasonably infer that these acts taken together indicate that there's a racial pretext, racial motive or whatever. [00:33:14] Speaker 05: Based on what racial evidence? [00:33:16] Speaker 04: Well, for instance, denial of the rate increase and the two white vendors were not... But do we know that those white vendors were similarly situated? [00:33:26] Speaker 05: Do we know what was paid to other white vendors? [00:33:29] Speaker 05: You can pick out a couple examples. [00:33:31] Speaker 05: Yes. [00:33:31] Speaker 05: But that doesn't mean that it actually reflects [00:33:35] Speaker 04: We know they were being paid more and we know that there was this 10% decrease. [00:33:39] Speaker 04: We're supposed to apply to all vendors. [00:33:41] Speaker 04: So her relative position would remain disfavorable. [00:33:45] Speaker 04: We also know the logo denial. [00:33:46] Speaker 04: Two white vendors were allowed to use the logo and she wasn't. [00:33:50] Speaker 03: Council on the logo though, the contract said that you could use the logo but you had to get permission to do so. [00:33:57] Speaker 03: She had not received permission and she ends up taking it off of her website. [00:34:02] Speaker 03: Did she ever apply for permission? [00:34:04] Speaker 03: I believe the fact said that she was denied permission. [00:34:08] Speaker 03: That was not my understanding from the record. [00:34:12] Speaker 03: She simply took it off the website. [00:34:15] Speaker 03: But it was in the contract. [00:34:17] Speaker 03: That seems like a pretty good explanation. [00:34:19] Speaker 04: Well, that's one explanation. [00:34:21] Speaker 04: Another explanation is that the white vendors were allowed to use logos because they were white. [00:34:25] Speaker 03: Do you have any evidence of that though? [00:34:27] Speaker 03: Well, we didn't depose white vendors. [00:34:30] Speaker 03: Did we depose any people who were in the position to permit the logos? [00:34:36] Speaker 04: All we have is the circumstantial evidence that she didn't have it and they did. [00:34:40] Speaker 03: But that's not an explanation. [00:34:41] Speaker 03: When the contract says you can't use this without permission, and she does not dispute, she did not have permission. [00:34:47] Speaker 03: So she takes it off her website, and now we just, others are using it, but there's no evidence that they were allowed to use it without getting the permission that was required of her. [00:34:58] Speaker 04: Well, I'll have to stand on the briefing that we put in on the logo issue, Your Honor. [00:35:03] Speaker 04: And I burned through my time really fast. [00:35:07] Speaker 02: Thank you. [00:35:08] Speaker 02: Thank you both counsel for your arguments this morning. [00:35:10] Speaker 02: They were very helpful.