[00:00:00] Speaker 04:
it please the court good morning my name is jerry wilson here on behalf of mary bells and nigga like to reserve three minutes for rebuttal the ninth circuit has consistently held in employment discrimination cases that it should not take too much in fact some cases a very little evidence to survive summary judgment

[00:00:25] Speaker 04:
And that's because the ultimate question cannot be resolved until there's been a searching inquiry into the full record by a fact finder.

[00:00:34] Speaker 04:
The Ninth Circuit has also held that motivations for adverse employment actions are not easily discernible.

[00:00:41] Speaker 04:
And without the searching inquiry into the full record, acts of bad,

[00:00:47] Speaker 04:
or discriminatory motives can be masked by a complex web of post hoc rationalizations.

[00:00:57] Speaker 04:
That is the situation that Maribel Zuniga is in in this case.

[00:01:02] Speaker 04:
The defendants have tried to mask their discriminatory intent motive by manufacturing cause for her termination that had not been applied

[00:01:15] Speaker 02:
to mail managers or they did not make the standard applied to the mail managers for the same conduct well hold on the it's my understanding that the complaints lodged against zuniga uh... where she mistreated philipa Herrera that was on a daily basis now with regards to the complaints about mr harwick that involved really isolated uh... instances so i i think there are those different

[00:01:42] Speaker 04:
They were not insulated or isolated incidents with miss Ruiz who you're talking about.

[00:01:47] Speaker 04:
I believe so.

[00:01:48] Speaker 04:
She said it was a consistent happened at least three or four different occasions and you know the severity of those allegations where she said

[00:01:57] Speaker 04:
He used profanity.

[00:01:59] Speaker 04:
He called her names.

[00:02:00] Speaker 04:
He called her names using profanity, slammed doors, kicked trash cans.

[00:02:04] Speaker 04:
She described his behavior as vile.

[00:02:06] Speaker 04:
It offended her, and she felt her dignity was to the bottom.

[00:02:09] Speaker 04:
And we have the testimony from Sergio Garcia, who testified by affidavit, that said he saw the conduct.

[00:02:16] Speaker 04:
He saw the profanity.

[00:02:18] Speaker 04:
He saw the slamming of the doors, and he felt that she was physically in danger.

[00:02:23] Speaker 04:
So those are very severe

[00:02:26] Speaker 04:
allegations against Harvick.

[00:02:29] Speaker 04:
When Mr. Herrera first complained, he did say that Ms.

[00:02:34] Speaker 04:
Zuniga used belittling to him, but that's all he complained about when he first went to talk to human resources.

[00:02:45] Speaker 04:
So I think they're trying to manufacture this difference when this conduct against Harvick was very severe.

[00:02:52] Speaker 04:
And it's also coupled because there was a second complaint against Harvick, and because nothing's documented, the second plant manager didn't know there'd been a prior complaint against Harvick, so they're allowing him to continue his behavior.

[00:03:05] Speaker 04:
And it's also coupled by the fact that plant manager Curtis Priest knew he used profanity towards the subordinate employees.

[00:03:14] Speaker 04:
So it wasn't just a one-time occasion.

[00:03:16] Speaker 04:
He knew he was doing that over and over again.

[00:03:25] Speaker 04:
We've kind of got there, but I would like to talk about the investigation.

[00:03:30] Speaker 04:
We know Ms.

[00:03:30] Speaker 04:
Zuniga was the only female manager out of nine or ten.

[00:03:34] Speaker 04:
We've brought to you five incidents where employees have complained about a male manager's activities, and not once were any of those complaints investigated.

[00:03:45] Speaker 04:
And that's part of the problem.

[00:03:49] Speaker 04:
When I depose both plant managers, I would ask them about a complaint against one of the male managers.

[00:03:54] Speaker 04:
Oh, you know, I don't really remember the subset complaint.

[00:03:58] Speaker 04:
You know, I didn't write anything down, so there's no documentation.

[00:04:03] Speaker 04:
Well, what did you do?

[00:04:06] Speaker 04:
Oh, I went and talked to the plant, the mail manager, and he told me what happened, but I didn't write any of that stuff down.

[00:04:13] Speaker 04:
Well, did you talk to any of his subordinate employees?

[00:04:16] Speaker 04:
No, I didn't talk to any of the subordinate employees.

[00:04:19] Speaker 04:
There's no witness memos.

[00:04:21] Speaker 04:
did you discipline any of the male managers?

[00:04:23] Speaker 04:
No.

[00:04:24] Speaker 04:
So there's no record of discipline.

[00:04:26] Speaker 04:
So there's no documentation at all.

[00:04:29] Speaker 04:
So that taints the whole ability to someone to unmask their discriminatory motives.

[00:04:34] Speaker 02:
But I guess I just, when I look at the conduct that she's alleged to have committed, calling the employees in that, stating that the employees could not work as efficiently as she could, stating that she had been investigated for lawsuits in the past and nothing had happened.

[00:04:51] Speaker 02:
that she had she threatened to take uh... hours away uh... even i think if i remember correctly turn turning off the heat or the uh... or the air condition i think it was uh... i mean these were these were pretty severe actions that the company understood and and took action but that's the difference those allegations did not come to light until he took the

[00:05:15] Speaker 04:
took an investigation of Ms.

[00:05:17] Speaker 04:
Zuniga, and they went and interviewed her subordinate employees, which they didn't do in any of the other cases.

[00:05:22] Speaker 04:
And I think the air conditioning is really unfair because she turned it off when she was on the phone because it was loud.

[00:05:32] Speaker 04:
But she also testified that more than half of the buildings didn't have air conditioning.

[00:05:37] Speaker 04:
So to make a leap that that was a danger situation for the employees, there is no proof of that.

[00:05:43] Speaker 04:
There is no evidence of that.

[00:05:45] Speaker 04:
There's no testimony that says any of the employees were in danger when the air conditioner was off.

[00:05:50] Speaker 04:
So I think that was an unfair finding of fact by the district court, which did not exist.

[00:05:57] Speaker 04:
There was no evidence of.

[00:06:01] Speaker 04:
But again, that was only a result of the subsequent investigation.

[00:06:06] Speaker 04:
That was not a complaint that Mr. Herrera made when he first went.

[00:06:10] Speaker 01:
Why does that matter?

[00:06:11] Speaker 01:
Why can't they consider all the information in making the termination decision?

[00:06:17] Speaker 04:
Well, I think that would be fine if they did that to the mail managers as well.

[00:06:21] Speaker 04:
If they documented everything, if they went and talked to their subordinate employees.

[00:06:25] Speaker 04:
Mr. Harvick has 15 to 18 subordinate employees, and they did not talk to one of them.

[00:06:31] Speaker 04:
And we've given you the affidavit of Sergio Garcia, who said, if they would have came and talked to me, I would have said, yes, I saw it.

[00:06:37] Speaker 04:
I saw him do it.

[00:06:39] Speaker 04:
I've seen him do it to other employees all the time.

[00:06:42] Speaker 04:
That's what they say.

[00:06:44] Speaker 04:
I've given you four affidavits from employees who say it's common that the managers would use profanity and actions towards their subordinate employees.

[00:06:53] Speaker 04:
But there's never once been an investigation into a male manager.

[00:06:58] Speaker 04:
That's what the difference is in this case.

[00:07:00] Speaker 04:
It all kind of builds from that.

[00:07:04] Speaker 04:
And also what they did was they didn't only talk to her subordinate employees.

[00:07:08] Speaker 04:
They went and talked to employees who she had to terminate.

[00:07:12] Speaker 04:
What are those employees gonna say?

[00:07:13] Speaker 04:
They're not gonna say anything nice about her.

[00:07:16] Speaker 04:
But that would be true of any manager who had to terminate an employee.

[00:07:19] Speaker 04:
So if they wanted to conduct those investigations, they would have enough to terminate a male manager.

[00:07:27] Speaker 04:
Because for what, but she got reported the same exact comments that were to Harvick and the other male managers and no investigation was done.

[00:07:38] Speaker 04:
But we've also got other issues about the investigation, which casts doubt on them.

[00:07:47] Speaker 04:
For instance, the human resource director from the parent company writes a memo of a conversation that she had with Felipe Herrera, where you're getting some of this information.

[00:07:59] Speaker 04:
Felipe Herrera says, he never talked to her.

[00:08:02] Speaker 04:
He never had a meeting with her.

[00:08:03] Speaker 04:
So how can there be a memo of their conversation where he outlines these supposed terrible things that Maribel Zuniga did?

[00:08:11] Speaker 04:
Same with, they said that when they first complained, Ortiz said that Eric Villalobes was part of the group who complained.

[00:08:20] Speaker 04:
And he said, he testified on an oath.

[00:08:23] Speaker 04:
I don't know who made the complaint against her.

[00:08:25] Speaker 04:
I never talked to them.

[00:08:27] Speaker 04:
Yet she wrote a memo saying Villalobos said all these bad things about Zuniga.

[00:08:33] Speaker 04:
So again, how can there be a memo if he never talked to her?

[00:08:38] Speaker 04:
These are all questions that need to be decided by a fact finder whether these allegations are even true because they're by information that is provably false.

[00:08:50] Speaker 04:
And they've also done it by telling you that there was a group of men who went to complain about Ms.

[00:08:57] Speaker 04:
Zuniga.

[00:08:59] Speaker 04:
And the fact is it was Herrera alone.

[00:09:02] Speaker 04:
He testified under oath, I went alone.

[00:09:05] Speaker 04:
And what's interesting is when I first deposed plant manager Callahan, he said, yes, I was told one person complained about her.

[00:09:14] Speaker 04:
But yet he submits an affidavit to the summary judgment where he says a number of people

[00:09:19] Speaker 04:
went and complained about Zuniga on the same day.

[00:09:24] Speaker 04:
That's not true.

[00:09:25] Speaker 04:
All these are credibility, and when there's these credibility issues to the employer, it's not appropriate for summary judgment.

[00:09:33] Speaker 04:
There should be a trier of facts should be able to make those decisions hearing the testimony, hearing the contradictions, hearing the falsity, and see if she was treated the same as the male managers.

[00:09:48] Speaker 04:
Some of the other things, you know, I cited to you case law where a court found that when you interview several individuals and don't interview the person who is accused of doing these things, that it's not a flawed investigation, it's unfair.

[00:10:07] Speaker 04:
And then that is evidence of pretext.

[00:10:10] Speaker 01:
And what's your strongest case on that point?

[00:10:12] Speaker 04:
It's the Mastro case that was actually cited by the district court.

[00:10:20] Speaker 04:
I cited on page 34 of my brief.

[00:10:24] Speaker 04:
But also, Curtis Priest, the plant manager, said he would never discipline a manager without telling them of the complaint and getting their side of the story.

[00:10:35] Speaker 04:
Yet, he didn't tell Ms.

[00:10:36] Speaker 04:
Suniga about the complaint or get her side of the story.

[00:10:40] Speaker 04:
She didn't know any of this investigation was going on until they called her and terminated her.

[00:10:45] Speaker 04:
And again, I've cited case law then that says, if you deviate from your practices, that is evidence of pretext.

[00:10:53] Speaker 04:
And I think you can also overlook that she was the only female manager out of nine or ten and they fired her and they had no longer had any women as managers and then she was ultimately replaced with a male.

[00:11:10] Speaker 04:
We've have and again I cited the case, the Hahn case that says that's pre evidence of pretext.

[00:11:16] Speaker 04:
So I think when you take everything together we have definitely met our burden of proof to avoid summary judgment and that she should have her chance at trial.

[00:11:24] Speaker 01:
Are you contending that you've met the burden for summary judgment only with respect to sex discrimination or with respect to another ground as well?

[00:11:34] Speaker 04:
Yes, sex discrimination.

[00:11:41] Speaker 04:
I'll reserve the rest of my time.

[00:11:43] Speaker 01:
All right.

[00:11:43] Speaker 01:
Thank you, counsel.

[00:11:44] Speaker 01:
Thank you.

[00:11:45] Speaker 01:
All right.

[00:11:45] Speaker 01:
We'll hear now from Mr. Johnson.

[00:11:56] Speaker 03:
Good morning, your honors.

[00:11:57] Speaker 03:
May it please the court, Eric Johnson, counsel for Appellee Gowan-Millingco, LLC.

[00:12:04] Speaker 03:
Your honors, this is not a case about an employee being terminated for profanity.

[00:12:09] Speaker 03:
As Justice Mendoza mentioned, there were much more egregious allegations made in this case, and that was a fact that the district court addressed.

[00:12:18] Speaker 03:
in great detail in district court's order, granting summary judgment.

[00:12:22] Speaker 01:
It's really unusual to fire someone, particularly, I think she was in the company for 17 years.

[00:12:30] Speaker 01:
You do an investigation and you don't talk to the person, you don't get their side, you don't hear them out before.

[00:12:37] Speaker 01:
That's very unusual.

[00:12:39] Speaker 01:
Why isn't that enough to say you deviated from your procedures in a way that raises a factual issue?

[00:12:48] Speaker 03:
I think, Your Honor, that is a great point, but it goes really to the specifics of this case.

[00:12:53] Speaker 03:
We've got five, six, maybe seven of the subordinates of Miss Uniga saying various things.

[00:12:58] Speaker 03:
One, she would yell at us.

[00:13:03] Speaker 03:
She would threaten to cut our hours over time.

[00:13:05] Speaker 03:
She cut off the air conditioning in Yuma, Arizona in the middle of the summer.

[00:13:10] Speaker 03:
A number of other issues, and I can go into those.

[00:13:15] Speaker 01:
I guess you know there's another employee and I got affidavits that multiple people make complaints about him and he got talked to he got a different process than she got

[00:13:27] Speaker 03:
Yes, and they don't identify any specific investigations where all these things were done.

[00:13:33] Speaker 03:
They have some general comments where they ask people, did someone take notes or would you talk to the complainant?

[00:13:41] Speaker 03:
And they may have answered yes or no, but we don't have any specifics about what those investigations involved, notably Mr. Ruiz.

[00:13:50] Speaker 03:
Margarita Ruiz, who made the complaint against Mr. Harvick.

[00:13:54] Speaker 03:
This is Ms.

[00:13:54] Speaker 03:
Zuniga's sister.

[00:13:55] Speaker 03:
During that time, I believe Ms.

[00:14:02] Speaker 03:
Zuniga might have been in charge of human resources.

[00:14:05] Speaker 03:
The individual who did the human resources investigation in regard to Ms.

[00:14:11] Speaker 03:
Zuniga was Esmeralda Ortiz.

[00:14:13] Speaker 03:
Esmeralda Ortiz was named interim HR director once Ms.

[00:14:17] Speaker 03:
Zuniga was removed.

[00:14:20] Speaker 03:
So in terms of her having any set precedent in terms of how she handles investigations as an HR manager, she wasn't one.

[00:14:29] Speaker 03:
That was her first one.

[00:14:31] Speaker 03:
In regard to the Mastro case, which was mentioned, that was a DC Circuit case in which the court did note.

[00:14:39] Speaker 03:
It was odd that the target of the investigation

[00:14:44] Speaker 03:
was not interviewed, but you look at that case and the whole issue in that particular case was a manager had been terminated and the question was at what point did this, I won't go into all the details of that case, but at one point did this manager learn that one of the subordinates was in jail and whether or not he did anything upon finding out that one of his subordinates was in jail.

[00:15:08] Speaker 03:
Obviously, yeah, it's important when the key issue is

[00:15:12] Speaker 03:
At what point did the manager know a specific fact?

[00:15:16] Speaker 03:
Of course, in that circumstances, it makes sense why you would interview that person.

[00:15:20] Speaker 03:
In this case, like I said, we've got five, six, seven individuals all saying consistent stories about what this individual did.

[00:15:29] Speaker 03:
What would it have mattered if they talked to Mrs. Uniga and she said, oh, that's completely, you know, untrue.

[00:15:36] Speaker 03:
That never happened.

[00:15:37] Speaker 03:
All seven of those peoples are completely lying.

[00:15:40] Speaker 03:
And there's even a couple of those things they allege that I can prove didn't happen.

[00:15:45] Speaker 03:
All right.

[00:15:45] Speaker 03:
Well, that's not going to change the decision.

[00:15:51] Speaker 00:
in this case it's a little bit different i didn't see that she's saying that they were lying about very much of it seems like an even this morning argument is more of the differential treatment because it doesn't seem like they're really relying on the fact that

[00:16:05] Speaker 00:
This stuff wasn't true.

[00:16:06] Speaker 00:
It seems like for the, maybe not every detail, but they're pretty much acknowledging that most of it was true.

[00:16:12] Speaker 00:
So if they had talked to her, she would have presumably, yeah, this is true, but that's how we do business here, I guess, I assume is what she would have, how she would have responded.

[00:16:21] Speaker 03:
I assume so, but what could she have pointed to?

[00:16:26] Speaker 03:
The Harvick situation?

[00:16:27] Speaker 03:
I mean, there's not going to be any other employees, and she doesn't allege that there are any employees that have engaged in a lot of the conduct that she did.

[00:16:34] Speaker 03:
She admitted, essentially, or at least said it was possible that she created a hostile work environment for the employees, at least in the last few months.

[00:16:42] Speaker 02:
Well, allegedly, Mr. Harvick was involved in multiple incidences involving profane language, kicking trash cans.

[00:16:50] Speaker 02:
and a different procedure was used for him.

[00:16:54] Speaker 02:
So, I mean, I think that's what he's pointing out.

[00:16:56] Speaker 03:
Right, absolutely.

[00:16:57] Speaker 03:
But I think we're missing a key fact here.

[00:17:00] Speaker 03:
Mr. Herrera made his complaint to Human Resources.

[00:17:04] Speaker 03:
Ms.

[00:17:04] Speaker 03:
Ruiz went to Curtis Priest.

[00:17:06] Speaker 03:
And I think another situation, someone went to Mr. Priest.

[00:17:10] Speaker 03:
Mr. Priest was not in Human Resources.

[00:17:13] Speaker 03:
What he did when he heard these complaints, he went and talked to the person.

[00:17:16] Speaker 03:
And in regard to the complaints that Ms.

[00:17:18] Speaker 03:
Ruiz had done,

[00:17:19] Speaker 03:
He went and talked to Mr. Harvick, said whatever's going on, knock it off.

[00:17:25] Speaker 03:
And there were never any issues again.

[00:17:27] Speaker 03:
In this case, Mr. Herrera went to human resources.

[00:17:32] Speaker 03:
But we'll... Oh, sorry.

[00:17:33] Speaker 01:
I thought Ruiz said that there were multiple incidents over, like three incidents over a six-month period, so obviously didn't knock it off.

[00:17:43] Speaker 03:
No, she didn't complain until after the third incident.

[00:17:46] Speaker 01:
I see.

[00:17:46] Speaker 01:
So there's one complaint after the string of incidents.

[00:17:49] Speaker 03:
Yeah.

[00:17:49] Speaker 03:
And that was involving three incidents.

[00:17:51] Speaker 03:
And yes, there was absolutely allegations of serious improper conduct.

[00:17:56] Speaker 02:
And was there a policy that wasn't then followed?

[00:17:59] Speaker 02:
I mean, I guess I want to make sure I understand their point.

[00:18:01] Speaker 02:
Was there a policy that you're supposed to conduct your investigation and then talk to the individual?

[00:18:09] Speaker 03:
No, Your Honor, there isn't.

[00:18:11] Speaker 03:
Every investigation's different, and there's discretion in terms of how you do things.

[00:18:15] Speaker 03:
And like in this case, I think Ms.

[00:18:17] Speaker 03:
Ortiz determined what's the point with these allegations.

[00:18:21] Speaker 03:
And let's say everything is a lie, and these employees are all lying about her, which there's no reason to believe that any of them were.

[00:18:27] Speaker 03:
And Ms.

[00:18:28] Speaker 03:
Zuniga, in fact, admits to much of the conduct.

[00:18:31] Speaker 03:
At a minimum, she's got seven subordinates that can't stand working with her.

[00:18:36] Speaker 03:
They do not want her to be around, period.

[00:18:39] Speaker 03:
So what are you going to do?

[00:18:41] Speaker 03:
Let's say it was all lies, which it wasn't, but the employers left with the situation where, hey, I've got subordinates that cannot stand to work with this person.

[00:18:51] Speaker 03:
And based on that information alone, I'm going to take action and say, no, I'm going to fire her.

[00:18:58] Speaker 03:
Whether that would have been a fair or not, it doesn't matter.

[00:19:01] Speaker 03:
The only question is, I mean, she's an at-will employee.

[00:19:03] Speaker 03:
She can be fired for any reason, whether it's a good reason or not, other than maybe for the protected characteristics, obviously.

[00:19:10] Speaker 03:
But the employer is going to say, no, I'm not going to continue to have her over these subordinates when one is getting sick, can't sleep, is afraid to come to work, and these other situations.

[00:19:22] Speaker 03:
I mean, the only other thing is I suppose Ms.

[00:19:26] Speaker 03:
Uniga might argue, well, you should have switched me to someplace else then if I wasn't a subordinate, where I didn't have subordinates reporting to me or not.

[00:19:34] Speaker 03:
Well, you know, could that have happened?

[00:19:36] Speaker 03:
I suppose.

[00:19:38] Speaker 01:
Why not just sit her down and say, here's everything I've heard about you.

[00:19:42] Speaker 01:
What do you have to say about it?

[00:19:44] Speaker 01:
It's very simple.

[00:19:46] Speaker 01:
It's kind of standard to do.

[00:19:50] Speaker 03:
Right, but I mean, like I said, I think under the circumstances of this case, Ms.

[00:19:54] Speaker 03:
Ortiz figured there's no point.

[00:19:56] Speaker 03:
She's going to deny it.

[00:19:57] Speaker 03:
In fact, she didn't deny a lot of it, though.

[00:20:00] Speaker 03:
And certainly, if she admitted to the stuff like the hostile work environment, that's grounds for termination right there.

[00:20:08] Speaker 03:
And the difference in these investigations, like I mentioned earlier, certain people went to Curtis Priest.

[00:20:15] Speaker 03:
They didn't go to Esmeralda Ortiz.

[00:20:17] Speaker 03:
If they went, let's say they went to Esmeralda Ortiz and she was the HR manager and it wasn't Ms.

[00:20:24] Speaker 03:
Uniga or any of the predecessors, I bet there would have been a different investigation.

[00:20:30] Speaker 03:
If Ms.

[00:20:31] Speaker 03:
Ruiz went to Ms.

[00:20:32] Speaker 03:
Ortiz and she was the interim HR manager, I bet she probably would have.

[00:20:37] Speaker 03:
talk to the other subordinates.

[00:20:39] Speaker 03:
So yeah, the exact same type of investigation did not take place, but again, that's irrelevant.

[00:20:45] Speaker 03:
The question is, you know, what was the reason for not doing the same type of investigation?

[00:20:52] Speaker 03:
Because they wanted to discriminate against Missuniga, and there is no direct evidence of discrimination.

[00:20:58] Speaker 03:
You know, it's all

[00:20:59] Speaker 03:
circumstantial.

[00:21:01] Speaker 03:
And in terms of, you know, the evidentiary burden, you know, when we're talking about similarly situated employees as part of a prima facie case, you know, first under McDonald Douglas, you know, the plaintiff must assert a prima facie case of discrimination, which includes an argument or evidence establishing that similarly situated employees were treated more favorably and outside of the protected class of the plaintiff.

[00:21:26] Speaker 03:
At that point, the employer can articulate a legitimate non-discriminatory reason for the termination.

[00:21:33] Speaker 03:
And the Reeves, the Supreme Court case makes clear that that's a burden of production, not persuasion.

[00:21:40] Speaker 03:
And as soon as the employer does that, the burden goes back to the employee or the plaintiff.

[00:21:45] Speaker 03:
And they must show, you know, I believe in the Stegall case, which is cited, you know, by appellant in the briefs.

[00:21:56] Speaker 03:
it said there still needs to be an over-to-overcome pretext to challenge the employer's legitimate non-discriminatory reason and show that it was pretext for discrimination.

[00:22:08] Speaker 03:
The plaintiff still needs to show specific and substantial evidence that would indicate that the decision was pretext for discrimination.

[00:22:19] Speaker 03:
There's been no such evidence that's been produced in this case.

[00:22:25] Speaker 03:
I think one thing that's really telling when we're talking about similarly situated employees is to look at the cases, and especially the cases that are cited by appellant.

[00:22:37] Speaker 03:
You know, she relies upon Han versus executive jet management, which is a Ninth Circuit decision out of 2010.

[00:22:43] Speaker 03:
Before addressing those facts, I actually want to talk about a case that was cited in the Han decision, and that is Morrow versus Walmart stores, which is 152, F3D, 559.

[00:22:55] Speaker 03:
7th Circuit, 1998.

[00:22:56] Speaker 03:
And in that case, the 7th Circuit had a passage that I would like to just briefly read that I think is very instructive.

[00:23:04] Speaker 03:
It says, Walmart's quick decision to terminate the plaintiff may seem unfair in a work environment that appears rife with similar off-color conduct.

[00:23:13] Speaker 03:
Although some of Walmart's female employees

[00:23:16] Speaker 03:
seem to have engaged in questionable behavior.

[00:23:18] Speaker 03:
There is no evidence that any of the behaviors sparked complaints of harassment, like those that Walmart received concerning plaintiffs.

[00:23:25] Speaker 03:
Without evidence of similar employee complaints, Walmart cannot be faulted for failing to respond to those incidents in the same way that it responded to plaintiffs' situation.

[00:23:37] Speaker 03:
Here again, even though the

[00:23:40] Speaker 03:
claims that Mr. Ruiz made were serious, there were still about three incidents versus the ones against the allegations against Ms.

[00:23:47] Speaker 03:
Zuniga, which were basically on a daily basis over an extended period of time.

[00:23:52] Speaker 03:
Those are different situations.

[00:23:54] Speaker 03:
Likewise, even in the Hahn case, that involved male plaintiffs who were airline pilots.

[00:24:01] Speaker 03:
who were fired for alleged sex harassment, sex discrimination.

[00:24:07] Speaker 03:
They had apparently engaged in sexual banter with female employees, sent inappropriate emails, showed pornographic websites, various other things.

[00:24:20] Speaker 03:
They were fired after these allegations were made.

[00:24:23] Speaker 03:
And their response was, well, hey, the female employees, this was not unwelcome.

[00:24:29] Speaker 03:
They were sending emails.

[00:24:30] Speaker 03:
They were talking back in the sexual banter.

[00:24:33] Speaker 03:
They did the same thing as essentially us.

[00:24:35] Speaker 03:
Well, the court determined, in that case, it wasn't the same thing, because those female employees claimed that they were sexually harassed.

[00:24:43] Speaker 03:
In fact, one male pilot even improperly touched a female colleague without her consent.

[00:24:50] Speaker 03:
At no point did the male plaintiffs ever say that they were sexually harassed by the female employees.

[00:24:57] Speaker 03:
And the Ninth Circuit in that decision said, yeah, those are different situations.

[00:25:01] Speaker 03:
They're not similarly situated.

[00:25:03] Speaker 03:
And I think that goes hand in hand with the Walmart case where, yeah, just because some of the

[00:25:12] Speaker 03:
I don't know if you want to say victims or, you know, people who complained engaged in improper conduct.

[00:25:17] Speaker 03:
That doesn't mean they're all of a sudden all similarly situated employees.

[00:25:20] Speaker 03:
And in this case, just because other supervisors use bad language, you know, that doesn't mean that, oh, okay, well, I can't be fired now, you know, for bad language.

[00:25:33] Speaker 03:
And you claim that I did it more than others, you know, you can't make that argument.

[00:25:38] Speaker 03:
Well, you can, but aside from that, this isn't about bad language.

[00:25:41] Speaker 03:
This is about a bunch of other things.

[00:25:45] Speaker 03:
And this is also consistent, you know, with the cases that are cited by Appellee in their briefs, or, excuse me, in its brief.

[00:25:52] Speaker 03:
You know, I cite Benton versus ARA food services.

[00:25:55] Speaker 03:
In that case, the court determined that plaintiff's coworkers were not similarly situated when none of the coworkers had alleged or engaged in conduct as egregious as plaintiff.

[00:26:06] Speaker 03:
Likewise, in Cruz versus City of Ithaca, there was general allegations about another employee using derogatory and profane terms, and that was insufficient to compare with a plaintiff who had much more consistently used profanity, raised his voice, and ignored directions from his supervisors.

[00:26:27] Speaker 03:
And also, the fact that other employees had not been investigated or disciplined for profane language was immaterial in that case.

[00:26:40] Speaker 03:
Your honor, I believe my time is just about up.

[00:26:42] Speaker 03:
Thank you.

[00:26:43] Speaker 03:
Unless you have further questions.

[00:26:45] Speaker 01:
All right.

[00:26:45] Speaker 01:
Thank you, counsel.

[00:26:46] Speaker 01:
We'll hear rebuttal then from Mr. Wilson.

[00:26:54] Speaker 04:
uh... pretty convenient that uh... all the complaints against the mail managers were not investigated but this unique as was uh... uh... i mean i i think that shows council said that there wasn't a policy uh... was there was no written policy of uh... our procedure about about how they were going to conduct this well uh... curtis priest testified under oath that he would never discipline a manager without telling them the complaint allowing them to

[00:27:20] Speaker 04:
to address the complaint themselves.

[00:27:24] Speaker 04:
So whether the case law says whether it's a formal or informal policy or practice, deviation from that is evidence of pretext.

[00:27:35] Speaker 02:
What do you make about their argument that it was the person that they contacted was the issue, that they went to an HR person with regards to Ms.

[00:27:45] Speaker 02:
Tuniga versus this other individual?

[00:27:47] Speaker 04:
Ortiz went to Curtis Priest, and he then told her to handle it.

[00:27:53] Speaker 04:
So he knew about the complaint right off.

[00:27:55] Speaker 04:
He could have handled it just like he did with the mail managers, where he went to them, talked to them about it, asked her her side of the story, and resolved it.

[00:28:03] Speaker 04:
But also I'd like to point out when he says, oh, they just resolved it with Harvick.

[00:28:07] Speaker 04:
There was no other issue.

[00:28:08] Speaker 04:
That's totally incorrect.

[00:28:09] Speaker 04:
He had a second complaint months later after Callahan became the plant manager.

[00:28:16] Speaker 04:
And since there was no documentation, Callahan had no opportunity to find out whether there had been prior complaints against Harvick.

[00:28:23] Speaker 04:
So they weren't stopping it.

[00:28:24] Speaker 04:
They were still allowing it to happen.

[00:28:27] Speaker 04:
So this was definitely different conduct towards the mail managers than Ms.

[00:28:32] Speaker 04:
Zuniga.

[00:28:33] Speaker 04:
Also, she does admit she used profanity.

[00:28:38] Speaker 04:
And we've given you a long section, cited many witnesses.

[00:28:41] Speaker 04:
Even Curtis Priest says profanity was the right amount at Gowan.

[00:28:46] Speaker 04:
So she admits she uses profanity.

[00:28:49] Speaker 04:
She's not admitting that she was doing terrible things to them, like the air,

[00:28:55] Speaker 04:
you know, making them suffer from heat exhaustion or anything like that.

[00:28:59] Speaker 04:
She's admitting that she used some profanity towards them, no different than she received moving up the ladder, no different than the other managers do.

[00:29:07] Speaker 04:
And I've got four other affidavits that all say managers use profanity to their subordinate employees.

[00:29:14] Speaker 04:
And also what's interesting, he says that there are seven

[00:29:18] Speaker 04:
subordinate employees who don't want to work under.

[00:29:22] Speaker 04:
Well, what's interesting about that is one of them is named Jose Esparza.

[00:29:27] Speaker 04:
And Ortiz apparently interviewed him, but there's no memo, even though it's their policy to write a memo after someone's interview.

[00:29:36] Speaker 04:
So again, I think a fair assessment would be that he had positive things to say about

[00:29:42] Speaker 04:
uh... missing again that's why there is no memo uh... it's just part of their manufacturing the case against her but again that's more credibility that a trier of fact needs to look at it and what happened during this investigation uh...

[00:30:13] Speaker 04:
Oh, also, she was a supervisor for over 15 years.

[00:30:19] Speaker 04:
She had no other complaints from a subordinated employee until that date.

[00:30:25] Speaker 01:
Okay.

[00:30:26] Speaker 01:
Thank you, counsel.

[00:30:27] Speaker 01:
The case just argued will be submitted.