[00:00:02] Speaker 00:
We'll hear from you when you're ready, Ms.

[00:00:21] Speaker 05:
Farron.

[00:00:38] Speaker 06:
Good morning, Your Honors.

[00:00:52] Speaker 05:
If you want to, the podium, the lectern can be lowered by a switch over on the right.

[00:00:59] Speaker 05:
It's okay.

[00:01:01] Speaker 06:
You stood being a little bit on the shorter side.

[00:01:05] Speaker 06:
Please, the court.

[00:01:07] Speaker 06:
Claudette Ferron.

[00:01:08] Speaker 06:
Here on behalf of appellants, Diana Valier et al.

[00:01:14] Speaker 06:
Today, appellants argue the appeal of the district court's erroneous ruling turning the established law of summary judgment on its head by using an anomalous interpretation and perverse application of the legal standard to a seemingly one-eyed review of the record.

[00:01:36] Speaker 06:
As established by decades of precedents, codified in the federal civil rules, and taught in first year civil procedure, summary judgment is only appropriate if, after assuming all facts and allegations, assertions made by the nonmoving party, appellants, in this case, to be true, and drawing all reasonable inferences from the evidence in the nonmoving party's favor, it can be determined

[00:02:07] Speaker 06:
that there is no genuine dispute of any material issues of fact.

[00:02:13] Speaker 01:
Mauro?

[00:02:14] Speaker 01:
Can you help me understand what facts do you believe are genuinely in dispute that are material?

[00:02:23] Speaker 01:
Identify one, two, or three, the most important.

[00:02:28] Speaker 06:
The most important one, I believe, Your Honor, is whether or not the policy

[00:02:35] Speaker 06:
The alleged policy of the defend appellees was race based or ethnicity applied.

[00:02:48] Speaker 06:
Out of nowhere, we get an affidavit from the appellee's manager saying,

[00:02:56] Speaker 06:
This is our policy, and it is unilaterally and equally applied to all customers.

[00:03:03] Speaker 06:
There is no evidence in the record other than the affidavit of the manager who was not present at any of these events.

[00:03:14] Speaker 06:
On the other hand, we have the testimony, deposition testimony, of the number of the appellants.

[00:03:26] Speaker 06:
I believe it was Nekti Gasca, who indicated that she was told by one of the waitresses during the incident in January that the reason for this application of this policy to this family of Latino women was because they have problems with people of color.

[00:03:50] Speaker 06:
Then we have the evidence of, I believe it was Miss Taib,

[00:03:55] Speaker 06:
who indicated that while she and her fellow diners ate or waited, excuse me, they never got to eat, waited to get their food, they observed a white party, a Caucasian party come in, sit down, receive their water, their drinks, their appetizers, their meal.

[00:04:22] Speaker 06:
their dessert, finish their meal, and then pay by credit card, all while this group of black women sat and waited in the back around an Ottoman, excuse me, around a coffee table in an Ottoman.

[00:04:40] Speaker 06:
And then I believe we have some additional testimony from, I believe it was Miss Aliyah Sullivan or Mr. Williams,

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in which they indicated that they did not see anyone else during the brunch being asked to prepay and they were the only couple of color in the restaurant at the time.

[00:05:08] Speaker 06:
I believe that sort of the core of the issue.

[00:05:13] Speaker 01:
So with respect to the statement of the waitress,

[00:05:18] Speaker 01:
That's hearsay.

[00:05:20] Speaker 01:
You can't bind the defendant because she's not a manager.

[00:05:25] Speaker 01:
So under the admission of a party opponent rules or exception or hearsay definition, however you want to articulate it, statement by the waitress is not admissible to prove

[00:05:48] Speaker 01:
um, the defendant's liability or to be, um, so I'm not sure where that gets you.

[00:05:58] Speaker 01:
I would, you, you, you do agree that that's the way that I think it's rule 802, the admission of party opponent rule works.

[00:06:07] Speaker 06:
I agree, your honor.

[00:06:07] Speaker 06:
However, we do have the statement of Mr. Karagounis on the website where he says this is our policy and he does that more than once.

[00:06:18] Speaker 01:
I understand.

[00:06:19] Speaker 01:
I guess what I'm trying to understand is the theory of your lawsuit is, well, if you say that the theory of your lawsuit is that they did this because they had issues with people of color in their mind, not pain, and that's the reason that motivated them to create the policy.

[00:06:48] Speaker 01:
I don't see how that gets you a claim.

[00:06:52] Speaker 01:
Even if that were true, unless the policy were discriminatory and force, even if there was a discriminatory basis for creating the policy, if the policy was implemented with respect to all customers, then I don't see how you have a claim.

[00:07:13] Speaker 01:
Am I missing something there?

[00:07:15] Speaker 06:
Yes, your honor.

[00:07:16] Speaker 06:
And the fact is,

[00:07:18] Speaker 06:
It is our contention and the evidence shows that this policy, whether it be legitimate or not, is not unilaterally applied.

[00:07:29] Speaker 01:
Well, I'm trying to separate these two things.

[00:07:33] Speaker 01:
One is you seem to be saying that one of the disputed issues of fact is, was the policy race-based?

[00:07:41] Speaker 01:
I took that to mean that

[00:07:44] Speaker 01:
you were saying that, well, we think that the policy was created for some sort of racially discriminatory reason.

[00:07:56] Speaker 01:
I guess what I'm saying to you is that I don't see how that's really a material dispute of fact, because one, the only evidence you have of that is one statement that's hearsay that doesn't fit within the admission of a party opponent.

[00:08:12] Speaker 01:
So you don't have any evidence other than that that I saw from the briefing that the policy is race-based.

[00:08:21] Speaker 01:
So you don't have any admissible evidence of that.

[00:08:24] Speaker 01:
But secondly, even if you did, I don't understand your theory to be that, well, just because it's race-based, it's illegal even if it were applied to all customers the same.

[00:08:43] Speaker 01:
I don't see that argument in your brief or is that argument in your brief?

[00:08:47] Speaker 01:
What's the support for that?

[00:08:50] Speaker 06:
I don't believe we argue that directly.

[00:08:55] Speaker 06:
I believe the argument is that it is whatever the policy.

[00:09:01] Speaker 06:
First of all, we don't necessarily believe that is it is a legitimate policy because we the parents asked for documentation

[00:09:11] Speaker 06:
of this policy and were not given anything in discovery.

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And as a matter of fact, during discovery, the appellants or, excuse me, appellees indicated that there is no written documentation or anything other than this affidavit that they produced that indicates that there is such a policy.

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So the policy issue itself

[00:09:39] Speaker 06:
is suspicious.

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We also asked about training on this practice, and they said there is nothing.

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It's just verbal.

[00:09:48] Speaker 06:
The issue that is most critical, I believe, is to the extent there, even if there is a policy, it is not applied unilaterally.

[00:10:01] Speaker 06:
It is not applied to all customers.

[00:10:06] Speaker 01:
You seem to be saying a couple of different things there.

[00:10:09] Speaker 01:
One is that you think that there's a dispute of fact as to whether there actually is a policy.

[00:10:17] Speaker 06:
Is that one of the that may be also a dispute, your honor, because they say that there is a policy.

[00:10:25] Speaker 06:
But on the one hand, on the one hand, they say there's a policy.

[00:10:29] Speaker 06:
On the other hand, they can produce nothing related to this policy other than this verbal state.

[00:10:34] Speaker 01:
I have to admit, I had a lot of trouble with this case in the sense that there's supposed to be, under the federal rules and under the local rule, a statement by the moving party of what they believe the undisputed facts are.

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And then the opposing party is supposed to go through point by point and indicate

[00:11:02] Speaker 01:
We dispute this fact, and here's the evidence that disputes this fact, or we don't dispute this fact.

[00:11:09] Speaker 01:
So that the district court can then know, okay, what facts are, is the plaintiff claiming to be in dispute here?

[00:11:20] Speaker 01:
And then can make a ruling as to whether this fact really is in dispute or not.

[00:11:29] Speaker 01:
I couldn't make heads or tails of the pleadings to figure out whether that was really done here, because there were these voluminous statements of undisputed facts and voluminous responses, and it was very hard for me to get to the bottom of that.

[00:11:55] Speaker 01:
I guess where I'm going with all of this is that I didn't really, maybe I missed it, but to the extent that you are arguing and you argued in your opening brief that there is a dispute of fact as to whether there really is a policy,

[00:12:21] Speaker 01:
What is the evidence that you have that places it into dispute?

[00:12:26] Speaker 01:
Because if they have a witness who testifies under oath by affidavit or declaration that we had the policy and they have

[00:12:45] Speaker 01:
your clients who testify under oath that they were told that there was such a policy.

[00:12:53] Speaker 01:
What is the evidence that places into dispute whether there was such a policy at all?

[00:13:00] Speaker 06:
The fact that we requested from the defendants, appellees,

[00:13:08] Speaker 06:
copies any kind of documentation other than just the verbal statement of his policies for what my clerks can't do what my secretary can or can't do I don't have it all written down does that mean that I I don't really have a policy well with regards to an operation involving a one-on-one relationship I think it's different when you're operating restaurants and in this particular case you have supposedly a

[00:13:37] Speaker 06:
They're alleging that there is this policy.

[00:13:40] Speaker 06:
However, when they're asked for the policy, when they're asked for training information regarding the individuals who are allegedly required to enforce or apply this policy, there is nothing.

[00:13:57] Speaker 06:
They admit they have nothing.

[00:14:01] Speaker 04:
Let me ask you, counsel, under Brady and our three-part test,

[00:14:08] Speaker 04:
The defendants say they have this policy.

[00:14:18] Speaker 04:
And at least the facts of this case, it's sort of an interesting policy in the sense that there are exceptions to it.

[00:14:32] Speaker 04:
And so far as

[00:14:36] Speaker 04:
I can see from the factual case you do present that's admissible, your argument in part is not only did the district court state the summary's judgment standard,

[00:15:08] Speaker 04:
in the defendant's favor.

[00:15:14] Speaker 04:
And I would agree that the way it was framed, it was framed quite negatively, but the district court opinion does include in there, would you not agree, that he was obligated to view the record most favorably to your clients?

[00:15:38] Speaker 06:
That is correct.

[00:15:39] Speaker 04:
The second point would be that in these discrimination cases, if you isolate each fact, you can say no discrimination, that's unlawful.

[00:16:00] Speaker 04:
But if you put it all together, something was going on here.

[00:16:09] Speaker 04:
that your clients under oath say was discriminatory.

[00:16:19] Speaker 04:
So at least to your prima facie case, if you have to show it, could say it's made.

[00:16:26] Speaker 04:
And then the defendants come along and say, we have this policy.

[00:16:32] Speaker 04:
And I didn't really see you arguing that there was no policy.

[00:16:39] Speaker 04:
in the sense that I thought your argument was the defendants may say they have a policy.

[00:16:46] Speaker 04:
And let's even assume they have a policy.

[00:16:49] Speaker 04:
But their exceptions to it, and at least your client's view, is that it was not being applied across the board.

[00:17:02] Speaker 04:
That they were being treated differently.

[00:17:05] Speaker 04:
And they were being treated differently because of their race.

[00:17:10] Speaker 04:
As I understand it, that's your case that you presented to the district court.

[00:17:18] Speaker 04:
And the district court basically came back, as I understood it, and said, you just haven't offered enough evidence.

[00:17:28] Speaker 04:
And in their brief, they point out how there's all this that could be presented at trial.

[00:17:39] Speaker 04:
to show that your clients can't or that you wouldn't win a jury trial.

[00:17:47] Speaker 04:
But that's not where you are, as I understand it.

[00:17:52] Speaker 04:
So the question in my mind is under our Brady decision, and I was proceeding on the ground that under Brady, defendants had established that there was a policy.

[00:18:11] Speaker 04:
And your argument is maybe so, or even assuming that.

[00:18:20] Speaker 04:
But there's no showing that it was applied across the board.

[00:18:27] Speaker 04:
And the defendant's response is, all you offered was speculation.

[00:18:38] Speaker 04:
You don't offer any evidence.

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that the policy was not.

[00:18:44] Speaker 04:
You don't offer proper any evidence that were you to go to trial.

[00:18:52] Speaker 04:
This policy was not applied to everybody.

[00:18:56] Speaker 04:
Who is in the restaurant?

[00:19:01] Speaker 04:
And that there wasn't enough to show.

[00:19:05] Speaker 04:
Given the defendants explanation for the policy.

[00:19:10] Speaker 04:
And.

[00:19:12] Speaker 04:
why it was the business reason that the defendant offered, that that simply was not enough to meet your sort of threshold burden here.

[00:19:29] Speaker 04:
How do you respond to that argument?

[00:19:33] Speaker 06:
First, with regards to any explanation as to business reasons, this brings us to the issue of

[00:19:41] Speaker 06:
trial by affidavit.

[00:19:44] Speaker 04:
When you talk about- Counsel, I'm trying to get you to move beyond that, all right?

[00:19:49] Speaker 04:
Because I didn't understand, and maybe I misunderstood.

[00:19:54] Speaker 04:
I thought your argument was, the defendants say they have some sort of policy.

[00:20:04] Speaker 04:
And my clients have offered evidence that it was applied in a discriminatory manner.

[00:20:11] Speaker 04:
unlawfully.

[00:20:15] Speaker 04:
And the district court basically took the position that there's a lot of speculation here, that your clients have offered evidence of what they think was happening, but they have no evidence.

[00:20:31] Speaker 04:
They don't even proffer that were this to go to trial.

[00:20:34] Speaker 04:
They could present evidence that this policy

[00:20:39] Speaker 04:
however vague it may be and it's not in writing, wasn't being, at least as the defendants describe it, wasn't being applied across the board.

[00:20:53] Speaker 06:
If I may respond?

[00:20:54] Speaker 06:
Please, yes.

[00:20:56] Speaker 06:
We have three separate incidents involving three different groups of minorities.

[00:21:06] Speaker 06:
three different times.

[00:21:08] Speaker 06:
These minorities didn't know each other other than there was a family of the Valleys.

[00:21:12] Speaker 06:
There was the group that was with the Teebspence and then there was the Williams and Sullivan group.

[00:21:23] Speaker 06:
These three groups all offer testimony that the same thing or similar thing happened to them.

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They did not observe anyone else who was Caucasian being asked to prepay for their meals.

[00:21:46] Speaker 06:
The three separate incidents arising at three separate times mutually corroborate each other, and I believe is sufficient to take to a jury.

[00:21:57] Speaker 06:
In addition to the testimony of

[00:22:02] Speaker 06:
with regards to the separate incidents and the three separate groups who were strangers to each other before this litigation.

[00:22:10] Speaker 06:
We also have the testimony of Miss Tebe and Miss Spence who during the occasion with their girlfriends were sitting there and watching what happened with the Caucasian group when they came in.

[00:22:27] Speaker 06:
And with regards to Miss

[00:22:31] Speaker 06:
excuse me, the via family.

[00:22:33] Speaker 06:
We do also have evidence apart from what may be considered hearsay evidence proffered by I believe all of the value members that they did not see anyone else being required to prepay.

[00:22:51] Speaker 06:
And if you keep in mind that the

[00:22:55] Speaker 06:
restaurants, excuse me, the nightclub had just closed.

[00:22:58] Speaker 06:
So people were shifting from the nightclub to the restaurant.

[00:23:04] Speaker 06:
So it would be assumed that if this policy was even handedly applied, the Valle family would have seen this policy be applied to other patrons of the restaurant.

[00:23:22] Speaker 06:
They saw no such thing.

[00:23:24] Speaker 06:
In addition, once they decided that they weren't going to prepay, the sequence of events that followed would seem to or is sufficient enough to take to a jury to indicate that this policy, to the extent it is a policy, is applied

[00:23:54] Speaker 06:
in a discriminatory fashion.

[00:23:58] Speaker 01:
So with respect to the Sunday brunch, there was testimony presented by the affidavit and maybe elsewhere that there were basically two ways that brunch could be set up.

[00:24:19] Speaker 01:
You could either

[00:24:21] Speaker 01:
pay online in reserve your table and show up, or you could go in and eat brunch and then pay at the restaurant, right?

[00:24:40] Speaker 01:
And so to the extent that your clients didn't see other people paying,

[00:24:51] Speaker 01:
what the defense argues and I think what the district court ruled is that that doesn't really give you enough evidence to go to a jury there because there's there's we don't know that there were like any other people who were similarly situated to your clients at lunch in the sense that

[00:25:19] Speaker 01:
that they came in without having paid me in advance.

[00:25:24] Speaker 01:
That appears to be the reason.

[00:25:27] Speaker 01:
So give me your response to that.

[00:25:32] Speaker 01:
If I'm wrong about the reasoning, please correct me.

[00:25:36] Speaker 01:
Or if I'm correct that that is the reasoning and that is the argument, tell me why that argument shouldn't be adopted by us.

[00:25:48] Speaker 06:
The argument shouldn't be adopted by this court because it would be trial by affidavit which is precluded by Supreme Court.

[00:25:58] Speaker 05:
But you have the burden of proof in the case to prove the discriminatory application.

[00:26:04] Speaker 05:
And when you refer to affidavit, I assume you're referring to the defendant's affidavit?

[00:26:08] Speaker 05:
Yes.

[00:26:09] Speaker 05:
But you, in discovery,

[00:26:12] Speaker 05:
You know, ordinarily what you might do in a case like this where you're testing whether there's a policy and what its nature is, what its roots are, is to notice a deposition.

[00:26:25] Speaker 05:
And you can even, if you don't know who adopted the policy, you know, do it under rule 30B6 and say, please produce for deposition the individual with knowledge about this policy.

[00:26:38] Speaker 05:
And then you would not be.

[00:26:40] Speaker 05:
here with leaning on their declarations, but you didn't do that.

[00:26:45] Speaker 05:
So you have declarations are competent on summary judgment because presumably the declarant can then come into court at trial.

[00:26:57] Speaker 05:
So that's, I mean, we have declarations, I think it was all the time summary judgment.

[00:27:02] Speaker 06:
In discovery, we requested policy, the policy, we requested the training,

[00:27:10] Speaker 06:
evidence of the training.

[00:27:12] Speaker 06:
We don't have anything of any nature with regards to the existence of the policy, with regards to the training that anybody receives.

[00:27:24] Speaker 06:
It just doesn't exist.

[00:27:25] Speaker 05:
But to surmount summary judgment, you need to then middle up and say, why do you think

[00:27:32] Speaker 05:
that's suspicious.

[00:27:33] Speaker 05:
I mean, many businesses, especially things like food industry, they don't run on paper.

[00:27:38] Speaker 05:
They run on person-to-person contact.

[00:27:41] Speaker 05:
And so if you think that's opening up a lot of leeway for discriminatory application, it's your burden to show that.

[00:27:51] Speaker 05:
And so when you talk about trial by affidavit, I mean, that is summary judgment.

[00:27:55] Speaker 05:
It's giving us the dry run, often in affidavit form or in deposition transcript.

[00:28:00] Speaker 06:
Well, in this case, while we only have the affidavit of the, excuse me, appellee's manager, we have eight depositions of plaintiffs, which are being dismissed by the district court.

[00:28:17] Speaker 05:
I don't think so.

[00:28:17] Speaker 05:
I think the question is, what do they show?

[00:28:21] Speaker 05:
on the pertinent point.

[00:28:23] Speaker 05:
They show what people observe, but they also say, well, why did I think it was discriminatory?

[00:28:29] Speaker 05:
I can't think of any other reason.

[00:28:33] Speaker 05:
Or what's the basis for your conviction that it's discriminatory?

[00:28:40] Speaker 05:
It's just speculation.

[00:28:41] Speaker 05:
It made me feel suspicious.

[00:28:46] Speaker 06:
Well, I think what the court is referring to is an inference drawn from the facts.

[00:28:52] Speaker 06:
And drawing inferences from the facts is the jury's province, not the judge.

[00:28:58] Speaker 06:
And in this case, I believe the appellants had more than sufficient testimony based upon the entire record of what happened to them and what they observed.

[00:29:14] Speaker 06:
to take it to a jury and let the jury decide whether or not those observations, those incidents, those events were sufficient in the jury's mind to draw the inference that there was discriminatory behavior.

[00:29:34] Speaker 01:
So here's, I guess, follow up on Judge Pillard's question, kind of get to the brass tacks.

[00:29:42] Speaker 01:
With respect to the brunch,

[00:29:44] Speaker 01:
Let's suppose there was a trial and the evidence was essentially the same as what we have in the record now is that that your clients testified that they were asked to pay.

[00:29:57] Speaker 01:
They looked around.

[00:29:58] Speaker 01:
They didn't see anybody else asked to present a credit card.

[00:30:03] Speaker 01:
How would the jury conclude

[00:30:07] Speaker 01:
without knowing anything else, whether the other people who weren't asked to present a credit card, how would the jury know whether or not those people had already paid one line?

[00:30:24] Speaker 06:
It would be if there was nothing else in the record that was an indicia, a possible indicia of discriminatory conduct or

[00:30:35] Speaker 06:
disparate treatment.

[00:30:36] Speaker 06:
But there is more in the record with regards to the brunch incident.

[00:30:42] Speaker 06:
In the record, and there's deposition testimony, that before being allowed to enter the brunch, Mr. Williams was searched, body searched, and Ms.

[00:30:59] Speaker 06:
Sullivan was also searched.

[00:31:03] Speaker 06:
If you

[00:31:04] Speaker 06:
And they said they did not observe anyone else being searched.

[00:31:10] Speaker 06:
You then get into the restaurant, and they're told to sit anywhere.

[00:31:16] Speaker 06:
Then they go and do what they're supposed to do.

[00:31:20] Speaker 06:
One goes to the bathroom.

[00:31:21] Speaker 06:
The other goes to the buffet.

[00:31:24] Speaker 06:
And before they can barely get back, they're asked to prepay.

[00:31:32] Speaker 06:
The question becomes, is their observation, because they had a conversation with the manager or bouncer, whoever he was, and the waitress indicating that this is unusual.

[00:31:44] Speaker 06:
I've never done this before.

[00:31:47] Speaker 06:
We also have testimony.

[00:31:50] Speaker 06:
never been asked to prepay before.

[00:31:53] Speaker 06:
We also have testimony in the record.

[00:31:55] Speaker 06:
The plaintiffs say they've never been asked to prepay.

[00:31:57] Speaker 06:
That's correct.

[00:31:58] Speaker 01:
We also have testimony in the record.

[00:32:02] Speaker 01:
But I'm not sure that that proves anything with respect to whether that's unusual for this restaurant.

[00:32:09] Speaker 06:
I was about to add to that.

[00:32:11] Speaker 06:
We also have in the record the testimony of Ms.

[00:32:14] Speaker 06:
Vallier, who had been to the restaurant numerous of times.

[00:32:18] Speaker 06:
and had never been asked to prepay for.

[00:32:22] Speaker 05:
But she explains that herself by saying that she was with an individual who was a friend of the owner, an individual who was in the restaurant industry.

[00:32:30] Speaker 05:
And so she knew that the policy wasn't being applied to them because she thought they were being calm.

[00:32:35] Speaker 06:
She never knew that the policy wasn't being applied to them.

[00:32:38] Speaker 06:
She didn't know there was a policy.

[00:32:40] Speaker 05:
Exactly.

[00:32:41] Speaker 05:
So it's just she herself characterizes in a way where it's not

[00:32:46] Speaker 05:
It's not indicative of anything, and presumably she also was her same self and her same race and ethnicity at that time.

[00:32:53] Speaker 06:
That's correct.

[00:32:56] Speaker 06:
It is our position that given the record, notwithstanding that these are observations, unfortunately, a lot of times, discriminatory conduct is based on observation.

[00:33:12] Speaker 06:
It is rare that a defendant or a party will come and say to you, because you are black or because you are a Latino, I'm doing thus and so.

[00:33:25] Speaker 06:
It has to be inferred from the circumstances.

[00:33:29] Speaker 06:
It has to be inferred from the body language.

[00:33:32] Speaker 06:
It has to be inferred from corroborating other incidents.

[00:33:37] Speaker 06:
It has to be inferred from the sense of

[00:33:41] Speaker 01:
the individual who is- I agree with all of that.

[00:33:43] Speaker 01:
Just to kind of get to the nub of it, I think that the brunch, I think, is a more difficult thing, evidence-wise, for me to understand what evidence that a jury could have other than speculation, where we don't know the circumstances of these other people who were being observed by the plaintiffs.

[00:34:08] Speaker 01:
If all of those people had prepaid online,

[00:34:11] Speaker 01:
then their observations that they didn't see them being asked for credit cards kind of doesn't really prove anything.

[00:34:20] Speaker 01:
I think that the circumstances a lot different and a lot stronger for you for the after 10 p.m.

[00:34:29] Speaker 01:
situation because there everybody should be similarly situate right everybody who's coming from the nightclub or coming in after 10pm they haven't there's there's no evidence that any of them would have repaid online.

[00:34:47] Speaker 01:
before they got there, at least that I saw on the record.

[00:34:50] Speaker 01:
So to the extent that the plaintiffs say, we come in, it's after 10, we're asked to prepay.

[00:34:58] Speaker 01:
We see all of these other people come in also after 10.

[00:35:03] Speaker 01:
We don't see any of them presenting credit cards.

[00:35:09] Speaker 01:
or any form of payment to either run a tab or to prepay however you want to call it.

[00:35:17] Speaker 01:
To me, that's easier to infer from the plaintiff's observations that there is a disparate treatment.

[00:35:31] Speaker 01:
So I think that after 10 p.m.

[00:35:33] Speaker 01:
seems to be a different

[00:35:36] Speaker 01:
kind of circumstance than the brunch.

[00:35:38] Speaker 01:
That's why I'm just trying to like nail down exactly what this evidence is that causes there to be a dispute of fact with respect to kind of each of the sets of claims.

[00:35:53] Speaker 06:
I think as I mentioned before, if each of these claims was a separate case happening at a completely

[00:36:05] Speaker 06:
separate time in separate jurisdictions.

[00:36:07] Speaker 06:
If there was just one case, indeed we would be in a situation of, well, that's what the plaintiffs think or the appellants think, and we'd have to do this inference.

[00:36:21] Speaker 06:
But we have a pattern of behavior with this particular defendant.

[00:36:30] Speaker 06:
And this pattern of behavior, there's sufficient evidence in the record, we believe, to survive summary judgment, because the pattern of behavior is indicative that this alleged policy is only applied to minorities, even when there are Caucasian customers present.

[00:36:56] Speaker 06:
So I would agree with the court if it is only one incident, one incident, and it was just one case alone.

[00:37:04] Speaker 01:
That's not my point.

[00:37:06] Speaker 01:
My point is that you just kind of break it down to brass tacks.

[00:37:14] Speaker 01:
The evidence seems a lot weaker for the Williams's claim with respect to brunch versus the Valleys and the

[00:37:26] Speaker 01:
um, um, Teeve and Spence plaintiffs who are late at night because, because the late at night plaintiffs, um, seem to be kind of by definition, similarly situated to whoever else comes into the restaurant.

[00:37:49] Speaker 01:
Well, you know, at that time, whether they're black or white or whatever,

[00:37:55] Speaker 01:
whereas we don't know whether the plaintiffs who came in for brunch, Williams and Sullivan are similarly situated to the people that they saw that weren't asked for credit cards.

[00:38:14] Speaker 06:
You get my point?

[00:38:15] Speaker 06:
I understand your point, Your Honor.

[00:38:17] Speaker 06:
However, to that point, there is testimony that there was

[00:38:24] Speaker 06:
no signage or any kind of other information indicating that this was a prepay or pay online type of brunch.

[00:38:34] Speaker 06:
There was no indication at the time when the couple came in that this was a pay in advance kind of brunch.

[00:38:47] Speaker 06:
I think we've all probably gone to brunches where

[00:38:50] Speaker 06:
You either pay online or pay in advance, but we've also gone to lunches, brunches probably where, and I know I have, where it's a set price.

[00:39:01] Speaker 06:
And it is after you've had your meal that you are asked to pay.

[00:39:07] Speaker 06:
So that this practice that defendants alleged to be benign is suspect in that regard.

[00:39:19] Speaker 06:
Also, again, when you put all of this together, the three incidents together, there is a pattern of behavior that is evident.

[00:39:33] Speaker 06:
the court completely disregards all of the plaintiff's evidence, which it is not allowed to do.

[00:39:41] Speaker 06:
And if the court weighs credibility, which it is not allowed to do, it must assume that the allegations, assertions, depositions of testimony, et cetera, of the appellant plaintiffs is true.

[00:39:58] Speaker 06:
With that assumption and drawing inferences

[00:40:03] Speaker 06:
We believe there was more than sufficient evidence from the plaintiff's appellants to take this matter, to survive summary judgment and take this matter before a jury.

[00:40:21] Speaker 05:
Judge Rogers, any further questions?

[00:40:27] Speaker 05:
I did you reserve time for?

[00:40:29] Speaker 05:
Yes, I did two minutes.

[00:40:31] Speaker 05:
We'll give you your rebuttal time even though you have to go over and we'll hear now from Mr Krauss.

[00:40:39] Speaker 05:
Thank you, Mr. Farron.

[00:40:43] Speaker 02:
Thank you and good afternoon, Scott Krauss on behalf of the appellees.

[00:40:50] Speaker 02:
As has been revealed in the questions from your honor during

[00:40:55] Speaker 02:
appellant's presentation.

[00:40:57] Speaker 02:
This case is truly about the absence of any evidence to take this case to a jury.

[00:41:05] Speaker 02:
There are no disputed material facts.

[00:41:08] Speaker 02:
And the appellees went through painstaking efforts at the district court level before Judge Nichols to lay out a very detailed statement of undisputed facts.

[00:41:19] Speaker 02:
And no disputed facts were identified by the plaintiffs below.

[00:41:24] Speaker 01:
There aren't.

[00:41:25] Speaker 01:
Let me see if I understand what you're saying.

[00:41:30] Speaker 01:
You filed statements of undisputed fact, which you're required to do under the federal rules and under the district court's local rules.

[00:41:38] Speaker 01:
That's right.

[00:41:38] Speaker 01:
Are you saying that the plaintiffs didn't file responses to those at all?

[00:41:46] Speaker 01:
Or are you saying that they filed responses to your statements that did not dispute any of your lists of undisputed facts?

[00:41:59] Speaker 02:
It's a little bit of a hybrid, as I recall.

[00:42:02] Speaker 02:
Your honor, I do not recall that there were actually listings of

[00:42:07] Speaker 02:
the facts allegedly in dispute.

[00:42:09] Speaker 02:
There were certainly arguments made in which the plaintiffs below added more detail on the factual record in support of their arguments.

[00:42:19] Speaker 02:
But I intentionally, Your Honor, put the entire factual record before Judge Nichols below all of these depositions in their entirety.

[00:42:29] Speaker 04:
I mean, that's a matter of form, not substance.

[00:42:34] Speaker 04:
You put them all in one place.

[00:42:35] Speaker 04:
The plaintiffs put them

[00:42:37] Speaker 04:
in different, we're trying to get at the heart of this, all right?

[00:42:41] Speaker 04:
So that was, I thought, the thrust of Judge Wilkins' question.

[00:42:44] Speaker 02:
Right, and what I'm arguing, Your Honor, is assuming that the truth of all the plaintiff's allegations, there is just no tribal issue.

[00:42:51] Speaker 01:
There is.

[00:42:52] Speaker 01:
I'm trying to ask something different.

[00:42:55] Speaker 02:
I'm sorry.

[00:42:56] Speaker 01:
Because candidly, if I had been the district judge and you had filed what you filed, I would have required you to refile, or I would have just

[00:43:06] Speaker 01:
I would have screamed, because the goal on summary judgment is to kind of pare down what are the key facts that are material to deciding the case.

[00:43:23] Speaker 01:
And to the extent that one side or the other believes that those key facts aren't really in dispute, then they say that, and then they show the evidence that shows that they're not in dispute.

[00:43:35] Speaker 01:
And then the other side can say, well, no, that key fact really is in dispute because we have testimony that contradicts the testimony of the moving party.

[00:43:49] Speaker 01:
What I'm trying to get at is in the district court, did the plaintiffs say they identified this fact that they said is not in dispute?

[00:44:01] Speaker 01:
We disagree.

[00:44:03] Speaker 01:
That fact very much is in dispute.

[00:44:06] Speaker 01:
And it's in dispute because we have this deposition testimony X. Did they do that?

[00:44:12] Speaker 01:
No.

[00:44:14] Speaker 02:
They did not.

[00:44:18] Speaker 02:
And the testimony via affidavit from Mr. Aguilar is

[00:44:25] Speaker 02:
not in dispute.

[00:44:26] Speaker 02:
It spells out the reason and the rationale for two different policies at Rewind.

[00:44:33] Speaker 02:
And that is a policy after 10 o'clock of requiring prepayment or collateral put up for anyone who comes in.

[00:44:41] Speaker 02:
The brunch issue is entirely separate.

[00:44:44] Speaker 02:
And I think your honor addressed that in questions to Appellant's Council.

[00:44:50] Speaker 02:
But there is simply no evidence and that those.

[00:44:55] Speaker 01:
Well, let me let me just cut to the chase.

[00:44:58] Speaker 01:
Sure.

[00:44:58] Speaker 01:
It's been a long morning.

[00:44:59] Speaker 01:
I want to get to know this.

[00:45:02] Speaker 01:
If plaintiffs testify.

[00:45:05] Speaker 01:
That you know we are people of color.

[00:45:09] Speaker 01:
We come in.

[00:45:10] Speaker 01:
It's after 10 o'clock.

[00:45:12] Speaker 01:
We're told that there's a policy where we have to prepay and present credit cards, but we look around at everybody else who's come in after 10 o'clock who happened to be white, and we don't see any of them presenting credit cards.

[00:45:32] Speaker 01:
Why isn't that enough to raise a dispute of fact as to whether or not this policy is being applied discriminatorily?

[00:45:42] Speaker 02:
Because the record does not support any of the plaintiff's ability to say, I looked around and I didn't see white people not being required to prepay.

[00:45:53] Speaker 02:
Ms.

[00:45:54] Speaker 02:
Plazos, when she was deposed, conceded she had no reason to believe any other patron was allowed to order without prepaying.

[00:46:02] Speaker 02:
Ms.

[00:46:02] Speaker 02:
Goska said she did not pay

[00:46:04] Speaker 02:
attention to whether any other customer was permitted to order without prepaying.

[00:46:10] Speaker 02:
Ms.

[00:46:10] Speaker 02:
Labay said she did not observe anyone else order food at rewind and does not know whether anyone else was asked to prepay for meals.

[00:46:19] Speaker 02:
She went on to say, I don't know if it's racial or discrimination, but I don't think you treat customers like that.

[00:46:26] Speaker 02:
Ms.

[00:46:26] Speaker 02:
Valle said she did not see any Caucasian patrons at Rewind be seated or served without prepaying.

[00:46:34] Speaker 02:
She could only speculate that minorities would have to prepay, but Caucasians would not.

[00:46:40] Speaker 02:
I specifically asked each of the Valle plaintiffs if they observed anyone else at Rewind that night not being asked to prepay, and they had no evidence.

[00:46:52] Speaker 02:
And if we turn to Tybin Spence,

[00:46:55] Speaker 02:
All they were able to say when they were deposed is that they observed a table with Caucasian patrons settling up at the end of the meal with credit cards multiple.

[00:47:06] Speaker 02:
But as pointed out from the record and consistent with rewinds policy, seeing someone settle up at the end is not indicative in and of itself that they weren't asked to open a tab when they came in as collateral for the meal.

[00:47:22] Speaker 02:
Settling out doesn't mean a credit card wasn't given.

[00:47:24] Speaker 02:
And so there is virtually no evidence whatsoever in the record from which a trier of fact could conclude, reasonably conclude, that Rewind did not apply this policy uniformly.

[00:47:38] Speaker 02:
And council speaks to a cumulative series of events or a pattern.

[00:47:45] Speaker 02:
All the pattern of this three series of events shows is conduct by Rewind

[00:47:52] Speaker 02:
consistent with its established policies.

[00:47:55] Speaker 02:
There's no evidence that those policies were applied in a desperate manner.

[00:48:05] Speaker 05:
It seems like at least bad business practice.

[00:48:08] Speaker 05:
I mean, I'm not in the restaurant business, but to have a policy that's out of

[00:48:15] Speaker 05:
line with the typical policy.

[00:48:16] Speaker 05:
I mean, at a bar, you do have to open a tab.

[00:48:18] Speaker 05:
Typically, at an establishment, you don't.

[00:48:21] Speaker 05:
And there are plausible business reasons for having such a policy.

[00:48:25] Speaker 05:
But the fact that there's nothing in paper anywhere and there are no signs anywhere

[00:48:32] Speaker 05:
For to just tell people when they're coming in so that the servers aren't having to have these unpleasant interactions with with people who are unfamiliar.

[00:48:43] Speaker 05:
Does make one wonder whether this actually is a policy or whether it's just something that some of the servers.

[00:48:52] Speaker 05:
decide to ask about because they've had problems in the past.

[00:48:57] Speaker 05:
And I especially wondered that seeing your interrogatory number four, which says, stay whether on any occasion you ever witnessed other patrons be informed of a requirement to prepay.

[00:49:10] Speaker 05:
And if so, tell us about it.

[00:49:12] Speaker 05:
It sounds like that's a question coming from an establishment that denies having a requirement to prepay.

[00:49:20] Speaker 02:
But no, no, you aren't.

[00:49:20] Speaker 02:
That was my effort to find out whether or not plaintiffs actually had any evidence that would support their claim.

[00:49:27] Speaker 02:
But you don't ask.

[00:49:29] Speaker 05:
And by the same token, did you ever see anyone not be required to come in and actually not be required to prepay?

[00:49:39] Speaker 05:
be seated be served without being.

[00:49:41] Speaker 05:
So you don't ask that question, which is the question one would expect if we're trying to come up with comparators in an establishment that actually does have this thought.

[00:49:48] Speaker 02:
Perhaps it should have been a better worded interrogatory, Your Honor, and that may have been a typographical error.

[00:49:53] Speaker 02:
I don't recall, but I explored all of those.

[00:49:56] Speaker 02:
issues in depth when I depose these plaintiffs.

[00:50:01] Speaker 02:
And Your Honor, you may be right that it may be a better business practice to host a sign or have something in writing, but that doesn't make it unlawful.

[00:50:11] Speaker 02:
When you read Mr. Aguilar's affidavit, and you understand this is a crowded establishment.

[00:50:16] Speaker 05:
I do understand.

[00:50:17] Speaker 02:
Middle of the night.

[00:50:18] Speaker 02:
I do understand.

[00:50:19] Speaker 05:
I'm saying that it's a

[00:50:25] Speaker 05:
It's an unusual policy, and as you've experienced, some of the people feel that it's inhospitable, and they may feel that they may wonder why it's being directed at them or whether it's being applied to them, if there's no sign, if there's nothing really removing that concern or that inference.

[00:50:47] Speaker 02:
And I understand that it's certainly a shame that we live in a society where people would be made to feel that way.

[00:50:55] Speaker 02:
But the point of this exercise is there's simply no evidence that can go to a jury to

[00:51:02] Speaker 02:
prove in any way that this policy wasn't applied uniformly to any to everyone, or that people of Latina or black or black patrons were singled out solely for the application of the policy.

[00:51:19] Speaker 01:
Let's play devil's advocate for a minute.

[00:51:22] Speaker 01:
You would agree with me that the normal practice in a restaurant is to present payment at the end of the meal.

[00:51:35] Speaker 01:
A form of payment at the end of the meal.

[00:51:37] Speaker 02:
I would concede that that is normal in certain establishments with wait staff, not exclusive, but yes.

[00:51:45] Speaker 01:
So I guess the other side of it is that if you're going to do something

[00:51:52] Speaker 01:
that's abnormal that might cause there to be some sort of questions or hard feelings or just kind of make it more difficult for your waitstaff who are trying to keep customers happy and not have them mad at them so that they'll get tips so that they, you know, that's why they're working to make money.

[00:52:17] Speaker 01:
that one would, it would be in everyone's interest within the company to post that policy so that there wouldn't be any questions or concerns or disputes or arguments or suspicions so that the customers will be happy, so that they will be big slippers.

[00:52:41] Speaker 01:
And the fact that it's not written anywhere, it's not on the menu, it's not on the sign, it's not on the website, it's not anywhere.

[00:52:53] Speaker 01:
I mean, we assume usually that people act reasonably and in their interests.

[00:52:59] Speaker 01:
It would be reasonable and in the restaurant's interest to post a policy.

[00:53:05] Speaker 01:
So if they didn't do that, then why isn't that evidence that there ain't really no policy?

[00:53:13] Speaker 02:
I will accept, Your Honor, that posting may be a better business practice.

[00:53:17] Speaker 02:
But as pointed out, there's no legal requirement to post a policy.

[00:53:21] Speaker 02:
And as Mr. Aguilar said in his affidavit, until the events that gave rise to this particular lawsuit, the restaurant had never had any complaint with regard to any patron being asked to prepay.

[00:53:36] Speaker 02:
So they had never experienced that problem before these incidents.

[00:53:43] Speaker 04:
Do we know from the record how long this policy had been in effect?

[00:53:47] Speaker 02:
Standing here at this moment, Your Honor, I do not recall.

[00:53:50] Speaker 02:
I do not believe that is in Mr. Aguilar's affidavit.

[00:53:55] Speaker 04:
So it could have been yesterday before these particular plaintiffs, by these particular defendants.

[00:54:04] Speaker 02:
I know it was prior to these plaintiffs coming to the restaurant, Your Honor.

[00:54:10] Speaker 02:
because they said it was an established policy.

[00:54:14] Speaker 02:
Who says that?

[00:54:15] Speaker 02:
Mr. Aguilar.

[00:54:18] Speaker 04:
Who says it?

[00:54:19] Speaker 02:
Mr. Aguilar, the operations manager.

[00:54:21] Speaker 04:
Oh, I understand that.

[00:54:23] Speaker 04:
But there's no evidence.

[00:54:26] Speaker 04:
You know, when you're challenged, you say, well, this is an established policy.

[00:54:30] Speaker 04:
All right.

[00:54:30] Speaker 04:
That's what the nature, it seems to me, of Judge Wilkins' questions are getting to.

[00:54:35] Speaker 04:
All right.

[00:54:36] Speaker 04:
And to what extent

[00:54:40] Speaker 04:
the plaintiffs benefit from that.

[00:54:43] Speaker 04:
And your argument I think is that all the admissions that were made during discovery destroy the inferences on which the plaintiffs need to rely.

[00:54:59] Speaker 02:
Correct.

[00:55:00] Speaker 02:
There's simply no evidence to present to a jury in this case to suggest in any way that Caucasian customers were not asked to prepare in accordance with the policy.

[00:55:14] Speaker 04:
Well, I wasn't clear from the record that there were any Caucasians in the restaurant at this time of night.

[00:55:23] Speaker 04:
I mean, that was one of the issues.

[00:55:25] Speaker 02:
Well, certainly Ms.

[00:55:27] Speaker 02:
Tide and Ms.

[00:55:28] Speaker 02:
Spence identified there being Caucasian customers in the restaurant that evening.

[00:55:36] Speaker 02:
What time?

[00:55:38] Speaker 02:
At what time, Your Honor?

[00:55:42] Speaker 02:
It was early morning hours after 2.30 AM.

[00:55:47] Speaker 04:
OK, so after the bar had closed.

[00:55:52] Speaker 02:
Not that the other clubs in the area had closed.

[00:55:55] Speaker 02:
Yes.

[00:55:58] Speaker 02:
I've seen, I've gone over my time.

[00:56:00] Speaker 02:
If you have no further questions.

[00:56:02] Speaker 05:
Thank you.

[00:56:03] Speaker 05:
Any further questions?

[00:56:06] Speaker 02:
Thank you.

[00:56:07] Speaker 05:
Thank you, Mr. Krauss.

[00:56:09] Speaker 05:
Ms.

[00:56:10] Speaker 05:
Farone, you have two minutes for rebuttal.

[00:56:14] Speaker 06:
I will focus my two minutes on the issue of disputed and undisputed facts.

[00:56:19] Speaker 06:
Contrary to representation of council,

[00:56:22] Speaker 06:
and I'll be happy to provide this to the court, there was a point-by-point dispute as to disputed facts contained in the plaintiff's opposition to defendants' motion for summary judgment.

[00:56:38] Speaker 06:
Not only they had something like 230 sentences or assertions, there was a response or dispute

[00:56:51] Speaker 06:
as to each one of those statements, and they were matched up to the statements of the defendant.

[00:57:00] Speaker 06:
So for there to be any representation that there were no disputed facts or we presented no disputed facts at the lower level is inaccurate.

[00:57:12] Speaker 06:
And as again, I would happily supplement this record with the

[00:57:18] Speaker 01:
We can look at the docket and see.

[00:57:21] Speaker 01:
I just hadn't done that before this argument.

[00:57:24] Speaker 05:
And in the future, that's the first thing you should put in a summary judgment, JA.

[00:57:29] Speaker 05:
It's just, it's the roadmap.

[00:57:31] Speaker 03:
Well, that's one council's way.

[00:57:33] Speaker 03:
Yeah, it's important.

[00:57:35] Speaker 03:
It's not a rule, all right?

[00:57:37] Speaker 06:
Well, a part of summary judgment is the statement of disputed facts.

[00:57:44] Speaker 06:
And there was a section

[00:57:46] Speaker 06:
of that was submitted to the court, not in the appellant appeal documents, but there was a section called disputed facts.

[00:57:57] Speaker 01:
We'll look, or at least I'll definitely look at the district court for that.

[00:58:01] Speaker 01:
What about your friend on the other side saying that none of the plaintiffs actually testified that they really had an opportunity to observe Caucasian diners

[00:58:16] Speaker 01:
at night, you know, get their food and not being asked to present a credit card.

[00:58:23] Speaker 06:
Ms.

[00:58:24] Speaker 06:
Teab and Ms.

[00:58:25] Speaker 06:
Spence both testified that while they, I believe Ms.

[00:58:28] Speaker 06:
Teab for sure, Ms.

[00:58:30] Speaker 06:
Spence in part, testified that while they were waiting to get their order after, and then they were told the order was never put in because they didn't give them a credit card or didn't prepay,

[00:58:43] Speaker 06:
They observed a group of Caucasian customers come in, be seated at regular tables, receive their menus, place their orders, receive their drinks, their water, their appetizers, and their meal, dessert, I assume,

[00:59:03] Speaker 06:
and then pay afterwards.

[00:59:06] Speaker 06:
There's a difference between settling up and prepaying.

[00:59:11] Speaker 06:
I noticed the council talks about

[00:59:14] Speaker 06:
there were multiple credit cards.

[00:59:16] Speaker 06:
I am not sure the record bears that out with regards to the observations of Miss Teab and Miss Spence.

[00:59:23] Speaker 06:
But even if there was a settling up, settling up may have to do with the difference between what you ate.

[00:59:33] Speaker 06:
But it does not say that these individuals were asked to prepay.

[00:59:37] Speaker 06:
There is a dispute as to what these individuals, namely this white group of customers,

[00:59:44] Speaker 06:
were doing and the practice applied to them versus the black customers and how they were being treated.

[00:59:55] Speaker 01:
In addition.

[00:59:55] Speaker 01:
Let's assume for the sake of argument that I agree that there is a dispute of fact as to what happened on that night with Ms.

[01:00:09] Speaker 01:
Steve and Spence.

[01:00:11] Speaker 01:
and also on the other evening.

[01:00:18] Speaker 01:
Can you get past summary judgment based on merely those two instances where the policy was not taking the facts in the light most favorable to the plaintiffs or the policy was not

[01:00:41] Speaker 01:
implemented fairly or was implemented discriminatorily?

[01:00:48] Speaker 01:
Or do you need to, in order to get past summary judgment, you need to establish a pattern and practice?

[01:00:58] Speaker 06:
I think that the pattern and practice is important in this particular case.

[01:01:06] Speaker 06:
Again, if there had just been one incident

[01:01:09] Speaker 06:
we probably would not be sitting here.

[01:01:12] Speaker 06:
But, contrary to the representations of council, Ms.

[01:01:17] Speaker 06:
Valle testified that she did some research online and found numerous other complaints by minority customers indicating that this had happened to them.

[01:01:30] Speaker 01:
Was any of that admissible?

[01:01:35] Speaker 06:
It would be, I believe, admissible with regards to what if they're going to assert that there are no other complaints, then it would be admissible as to to counter their assertion that there is no other complaints.

[01:01:53] Speaker 01:
But I mean, that's all.

[01:01:54] Speaker 01:
I guess that's all hearsay.

[01:01:56] Speaker 01:
I don't see how that proves the truth of those matters asserted in those other complaints without getting declarations or

[01:02:04] Speaker 01:
from those parties that that is what happened.

[01:02:09] Speaker 06:
No, I think if we have, and she did research online, so what she was looking at would be online reviews.

[01:02:19] Speaker 06:
And those online reviews, provided they had not been taken down now, would be still available online.

[01:02:27] Speaker 01:
But I don't understand how any of that is competent evidence in a court of law.

[01:02:33] Speaker 01:
That's what I'm getting at.

[01:02:34] Speaker 06:
Well, the issue, the statement was made by a council that there were no other complaints.

[01:02:41] Speaker 01:
Let me, let me just try to narrow down here.

[01:02:44] Speaker 01:
I'm just trying to understand the law here.

[01:02:47] Speaker 01:
Do you have to prove a pattern and practice of discrimination to get past summary judge?

[01:02:53] Speaker 01:
Yes or no?

[01:02:58] Speaker 06:
Yes.

[01:03:02] Speaker 06:
Sure, that's your answer.

[01:03:05] Speaker 06:
Well, it's a nuanced answer.

[01:03:08] Speaker 06:
When you say a pattern of practice, we do not need to show that there was, as to all of these incidents, there is this underlying practice.

[01:03:21] Speaker 06:
If the appellees discriminated against the black

[01:03:30] Speaker 06:
a group of patrons just once in this particular instance, involving a restaurant serving food, that would be sufficient to get past summary judgment.

[01:03:44] Speaker 06:
If we're talking about employment and other types of discrimination, I think you're involving the pattern and practice concept.

[01:03:56] Speaker 06:
However,

[01:03:57] Speaker 05:
That's not how I understand the law.

[01:03:59] Speaker 05:
You can either prove just an individual instance, or you can prove a pattern of practice, and you may get different relief.

[01:04:07] Speaker 05:
But the difficulty is when you're trying to prove an individual instance, you have to show either direct evidence of discrimination.

[01:04:15] Speaker 05:
Someone spoke in a biased way or a policy was reported in a way that reflects bias based on race.

[01:04:21] Speaker 05:
Or you often raise inferences by showing similarly situated people who, but for their race, are in the same position as the plaintiffs and are treated differently.

[01:04:34] Speaker 05:
And that's why there's so much attention and why I think Mr. Krauss is saying, you know, people aren't actually claiming that they either saw

[01:04:46] Speaker 05:
white plaintiffs, white patrons not having the policy applied to them and or other patrons of color having it applied, the inference doesn't arise.

[01:05:00] Speaker 05:
I mean, this may just be a completely irritating policy.

[01:05:03] Speaker 05:
And if I'm black and I go into an establishment that doesn't have a written policy and they start doing a really sort of irritating and mistrustful seeming policy to me,

[01:05:16] Speaker 05:
One of the things that crosses my mind is going to be, are they doing this to me only because I'm black?

[01:05:23] Speaker 05:
What is the story?

[01:05:24] Speaker 05:
But then the question of, is that accurate, is you have to go a step further.

[01:05:31] Speaker 05:
I absolutely can see how each of these plaintiffs would wonder that.

[01:05:37] Speaker 05:
And then the question is, have they gone the next step and shown it so that someone who wasn't there and wasn't them would say, oof,

[01:05:47] Speaker 05:
I see that it really is being unevenly applied.

[01:05:51] Speaker 06:
Two points.

[01:05:52] Speaker 06:
One, with regards to Ms.

[01:05:55] Speaker 06:
Sullivan and Mr. Williams, they both testified that they did not observe anyone else being treated that way.

[01:06:02] Speaker 06:
They also, I believe, testified that they were the only black customers at the venue.

[01:06:10] Speaker 06:
And I think that the question here is

[01:06:18] Speaker 06:
did we, it's not, the standard is not the same summary judgment as if we were at trial.

[01:06:26] Speaker 06:
In order to, as the court knows, to survive summary judgment, you have to assume that the assertions and allegations of the plaintiffs are true and take the inferences in their favor.

[01:06:47] Speaker 06:
Now,

[01:06:49] Speaker 06:
Whether you want, if you call it speculation, I know that as a black woman, there have been many a time when somebody has done something to me and

[01:07:01] Speaker 06:
I believe that it is discriminatory, but that person did not say to me that they were doing this because I was a black woman.

[01:07:12] Speaker 06:
And I could observe that they did not do the same thing to someone coming along.

[01:07:19] Speaker 06:
So in discrimination cases, I think the issue of inference

[01:07:26] Speaker 06:
becomes crucial to the individual's perception.

[01:07:32] Speaker 06:
And I think the inference part of the evaluation is to remain with the jury.

[01:07:41] Speaker 06:
It is not to remain.

[01:07:42] Speaker 06:
It is not to be the judge's.

[01:07:46] Speaker 01:
I need to interrupt to just clarify something.

[01:07:54] Speaker 01:
Let's assume that if the evidence showed that on every other day that the restaurant operated, they had a policy and it was applied with respect to everyone uniformly, but

[01:08:21] Speaker 01:
So we had, like, videotapes, whatever we need, like, prove that beyond the shadow of a doubt.

[01:08:29] Speaker 01:
But that the evidence at least created a dispute as to whether or not they treated blacks and whites differently on these three particular occasions, right?

[01:08:47] Speaker 01:
That's what I was getting at when I asked you the question earlier about whether you have to prove a pattern in practice to survive summary judgment.

[01:08:57] Speaker 01:
Let's suppose they performed beautifully, completely race-neutrally on every other day, but for whatever reason, on these three days, these wait staff who waited on your clients decided

[01:09:14] Speaker 01:
that they were going to apply the policy or apply a policy discriminatorily with respect to them.

[01:09:26] Speaker 01:
The way that these various different anti-discrimination statutes work that are the basis of your claims, do you surpass, is that enough for you to

[01:09:38] Speaker 01:
get past summary judgment, or do you need to have evidence that there is a kind of a practice of discrimination as opposed to one-off discrimination on these three occasions?

[01:09:50] Speaker 06:
I think all we have to establish is that there was, as to each of the plaintiffs, there was one experience of discrimination.

[01:09:58] Speaker 06:
I do not think the law requires us to show, parents to show a pattern of practice as to each of these plaintiffs.

[01:10:06] Speaker 06:
I think that if we can establish sufficiently through the testimony and other evidence that has been proffered by the plaintiffs that there was evidence that the plaintiff was treated disparately, that one individual was treated disparately, and there was a distinction in race or something that is prohibited, then it would be

[01:10:36] Speaker 06:
incumbent upon the defendants to come forward and say that there was a legitimate reason for this.

[01:10:45] Speaker 06:
And if there, we would still then have the opportunity to come back and say that this is pretextual.

[01:10:54] Speaker 06:
This is not really the reason why they're doing it.

[01:10:58] Speaker 06:
The reason why they're doing it is really because they're discriminating.

[01:11:01] Speaker 06:
So in the sense of

[01:11:03] Speaker 06:
of pattern in practice.

[01:11:04] Speaker 06:
We don't have to have a pattern in practice.

[01:11:07] Speaker 05:
Yes, I'm sorry.

[01:11:08] Speaker 05:
So one last question I have for you.

[01:11:11] Speaker 05:
Oh, go ahead, Judge Rogers.

[01:11:12] Speaker 05:
No, go ahead.

[01:11:14] Speaker 05:
If someone behaves in a really rude way to someone who's in a protected class, a woman, African-American woman, someone of a particular religion,

[01:11:31] Speaker 05:
and doesn't express it in a way that ties it to their protected cloud, which is really rude.

[01:11:40] Speaker 05:
That person might subjectively draw an inference.

[01:11:44] Speaker 05:
This is because I'm Jewish.

[01:11:46] Speaker 05:
This is because I'm black.

[01:11:49] Speaker 05:
What do you need other than that inference?

[01:11:53] Speaker 05:
Is that inference enough in your view to take it to a jury?

[01:11:56] Speaker 05:
Or do you need more?

[01:11:57] Speaker 05:
And if so, what more?

[01:12:01] Speaker 05:
to distinguish between someone who just was rude and someone who was discriminatory?

[01:12:08] Speaker 06:
I will, in order to, you don't, you need more than just I feel like I've been discriminated against.

[01:12:17] Speaker 06:
You did.

[01:12:18] Speaker 06:
You need other evidence in the record, other,

[01:12:23] Speaker 06:
uh, behavior, uh, short of the person coming and saying to you, you know, I'm doing this because you're not, you don't have a mind reading.

[01:12:32] Speaker 06:
Yeah.

[01:12:32] Speaker 06:
If, if, if they are, they just, if they're just rude, that's, they're just rude.

[01:12:38] Speaker 06:
However, you, if you have other evidence that would point to, uh, that their rudeness was tied to the protected class, then, uh, you would have sufficient evidence to take it to a jury.

[01:12:52] Speaker 06:
I believe in this case,

[01:12:53] Speaker 06:
the appellants and plaintiffs below have provided more than enough evidence to show that this wasn't just, oh, we feel slighted.

[01:13:03] Speaker 06:
There were continuations of behavior.

[01:13:07] Speaker 06:
There was additional contextual behavior as to all of these three incidents.

[01:13:13] Speaker 06:
Also, with regards to Judge Wilkins, your question about videos, we asked for the videotaping and other kinds of evidence of the events and we were provided with nothing.

[01:13:30] Speaker 06:
So it is not for a lack of seeking evidence that would support the defendants or appellees in this case position that there is some

[01:13:42] Speaker 06:
legitimate business practice.

[01:13:44] Speaker 06:
The fact of the matter is their statement with regards to a legitimate business practice only came to four as a result of the summary judgment.

[01:13:58] Speaker 06:
They never provided anything.

[01:14:00] Speaker 06:
They had discovery before.

[01:14:01] Speaker 06:
They never had anything saying this is our business practice other than there was an answer to an interrogatory and then we have an affidavit.

[01:14:09] Speaker 06:
Was there an interrogatory that

[01:14:11] Speaker 01:
that posed the question about business practice, whether or not there was a policy with respect to prepaying meals.

[01:14:29] Speaker 01:
Yes.

[01:14:29] Speaker 01:
Did you propound an interrogatory?

[01:14:31] Speaker 01:
Yes.

[01:14:32] Speaker 01:
Yes.

[01:14:33] Speaker 01:
And what did that interrogatory say and what did they respond?

[01:14:37] Speaker 06:
Their response was we have a policy and the question was to provide not just we have a policy but

[01:14:48] Speaker 06:
Where's the evidence of this policy?

[01:14:49] Speaker 06:
Is it written anywhere?

[01:14:50] Speaker 06:
Is there a handbook?

[01:14:51] Speaker 06:
Is there training that's provided to managers?

[01:14:53] Speaker 06:
How did the waitstaff get trained to know how to apply this?

[01:14:57] Speaker 06:
And we got absolutely nothing.

[01:15:00] Speaker 06:
We're stonewalled.

[01:15:01] Speaker 06:
And actually, we're not stonewalled.

[01:15:03] Speaker 06:
We were told explicitly there is nothing other than the verbal statement that there is a policy.

[01:15:10] Speaker 01:
But I guess I'm just trying to be precise here.

[01:15:15] Speaker 01:
before the summary judgment briefing, you asked them if there was a policy and they said, yes, there is a policy, but we don't have any documentation because what you said earlier seemed to suggest that the first you heard of a policy at all was after you filed your summary judgment brief.

[01:15:35] Speaker 01:
That's not the case.

[01:15:38] Speaker 06:
There was a delay in discovery.

[01:15:43] Speaker 06:
the, there was discovery that was propounded and there was a response.

[01:15:49] Speaker 06:
And in the response, they said there was this policy.

[01:15:52] Speaker 06:
We asked about the policy, not just, you know, is there a policy, but we asked about evidence of the policy training related to the policy, et cetera, et cetera.

[01:16:01] Speaker 06:
And we were told there's nothing other than our statement that there is this policy, which we believe the statement to be pretextual anybody.

[01:16:14] Speaker 05:
Anything further, Judge Rogers?

[01:16:17] Speaker 05:
Right.

[01:16:18] Speaker 06:
Thank you, Your Honors.

[01:16:19] Speaker 05:
Thank you very much.

[01:16:21] Speaker 05:
Ms.

[01:16:21] Speaker 05:
Ferrone, Mr. Krauss, case is submitted.