even eligible for promotion was a pretext and it was accomplished by showing that the reasons that they gave for contradicted by other managers were contradicted by the records and in addition this is a one of the world's largest corporations and we have no written policies on promotion no written policies he say national he's a national origin age right now he got hired when he was forty six right so he's over the age twenty starts and i have a little on that national origin well he's bilingual and he seems to have gone to a mexican college and the name you know much people don't come by all hondros unless they've got some sort of association there and i think that i think coca cola said somewhere in the record that he was hispanic or so he was not in the phoenix region so he was pulled from i have not really familiar with that record but he was pulled from a different region so what is the record show about his you know since we're talking about that it's national origin we talk about the people that are white and their ages but what about him is he doesn't seem to be he seems to be hispanic like your client here but he was not involved in any of the  within the phoenix area and the other problem and that's talking about the burger king promotion that the problem with ministers of water that he raised wasn't that mr alexander was not qualified is that when this  also made it to an essay to cook yes so he started as a put it the layout then he went to a lamp to then he made it today as day but at the time that he made it to the essay i think that's where they cola changed its rationale that starts out by saying he refused to complete the development plans as a course of discovery goes on suddenly they realize well he didn't complete these development plans and so now the story is well he's not considered eligible for the elders are i think that gets past some adjustment you're on well now that ok he can't he doesn't show anywhere in the record that he was more qualified than the people that actually got that from and your client files a half page thing on the internet that i stole it seems to me that your best argument is in the area of getting on the last and that if that was our focus you are just sitting on the burger king years younger significantly younger but those ratings one or completely subjective on it to mr result and so i asked mr hopper what are some of the reasons why are these people there out all in the record for this and that was really what started it with mr zelaya because he sees her getting promoted and he considers himself to have been a federal worker in terms of performance they never they never said performance has nothing to do it misters and i always said hey i'm a really high producer and they get their response always was production has to do with found misess it doesn't have to deal with so there is there's no doubt about it he was working for the company he wasn't considered promotion they gave the reasons he this pretext and what do we do get to that then you look at whether he has presented enough information to show that their justification is not credible and their band and one way you can do it is to show that the reason pretext area and one of the problems is that the appellant has not addressed in this appeal one of the primary problems that led to the granting and that is the fact court in his order after we filed a detailed motion to strike agree he's with us when the appellant comes here he says we're not going to address that because the court did not position were not true what would the appellant do he would point out to this court in detail that the paragraphs the court referenced are based on personal facts they are based on the record for example he told you a moment ago that all of the supervisors had different opinions about how things worked the record shows that one of the supervisor said i don't recall how it work i've not been in that definitions no nothing he just has one page of a readiness list that's not the date of the promotion it's a document he's using to make that argument but we have ample testimony in the record that they w the second problem your honor is that he wants to ignore that there are three promotions that issues we establish that the district court excepted it why we have a window of three hundred days from the time of the charge we know what promotions he could have gotten and we have gone through each one of them and explained they want to ignore that for good reasons one the first one within four months of the assessment no one's claiming these things were completely time but when you have an assessment by three people not making a decision on promotion that says you can do this job but in order to be successful in it and we're talking about the cells associate jobs you need to do a v c d n e and we're going to work with you on those that's of the first development plan that's in may of one nine hundred ninety nine then the first promotion september of ninety nine he's still working on that development plan we have the next promotion which you've discussed which i think they are conceding which is the burger king job he did apply for the job he was not chosen for the job a challenge that below we've shown that  more qualified spanish employee was chosen now we get to the third and final promotions those are in mid two thousand what happens between the period of the i would suggest to you that someone who i don't we've got lots of color race creed who is wanting a promotion does not basically tell their new supervisor i'm not going to follow other facts that have to weigh on whether or not he is equally qualified have occurred and we have two others who don't have that now let me clarify again counsel says that mishap for it says that you had to have a certain qualification or certain rating to be on the list the record shows which she said is that i did not put anyone on the readiness list who didn't have at least this she didn't say it was a company policy and the people that counsel was referring to who had lower ratings were not from this region around from those tougher so again it comes down to many of the questions that are raising  unless you have any questions i have nothing for that thank you thank you correctly in every occasion in terms of the release of a list i want to clarify something a put her on it he didn't even know about the list so you have this huge factual issue staring them right up the court as to how the kiddie clothes could just get promoted and how did this happen because there's nothing in the record to show what happened and you just heard coca cola admit it's completely discretionary because he's th her own rules as to who gets on the releasable well that is there anything in the record that you're saying you don't know how she got on the ice or anything the record that says she was not on the list are you just inferring that friend you asked did you put her on the list did you put her on the list or that the list from that time period i don't believe lists her and what we know that puff her and said she did not put her on unlikable burns said she did not put her on and katie clued as didn't really know about the promotion she was advised about it and what we have here is a form of an old boys network if mr hoffer doesn't have a company policy to is how this played out well ok but that the man that was hired last was forty one people fifteen years younger right that i don't think that's i sadly i don't think forty one