c the position reports directly to the vice chancellor mark donovan the operating engineer position is considered a civil service position and the individuals applying be required to take an exam along with completing an application and listing their qualifications all they have considered met with the minimum scores and there were eleven who were placed on this list were put on the register  however the employer promoted someone outside of the protected group who was not better to fight for the position according to the plaintiff its plaintiff contained contention that he was better qualified his evidence for this was more based upon his his performance appraisal that he received from his his supervisor which was not taken into consideration by mr mr donovan when when considering the candidate how can that be a factor if mr donovan and i think it's uncontested didn't look at anybody's performance appraisals when making a determination here he didn't look at anyone's performance appraisals however this so how can it matters and that the performance appraisal for mr barnes the numbers were a little bit higher even though it was in the same class of of doing fine but the numbers were a little bit higher how can that matter if you didn't look at them it matters when you look a little closer at the interview process itself and the problem with the interview process is that you have one interviewer the interviewer is asking the same questions of the interviewee is he's asking one an open ended question whereas on the other side they're asking mr city  specifics new york scenarios that mistress of you know can can reply to give specific examples to as opposed to mr barnes we have to consider you know everything in the realm of his background and try to figure out what it is that mr donovan wanted to hear and mr barnes is highly qualified he's been doing this for many many years the other african american was doing this you're an engineer position for thirty years but neither one of them have that for there was more of an open availability so to speak for discrimination to creep in because there is only one person making that decision you know lately there have been problems as i believe mr record but i know that somewhere in the record there was a statement that in the early one thousand nine hundred and ninety s there were problems with this particular department having issues when not really sure i see the relevance of  a history of there being problems in hiring for the position at the university and by putting in certain stopgaps you can prevent this discrimination or at least the appearance of discrimination from occurring he wasn't terribly impressed with the job done correct he decided at he did not want to look at job evaluations but regardless i mean you have an individual who had supervised both of these individuals both mr barron's a mistress of edo and had the feedback to get and they were feedback based on personal work knowledge of their work ethic and the stronger mr you know when i was reading your brief what struck me on that point counsel was that well maybe these people were not similarly situated different backgrounds to the questions for a well might not be the same they have the question should really reflect the person's background and what he brings to the job for us the same questions of the two different people who are not similar situation really do an injustice at least one of the the problem here is that mr burns's questions were more open ended they were more specifically tailored to scenarios such as and forgive me this is not necessarily a question that was asked  example if the boiler breaks down and there's water pouring from the underside what would you do that would be the type of the scenario this is what happens and what would you do in that circumstance as opposed to tell me about tell me about your qualifications why should you become be chief engineer you seem to get it unless a person is prepared to answer those types of questions about himself without specifically asked that question you're going to lose facts and they had the interview process been a little bit more equal than perhaps the results would have been different  your time has expired thank you prove that he is more qualified and in fact he admitted in his own testimony that he cannot say he was more qualified than any of the other ten applicants and despite this testimony even when you look at the record of the interviews mr s materials which we've got lined in our brief and i just want to point out just for the record he had a manual that he created for his subordinates on a software program to help educate them and train them he also had a specific training manual while he was at midway airport that he discussed with mr donovan he also brought his certificates for classes he took on leadership and customer service that he took on his own while he was employed at the university since two thousand and eleven mr barnes did not bring anything to th he was not prevented from bringing anything to the interview he chose not to and he also didn't have any certificate classes since the one thousand nine hundred and ninety s now counsel has pointed out that mr was asked specific scenario questions but that's not what the record shows today the record shows that mistress of vito testified he didn't recall what he was asked all he knows as he discussed operations and to that end during the interview he discussed specific concrete examples of his experience as a senior lea engineer at midway airport and handling particular equipment at airports such as potable water and ground quitman ground electrical equipment and how that would apply to his experience if you were selected as the chief engineer he also talked about his specific experiences at the university as an assistant chief in keeping a building operational when there was funding i think contrast when you look at mr barnes mr burns did testify that he was asked to tell him about himself yet he failed to mention any of his experience as an engineer at the sheraton hotel and there's nothing in the record to show that he was somehow prevent it from bringing this experience to the table during the interview he was also asked what he would do to help the university and what he discussed was reducing costs vendor costs and dress codes for engineers that's what he discussed at his interview according to his own testimony and as far as the performance reviews i don't think i have to say much on this mark donovan did not feel that they were relevant they were done by another supervisor for another position over a year and a half ago and he didn't understand what the scores meant to he didn't look at them so i don't understand how the performance evaluation tham how show that mr barnes was more qualified when mr donovan didn't even see them rather mr donovan based the decision on the interviews and found that mr subito above all the other candidates demonstrated leadership organization and strong interpersonal s relies on the interviews not being uniform as this may have reason for pretext how should that impact well the fact that the interviews were conducted by mr donovan himself and whether or not they were uniformed i don't know that the record record fully establishes that because mr subito didn't recall what he was asked and mr barnes did not know how to interview some of the other candidates went what was said he didn't have any evidence of that and so we only have what mr barnes said he was asked which is tell me about yourself what would you do to help the university and what mr donovan said that he had asked us three questions tell me why you want the job tell me essential about yourself and what would you do as the chief engineer i don't think donovan's testimony and burns testimony are are really that different for this case and just because mr donovan conducted the interviews himself based on his a subjective evaluation without any evidence of any discriminatory intent that doesn't necessarily make this decision unlawful and mr barnes admitted that mr donovan has treated him well and in fact it was mr donovan who approved mr barnes to be promoted to the assistant chief and mr barnes admitted that he mr donovan has never said or done anything that would lead mr barnes to believe that mr donovan would have considered race in the decision further mr donovan has a history of hiring and promoting and encouraging african americans in to keep positions in the university and i think this is really telling about who mr donovan is and i think it really belies plaintiff's position that there were some sort of free text in this case as a few examples mr donovan promoted an african american to a chief of police position at the university he also encouraged another individual african american to pursue a chief engineer position in two thousand and seven but that particular individual declined what's significant about that is this chief engineer position is a civil service position and in the civil service system all of the individuals need to take an exam they have to show that they meet the qualifications for the position and they're put on the list mr donovan has no control over who's on that list he has to interview all of them but he can't control whether or not there are any african americans on that list to be able to consider and he did encourage african americans to apply for these positions he must interview who everyone everyone on the registered list from the civil service he gets the list of who the applicants are that are pre qualified and then he must they interview he must interview those individuals how far down the list does he have to go how they interviewed and what that process was and again with respect to the interview process there was no change counsel argues that they were that mr diamond changed the process while under the civil service system there is no required interview process and in this particular case the chief engineers all reported to mr donovan he has over thirty years experience as a contained in the record and he felt most comfortable in selecting a candidate and again the fact that he conducted interviews by himself without anything more without anything to show that there was some sort of discrimination and intentional discrimination it's not sufficient to show a pretext or that he lied about thinking that mr myself in this have had an interview that didn't go very well that doesn't necessarily make the process the interview process wrongful or the decision for the job unlawful or discriminatory and mr byrd's case is not a remedy for a poor interview in some there's just simply no evidence of race discrimination in this case and we would ask this honorable court to affirm the district court its opinion in properly granting summary judgment in favor of the defendants i thank you for your time