very simply running we're asking this court with respect to four of the positions on i'm applying the same analysis that the district court applied with respect to the two positions where the judge denied summary judgment the defendant applying the same analysis and the same facts are almost identical with respect to the four positions that are on appeal here  and basically the summary judgment should not have been granted as there were material issues of fact primarily on two issues first under the law whether mr shots qualifications were so superior that no reasonable person would have chosen the selected candidate that was chosen by the employer and alternatively and in conjunction the reasons that were proffered by the employer for denying mr shaw the promotions the for promotions that issue here the reasons were a pretext for on lawful discrimination applying to analysis with respect to the first issue on the line general manager positions five individuals were selected judging by meets objective criteria listed on the job vacancy notices for the line general manager position of education and experience comparing those criteria as mr show was well superior with respect to any of the candidates that were selected there was only one candidate that held a master's degree which mr shaw has all the others had either nope no college degree or a college degree most of the times it was even in engineering or in transportation management which was the degree held by mr shot terms of the experience of mr shah had been a general superintendent the position immediately below the position it was applied for and at that level he had at the time of the promotion thirteen years well all the other candidates had anywhere from one to three with the exception of one candidate that had i believe it was seven i just ask you one of the two positions to go to trial was line general manager april two thousand and nine was would there be any overlap in the evidence in the trial of that position with these other l g m positions that there might be some overlap but i believe the decision makers were different so there would be other witnesses as well that there would be some overlap at least with respect to the plaintiffs because of patients in the decisions right i'm sorry were some of the talking about the defendant's employees yes because of this relates to line general matter position the history of the new york city transit changed in relation to line manage general manager position commit so with respect to that there would be overlap s to why the change in structure was occurred and the reasons as well and there probably would be some overlap yes do comparing the decision makers for example in the october two thousand and seven line general manager that you're now addressing and the april two thousand and nine one that i guess went to trial right that's one that's correct  looks to me as if the hiring officers in two thousand and seven were pierce and file and they don't show up on the judge's list of decision makers in two thousand and nine and the people who were chosen in two thousand and seven i guess by definition are not going to be there's a long list of people who were selected over mr shaw in the two thousand and nine example i don't see quickly any overlap in fact two of the people who are selected in two thousand and seven trial i magine with respect to the two thousand and seven or in general manager position he would be a repeat witness is because he was not about what about different subject matters into yes but what a great candidate he service similarly moving on to the position of assistant general assistant chief mechanical officer in two thousand and eight that is an interesting move on from the line general manager in two thousand and seven because i mr shah's own effort david that he was not aware of or that he was not reprimanded or spoken to about any alleged issues if you look at his performance reviews for a ten year period eight of the ten years is an excellent rating overall rating which is the highest rating of the other two was a good which is the second highest rating majority of those performance reviews talks about how mr shah has an excellent working relationship and that's a quote with other position that he had heard of some quote friction with the union so in addition there was also two other employee or two other employees at the new york city transit authority one an age or who testified about the two thousand and seven this is one of the cases where the e e o c thought there was discrimination for that that's great that one general manager position as well as the next one assistant chief mechanical position for both of them the e e o c ruled that they believed  discrimination was a factor as the january two thousand and eight one yes and that's one of the ones you're challenging her or not that's yes ok and just and if i could ask and i think it is the law that we consider all of these cases separately should i be troubled at all by the the specter of this case and here we had mr schott originally claimed that he was discriminated against in thirteen separate instances  e arguments seem to me to be in general similar though each case presents its own nuance that the district court allowed to to go to trial granted summary judgment to the defendant on eleven  seven of those eleven i mean to suggest that you concede that these were not discrimination but you're not choosing to challenge on appeal the two that went to trial mr shop last year and now we're going to take over for more and maybe find one or two that maybe some readers should be denied on and then we go back and have yet another trial out of all of these thirteen original claims should we be bothered at all by that situation it's not ideal your but however the summary judgment motion did not become a final quarter you know i don't tilt and right you couldn't feel them at the time and so on but it's just you know strikes me that very the two next best shots at this point respectfully i would submit that in our opinion the two best shots were four three for the the line general managers in two thousand and seven and the assistant chief mcgonagle in two thousand and eight where  c had found that there was discrimination but i agree that it's not an ideal situation where we were to have a trial on other positions and we may potentially have to go back with respect to a stronger which we believe a stronger and morning you're on is may please the poor my name is steve ephron i'm appearing for the defend that lee and york city transit what i would say initially is that we're dealing with positions here that are somewhat rarified it t and every one of the positions at issue in this case on this appeal many people were not even interviewed so that the transit authority is not arguing here that mr shot was not qualified  that he wasn't capable of doing the job the testimony and deposition in an affidavit was that yes he was qualified so decision makers are confronted with three four or five qualified people and they have to make a decision on that basis it's not a mechanical decision if the for instance for the line program that we were just talking about  experience or a suitable equivalent of experience and education which the president of the transit authority testified in a deposition is human resources boilerplate can a coup or really say that mr shah had twenty two years of managerial experience but the selected candidate had fifteen years managerial experience both do well at ceding the minimum requirements that the additional seven years of managerial experience that mr shah had makes him so superior to the selected candidate i think that's a matter for a decision maker with experience in the field years and years of the transit authority to determine whether mr sharon's twenty two years of managerial experience really gives him the upper edge the advantage over an employee who came from a different department has a different skill set that perhaps the decision maker is looking for but as only fifteen years of experience and that's true up a factor of antagonism and hanging with the union wasn't part of the two thousand seven decision peirce indicated in an affidavit that she reached out to vice president of human resources a fellow by the name of michael and dino to find out whether any of the candidates had friction or difficulty with the union because the new president mr roberts wanted to mend relations with the union there had been a disastrous catastrophic christmas season strike in two thousand and five and i mention that because apparently good relations with the union were not a high priority maybe it was a badge of honor of a manager who had friction with the union but that changed when mr roberts came in two thousand and seven and the fact that performance appraisals don't address that issue one way or the other shouldn't be surprising in the environment where there isn't agonising between the union and management was in tagging as a matter as as a matter the selected candidates that no rational person would have selected the candidate that was chosen rather than mr shah that contradicts that statement that opinion of m unions is seems to me more of a factual question did he ever have somebody didn't get along with or not and we've got no you know we've got a hearsay statement that somebody in management thought that he did and his statement that nobody ever said that to me i never had any problems with the union period that's a factual statement it's factual to allude to a certain extent it can also come down to being something that needs to be decided by a jury if there were a pretext for discrimination i would say yes but there's no evidence whatsoever that ms pierce who offered that opinion and that david was operating in anything but good faith she says call the vice president of labor relations michael and they know god is opinion and that's not hearsay because it's not for the truth of it at all it's for what she thought because she had a basis for what you write a decision maker often used to consult other people who are more familiar with the candidate what do you think of this candidate that's not hearsay that's the that's the how these decisions are very often made  and that so i don't believe judge all that we have a disparity in qualifications or credentials that are so great here i don't even think one can make an honest assessment that there is a difference of more significant difference let alone so superior to trigger the bernie standard so we just have ms piers making th statement which applies only to the line general manager program in two thousand and seven about friction with the union she makes the statement in good faith is that enough to carry this to the jury a jury can say well judge who all this past year and i didn't realize it but in that decision as well was against new york city to housing authority there's much more going on than just one instance where the plaintive can say ha ha what you said is false it's not accurate we're going to a jury i've never seen a case in years and years and years where a plaintiff doesn't come back in a nap and david  deposition and say so and so's opinion to me that i you know i had a poor performance is not accurate my performance was actually good issue of fact pretext for discrimination there has to be more than that  i just i just want to point out that with respect to the comparative or credentials or qualifications mr shah is raising issues with respect to  the education credentials of the individual are as good or better than mr shabazz he focuses on years of experience where the years of experience are greater than mr sh focuses on the education but the that type of rote mechanistic approach is not taken by decision makers which is why you have some people with advanced degrees and yet other people with no college  degree if they're looking for the line general manager program in his peers testified that in an affidavit that they were looking particularly for people from rapid transit operations as opposed to car maintenance car maintenance fixes repairs maintains the trains rapid transit of the people actually move them and passenger service from station to station and so judge cooperman in his opinion said i'm not going to make a comparison between shah's credentials and some and the credentials of somebody for rapid from rapid transit operation because they're looking specifically for somebody from for somebody from r t o and that explains herb lambert who's new brew sabi who's from r t l there was no competition in essence between his and those candidates because they were looking for those specific skills that mr shodan at same is true assistant station manager for it for a decade or so they were looking for somebody who was capable of maintaining safe and efficient stations that was not mr shah's background but it was  how do we parse these things and say so and so is more qualified than sell and sell when they have different skill sets that may be needed at different times and with that i will allow mr shot the fact of whether or not mr sharp had issues with the union is a factual issue and the judge basically decided that there wasn't and granted summary judgment so that it is a very subsidiary factual issue certain ways on paper that he had more years in management but that doesn't look like something that you could come close to saying his credentials are so superior to hers right i mean it's there's no black and and i'm not going to suggest that there's a black and white tests it's a totality of circumstances and you have to look at it not just that with respect when there are only five people if she's just one of them but it's just this is the difficulty of par sing through such a complicated record there are a lots of comparisons that are being made to lots of different people who i think this is i think both of you would agree there are multi points of comparison for pretty much everybody in here absolutely i'm not i'm not going to stand here and say that you know you can look at something and there's a litmus test for it it's a totality of circumstances the education and the experience requirement is just one of those factors in fact mr file who was a decision maker with respect to this position and in comparing missis but as and mr shaw he actually testified in his deposition that between those two criteria is he would have selected mr shaw over an assessment as and that's in our papers as well but there are these other factors these reasons alleged reason better make which suggest pretext one of them i mention about this union issue a question of fact the other one is the reasons that they give it's almost like a moving target with respect to the a c m o position assistance of mechanical position in two thousand and seven they say the candidate that was selected that justified it forgetting the union for a second they said that the individual had more north division maintenance shop experience over mr shaw so we selected him that was the reason fast forward to two thousand and ten we have missed again forget north division forget new york forget the united states of america his relevant experience is from toronto canada and they selected him the justification for why they selected one in one scenario versus other is a moving target which they didn't pick mr gar sounds like but that but that's based on things that happened after the fact my my concern there is of course it's a moving target and it's a moving target and in all honesty on your side as well as mr from points out that yeah you can point to in this case mr shah's ahead on one criteria and in that case he's behind on the same criterion but he's ahead on something else what this is going to happen in these complicated comparisons a categories that we've been talking about indians south asian or people of indian origin south asian origin generally asian origin generally but there is no sort of evidence of anybody having shown bias against any of those groups or i'm wrong about that that i do not have a smoking gun i do not have a memo that says we discriminate i do not have somebody saying we're never i do not have that no everything is circumstantial evidence is circumstantial and circumstantial for the most part is just about comparing the credentials and trying to decide if this isn't inexplicably decision to pick x over mr shah the comparison yes as well as indications in some cases of pretext or of reasons given that are just beautiful yes and frankly that is the issue that there are a lot of these issues that should have gone to the jury not decided as a matter of law as is precisely the point i see i'm well over my time thank you i would respectfully request that with respect to these four positions the lower court's summary judgment grant be reversed thank you