summary judgment he put down that not only the mixed motives standard of proof was applicable but he said to government in a footnote said the government to agree with that yet when he wrote made this opinion the trial of opinion which he didn't give anybody a chance to breathe it he didn't indicate he was changing anything he went to that but for now and the mixed motives lo e there's all there's only been one of the cases i've found on the fifth circuit that has addressed the burden of proof and that was a case of  for six twenty three a which deals with private sector age discrimination says prohibits personnel decisions made because of a person's age because of the person's a six thirty three they provide as their personal actions shall be quote free from any discrimination based on the margins that they start your concern is is they were precluded before they even applied if it was going to affect the over to the second thing though is the key thing he said that he would have selected not clot who had been in the job he says as young as eighteen years to all i'm saying he's referring to somebody as a young guy isn't evidence that that's the reason he was hired is a well if you use a mix motive in the cage that that's others that agree but if you look at his credibility terminations they're not they're not rational judge for ses the warden said he did not know the ages of the kids yet he was given a file who had retired and whenever the initially when my client was selected for that job crawford was against it because he was scared he'd be excess if a mason that would involve him with the afterwards crawford gives him out above average indication and crawford came in and testified the judge had absolutely no reason to reject proper testimony other than the fact he's going to say this is e and you've got the question is whether it's click click clearly erroneous but then as yet look at the warden's admission that the only reason i didn't hire your man this broussard was because joe rather we submit that the remarks that were made by the warden were not stray remarks they were remarks that were made by somebody that showed a discriminatory animus that was on the part he's a responsible qualified than crawford we contend they would say that he is better qualified by looking at this at the paperwork with the qualification say he had an associate degree in computer technology where all the courses were focused on the exact ever job that he was he was in plus the fact he had a twelve eighteen months in the job doing the job that we're talking about yes you i'm jennifer frederick i'm here today on behalf of the appellee jefferson sessions i want to start with the two points that mr broussard made about the reasons he suspects that are his client suspects that warden kaffir picked considered by the district courts and not in the pleadings an issue actually wasn't raised until appeal i'm not even sure it's probably raise on people i know it's not properly raise for the first time on appeal but i'm not even sure it's something they can sue on in this lawsuit so we actually address that in our brief and i think that that's adequate addressed there but those are the reasons he's putting forth today now that he thinks his client wasn't chosen yet this is an age discrimination lawsuit that's what we tried before judge drill and one day bench trial that's what he ruled on in a well reasoned opinion and that's the opinion that this court should affirm today i thought we were going to hear to talk about the burden of proof between six twenty three and six thirty three but i don't think it matters in this case there was no credible evidence of age discrimination advanced by mr richard logan at this trial the judge listened to the testimony this was a short trial we had only  mr mr clift crawford who was the head of the i t department that's it well there was certainly a reference in the record to the fact that crawford was was you know that that  is evidence you may contend that it's not enough evidence but well i think judge and it's it's too much for you to claim that there was there was no evidence well it's not that there was no to some it let me restate there was no credible evidence mr cliff crawford and making that characterization of dustin crawford who was the selectee the other thing that's interesting in this the the the only other evidence of asia's combination that the plaintiff put forth was the applications he said that the data birth and i think you just talked about that was on the front page of these applications and again when wharton cover was on the stand he was questioned extensively about this just roll was sitting there he evaluated the credibility he said i don't look at that i pick a bunch of people a look at the person's name flip to the next page i don't know how old these people are he doesn't interview them the only thing he gets is a list of people in the best qualified listen he gets a packet applications and he just picks somebody from that particular list you asked about whether or not he was clearly better qualified and i guess we're talking about mr logan whether he's clearly better qualified again just drove was there he tried the case he valuated the evidence and he made the credibility call that the evidence did not prove that either candidate was substantially or clearly better qualified was not credible evidence so regardless of the burden of proof whether it's but for whether it's a mixed motive there's no credible evidence of age discrimination so i don't know if this is the case at this court could definitively determine whether or not the burden of proof which burden of a tipping point is selection if anyone other than warden warm had given him the same recommendation he would have selected the plane that this was one that the plane could not address and was not aware of what i'm saying and he had a recommendation from warden i've got a young twenty seven euro employee i want you to the car and he hired