you please the court my name is locksley way and i represent miss violet valerie montgomery miss montgomery is a twenty five year employee of the transit authority you might want to raise not a big you know you can a twenty five year employee of the transit authority she has a degree in civil engineering she has a degree and a masters degree in management she is an exemplary employee she applied for a position a supervisory position but she was passed over instead a gentleman with a high school diploma was deemed more qualified than miss montgomery was not satisfied with what happened so she filed a complaint an internal complaint then there was a nd round of interviews again she was denied the opportunity fo promotion and instead that same high school graduate was deemed more superior but was montgomery's not hear about whether or not the transit authority deemed her as being less qualified or the other person be more qualified it's about whether she had a fair opportunity to present her skills so with that she did file a lawsuit with the equal employment opportunity commission the the gentleman who was was chosen all the panelists ranked him as as the top choice right is is there any suggestion that that that racism they wrote the word loud he was circle several times as if to add emphasis to the word they wrote only one of them wrote that we don't know it appears that it is the word loud appeared twice before we got to that the defendant said hey there's a there's some records we never gave it to you so we looked at the records what we're saying is those records it was like a three legged stool the defendants relied on an investigation they said they examined everything but yet we have some documents that they never saw this is the st time that they're seeing it so that undermines everything that they said in front of the equal employment opportunity commission and what they saw as additional documents and meaningful and they would be meaningful to me because as i pointed to the court below my thinkin my litigation strategy might have changed i would have formulated other questions to the deponents i would have formulated all the questions to transit authority i would have question whether or not that i would have questioned whether or not that report was actually done or whether was it something that was slapped together to justify what they did the court below said no we didn't he didn't look at it but the question is not whether the judge looked at it and whether or not it helped him form an opinion it was how did it prejudice miss montgomery in going forward with her claim and i just probiotic a little bit i understood the judge be saying that therefore he didn't rely on their explanation as putting those he didn't give them the benefit of any of that material and i'm missing something yes he said that it would not make any  the word lound was there any other evidence of race as a motivating factor well we look at the other we looked at the other candidates we looked at  determine is that we believe that sexism racism the word and i stand you believe that what i'm asking you is does the record contain any other evidence that race or gender was a motivating factor no the record only contains the word loud and that leads me to another part of my argument how the judge interpreted that word he looked at it is a one off word it meant nothing but the court below did not look at a context how it was used the word loud is not nothing new in the english language it's something that's been around for two thousand years or maybe about a one thousand years if you go to the bible the book of proverbs it talks about a loud woman and that's something that's been used often as a code word ms mcgregory submitted an affidavit she knows what it means it's been used often let me see here use it positively right since she dash loud slash thunderous right in no way around it it's not what it said i mistyped mischaracterized and that's the argument of opposing counsel that was not really what was said what's in the notes i'm sorry what is in the nose it has the word loud and i asked the two ponens what does that mean to you and their excuse is that yes it meant she was physically loud and i said well it was used two people two different times it has to mean something and we believe that a code word will come out ever just mean loud yes it can i mean it's not like there were  dozens of people who apply for this job only a handful got interviewed and she finished rd or th depending on which of the panelists you asked me so she certainly did well she just didn't come in st right that's correct however what we are claiming is that there was more to it the word loud enough itself may actually be just physically loud but when you have to look at context it was no one now this is below as an ash versus tyson food has to look at the context usage inflection and we believe that should have been a jury question not for the judge to make that decision as to what the word actually means any time an adjective is used to a jury question as to whether the adjective mean something other than the dictionary definition of that word not necessarily i think the court should look at the context in which it is u it's it's sort of like even in ash when they use the word boy that was the case that was the th circuit they used the word boy the court below said no and the appellate court said you must use boy with a modifier the supreme court said no what you need to do is look at context how it's use not just whether or not it was a modified to that particular word but what the common usage in that of credentials the job posting makes it clear certain degrees were preferred or education and experience mr corvet seen fell into the latter category the plaintiffs did not fall into the former category her degree was in civil engineering what not one of the majors specified there's no question however she was qualified i do want to go directly to the issue about the recorded additional documents in that regard that i stepped into this case because my partners and availability are as if i was struck by one thing in the record with all the complaining about late produced documents and how they would change the outcome questioning of the witnesses not that you want to put the documents into evidence so what's the response to that response and that is if you're trying to convince a district court judge that they would somehow meaningfully change the course of litigation and impair your ability to respond to summary judgment you think one would want the district court judge to see those very notes argue that he abused his discretion right and well appears to be opening discovery or that's correct and it is an abuse of discretion issue obviously if it's a discovery sanction or discovery really but i find it entirely remarkable that they're not put in front of the court if they were relying on him to say judge here's my letter motion to extend briefing that stock index twenty eight  and reply declaration i would like to also quickly address the fact that the code word loud is not a code word  by the way it was one person mr moakler in two thousand and twelve and fourteen who used the word last not two different people i think the record right to have it shows that it is because he was referring to it as a positive attribute in a category in which he ranked the plaintiff highly so in that context and his explanation was thunderous commanding that is not a code word in this context it would n if the code word was used in a positive or an innocent manner that weighs against it being evidence of discrimination but even if even if and even if plaintiff's case now should have been dismissed on summary judgment why there's no question that the employer has the authority to make a choice among candidates indeed choosing among equally qualified basis of the discrepancy and qualifications that discrepancy must be had the entire burden of showing a reasonable trying fact not only that the your that the employer's explanation was pretextual but that it also served to m putting lie out into that counts to lation in this context does not meet that burden and that is i think a central reason why the decision below should be affirmed i would also erred that the district court very carefully interviewed and selected from group almost fifty people on two different occasions she was found to be expressly qualified other people were also found to be qualified she was not ranked as number one she was not ranked as number one in the two thousand and twelve event or interview which i submit is of no moment now and she was not ranked as nd or st on any of the readers in the two thousand and fourteen evaluation and that rating panel in both circumstances was diverse and the no person this or henry who is on the two thousand and twelve panel late produced no person was not on the two thousand and finding her qualified to show her e mail memos did not even find her reg number two that doesn't mean the plaintiffs not a good employee the reasons why they chose to go that's included he was an ideal candidate he was already managing eighty employees and grappling with the automated fare collection system he was already familiar with that he had to strip demonstrated in both sets of interviews and ability to respond correctly to posed issues that he would have to confront others on the panel besides mr moakler the person who wrote loud thunderous as a positive also made comments that make it clear that they thought that was this mike armories a very valued employee and very bright person and well qualified for what she's doing that she seemed to be better qualified at managing data rather than managing people that's sort of a decision by the employer is not one which the court should allow a jury to act as a superpower personnel agency about norse or discord finally  need the code word cases are telling because if you read through those cases the time the context of them shows the bottom line in the bottom line is even if was used as a negative it appears that she was last i'm not suggesting was used as a negative and it could well be an apt description of her means of communication during the interviews which is not discriminatory with all due respect my wife says that i'm not a quiet person if i was interviewed for a position maybe i would be speaking to lavallee could somebody comment on that yes there's like comment relate to anything about protecting characteristics though so for all the reasons i believe that those two court got this morning right laid it out correctly relied upon the correct appellate law cited to numerous district court cases that a few things miss my grammar can management manage people in fact she's actually an ordained minister so she does offer counseling the record will contain information the fact that she is an ordain minister but we're not here to say that transit did not make a good decision all things being equal if all things were equal management does reserve the right to make stupid decision but what we're saying is she didn't get a fair shot at being interviewed it's interesting though in the briefs below the transit authority they said perhaps it was favoritism favoritism is not discrimination but when you look at the history of that particular position who would normally gets that position it's it's never the woman is never a person of color miss montgomery came to a hole in the record about who had held that position in the past you know that's not that was not as far as race or even the demographics that was never part of the discussion below except that it might be within the transcript but it was never really an issue that we put forward but the fact that russia really is on this record even assuming a jury were to construe in some negative way that it had some negative connotation could a reasonable jury find that race or gender was a known thing and really all you've identified is the word loud and nothing else but i believe that should be a jury question and with respect to whether the documents that were provided leader ron i don't believe a judge would sit there and go to discovery and make a decision as to what is credible evidence and what is going to be  admissible i think at that stage the judge would say did miss mongomery get a fair chance with the missing discovery to attack the the fence proffered reason for her not to get in the