morning your honour's we're here today because the department of health and human services has put forth various reasons at different times for why they chose not to promote jenny chambers an african american and blind employee while promoting other employees at first ms chambers was told you deserve a motion we really want to promote you but there is a lack of funds when in was a lot there was a lack of a position because nobody created the position and so the question becomes just as  evans versus sebelius and colmes versus shalala why didn't they create this position to promote miss chambers into when they were out creating other positions that cost far more and affected the budget far more and then when we show that the money answer was sort of you know just ridiculous considering you show that i don't recall you showing we show that by showing that at the very same similarly situated right no they don't have to be similarly situated just as an evans versus ability is the simile it's we're not offering that to prove disparate treatment or offering that to show pretax they give budget as a reason but there was the budget that the really answer is they didn't want to spend the funds that they had on a promotion for the other positions you're talking about were they new positions that were created or were there promotions into existing positions one was in a while they were new because this is the way just as does it they have three g s eleven acting division directors they create three new positions which are i'm sorry three g s fourteen acting division directors they create three new just fifteen division director positions they restrict it to the three people who were the fourteen's apply they are the only ones for apply all three of them get the promotion to the fifteen they did the same exact thing during this litigation they created the g s eleven for miss chambers the restriction is a c f there's only ms chambers who is qualified in a c f as a section five only ordinator she's the only one who's qualified she gets the position that's the way they promote so all through the fifteen positions didn't exist before they were newly created position right they were newly created but it wasn't a new slot for them because they knew they were going to put those three fourteen's in so that the increase in funds is is still about twenty two thousand dollars when you said in answer just rivet the similar situation doesn't matter i take it so this is what it matters for purposes of determining whether there's discrimination are they yes sure they were fourteen fifteen but that wasn't the reason that they gave her it first then they switched it to not a priority but when you think about it not a priority is sort of like saying because i said so it's promotes people so to try to hang in for the appellee to try to hang their hats on the technicality that there was no vacancy you know that the way they create vacancies as they create vacancies for people they want to promote  well there's the pretext and the mr curtis is saying all along that the pretext is mr curtis is saying for five years i've been asking for a promotion for you for five years i've submitted paperwork he specifically sa paperwork i'm not sure what it's not in the record but i i recall that's kind of important it is important but it's also important that in the opposition we say look no paperwork pretext they never come back and say yes there is paperwork for you know history of support he didn't ask for her name but that would be fine you're not supposed to ask her if you'll be more here it's a position if you believe the defendant defendants witnesses then yes he asked for an administrative support position but if fact that curtis could use it he didn't have the power to create the position he had the power to advocate for a position he had the power to get his management on board with yes it's a priority to upgrade our five a week coordinator is how they create positions people advocate they find champion but i'm just not i'm asking you but your claim the adverse employment action about which you complained and there's a legal question as to whether it's an obvious employment action but the adverse employment action about which you critics had advocated how do you know the position to be created we don't know the for a fact a jury has to decide that these are jury issues the question is how do we know if there is no discrimination the person would be promoted in any promotion case you don't know that you can only infer it from the evidence so from our decisions in court decisions it's not the case that just because you can show a pretext that means there's discrimination in other words you have to show yes i agree i mean i've looked at a recent case that you offered that that indicated that but what what i'm trying to say is that it's not just the pretext there's also dishonesty about this advocacy this giving paperwork  material fact even if even if it's not the reason dishonesty about a material fact shows guilt it's i mean it's right in the res why they spent their why be allocated their budget the way they did why they upgraded certain positions right no i don't think there i don't think they said why and five only coordinate it was not a priority they've explained why they did the other why they me the that suppose the plaintiff says what i'm complaining about is a failure to create a new position your i'm in for take it out of the government context or say it's a private sector employer in the way they divvy up their workforce is they they make every pay grade a new position so every promotion has to be creation of a new position and the complaint is you didn't create a new position for me i e you didn't promote the there's all kinds of other people that are not part of the protected class that you did promote by creating a new position is it actually the case that you would say well there's no adverse employment action because there's no creation of a new position ergo you don't even get past the starting block even if you could show the point it could show all kinds of non minority applicants had create positions created for them but i didn't have a position created for me action and therefore you don't get past starting block and my question is how can that be right because there has to be situations in which somebody has a viable claim of discrimination predicated on creation of a new position where they say you didn't create a new position for me you created a new position for forty nine other people that are just like me who wanted a promotion they happen not to be minorities i happen to be a minority you created a position for all of them you didn't create a position for me that actually the case the employer gets to say now on creation of a new position is just not a never sorry you don't get past the starting block you're g s nine ok and and every other g s not that once a g s eleven has to have a g s loving creator for them there are no just lives in creation and all these non minority sided people  proposition that any time a claim is predicated on non creation of a new position as a matter of law you don't get past the starting block because there are hypotheticals in which boy that sounds like something that title seven should offer recovery for  but it's but it's a slippery slope to people in maybe a slippery slope earlier but it's unfair but it's a slippery slope that at least fences in claims that ought to be are you saying that those claims shouldn't go forward  i'm saying that to say that any time that employee says of the concrete all i'm saying the claim i have there's two claims before you the one that i outlined in the one the judge silberman one are you saying that from the government's perspective those claims don't go forward because there's no adverse employment action better argument i'm not going to because again i can't i can't create i'm going to create how you know that you might be a better argument because it's more sympathetic but based on your legal principle which is that you need to do to a life something other than creation of a new position otherwise as a matter of law your claim fails how can that person get past the starting date so there must be some claims either my hypothetical or just silverman's hypothetical where you get passes carnegie even though your claim is predicated on non creation of a new position other maybe all kinds of arguments that say look creation in the new position almost always is not discriminatory because there's all kinds of good reasons why the employer doesn't want to create a new position so you don't get past the finish line that you don't even get past the starting gate merely because your claim is predicated on on creation of a new position when there might be all kinds of situations in which not creation of a new school position is discriminatory is a difficult proposition to some i understand the argument i think it would be very very narrowly defined set of circumstances perhaps like the ones still running you forward but nothing and again i'm here arguing this case nothing at all in this case in this case we're talking about but we have to decide i guess we have to decide on what ground to rule and if we decide on the ground that you put forward first which is that non creation of a new position as a matter of law is not an adverse employment action then i don't know how the claims that come forward some day maybe will never come forward but someday someone's going to here and i think that your honour's addressed them exactly the way that i would which is that you know you can say that they were shifting reasons but they're all much and they're all based on but after all you have to if he has a right to decide i was going to spend his money and i was i was this morning driving in trying to think of an analogy and one that i i came up with this from a personal level is if if my roof caves in and i need a new roof and it cost fifteen grand for a new roof and then my daughter comes to me and says will you just in fifteen thousand are in your roof can you you know  what can we get a thousand dollars for a bigger t v and that's good because that that's that's not how we're budgeting our money it it's so far afield there were no shifting reasons here clearly was was budget the whole time not to mention the fact that every compared to the her position he didn't specifically say i want to intervene chambers to try to get position which ultimately she didn't back yet and the desk already indicated that her job was probably greater the g s not so it took to based on these reasons and based on what we've we've gone over before your honor wanted to point out with regard to the question of whether they're shifting reasons or pretexts shifting reasons they don't conflict they're shifting but they don't conflict they sort of morph when you tell your daughter no you can't have a thousand dollars even though we spent fifteen thousand on the roof because that's not the way we're spending our money that's different than just saying there's no money so that's what they told her they told her there's a lot of fun and then she sees all these other promotions going on around her we say that litigation and only then do they know i mean i got to say if i have a daughter and if she asked for a thousand dollars i think i'd feel entirely comfortable saying we don't have any money unify just  thousand dollars on a roof it just seems like the natural thing to say so then you're saying that they treated her like a child i'm not saying that i'm going to be very bad at all in saying that it seems like it seems natural to say we don't have money when what you  we don't have money for the thing for which you want money we have money for other things so what is the reason that they didn't have money and i know me ask you no question that god will say they haven't put forth a reason they have not put forth the reason why it was not a priority given the fact that every other five a week or need you know a c e o is the biggest agency in h s that's their their biggest agency and she's a naing and every other fi know why because because the supervisor controls the dust out of there is testimony in the record and i'm i'm looking for right now another five away coordinator who is a g s twelve yes jamie robinson and it's that joint and it's one seventy eight and he testifies he's a g s twelve five a week or nadir he has no other duties he's a five we coordinated with the office of the secretary which is much smaller i'm saying what what's the reason that they don't want to give her an a list and back that i don't know the reason the reasons it's not a priority why isn't it a priority is it because she's whining every other five a week or need or can see and they are all douglas that the facts vary in cases and here you have a lot and maligned employee who's doing finally coordinating for a bigger agency than anyone else and she's a nine war thing no i mean i think it goes together it's what we're saying that they had every reason to want to make her at least in the lab then they they had reasons to do it and they haven't told us what the reason is that he didn't advocate the way he told her he was advocating he told her he was submitting paperwork he told her he was how can you advocate for five a week or neither if all you ask for is administrative support at the eleven that that's all he