committee was not a nondiscriminatory statement but on the question of pretext i'm struck by the fact that the rejection letter says well we rejected you because the other candidate it is better qualified whereas when i look at this record and whether or not the woman who got the job was qualified it is very hard for me to say that she is better qualified than your client so  ask you questions are those are those cases that involve an interview process or a mock because that's the intervening thing and i guess the one question is whether they were qualified letter is a reference to their paper qualifications or a reference to their overall performance through the whole application process if it's the latter then the to me what matters is what we make of the evaluation of the performance during the interview process here and some of those cases involve an interview process and some of them don't or even here centrally first and foremost has to do with the paper there's a jury question overall if there is not a fact question on that we disagreed with you on that point could you just walk me through how we're supposed to think about a situation in which there's just paper qualifications but then a record of interview performance that strongly favors the other candidate because just so i laid on the table that the slate worry would be is if we say obvious to me that that makes sense it answering that you also all dan what you are legend to be disputed that within that that interview process clearly interviewed does not meet the qualifications for nonetheless makes it through to the interview process such that there is the question of the interview performance to to sort of address the piece of it raised by just hans and st on the interview performance there are positives and negatives in both of the sense that he reports and the analysis here is very much and ate fact intensive elsewhere it's not just a question of are questions and to question and she says flatly that is not true and i take it there was and there's no recording  and other factual issue has to do with the what she was instructed not to talk about in the interview and therefore how she shaped her answers but no similar guidance if you will was given to the white candidate who did not operate under  so yes absolutely i mean i think that's less than a the fact that you raised just now combine the facts that i described before go to show why this is not a case that just fair as you noted might lead us to a slippery slope concern that every case involving slightly differing comparative qualifications one that should go to the jury if my concern is that every case involving sharply just for once would have to go the jury no matter what the interview so and i think that's bunch of questions were meant just that we can read the record but you argue you can read the record to say that the interview itself is a lot less conclusive it's much more disputed fair so fair and yes that's absolutely right and the  thank you mr parquet if you could meet your device at this time and mr leach if you could please on your device and introduce yourself on the record thanks dan i good morning and may please the court massachusetts assistant attorney implausible can mean that it demonstrates free to x on this record given at least paper qualifications and the this other woman was better qualified and we have the fact that it goes to an interview and the interview appears to have been dispositive but there are some disputed made kerio facts about that interview process at which point the issue doesn't become an issue about whether the woman who got that job  t are contested and that her argument goes should go to a jury i thought you were starting this with a different process did i misunderstand i would certainly agree with you judgement that there is no evidence in this record either direct nor circumstantial that would suggest that race played any role i did not say that i said i understood ok now could you tell us why that's your contention given all of the interviewers were white there is a dispute about white whether white this black woman said at the interview is in fact accurately recount h e says no that's an outright misrepresentation so if i understand your question correctly misstate does claim that the record evidence contains a genuine dispute about whether for example she improperly announced her investigatory conclusion during the mock interview or whether she fail certain statements during the mock interview that the panelists maybe expected her to elicit misstate denies that those things ever happened and she argues the court should not have credited them as true there is no doubt genuine dispute in this case about those pieces of evidence is what matters on summary judgment is not whether ms tate did in fact improperly announce the investigation outcome during the mock interview or fail to elicit the sought after spin and what matters is whether the did make those those disclosures and so i think and she says she did so why wouldn't that be just a fact dispute that it's not a situation where she where there's agreement on what was said by her and then there's a dispute over how to characterize or understand what she did not say so they're saying you did say x therefore we concluded y well either she did or she did there's no argument that if she didn't say they done less believe she said that still i hear  you saying your honor and i believe that does go to the issue in problem two whether it's a legitimate nondiscriminatory reason as stated by the employer and i see where you're getting hung up on this is a disputed issue of fact the question being whether it's material and i think in some far as the burden on space tombs rests with the employer it is a burden of production alone and they have met that burden where they have pointed out all of the multi factor reasons why they believe that this probably was more qualified and i think the reason why it doesn't matter in the ultimate analysis is because when you do you get to prompt your honor in this three hundred and thirty three phase framework what you discover is that the requisite standard upon which this case will rise and fall over next i think this just goes to just thompson's question about implausibility which is they asserted a nondiscriminatory reason but if it's an implausible reason that can be evidence of it being pretextual and one of the grounds for funding it to be implausible is that the basis for five year window for not hiring i don't agree with you your honor if that was the sole basis upon which the decision not to hire her rested but i think this record makes it very clear that there was a number of different reasons i number multi factor  me give you an example she says that pratchett the interview she was specifically told that it that she didn't have to talk about retaliation and she also says that she didn't have to say anything about bridgewater specific applicant and she did the other applicant however was rewarded for talking about the two thing two of the things that she was specifically  not to address this is that go to implausibility of the explanation i hear you saying your honor and to the extent there is a record of evidence in this case and i you know to the extent that you set up these interviews set up a mock interview portion of this application process in a way that was not even handed across the board i agree with you that that would be problematic but i think in this case what that would be overshadowed by remarkable amount of evidence there still exists as few why this probably was deemed better qualified in the eyes of the employer not just at the jury in a case like this your honor i would say no because in this case ms tate arguing that pretext in discriminatory anonymous heard in on face three comes exclusively from to be waiting at the comparison of her qualifications with the qualifications of this probably where that is what you're resting on for purposes of what interview that undisputed that so clearly favors miss frolic in other words if we take off the table this point about the state having disclosed her bias and if we take away the ability to elicit information about the retaliation of bridgwater specific stuff because there's disputes over fact about whether we should be taking what's left in the record about what opinion and go to action too quickly even before getting enough evidence to be able to fully subsists the professor's biases she infused her personal opinions into the questioning rather than taking on the role of a neutral fact finder she was not neutral and had already determined the professor was in the wrong without questioning him these are object of notes taken during her performance that had nothing to do with the content necessarily of her performance but rather  deployed her performance those were concerns to b s u they were hiring somebody for an investigative position they wanted somebody that would always appear neutral and the ploy of a neutral investigation strategy based on the content of the interview based on the content of these performances i think there is perfectly adequate sufficient evidence in this record to support the legitimate nondiscriminatory basis of the su for hiring this probably and again on the  the question becomes what a what a fact finder would he juror have concluded that no reasonable employer in b s used position could possibly have chosen to select miss frawley as the winning candidate on this record that is the standard it's not simply did she have better qualifications overall the question is as and this all comes from the raf and decision your honors st circa two thousand and four the question is you know in the as you had set up these interviews i think in this case however the great majority of the evidence in the record shows that ms tate underperformed in ways beyond those concerns aside from typographical errors in her case that her she may have gotten a boost in ratings had she been given the same instructions which she says she was not but again i think the majority of the interview process in the evaluators a rankings reflect that she suffered in ways far greater than just what what are being racist concerns you know as disputed issues of material fact again i think at the end of the day the standard that has to get apply here is whether based on this this record based on these undisputed facts whether any  so i recall that there were five folks that were welcome to come to the campus to participate in the in person interview portion where all the other candidates know in fact your honor as pointed out by my brother council b s u invited to the good question i don't know whether there is any information in the record as to how they were instructed to receive these presentations or evaluate the presentations as your honor well knows the record on appeal does include their reading sheet they were this was a robust interview process but i don't think the record to your question directly includes any information as to what they were st you know specifically instructed on prior to each person's presentation  and i think the reasonable inference is that if the evaluate is were told this wasn't part of it they would have brought it up well i think it's fair to infer that if there's a note in the evaluation sheets th mentioning retaliation yes and mistake being told not to mention it but the evaluate is giving points to miss frawley for bringing up something the state was told not to bring up i see you just saying so again you know to the extent that that is an issue in dispute i get i think that the the evaluators perception of their performance could be colored by of course the instructions that the individual candidates were given but i think again on the whole it's beyond the content of these specific pieces i think the evaluators overall rating that these two candidates were so backley different in favor of this probably that i don't think that could have been suggestive enough to make up the difference representing the su when it was in the district court i do believe mr sorry misty then proceeded to file her notice of appeal from the summary judgment order pro se and while this case was pending on appeal here at the st circuit she was appointed counsel and i know that certain records were produced on behalf of the defendant was there any deposition practiced there was your honor from the record as i as i testified throughout the day that as part of the record here on appeal but i do not believe there were any further depositions conducted either by the you are by mistake and well mistake conducted no the st is that this is not a case contrary to what mr lay here was saying where we are only speaking about paper publications so the rathbun case actually acknowledges that paper publications alone could predetermine live here but this is not that case we who were given one set of instructions then you would think that the differential instructions was evident disparate treatment issue but i'm not sure quite how it relates to proving pretext if there were differential instructions if you don't have comparisons it's not just i mean it's doesn't sound like an ideal way to do it for sure but i'm not sure why it necessarily gives rise to a conclusion pre eleven person was given a set of him from this person was told to do the other they then gave evaluations evaluations are the evaluations they relied on them is not pretextual it's troubling but if the instructions weren't given out in the differential basis we've got comparatives of different races then yeah i don't see why it shows pretext particularly well disparity that question whether there is a gender issue as a pretext investigator they want to it's a college that's hiring an investigator presumably and accusations are made against faculty members they find it significant that she seems to reach a conclusion before she's actually interviewed the faculty member and she hasn't  investigation because she isn't really neutral that's the picture that the defendants are painting so how does the differential and struction about retaliation and about bridgewater state not talking about either at that how does that go but those conclusions are based squarely undisputed facts misstate says that he did not announce or conclusion during the interview and he just gets that that's one of the disputed facts that goes to create a which is that they believed she was doing that so there's nothing that you can put forward to undermine that belief i mean it's a kind of you know you get a feeling from somebody watch them doing it you think this person seems a little too quick on spewed over subjective views of the applicants performance that there was but there was no dispute as to whether certain things in fact had or had not occurred as a that's a very different case from what we have here states court of appeals has now recessed until the next session of court god save the united states of america and this honorable court counsel you may disconnect from the meeting