presided over this case we initially take issue with the floors his grant summary judgment our claims under the federal agents criminal action statute and under the tennessee statute are governed by two different standards at this time and this case was filed we were still in tennessee under the hand and versus all text the enter under that standard the court does not  engage in the mcdonnell douglas analysis that judge call you're engaged in here of course under the federal standard that is allowed but we had several claims under this bill you were to promote the case that they should from a nation based on numerous failures to promote because my client was employed there in two thousand and eight and she was still employed there when the case came up for trial in two thousand and twelve and there were eight individuals eight employees who had already been promoted at that time over her my client was basically employed when the store open these other individuals were much younger than my client there was one employee marcia trumbull who the court found that there was not a significant difference in her a also of course had climbs hostile work environment and then state law claims of negligent infliction and intentional infliction of emotional distress the defendants did not raise the issue as to our claim of hostile work environment in their motion for summary judgment so when i filed my reply i stated that that claim had not been raised even though they were filing a motion for summary judgment not a partial summary  court went ahead and addressed that claim that hostile work environment plying the issue we have with that is the elements to prove an age discrimination claim under this his human rights act or the federal statute it's a very different from a hostile work environment climb under and a shift from a nation climb course you have to show that they were within a protected class and that the plaintiff was qualified for the position that she applied for and was denied that position and that a younger person was placed in a position in this case judge carter found that all of the elements were met except for that fourth element and he at that point engaged in the same analysis for both the tennessee human rights claims and the federal statute climbs on these different individuals who were who were younger than my client and put in the position there were two individuals that he found either to see him a human rights claim anderson and poor dale who were much younger and there was no issue that in fact there was a significant difference so therefore you wouldn't even reach them mcdonnell douglas analysis with regard to those two individuals and that's where we take issue because we feel like the district court went too far and started this analysis well even though their age there's a significant difference in their age they were more experienced than my client and he starts getting into the different qualifications of my client for versus these other two individuals but under the canon all tech standard it's our position that all we have to share is that these individuals were younger and the plaintiff to meet a promise facia case of discrimination but of course the judge collier analyzed both under the same standard so he goes ahead and looks and for dale and anderson and their qualifications another issue with that what was the reason that he did what your honor he was proceeding under the mcdonnell douglas standard is my belief with regard to cordell and anderson but they had claims under the tennessee human rights act so their claims should have been and analyzed under the hand and all tech standard not under the federal summary judgment standard that the tennessee legislature it went on until after the fact your honor but this case was filed before that but there's a date on which you change your standard your honor it's my understanding that the statute actually provide that date and i think it was some think it was sometime in july action where you have a cause of action that's created and then later abolished you're talking about how you operate an area of wall so the question would seem to be what's the state of the law at the time the judge decides the case because it's a procedural issue when your honor i understand but i believe the statute specifically states that it only applies to cases filed after a specific day is my recollection and i believe that sided and one of the cases in my three and this case was filed before that and that might but that is provided specifically in the statute qualified or not qualified that anderson or for dale but even if i have that standard can apply and the fact that it does to several other individuals the to the court decided that based on my client's a lack of experience that under the macdonald i was a standard she could not meet her burden of proof he focused on experience but the decision maker in this case was a store manager mr walker testified that he did not promote my client first he said because of there was no name even though he had up he had promoted eight other individuals and then he came back later in his testimony and that it was because of my client lack of availability but there was a dispute of material facts here because there were several c s s who were put in that position who had limited availability one was in school and she was given special preference because she was a student another one i think had young children at home and she was given special preference for that raise and it was theirs also testimony from other managers and the record that you did not have to have unlimited availability that was not a requirement for this position when my client was instructed that that was a requirement for the position she immediately changed her availability to unlimited even though she was still in a part time cashier position part time cashiers there's like thirty of them that work at each store they can pretty much set their own hours they're not required to have a certain type of a availability but this particular manager was putting additional requirements on my client that she was  'll have your time for both because i do think that that was a mistake the position of moving from a part time cashier to a customer service staff person had no change in pay no change in benefits the only difference was some additional tasks that she could do you also mean more hours because or because she's you she was a part time cashier the c s s position could be either part time or full time there was no specification for that the people that were chosen over her in some cases chosen over her in some cases the really wasn't a decision because they were transferred in from another store not to fill in available spot but to accommodate those particular employees needs to transfer the evidence is not that availability was the only issue but that they were selected over her based on their experience their attitude their demeanor their performance and availability we talk about availability miss scull of wants to rely on the absolute minimum qualifications for the position she was eighteen years old she did have cashier experience those are the minimum qualifications many people in the store would have met that criteria but they are all entitled to be moved to this position that she wanted and what ms scola dead of sort of sort of in the nature of a rebellious teenager if you move my curfew then i'll start doing my homework and i'll start performing well whereas what publics want to her do is act like the position that you want show us that you're available show us that you're go get her show us that you  d watch this a position and she refused to do that she had constant limitations on her availability for weeks at a time we're not talking about somebody who has a school schedule a class schedule that you know they have their unavailable three mornings a week she would be asked to be off for several weeks at a time months for different months throughout the time period so and what her response to that is well if you give me what i want then i'll change my ability i'll be available but that's really not how it works so if you're as an employer you have three people who meet the minimum qualifications you are entitled as a matter of law to evaluate those people to compare them and that's the step for the from a case where judge collyer concluded she to meet when you compared miskolczi as overall qualifications not that she was eighteen and a cashier but what she had to offer compared to the other folks they say they were better suited so what about this change of spanners as far  discrimination specifically i think the one of them was about a retaliatory discharge case but they were talking about the tennessee rule fifty six and the procedure under that and what standards they would apply the district courts in this circuit that and this this court whole conflict occurred when the tennessee courts and gossiped said mcdonnell douglas didn't applause so you actually have a fairly small window during which this problem reading the gossip place and twenty then in the statute in two thousand and twelve which none of that changed the language of the tennessee human rights act that's correct it had no change on that it was merely addressing how the summary judgment procedure in tennessee courts not just applicable to the tenth human rights act but to other other types of employment claims how that standard would be applied and this court and the did courts in the circuit have even during that window apply the federal standard to the cases involving tennessee writes that claims the plaintiff has not cited to a single case that has held that a tennessee human rights act claim being addressed by a federal court has to apply the gossip or the hand in of the alltel standards even during the period of time significant very clear bright line attend it is significant and then it's gray in between but what's significant what matters for that in between is whether there's any other evidence of age discrimination and there isn't here where we got what mr hall's  position to place to allow people to transfer into that position to rehire miss trumbull into that position he had absolutely nothing to do with it so and he's the only one alleged to have made any comment like that in this the first very first time she ever complained about it it stopped the last time he made such a comment was at the time that she at around the time that she made her complaint i think it was february march of two thousand and ten to human resources and again he had absolutely nothing to do with it so so judge collier looked at that too and said well you know seven years but there's nothing else here this edition of age discrimination it's just ms that's mosquitoes believe but there's no evidence to support that the people that made the decisions absolutely in fact in her deposition testified no i don't think that todd walker would discriminate against  based on my age she's the store manager i don't think that she she didn't think that other people would discriminate against her other than mr hall as i said i had nothing to do with the decisions with regard to the the issues relating to the claims that were started in the complaint the the plaintiff and if you look at the complaint it is very clearly it's simply about age discrimination with regard to promotion she does mention that mr hall made made some comments to her but the the other claims that she's now claiming and sending are part of the case hostile work environment intentional infliction of emotional distress negron these other state tort claims are not in her complaint the words those words are in there just the words negligent infliction of emotional stress are in there but there's absolutely nothing that would satisfy any any basic pleading standard to put us on notice that those were claims in this case in fact from the beginning she says this is an action under the under title seven which was incorrect under the a t f for age discrimination that's how she defines her claims in this case and she sort of throw these other things in there or about the hospital or it's still i mean it's the words are in there but she doesn't allege any of the basic facts that would be required under its own twamley to even support that kind of a claim but the truth is even if you take even if you did assume that she correctly led that she didn't support that with any evidence the evidence to support her hostile work environment claim is mr hall's five statements that had ended by february or march of two thousand and ten and her failure to be promoted and the case law on that is pretty clear that you can't take your disparate treatment claim on a particular issue like a failure to promote or failure to get some sort of employment benefit that you want and then put that in the mix and say well that's a hostile work environment that's not part of a hostile work environment and that's a separate create the speeds of fact a lot of admission into the inadmissible evidence and things like that really did not do so because when it comes down to it she could not prove one of the key elements of her claim which is that she was asked qualified or more qualified than those who got the position that and and applying the standard in hand and there's also a footnote to that case but not but not but no excuse me for which states the general assembly has an active legislation providing for a different summary judgment standard than the standard set forth well your honor but it's involving a claim under the tennessee human rights that i would agree with that with regard to the claim under the federal statute but for example if you  it was a state law playing the federal courts would still apply the new summary judgment standard with the state can't say we're going to change the federal rules of how you do summary judge well your honor but if you have a specific i guess decision to see decision which is addressing a tennessee statute it seems like it would undermine the tennessee what the statute ever did was yell for procedural decision was in the media didn't say the tennessee human rights law means something different from title seven it was about how it would apply summary judgment in the fantasy courts and that is true your honor but then you have a statute that comes along later and said this is the new standard but it's only going to apply prospectively i just think there's a difference there when you have a statute but also even if you applied the mcdonnell douglas framework here the point was deciding facts he was not these were these were disputed issues the fact that he should be construed in favor of the plaintiff the decision makers was even looking at experience that wasn't the reason why the decision that decision maker denied the promotion he said it was because there was no need for anyone in a position which is clearly not true if you've already put eight people in that position and also those different citations to the depositions but they were not the decision maker if you look at bob walker's testimony he focused on availability yet there was no requirement for availability so i think the plaintiff has refuted that even if you use that as a legitimate nondiscriminatory resent what you're talking about availability then why do you have two other people here the defense of i have already admitted they have some who are part time well how can you have unlimited availability if you have someone who only works part time if you have two other younger employees who are getting accommodations for either college or family reasons you have my client who is still a part time cashier she's not even been in that position yet of c s f and yet she's required to  have limited availability i mean that's an unreasonable standard nobody else in that position as a part time cashier were required to hand during their time to cashier unlimited availability until they reached that position and you know there was no change a year and why was this novel well it is a change in pay in fact the judge found it was a quote promotion that was though that was the only reason he could find that that we met those first three elements on the facial case that it was it was an increase in it's in the record it was an increase in responsibility it was an increase in pay and it was also considered a supervisory position the c s s is supervise the cashier and the backers and there was also testimony that you had to be if you were going for a management position that was the next step for management which my client wanted was to become a c s f and the first level management position was as a assistant customer service manager which you have the customer service assistants and the customers customer service manager and she needed to go through that progressed and progression but she could never even get to a c s s and obviously