case eighteen dash five three nine two claude grant vs metropolitan government of nashville and davidson county tennessee argument not to exceed fifteen minutes for side mr holmes you may perceive the appellant when proof to create a genuine issue of material fact as to the first three elements of a retaliation claim that he engaged in protected activity the exercise that the rights were known to the defendant and he experienced an adverse employment action and started to appear to rule that there was a calls of connection by indicating that because of mr grant's participation in the class action as as the lead represented to plaintiff in a litigation which at that point had lasted ten years had cost metro hundreds of thousands of dollars multiple appeals a day trial that he was a thorn in the slot and metro side curiously then the district court held that mr grant had failed to establish that but for his participation in protected activities the awarding of the job to ms jackson the adverse employment action who was also african american was would would not have occurred and the court said that u this way of thinking about the case that maybe the hardest thing it seems to me from your side is that this whole list hiring process was pretextual to harm your client retaliate against your client for his being the lead plaintiff in this prior case and i mean the list concept didn't come out of nowhere it's it's recommended in the tennessee civil rules i mean it's just when you can understand the efficiencies of it you could also understand how it could lead to mistakes but it just seems on contradicted that that's how jackson was hired and and your client was on the list well i think it was over to us but i'm just making the point that what happened was a reality i mean there was a hiring for this slot off of the list and so just seems like the only way you can get anywhere is by showing that this was some clever contrivance to make it impossible for your client to get this job and it's a gigs that just seems quite implausible to me well there's i think there's a genuine issue of material fact on that and i mean the the whole theory is that metro abuses the process as to they don't do either list process i mean it wasn't like he was like everybody knew about the list process but your client that's not how it works everybody knew about this now he may not have i get that but it wasn't wasn't a hidden point that's what seems odd to me  mean it's true that there are eligibility lists that they do periodically and what they're trying to argue is that there was not an adverse employment action because he didn't apply for the position and the position that he didn't apply for was the job that was not the one that was awarded to mr jackson and that was the position stormwater so if he would have if he would have known about that this was going to be later filled he would applied for the position but the there is going to evidence i mean there's a dispute in the record even about whether the job was posted not posted we had miss jackson who said you saying the it's illegal per se or what we're saying they used it in this instance to prevent mr grant from competing for this particular position that this position became open that mr grant was more qualified than mr jackson is mr grant has more experience in metro water than virtually anyone best light he had at an engineering degree right he did have an engineering degree and as we learned in the first metro water case metro water frequently puts in non essential job requirements to exclude people from a position the point is on this particular position having an engineering degree should should not have been like a part of the talking i thought some people applied for jobs so they could be on lists because everybody knew how this worked well no not necessarily i mean the job that was posted was for a position in one of three other divisions of metro required those positions required engineering as required an engineering in the what would what does somebody do let me in you apply even though you didn't you don't have the requisite it's you can but then metro maine human resources will kick your application out because you do not meet the minimum qualifications so you know they mr grant did did not apply for that him still eligible for the job they wanted later if well if they would have said you know this because it has some vague language about how this may be used later for a future position but it's very clear that with their original job posting it did not include stormwater and that was the division that mr grant was interested in and that ends up being the position that was created and filled through the eligibility list and it's in it's our position that they have but then just proves the the list approach is not really a great approach or it it's under served things in some settings over serves it and others it doesn't prove it's a disguise for retaliation or any other form of discrimination and well what's odd about it is it was so well known and i guess it's recommended by the civil service rules so but the point the honor is that they used the eligibility list to preclude mr grant from competing for this particular position i'm not we're not arguing that they it was illegal for them to use of eligibility list what we're arguing is in this instance what they could have done and what they normally required an engineering degree he still would have applied for the big question and we would take the list approach is only valid if you post separately no no it is permissible for them to fill a p off the eligibility list but what we're arguing here is they used that in this instance knowing that if they posted the stormwater position mr grant would have applied for it ok and so what evidence supports that well i think you go back then to two why they did not want mr grant to have the position at a motive they had the motive and the motive being that mr grant was the lead plaintiff in the metro there there is a position that they know that needs to be filled in stormwater they know mr grant wants that position they know if they post that position he will apply so what they do is they say ok instead we will use the eligibility list route to fill this position to preclude mr grant they implement this when they posted the first job or did they implement this only when the second opening came implement i mean if you're saying it's a scheme they're motivated to hurt him i'm asking you when they acted on those motives were they acting on those motives when they posted for the initial job that your client did not apply for they knew he was not interested in the initial job the initial part of the plan in posting these three engineer jobs that we're going to post these he's not going to apply as an engineer and when we actually do the stormwater position we're going to use the so that we don't have to use him but i don't think so and there's no proof of that i think that it became a matter of convenience so they originally a year and a half for needed positions filled in the visions other than stormwater they posted the position several individuals applied including mr jack i'm sorry of the three engineering positions repossessions this was not a plan that was conceived a year and a ha previously i think what happened is that metro water posted the initial job announcement for positions in divisions other than stormwater there were several positions at that point a jackson applied and did not get one of those positions then a year and a half later when there was a need to fill the stormwater position and they knew mr grant was interested in that had been interested in years and actually was more qualified than ms jackson instead of going through a job posting process which they could have done they decided they would use the pull off the eligibility list to put mr jackson into the position and exclude mr grant from the opportunity to compete that's a theory so what evidence do you have that makes it more likely than not that that's in fact why they used the list approach i think you then go back to mr grant's participation in the metro water class action that as judge brinn show indicated that mr grant had been a thorn in their side for the past ten  years because of the program matic relief that had been implemented in the class action when the court ruled in favor of the plaintiffs on just part and packed a metro had to pay two hundred seventy thousand dollars what had metro had metro had to pay over two hundred seventy thousand dollars in special master fees on the program matic relief ordered by the district court in the metro water class action and that ultimately was reverse the disparate impact ruling was reversed but but mr grant has as the lead plaintiff has cost metro water hundreds of thousands of dollars in special master phase two hundred seventy thousand not to mention attorneys fees  national the district court correctly found some a judgment was appropriate in this case he said no reasonable jury not not a not a theory or possible jury but no reasonable jury which is the standard would ever find that these dots need to be connected that in metro national's eagerness to retaliate against mr grant they selected someone else from that same class action the same protected class member african american you know he was the lead plaintiff there's a difference between being a class member and a lead plaintiff well not all right he was lee plaintiff in the class action i don't know who is lee plaintiff but we can except that for reason it's they're essentially on same footing which is what the district court explained is that during the time the miss jackson was selected for this position there is no proof in the record whatsoever that that that class action was on any decision makers mind at that time the case that class action had sat dormant for over two years during a time nope no filings no phone calls no e mails nothing for over two years that's not a protected ms jackson was hard they then they moved on the case two months after that in the reserves not resolved finally earlier this year but what i'm trying to say is it sat dormant without a single thing happening at all for over two years and that's during the time period miss jackson was selected there's no case law anywhere that says you can connect those dots that that's a protected that case sitting dormant is a protected activity a case to be a protected activity under time some is going to be the initiation or instigation of opposition under time not having a case just linger hanging out there it without anything being done no trial no but it was not following this point at all ok think other point of course is more than what the district court explained well you just go with what was the key point with his argument we got to the point where i think there is you could say there's a triable issue of fact of whether there was a motive an explanation for trying to retaliate it seems to me that's a pretty fair point he acknowledged that the scheme to retaliate did not involve the first posting it did not involve having lists at all that that's not it but that it it turned out that once jackson had got the other job grant was not on the list that's when they acted on their motive and so that the court you know that's that's the question of whether there's a tribal issue fact on this record right and so that's what i would try to respond to thank you and your honor as you pointed out it's unk contradicted it's uncontracted and there's no competent summary judgment evidence that had been submitted to contradict that storm warning or division was being reorganized that this is a new device so well maybe it's a little fishy that it wasn't posted what about that fact well but the other what you're allowed to hire off the list but we send a good idea to post it may be a good idea like you're on to point out it's not a perfect system there or there may be other people who maybe didn't know about the position maybe even people who are more qualified than ms jackson we don't know i mean there may be people who who didn't who didn't know about it didn't apply such as mr grant he says he didn't know about it but that doesn't mean it was all the world revolves around him in the every business decision the strong want to makes is somehow geared towards him he has a connected those dots and all the fact the matter is the managers all in their depositions that he took they explained that look stormwater divisions reorganize this is not the same position that ms hill had the earlier persistent person in the position who didn't have an engineering degree because what mr jackson with an engineering degree can take it a step further she's able to go to busan and go into the field and make calculations based on what they said science and engineering so she can tell the crew and then managers explain their deposition and any of these people who hold engineers three can qualify to be in any of these different jobs that's right as the a separate another department say public works if they suddenly have a need for engineer three they may draw from the same list along as downtown main h r has the list and it's alive they can draw from that interview for that particular position and then hire somebody off that list and that's what happened here is stormwater decided we need to elevate this position we've reorganized these these job his responsibilities to an engineer three positions so that we don't have to keep going up to tom power or over to mr rick  with an engineer stop the crews and let's go get an engineer involved with elevate it so someone like miss jackson can just carry the conversation forward in the field and all that was flushed down the depositions so that's why they downtown main h maintains these lists for a period of time two years or so and so by the time stormwater said you know what we need a job too we need an engineer three not just system services operations or engineer which is on the original post what percentage of jobs are filled off of these positions are vetted through the civil service commission these are all civil service positions there are most jobs are posted and now there are some times when a lateral transfer is allowed say if a department gets reorganise over here and they have people they need to find a home for some panzers lateral positions that are done and those aren't necessarily posted so there are some exceptions like that when most jobs are posted and like your honor said there's been no contradiction about the fact that this was posted this probably posted it was one posted and was properly posted ok i am so confused i thought this job wasn't posted there arguing that this particular storm water  helping you well well i'm saying that someone like ms jackson knows to get her name on the a list and this is what the end what the managers of your point is he's he knew he should have known how this works  qualified for the position well he disputes that and then there's no vehicle to dispute it because you're basically saying you have to the only way we will consider you is if you apply to another job that you don't we're not qualified color for according to us and we're not even going to entertain whether this is a proper classification of this job and he wants the court overlook really the fact that the district court chastise him for not contradicting this with confidence in my judgment happens these courts he points to the special master analysis which was a previous position and that entire order this court reversed vacated ma and a special master had come from the plaintiff's experts firm in violation of rule fifty three that special master analysis is complete knowledge and that's not competent summary judgment that's the only thing that they put in support of this notion that it didn't require an have gone about applying for this job with the argument that he is qualified and that he can do the job  how would he have done that he could not have just as opposing counsel said it would be his application would been kicked out so how do you require how do you say that somebody can't get through the door because they never applied when their argument is is that i was actually qualified for this job and there was no way for me to apply because of the way they did it well frankly i think the more relevant argument is the fact that not that replied no they don't apply it's more the fact that he's not an engineer this reviewer been kicked out of both sort of what's the harm here because he wouldn't have been able to get this job anywhere required and ok so then then the court addresses was this engineer requirement pretext was it wheel of was a legitimate requirement or was it put there to keep him out and then   gauge with that issue but you're saying he never gets there because he didn't apply for a job that he can apply for well and and i want to emphasize today he was i want to emphasize today the reason he doesn't get there is because he could never have fulfilled the application requirements anyway he's not an engineer in this there's it's uncontroverted that are required in engineer degree so i think i'll go head to head so they're saying that engineer i got that point had he applied for that first job in this instance would he have remained on the list for the second job or not yes he would have remained if you would have been ok if he had been deemed eligible let's if we assume we would never have been eligible to list rightly i'm saying it would bar for this for the sake of argument if he had been deemed eligible somehow yes then he would have been still on that list and could have been drawn the same either way he's either not engineer for either job had applied for the first job he would not have been on the list for this job yes that's right but only because they consistently require when they say engineer they can rightly mean a right for all jobs yes it's an engineer there is a generic engineer three service commission and said can you relax that requirement but he didn't do that in this case there's no evidence that they didn't know it was they her he knew the engineer knew or should have known there's an engineer three job out there in lockstep here saying absolutely this took it to another level that that that's what ms jackson's able to bring to this spot in my time's up all right thank you mr holmes just briefly on the issues that are have been brought up here i would draw the court's attention to pages twenty two twenty six of our our brief which addresses the fishing s about the fact that this position was not posted that if they had posted this position mr grant would have a padlock and won the second one he would have applied and taken the position that they put in a non essential requirement to exclude him which is what had been argued previously in metro water in the class act which they'd done the same thing with the first posting which you agree was not part of a scheme but but he was not interested there was a non stormwater position but correct undermines the idea that this is a scheme if the very first the ball gets rolling and initially with a posting where they require an engineer right well he doesn't worry about it then that he's not an engineer the the fault in that that logic is that this job requires an engineering degree the second job which it does not are you saying that it was also an unnecessary qualification in the first post in not necessarily not necessarily but those are different those are different jobs those are dead and that the point is metro water just put the title on storm water engineering three when it when it does not require an engineering degree and  focusing on that point if you look at beginning it by page twenty three of our brief is that in discovery we started asking where's the job description where's the description showing the essential job requirements what's required here of this position they couldn't produce it and then it magically appears the second day of depositions and questions were asked when was this job womens this created who created it and all of those questions so so  it there's a genuine issue of material fact whether they just cooked up the essential job duties what what were the answers to those questions is come from who created it when they they couldn't give an answer to do that  and there was there was conflicting testimony on how it was created when it was created why it was created so at the bottom line is that this whole second position the feeling of it is extremely fishy and i mean even one of the applicants while he said he was he was on the eligibility list that he was called out of the blue didn't even know what what it was about and asked if he wanted to interview and again him what the job was about what it entailed what the what they do they didn't read it they didn't send him a description i didn't send him a description and then that then the job description surfaces in engineering he is an engineer this one that was called out of the