held that the plaintiff failed to establish that the stated reason by the defendant in this case was not a pretext for unlawful discrimination why don't we start with with you you can jet when we look at jet and pre start with jet what the supreme court didn't jet really said that the one thousand nine hundred and one claim had to be looked at under whether or not the defendant in that case was attempting to hold the gold district liable for under a theory a vicarious liability respond yes period or or under a policy based decision as found in mn l and was followed by mel and in this case judge robinson specifically and foote no noted that this is not a vicarious liability case and that the board action that we were challenging was official policy of the district and therefore we would have qualified even under the jet decision to proceed under one thousand nine hundred and one particularly in light of the amendments that came thereafter well you're familiar with or  both governmental and non governmental actions and so it seems to me that a fair reading of that amendment which we created remedies which the only reason we had to rely on one thousand nine hundred and eighty three in the context of a suit against the state or an official of the state was for remedies and this congress enacted remedies under section one thousand nine hundred and one then we should be able to pursue a claim for a contract  and i understand that i am swimming upstream with regard to my argument i understand it there are cases that throughout the nation that have held otherwise but i think they've all lower court found that there was a well insufficiency of evidence if you will to show that the statement by the principal conklin often was false about there not being any jobs available in the spring  it it was false before it was made be based upon the emails that were sent out by the human resources manager to the staff of the district prior to that on  april th jobs were identified as being available in the school that she was the principal over my client didn't get those emails because he was a substitute temporary teacher everyone else convoluted the principal knew of those jobs and had also been advised by the teacher who replaced ground in january of sixteen she was not returning that happened in march and so there wasn't any evidence i put in the record either way on that issue but we do know is that they were available at that time we don't know whether they were still available as of the th night she met with advertise only two weeks earlier and that's right only two weeks earlier and so if you would if they weren't available it's because they were all hired within two weeks of the announce of the advertisement which i would find a little bit incredible exactly but and so is does the principal know about these openings because it's the principal and the recipient of the e mails we got the email yes the executive director and the human resource officer both testif well i don't know that it's in the record that where that authority came from but it was common knowledge at least that the d c to position we're going to be available and so they immediately put out a notice so that other teachers who might also and i says it at the very bottom of the e mail which very hard to read and because it's very small that if you want to transfer to one of these positions let the human resources officer know so everyone's put on notice that if you're going to move in you want one of these jobs do it now and then with the other and the other thing that the lower court did was to look at the evidence a pretext in in a vacuum it only looked at whether or not the falsity of the statements was sufficient to show racial discrimination against mr brown it failed to consider the totality of the circumstances specifically his terminations in december of two thousand and fifteen  when the two black students that were enroll in the school left the school there's some dispute in the record but the evidence from mr brown is that when he was hired he was told by the principal that he was  the st black teacher in seventeen years to work at that school and they were looking for some diversity because they had african american students and when the two african american students leave only hold they no longer need mr brown which i think sheds some light on the racial aspect of this case in he only get other part time employment with them it in another contract that was less favorable even though he had a contract for the entire school year to work as a substitute teacher and he was replaced by someone who wasn't as qualified as him it white female with a  teaching certificate to teach english to elementary ed mr brown had a teaching certificate to teach special education to k through twelve which qualified him also the teach english which is the classroom that he was in before he was replaced it's uncontroverted that the teacher who replaced him with working on a waiver so that she could work at mit just up she was a substitute teacher also wasn't she was hired as a permanent teacher at least that's what they told mr brown and so big because of those facts also oh well he's a subject is a special ed teacher or dramatically competent to do enlist full time to special ed students and this was a special ed i just ask you about the job postings on the website as opposed to the job availability announcement in the mail as far as the web site postings  are concerned i think these positions were listed on april twenty two and april th where those put were any of those positions located at the john dewey arnon academy it is it's a little unclear from the record whether or not those were some of the same positions that were included in the email but they were certainly positions for which mr brown would have been qualified to teach and for which the principal sho have been aware were also available for consideration when she told mr brown they had no big decisions right now you just mentioned a minute ago that the january contract was worse two terms of the it was ok and that and that's where the defendant in this case asserts that he never applied for positions that he was told didn't exist and therefore he can't be discriminated against because he didn't apply for the positions when he was lied to about their existence he also working by the executive directors actions in this case and so he was denied multiple opportunities for employment in spite of his qualification and abilities ok so you made the claim it was beyond merely unfavorable terms in the contract that's correct right but it didn't obviously include those also because under the nd contract that the board approved  determined to be an at will employee and could be terminated any reason other than for funding reasons as all the other substitute teachers were hired and has he was originally hired in the over twenty six contract that he had and so it is our position that the lower court when it looked too narrowly at the pretext evidence committed err in determining that we had failed to meet our burden of proof to show in consistencies within the position of the defendant sufficient to establish a pretext to be allowed to go to trial and because of that we submit that this court should reverse that decision on that issue a pretext on the title seven claims and  school district to be a substitute teacher he was hired under a contract that had an indefinite term for period two of that contract was to be a substitute teacher and that it within the licensure that he had there is no indian date to it's under kansas lawyers employment will right out of the gate it was one i'm sorry under kansas law because there is no definite term to the contract it doesn't matter whether is a written document or not he's still an employee a will so this notion that somehow he got a less favorable contract when he had a contract for a specific term for the nd semester assata less favorable contractors nothing about that that made it less favorable the reason those additional terms were included in the contract is because there was confusion by mr brown retained counsel his attorney approached the school district about that contract and this argument that he should have been allowed to continue into the nd semester even though the school district found if a full time teacher true place the teacher who is gone that he was serving the substitute teacher for so nothing nothing racial or there's even not even an allegation anywhere in this lawsuit that there was anything racial to do with that initial determination that he was a substitute teacher he was told there was no longer a need for his assignment to continue once they found a permanent teacher for that position and when his attorney approached the school district they found another assignment for him reached an agreement and ended to ace very specific contract so there was no confusion that his employment was going to end at the end of that two thousand and i think it was one thousand four hundred and fifteen school year i may have the wrong year but so that's how that concluded out the claim made to the e e o c there's nothing in the present to the court arguments that mr brown was not hired into a teaching position or not offered a teaching position for the next school year and the problem with those claims regardless of which legal theory they're presented under is it's all based upon this notion that somehow there's pretext for the legitimate nondiscriminatory reason that the district has for hiring other individuals for those positions and that reason is laid out in the  if i understand that their st step of mcdonnell douglas analysis has been met that is there is a prime a case of stablish for purposes of considering th appeal i think that's correct in the sense that he certainly was in a protected class and he certainly was in terms of his race claim i don't think that's true in connection with his retaliation claim because our position is and i don't think there's any doubt as to the failure to hire the title seven failure to hire claim where the pretext point correct i believe that's correct here are right if they prime a case element has been satisfied you've changed my mind and in terms of how that would be articulated i was looking at it more in terms of whether he was qualified for the position in terms of his educational background but that he didn't apply and th this is is the employer's statement of reason for why he wasn't hired and wasn't that because wasn't the stated reason that he didn't do that they don't hire people who don't apply and and who are not qualified that's correct and in this case he did there's no dispute that did not apply for those positions his argument is he didn't apply because he wasn't made aware of those position i thought his art his argument was that his is that's correct when he had initially applied for a position with the school district he submitted two applications one was for the substitute teaching position which he was hired for the other was for a different position that it actually already been filled before his application was received by the school district for full time position the district does and the testimony indicates that when they receive an application for a vacant position keep those applications on file in case there's another vacant position and will consider those for future employment for a period of time the testimony was also by the same individual that it was a secretary or an h r person who made this testimony indicated that when somebody was hired her position she removed those applications  for future consideration and that those individuals were then treated under the transfer policy so if you're already working for the school district they were going to consider a pending application you had for another position unless you reapply for that open position through the transfer procedure i believe that's the testimony that's in the record and i think there's no dispute about what that testimony is crux of the pretext argument i spoke to the principal and is there any open that's that's what i evidence that the state was false of the time those may were actually mixing a couple of different thanks and let me try to and package those a little bit for you one is the issue of the e mail and the e mail that went out to employees about vacant positions that they could transfer for that went out to all employees that that's the evidence it's in the record plaintiffs actually had an e mail account with the disc will distribute it just never set up on the computer to receive those emails whether that was because it was a substitute teacher or not the also it was also advertisement that's correct in the testimony is that the school district maintained advertisements for open positions even when positions of been filled so they would continue to receive applications so you can't necessarily tie the fact that they have an advertisement out of her teaching positions as evidence that they were actually ones open at that time said also true of the now the email was for a specific positions as i recall of th and her testimony was of the time she met with the plaintiff and made it and there's some dispute about what exactly was said or not said to the plaintiff but the union light most favorable to the plaintiff as we must do in this type of situation there's simply no indication that she believed or understood that she had any bacon positions she was qualified at that time i thought it was for the next year for the family it is it's for the next fifteen days out right it would be for positions for the next school year that they were so trying to fill in at those positions have been filled by the time she had the conversation or if they were positions that were available at other locations that would not be something that she would been involved with so she said there was some dispute about  ation let's say that a reasonable jury could infer that not only were the april thirteen listed positions open could also reasonably  so for a couple reasons i don't think there's any reason to think let's let me there's a lot of ways to interpret she could have made a mistake she could have been telling the truth she could have been wrong she could have been lying whether intentionally or or for a lack of knowledge on  behalf that doesn't mean that she had a discriminatory motive or discriminatory and ted and that's part of what you have to to establish here the notion that he wasn't hired for a position and the proof still has to be that he was not higher for that position because of his race or if you view the retaliation claim as being let me golic to just the law pre if the stated reason i your client correct wasn't hired is that it didn't apply or he wasn't qualified and we get to this pretext issue about what went on in that conversation with the spawn it turns out that there are what she said was not accurate to the extent that that undermines the stated reason for why he wasn't hired why isn't that enough to get him past summary judgment the stated reason is that he didn't apply for the position and he was not otherwise positions that were open at the time so the stated reasons stated reason is not the principle statement could be true or untrue but it doesn't change the district's reason or rationale for not hiring or cannot considering him if she gave him is he not qualified for any of these positions i don't recall the specific positions that were that were open at one point whatever point in time but a lot of this would depend what his teaching certification was and things of that nature so the point being there had to be a position that was open that he applied for that was a position for which he was qualified by his educational experience there not have a certification for english as my recollection he did have a certification for special education i don't remember if it had limitations on it as to what specific areas or not as i said as i stand here today but that would again be reflected in the record but to circle back he still had to apply for those positions and it's not enough to say here you have an individual who's employment was a fixed term employment ended on a date certain under his employment contract so there's no obligation to hire him or offer him employment for the next year unless he applies for that position and so you know almost the conversation with the principal in a sense almost becomes a red herring because if he doesn't apply because he's told the no vacancies that that's that's fair but if you later learned her understand that there are because he looks on the website sees th apparently did because he says that he saw these on the website you never applied never fired for those positions so causation issue would i think it would if it were because asian ish it might go to the private that a lot of ways you could look at what that looks like but does the import does a school district cabin obligation to offer a position or to interview somebody for a position when they didn't apply for the position i think that's really what we're looking at because remember this is a race records or evidence in the record as to whether there were any specific vacancies at the school at that time i don't think there is and they haven't one way or the other if i may st address that question about vacant positions at the school at that time in the the record before the court at page one hundred and ninety seven the appendix there is a subsequent e mail dated may th which references the same john dewey learning academy english teacher position still being available on may th which was clearly after the principal told mr for a functional skills teacher and in english teacher english teacher position was the one to mr brownfield in the fall and the functional skills position was the one that he filled in the spring  those were at that school at that school or he would not been qualified to be a full time english teacher he was a substitute teacher not correct well if it were in a regular high school that would be true of everybody in the school was special ed students this was yes this academy was forced students with that's what the record reflects and that was what his testimony is that because he is certified by the state of kansas to teach k through twelve you can teach any subject in the special ed said it independent of that would he be able to go to a regular if you will high school and teach english and be qualified not in the sense of having it in english certification no that's not an endorsement that he carr