treatment issue that is not being appealed at this time then the judge had reserved for himself the decision on disparate impact and steve then made findings on that and those are the findings that are being appealed and again the are whether performance ratings which had been considered tainted because the variables are under the control of the employer retention ratings which were alleged to be discriminatory or at least trial if there were two and then it only qualified experts who disagreed about whether or not these two factors were important in the analysis judgment as nick decided which of the two was more believable in terms of the factors and made the decision we have review footnote at the very end of the case they say that if in fact this is a matter of a battle of the experts then if such a case were to arise i just a court would have to weigh the experts competing evidence including the experts qualifications your argument your argument a combination of two now one clear air yes i am right but if we don't accept that there's a denial of our review here under the clear air if we regression analysis my best argument is that there were factors included in the repression analysis which were in themselves previously found to be discriminatory my best argument is well i don't i don't know that i agree with you on that tell me what the evidence is a fact that they were found to be previously discriminatory the demographic salary analysis project by paul wells the manager  compensation of boeing which did find that minority employees had been historically paid less than white to employees and there was a particular finding as to asian employees between the years one thousand nine hundred seventy nine to ninety nine also the fact and this was found by mr system that when these factors were put in and there was a jump in the figures mathematically for instance in the pay is then pushed forward to looking out on the current salary my other argument is that when you're where you salary on the one one hand it's really not appropriate to use  of their work to correct because obviously i think you know i don't think you have to be a rocket scientist as it were for boeing to do you know to come to the conclusion that you know obviously we know in this society that we you know we're go more for certain expertise and there's a lot of discussion in here and that people that are just doing bro work as opposed to people that are doing you know cutting edge engineering work and all of that now i mean why aren't all of those  what kay says you have to factor out sound and regression analysis stats you know i mean if you want to claim to never review or something i want to hear i want to see you know show me as a matter of law that there's time case that says you can't consider either of these factors it's a it's a legal error i don't think there is one out there the cases that i cite are cases where the fact is that women have been historically paid lower salaries those lower salaries were then used to justify current lower salaries and that was not permitted you cannot use historically data to justify current levels of salaries but i guess i'm just not i'm not making the jump that case stands for the proposition that including the ask a speedy level in the year of higher factors their importance artificially by inverting the wait for the year of fire and the prior salary giving that a double weight for the older the numbers were the more weight they gave them and i was just i'm making a factual argument as opposed to a legal argument and our standard of review is very deferential on the facts but judge last night did not make findings on those particular issues at all and when there what i'm hearing her say and what i'm thinking is if you had one and counsel for growing more standing up here and make you know argument then i would be asking him the same questions i mean whoever won after the battle of the experts i think would have the uphill battle here and if you had won and they had lost and they were saying well you should've you should have followed doctors as opposed to d was saying that that person would have the same problems that you know that that you're having here it just seems like there was evidence that was heard and that they both they were both qualified it they both of why it is appropriate to consider salaries prior stuff is in determining whether current salaries are discriminatory or not simply not in the findings also the fact that there are a number of cases where although maybe the standard of review isn't isn't discussed in that i'm in that degree if they do talk about which factors are appropriate to use in when there was this influx of people and a lot of them were a huge amount of those were of asian descent and at the disparity in pay jumped back up but whether those are  go back to the collective bargain the collective bargaining unit and talk about that and say why isn't there proper factor if the collective bargaining unit you know that there's a strong correlation between the s j c level and s of engineering work that was mandated by the government collective bargaining unit you know i that that was something that went on in the process there and my argument is twofold one is that this is more of a disparate factored into the regression analysis so i thought those factors were put in twice by dr ward they were put in that because they're contained within that straight sea level and they're put in again and then they were given greater w depending on how far that they were were and then they were our artificially way to make them and result something like forty percent of individuals suggested that there s j c levels should have been something different and there had a process and many many of them were changed with that also support just last next conclusion motivated or encouraged to appeal was brought up only briefly because a lot of these events did not or a lot of these levels did not actually change tried to a jury and to the court in the normal process for title seven case to disparate impact claims were tried to the court the disparate treatment claims were tried to the jury this is not a summary judgment proceeding in which the court might be evaluating whether their words just use the fact or making determinations about the legal sufficiency of the evidence this is a case that comes to this court after a full trial in which the jury heard all the evidence and ruled against the plaintiffs and i think we know that w but you can tell that by the focus of our questions so we can just jump you right to some of the things that we have questions about how do you respond to the opponents argument that starting salary data is tainted with to find that in his testimony it is in these supplemental excerpts of record for dr word that they just thirty five to thirty six and also seventy three to seventy four he explained that the regression methodology teases out or prevents any double counting in that there is a difference between higher year and starting salary higher year refers to the salaries paid based on market forces over an entire higher year starting salary it would affect the individual salaries of individuals within that year and the way i would respond to the argument is to say as a starting salary it doesn't matter at all in every direction if one looks at dr ward's stepwise regression which did studies in which he left starting salary out entirely and still found that there was no disparate impact so starting salary by itself drops out of the picture it doesn't make any difference what the starting salaries were higher year he testified was that he found it and i think the word he used was troubling because he was finding that higher year was bouncing back and forth in terms of a it was good or bad that determination by doctor refuted by dr ward and his testimony which of course judge lassen occurred and so a judge last minute could easily have concluded that it would not be clear error for him to have concluded that there is nothing inappropriate w in the litigation was not part of their claim at any time in the lawsuit and certainly not at the time that the case reached trial after multiple classification proceedings that to treat higher year as an employment practice judge last nick said is simply illogical it's simply a fact in order to construct an argument that there's something wrong with higher you're in these circumstances you would have to find evidence of some quite complex hired people in particular years and the market wasn't what it was if their argument was that the starting salaries within that year were discriminatory that are in this for closed in terms of intention by the jury verdict and as for closed by the review if it were a battle of the experts then basically if the judge you know if there's evidence to support what you know what the judge found which expert the judge believed then it's over for the listening party that your honor i think that is the way the system is supposed to work the system in its wisdom consigns to the district court factual determination so that the fact finder can hear all the evidence can listen to all the cross examination can explore all the documentary evidence can explore the demeanor of witnesses one sense of confidence and one person or another in their explanations and arrive at a factual determination as to which is the more sensible approach that's memorandum opinion his use of the word elated is because that is the first point in the trial in which these arguments that these factors here of higher level were themselves somehow inherently stipulate to one for the disparate impact claim but for obvious considerations of the economy and because neither party objected to it the whole case was tried simultaneously so the jury heard all the same evidence and so did the judge standard review is clear error the evidence plainly supported the conclusion that the level was related to the sophistication of work so the contention by plaintiffs that level was based on salary and is somehow circular is a factual contention reviewed for a clear error and b it's factually wrong the doctor says can didn't use level because he believed it was it was determined by mentioned the forty percent forty percent of the levels were changed some of that was done by managers saying this isn't right and some of that was done through this appeals process because the question also came up just quickly about whether any of these individuals came from a down douglas or rockwell that they did not these are this was a case state of washington case involving engineers and technical workers represented by the spirit union and instead of washington to starting salary you reach the same result whether you can whether you consider starting salary or not and i would invite the court to look at dr ward's stepwise regression is like exhibit one for example in which when you go through the regression you can see the effect of each factor and then put some models at the bottom which include a model that does not contain starting salary at all and that factor still shows no disparate impact so starting salary is a red herring and a non issue there were few other things that we've said that i'd like to respond to in place argument because i time because the original complaint did not contain a disparate impact claim that was based on a title seven charge after the case with filed one of the plainest filed a class disparate impact charge and that they only have about a six month window of time in this case where the evidence would be germain so in short the proper standard of review is clear  the district court did not clearly err in determining that level represented the sophistication of the work that it was a proper regression variable and that when included eliminated any statistically significant disparity in the salaries of class members and walk between class members  difficult to not care in concluding that higher here representing the particular labor market in years when an employee covert is hired is a proper regression variable and that when included also eliminates the disparate impact that would otherwise be statistics and the district court probably concluded overall that these factors should have been considered that that's the preferable expert analysis and that when the analysis is done in that manner there for imitation sets passed on some of the claims however that these factors the issues of prior salaries can be used for other purposes and in this case rests in the court to look at these issues and use them for the purpose of determining