before the court of result of a grant of a motion for summary judgment by the trial judge in effect determining that there wasn't any genuine issue as a material fact and that in this case the government department transportation was entitled to a judgment as a matter of law the issue is presented to the court is whether the lower court judge pre empted the role of a jury in this matter and in effect decided the case based on merits that he found didn't have any  substance and we believe that he did and as a result is decision should be reversed course the court is well acquainted with the standard of what's required for  a motion of summary judgment with respect to the role of the judge he's primarily to determine whether there are sufficient facts to go before a jury in other words whether a reasonable jury buy on the basis of the facts that there is a true claim and to go forward on a trial the judge in this case of course didn't do that when i first read his decision and then read it again and again and again and most recently the other evening last night the thing that struck me of course was that is decision is thirty three pages  believe there are some really critical errors and his factual determinations but the first thing that caught my attention was the penned a put no two where he starts out in and of texas says fourth what d there were others that he didn't feel has been proven and then he goes on to go through the proceedings discuss some of the evidence and his discussion in my view in the way i read it was instead of giving the benefit to the nonmoving party which is the normal standard he made every effort to find on behalf of the moving party which is the exact opposite on work characteristics did you ever challenge that oh yes yes it was the nature of the challenge well tellings was first of all one of the initial rating was given she was given a ten gentleman by the name of snow  also given to him i'm just referring to one aspect of the rating the work characteristic in which he received a negative for that seem to be important in the determination and did you situation here is that the lower court just looked at specifics and we were trying to encourage him to look at the total picture of the total picture is looked these ratings were at least questionable and i think we the law here you have to show why the gap in qualifications not just the why gap in qualifications and there's no question there's no wide gap in qualification between her and galloway so the focus has to be on sierra right it least the cases i've seen thus far that you haven't made a wide gap i think at least for this judge you're you're better focusing on sierra and it's i'm am i right that the the white yet with year is experience versus degree and how that's weighed yes gentlemen had master's degrees my client did not although she took some graduate courses she obviously had the more experience and more so than syrah but i think so more so than galloway but what he did do in this is he didn't take into consideration the other aspect the other part of this and that is it's not just a question of qualifications it's twelve patients that have been tainted or bro question that should be brought to the jury because what the judge did in footnote poor he picks on he says that my client said that she made poor applications for these positions and then she says five and his conclusion from that is she hasn't shown that this occurred he's not going to consider any evidence regarding prior conduct and the prior conduct is critical because e in the facts here you have a history oh activities of discrimination towards women going back involving this lady and of all these same people so when you get to them the position where they said oh it's a question of master's degree or a bachelor's degree there's a question there i think it's a question it's not clear and it's one of the worsening should not have been resolved by the judge the easy way saying masters b s they're entitled to pick who they want i think you have to look at the facts as what is the misread what is the history here it wasn't just a master's and a b s in our position and i think there's sufficient evidence here to go to the jury to say is that the true reason i don't think it is but what the judge did you know before he said anything you have no had proven a prime aphasia case that was conceded they concentrated on the third element was was there a pretext for what they did and so we're back to the argument they're saying oh well we just picked it on the the top people and then dropped my client down and therefore she was not eligible which was that after the then head that was not appeased i thought that was after they brought in the work here to receive the negative for ratings yes that's true that's masters be a situation that's it we're trying to so that you have to look at the whole situation you have a claim of a hostile work environment here on top of the just the the the issue of  the discrimination you have the retaliation issue and these were elements that were pretty much pushed aside because the court in the judge's view masters b s degree applications while in her sworn testimony five such applications ok you may have stopped there because he then says d o t has no records of where a applying for vacancies before twenty twenty five and grade not counter with any documentation of such applications of the evidence before him is she says four or five times before i applied he says they d o t has no record she has no records and i heard a failure of evidence because in the the answer to that is that in her initial complaint or a formal complaint she talks about the four events in her deposition which is part of the people that were put were selected the three of them she goes on to state well that doesn't prove that she applied when she testified in her dept this deposition that she nodded and d o t says we don't have any records of her time and she doesn't either this is a deposition is her testimony under oath that she applied and is testified as to the people who were selected then she includes the to the sierra and go away where her five there is no refuting that no one says that she did not apply this saying we don't have records it doesn't mean she didn't comply and secondly in the deposition later of m primary but there is no question that she applied to these past positions with the judges saying i don't care what happened in the past i'm just going forward from two thousand and five and that effect precludes us from showing that that was an ongoing when the real reason was discrimination let me turn to two thousand actual issues the planet has discussed this morning that he suggests showed that when you look at all the evidence there was a  the plaintiff shown evidence of a culture of discrimination within the human factors group i think the important answer with respect to that issue is to keep in mind that at least with respect to the major plame the plaintiff makes which is a hiring decision but the discrimination that would be relevant to show is that the age she had in gage in a pattern of discrimination with did the notion that there is offensive or rude conduct in the workplace is an entirely separate factual issue is that if a plane it can establish that there is a  environment the workplace that mistreats women is an entirely separate issue to suggest that that may infect the hiring process that's not your best argument counsel your are i think going to be i'd like you to get to the qualifications issue because i  the use for me if you can why isn't i mean he has to show that there's a wide gap in qualifications galloway's you heard me say that i'm not persuaded so far sierra i don't know that looks a different matter ciera doesn't have nearly the experience that that that ms gray does when he has is a master's degree that was the certain point i wanted to raise a trio ok ok so let's talk about the experience of the two candidates the experience the of the planet claims is what she characterizes thirty years of experience within the industry and most of that spirit was in the twent right but see here also had for the same component f f a so i submit that there was not a wide gap and their experience in dealing with the human factors grew and i submit to you that the experience that they had working for the people who were making the hiring decision was far more relevant than experience that either of them had back in the twentieth century what did that experience of ms reddy actually consist of back in the twentieth century well about twelve years  in seventy two i think to about the mid one nine hundred eighty s was working as a g s seven for the postal service about another twelve years was when she was running her own company and you can characterize that as experience in the relevant is the experience that she had here relevant to what you'll be doing so although if you can you can claim as she does that she has all this twenty five years of growth of experience in the twentieth century is not nearly as important as the experience that both of them had working for the human factors group in this in a four to seven years depending on you know it's really about what do you make of i take it year your opponents argument tilted with this workplace environment that was mistreated women what's your response to that video record is very clear george griffith in terms of what those negative characteristics were based on and you'll employee at all but they had to make a comparative judgment and during the period of time she was working in the human factors group she had three distinct problems one she missed deadlines two there was a problem in terms of case where the plaintiff was fired because of these current respects the question is whether she had clearly superior qualifications to sierra whom they selected and i submit that the quality of her experience in the human factors group in the twentieth century was not entirely satisfactory and it combined with sierra's master's degree at worst for the agency put the question in play as to which was the superior candidate i submit that the jury could not reasonably find that gray head significantly superior qualifications to sierra unless they were lied exclusively on the length of her experience working for herself and for the post office of the g s seven way back in the twentieth century questions from the court were prepared to dismiss the case for the court's disposition thank you  why didn't you take a minute and repl where she was going where she was applying which she would be employed and is it right and is it right that mr sierra worked in that same area for forty years i have seen that i don't i don't know where that came from  worked for the i think the same contractor if it was in the specific area that my client is i don't know whether that's true or not but if she was such a bad employee and i point out she worked let's say five years  edward he did not claim that she was a bad employees very careful to say that she wasn't a bad employee so well i don't think it is i don't think it was made that argument well it if she was not selected because of the claims he said that she didn't go along with people she missed deadlines she did this and she did that why did they not get rid of her as a as she was an independent working for an independent contractor those as joint employment situation they could have gotten rid of her if they wanted to or the three claims  the claim that she was not a good employee or i had less than the sierra who they had no experience with at all i think is a phony argument that was not in the record they complained to her boss or those of the contractor that she was not doing the job all the sudden she's interviewed and when she's interviewed she's found lacking when there's no record of particular