little piece of etiquette is that we don't normally allow clients to sit at counsel table you may not have you may not have known that but it's part of our practice not to allow that i apologize your honor i can have her so i think that would be preferable thank you chas that's ok no that's all right good afternoon to know that either ok good i'm in the majority find out because she knows what she's talking about yeah i've been here a while well good court or the standard with the components of the apps absolute deference that's given and pretext with the component of honest belief now the standard that was the drug court used was the stoli standard and that is incorrect now at this time there's no i guess published case that tells us that eight statute is before this court number one but humble was the employment issue and here we have educational institution issue and same and honestly if you take it as flattery i mean it but it's not for my opinion here it is common sense dictates that if it's not solely there's more than one reason going on at this time and it is not supposed to be solely but also even in the majority opinion and humboldt it's the majority talks about the southern district decided johnson carrie johnson versus the washing county career center and in that case he specifically says there was a there's a rehabilitation claim in that case and there's also an aviator claim it was an educational institution as well and a failure to accommodate case and in that case judge mark lee says that the sole the standard is absolute is is incorrect for the eighty eight claim well i mean didn't we hold th understanding was that it's pretty much established walking in the courtroom today that the motivating factor applies to radiate claim but that's soley probably applies to repeal rehabilitation because that's what the statute says that is in to correct we believe that i mean yes we're not disagreeing with the silly standard is the standard for the rehabilitation act and but you you argue use you've created a genuine issue even as to that standard absolutely absolutely and that that is actually what would brings us into the burden of proof in this case it is really high mean yes so i understand as  ou put the put in their brief page forty seven that we have a the burden of proof remains on the plaintiff but they say and  this is the course that the trial court took in its opinion the burden is much heavier throughout this burden shifting process the ultimate burden of persuading the trier of fact that the appellee intentionally discriminate against against mrs frewen remains at all and what the trial court did was assess all of the facts and one by one the courts and that's no one no evidence no evidence no evidence and that's a police going to say and has said well you know it pretext argument these set of facts are on par with osmo case movie keen which we cited in our brief and the pretext does not start with the first letter that mr strength gets and the said  you're not you're not the first letter that she gets from mrs story it starts with her conversation starts with the at the first reject letter as we're going to call it she called dr joseph  and after she made up the change she called dr jeff this said i'm katelyn so strand i'm calling regarding my my denial and and i want to talk to about two messages it took two weeks to get back so  it like pick up the phone hey i don't know who you all are reasonable jury can conclude that she had enough time she knew exactly who katelyn was and then the fumbling through the conversation that she had with katelyn it her torch this was miss so strong conan saying you know i've got to figure out what i'm going to do better i've got to figure out how i can do what i need to change so that i can get into this program this is what i want to do and so she called in she asked questions were questions were can i take classes and being in turn and if i could because it intern cannot apply those if i can get in later and what is needed to be a good fit here and how will i get accepted if you've doctor just of this who can't respond and she has an in then in she blames the fact she doesn't have the file on her with on her at the time of the conversation but she had ample opportunity to get it beforehand and caitlin left the message this is what i'm calling about this is what my name is she was the only person they interviewed that was an admitted so then we go into the email from from  pistorius that i can't get a reasonable answer in she's trying to make sense of this and i can't get a reasonable answer here given the fact that my interviews had something to do with a lot to do with my disability and they didn't sit right with me at the time but ok now i've got i've got these vague answers and nobody can explain it to me i'm going to one in one here makes makes to nanda stand that appeal he's going to get up and say well that's miss those trans one and one and make two but the other things that continue to call dr joseph in particular in to question in her credibility into question why if we say that they're concerned about interest in counseling versus interest and whatever they focus on was the real issue for them if we take them at their word why doesn't that why isn't that consistent with does not fit the program rather than can accommodate some researchers well number one you're given a map salute difference at that point and that's not the only reason that was glad i'm just trying to understand what does not fit means versus not a comedy what's your look standing in those categories well does not fit i don't i don't know that we know what does not fit means at this point they're alleging is that but if it doesn't fit a research interest why doesn't she put it in doesn't  research interest when i asked dr joseph about that she says she didn't know how to philadelphia she's the director of the program for how many years and every time there's that there's a research person under math finish my thought  wrote in her written responses to the applicant questions and what she actually said during the in person interviews what it what it in particular during the in person interview are you referring to short thank you during the interview she indicated that she wanted a non school psychology faculty member asked her desired mentor here's why that mattered the school psychology program at o s u is very small there are only three faculty members for ph d students in particular they're going to be writing a dissertation so they're going to be working very closely with their faculty advisor and conducting research and writing their dissertation michaud strand indicated that she wanted dr darcy grinnell as her mentor dr canelo is a faculty member in the counseling program when michaud strand explained why it was she wanted dr gronow as her mentor she indicated that her experiences and her areas of research were very interesting to her that was significant to the school psychology faculty members because it could be said your honor that that is odd that they didn't do that they were certainly not legally obligated to give her a do over the responses that she had made to the rich an applicant questions and dr ratliff testified during her deposition that the day begins with an overview of the school psychology program you meet the three faculty after which there's these two group exercises then the individual interviews and dr adler said you know we're curious you've been here you've seen us you know it's the three of us curious to see if you'll correct that and say acknowledge oh i might have said this but really i want one of you three the other issue that shows that may show strand was not a fit was that she expressed an interest in counseling for the abolition of disabled children right that is the statement that she made in response to question number eleven is that she wanted to buy counseling to peril i mean children it's not that she said you know what i mean my primary interest is in counseling adults with their problems were their own disabilities i mean she said she wants to counsel the parents of children who have disabilities and so why couldn't a jury a reasonable jury say you know that seems like it's an interest that's incidental to counseling the kids and so that doesn't seem like a real real persuasive or credible reason to deny her admission why why couldn't a jury think that way well your honor it's the three faculty members in the school psychology program who truly position to determine what makes someone a fit for their program and whether somebody has a fair law still applies to those three people and that is correct strategy that through but there is no there's no genuine disputed material fact here nor and that's what the district court magistrate judge abel he did with the facts and he did look at the facts and at his conclusion he determined that there was no genuine dispute as to make any material fact furthermore he said that michelle strand was not able to establish that faculty is legitimate nondiscriminatory reason for why they denied her admission that she simply was not if it was pretextual at the summary judgment stage though is it the province of the church to weigh the evidence or to simply see if the evidence put forth creates that issue effect isn't the waiting is your empathy or if it isn't but weighing within the province of the during the term well the the role of the judge was to determine whether there was any genuine dispute and in doing that he reviewed the record he reviewed the evidence that was provided to him and he needs to of course as you say under the summary judgment standard take the evidence in the light most favorable to the nonmoving party and ok i'm sorry no that but the fact remains that the faculty determined that she wasn't a fed and there is case law that says that that opinion their decision not to admit her to the program that was made i'll ask you the question that was  bit mean wasn't fit for she wasn't fit for the school psychology problem program excuse me and that was based on the fact that she said she wanted a non school psychology faculty member as her mentor and that there were things that she said during the course of the interview that made the faculty members in the school psychology program believe that she would be better suited to counseling and when they said does not fit that might sound like a sort of vague amorphous answer but that truly was the answer she the fact this was never communicated to her and she was never given the opportunity to adjust well again your honor there is no obligation that you allegations that a jury is not obligated to believe everything a witness says either and so the question before us could disbelieve some of the reasons that are offered i mean you know this this e mail with the five points which you know query whether jury could see this is papering the file but stepping out of it setting that aside  couldn't a jury i think that these are not true reasons and that actually this is a post hoc pretext when none of these things or most of them were even asked about you know i suppose it is possible that a jury could find that but it doesn't change the fact that those were legitimately the faculty's reasons when ms chose transposed to dr joseph on the telephone dr excuse me michelle strain testified that the first joseph said to her was i don't have your file in front of me so i'm not able to give you the reason the concrete reason for why you were denied so from there see two weeks after she left the first voice right and they're still that is correct stretching their heads over material we do not can see that there are genuine issues of material fact in a case in this particular case all that mischa strand has shown here is that she does have crohn's disease and that she was denied admission but she hasn't shown that there was anything that linked the two of those things nor can she show that o s u legitimate reason she simply was not a fit for the school psychologist like abram you're asking for direct evidence and not doesn't have to come up with that and frankly almost nobody can that is correct your honor and we agree that she was not required to come up with direct evidence but she still has to come up with something ok well you know raises i mean she gets rejected for reasons they never ask her about professor miranda says if these in fact were her concerns she totally would have asked about them apparently they spend much more time talking about crone's disease than any of these things that are the putative basis for her rejection is that some evidence they asked her one each professor asked her one and only one question that related to her crone's disease and the evidence establishes that that question was asked in response of response that she had provided to the applicant questions where she stopped disclosed that she had  disease that it was permissible for the faculty members to ask her about that the evidence also shows that after she responded to each of the questions dr joseph didn't say or ask her anything else in addition and dr radcliff simply no which is consistent with what dr miranda testified that she felt that she could handle stress and after she provided that response the faculty it wasn't an issue for them there her current is the use by the she could respond it was an issue so there was no error in the faculty members asking her about crohn's disease during the course of the interviews well i mean i guess i'm still left asking why no reasonable juror could connect these dots to say they in fact reject her because of the disease and they paper the file after send out this study you know study leave vague letter and that's that in fact is what from that graduate admissions decision form is inputted into the system and it's short it's very basic if you get accepted accepted if you're denied it says that you're denied and then the letter that ultimately was received by ms shows tran from dr pastoring after she followed up and asked for an explanation of why it is that she was denied was shortened after consol with various offices on campus including the legal affairs office but what that letter said importantly was that the reason she was denied is because the faculty determined that she was more suited toward counseling than she was school psychology that is really true that is really what the faculty believed and what i mean but as a matter of law you're saying no jury could disagree with what you just said that that that has to be the case i mean if if if a juror could reasonably disagree with what you just said then this case goes back in the jury can decide whether they believe professor joseph right it's not good enough that you for yourself think that well you know we would argue and again the district court did find there were no genuine disputes she hasn't read here to you i understand that your honor and that is correct but we would argue that there isn't a question here and that it the facts are what they are and you can't link the fact that the faculty members said that she was not a fit for the program to the reason was because she has crohn's disease that whatever is in the record as it is presented here doesn't establish that those two things go together that the reason she was denied was based on that and it's important to note that the district court did not actually apply the soli standard from the rehabilitation act to michaux strands  if you look at pages fifteen and seventeen of the court's opinion which are cited in our brief that page thirty three the court actually said in a few excerpts that it was unable to show through the evidence that she proffered that the reason was included this only standard but there's no evidence through the rest of the court's opinion that they actually then apply solely to the eighty eight claims graduate school admissions are highly competitive the faculty look to admit those students who really are going to be the best fit for their program and o s u determined that it was not a fit for its program but instead was more suited to counseling that decision was unrelated to her having crohn's disease she's offered no evidence from which this court could reasonably infer that know before you get started i have a couple of questions and i gather that the judge catholic church is concerned that there's a possibility that your client's case got i think he used the word papered over but i'm looking at page twenty of the district court opinion and where the district court laid out those five factors that were given by the school  substantiate their conclusion that she didn't fit their program and it looks like all of those came from answers that she gave in that original questionnaire  e answered their questions and said shut such things as i haven't had a chance i have limited experience with children i think she said she had done some tutoring but it looked like she tutored her  own the students that were in a class with her she admitted that she had no research to back her up because she had gone through undergraduate school in two and a half years which doesn't give you time to do any research a they had people there who not only had extensive connection with children but did have research on their resumes so i'm i'm just wondering how that  why that doesn't stand up she did express entrance interest in counseling with adults and the reaction of the school was we don't have any courses that would satisfy your desire to do that we can't we don't know about that and of course there was the thing about who she picked out from the faculty and let's see oh the thing about the mission of the issues program as i understand it they are concerned with psychology a psychology counselor dealing with children in inner city areas and there's nothing that apparently  was a parent and your clients background that would have pointed to that so it's just a long series of problems that they had i agree your honor and i that goes  if i can there are several things that will answer those several questions in it goes back to partially the to the interviews dealt she there was no discussion during the interviews of dr grinnell oh they could have asked no they're not obligated to but why didn't they they get in there and they ask they say will how do you handle stress with how you can handle grad school with this  came through undergraduate school in two and a half years with flying colors with a grade point average good g r e average why would anybody think that she was disabled rather would anybody think that she couldn't get through graduate school when she done such a bang up job while she was an undergraduate school so i'm not sure that the questions that they did ask about her chromosome these were just sort of courtesy questions because i had said in there that she knew how to deal with stress and she could she didn't think she'd have any trouble well your honor i say we have to look at the totality of the circumstances at this point because the questions they did ask were black and white how does she deal with stress while she deals with stress by getting through college in two point five years with a three point five seven and then and but then they don't ask her the question of why did you pick dr big answer to already the reason they said they brought it broader and in the first place was to bring rand was to to question her on some of this it's kind of like the washing johnson versus washing county career center they brought her back there was a two thousand and eight case they brought her back in two thousand and nine and they said well we did it so we can show we won't discriminate but then they said around booter again and now i think it's my my guess that if they had asked but she's not in our program she's in the school counseling program why would you want her you know i'm speculating i'll admit it but i think your client would have said oh well if that's not appropriate then i would be glad to work under one of the people in your program mean what were they going to discover by asking her about that it was down on you talk about black and white it was down on piece of paper and black and white they brought in your honor i don't mean to argue with you here i respectfully disagree it's they brought her in to ask for that question then they didn't ask are ok well that's your view of it i understand and we have to view this in the totality of the circumstance we can't nit pick it when we're dealing with circumstantial evidence or plentiful never be able to prove anything it places in just an iris on god i understand that i understand your argument but my point is that anybody that can get through undergraduate school in two and a half years with a record she got through  demonstrated that the consequence disease is no problem for her and i i don't i don't think those people could have missed that it strikes me that it was the first thing that i saw looking at the briefs and i just don't think those people that were interviewing her could have missed that and that's the whole ok did the earn her down because she had grown to see if if i may just respond to that it's really not just about that i me michelle has already told us how competitive the education system is becoming and any time it doesn't matter whether you're pregnant you need f m l a you have a disability you're going to need a little extra effort from somebody and that's what was going to happen here she was going to need a little extra effort at some point when she would go take her medication and it's not even that maybe she did need it it's the fact that they'd like the drinks likely fine while she might need it and that's going to be on us and that's a pain we've got all these other students that's what the problem is it's not just that they knew and i mean that's what she's over qualified that's why i'm here today because she is qualified for this for this program the fact i'm here today is because these people saw that there was going to be some extra effort down the road potentially and they didn't want to have anything to do with it ok any more question joe johns you know thank you ok judge the earth thank you both