whether a reasonable jury could find that mr stoll was substantially better qualified for the division director position than the younger male selectee mark green if as we argue a jury could so find this was all the jury find in her favor based on her superior qualifications combined with the other evidence of discrimination and pretext in this record again we argue that the answer is yes and thus there are at least two eviden which a jury could find discrimination in this case regarding stows evidence that she was substantially superior or she was substantially better qualified than mr green perhaps the most compelling evidence of her substantially superior qualifications was that she had been performing most if not all of the newly revised division director responsibilities for many years the selectee mark green testified that once he became division director seventy five percent of his time was spent on responsibilities that he took over from misto we when you say newly revised was that sometime after mr green took on the job that program of the ground making responsibilities were taken away responsibilities were transferred over to the division director position these responsibilities included at a minimum ms stowe's oversight of the division's standards development and standards testing programs as well as her selection happened she was left with almost nothing to do and it is undisputed here that still his performance of these responsibilities for europe for a year was extraordinary student just successfully oversee the standards development testing programs these programs didn't even exist at the time so join the division still supervisors credit her with creating those programs programs  repeatedly described as revolutionary and the gold standard in contrast green had only worked on a couple of aspects of those programs for a couple of years  indeed the jury could find still substantially better qualified with respect to every aspect of that division director role as for service on the ice yes interview panel actually concluded the green wasn't qualified to serve on the i c p tillery who i know the district court described the evidence that misspoke resented a reasonable jury could find that he had demonstrated her mission as sexism toward misto and other women in the divisions he orchestrated this entire selection process he rewrote the job description selected the panelists drafted and waited the interview questions what i would be oh never mind like i was about to say up until your last phrase that would all be ok critical to your case it is absolutely an allegation it is absolutely critical to our case and finding a pretext and there now our allegation that it was not administered fairly you're absolutely right these questions asked the  candidates to quote unquote describe the situation in which you have and then it went on to provide even the more water down solicitation of information with that question so for example discussed in detail your experience running new standards development and standards testing programs how much actual supervisory responsibilities have you have  application you know her history what these forty five questions are designed to do is to give us a sense of how she would actually behave in the decision making process well you know st of all i think a jury could look at these as reasonable questions and i can imagine they're not you know to ask for one example is not per se as a matter of law illegal we don't argue it is  the evidence of his sexism and the multiple means by which this process was designed to disadvantage char and what i see it simply in the phrasing of the questions that was one and my sense was that mr hurd was not a particularly charismatic candidate and then faced with someone quite different to i thought this is part of your kid's face was a little bit different that he wished to promote who was quite on on hard supervisory experience and so there's a relative lack in that area of course rights house style in fact that quite substantially greater responsibilities in the division but he doesn't there's no reference that this decision was based exclusively on relative interview point performance and the interview performance isn't even mentioned in that selection memo at all so you're right your honor we argue that that is evidence again is to a tally of evidence from which we believe a jury could find the supposed decision to to rely exclusively on interview performance here quite suspect describe a little bit about what you understand the job to be there were a couple of these criteria i found it really hard to tell the difference between one it's technical and one it's standards like you and me bob graham at every so so the primary responsibilities here are the management of standards development and standards testing programs so if i can use it in example i think it's the easiest so  are the specifications going to bulletproof vest has to meet to meet the department of justice standards that's that's the standards development program the issuer standard tells manufacturers and law enforcement what are the  standards testing programs which includes this work conformity assessment that you see in our graves is the manner in which the department of justice to terms whether or manufacture once they've made this bulletproof vest whether it does in fact comply with those standards it's testing to make sure that the product is as the manufacturer represents this was the majority of its job and we get in the briefs the lawyers tend to silo the various issues but the running those two programs for as long as mr did she that was her responsibility that involved central reste once abilities involving grants management for example that wasn't separate those were thirty million dollars in grants that ms stowe oversaw in her capacity running those two programs the same is true on this sort of separate question of where has missed stoll is recognized it's undisputed that she developed these standards development and testing programs which involved development of technology policy for example if we let's assume for a minute that we actually agree with you on the gender card or do we have to separately address he claims to just go back at that point for a jury trial so the other evidence of pretext and discrimination in the record of the unfairly administered process of the reasons that you could from the deposition testimony and otherwise seriously doubt the legitima each of the panelists scoring of the candidates was along with by the way to larry's shifting rationales that he offered for the decision that the multiple aspects of the pretext evidence was sufficient to support absolutely argue his case goes to a jury that those issues are fluid and that this could have been an issue of not wanting an older woman in a position thank you again thank you thank you so much south are almost actually in this thing with a ball in hamilton warns on relying on the kinds of subjective standards that were used here in the basement like eighteen or nineteen pages in their briefs on that so that i picked up your brief to see what the answer was but i don't see any need cite the cases but there's no to say there's no effort to distinguish those three cases so you know i was wondering i mean are you conceding that their description of those three cases is accurate as it applies to this case the argument today your honor i said that if these are distinguishable because it both those cases what you see there is very strong circumstantial evidence that the the decision maker the hiring official for selection process look at paragraph frequently i desire no reason i have observed him talk to her in a way that i would describe as patronizing condescending belittling and sexist even though she is one of the most outstanding performer in the office crisp eat food crease or at least speaks to deborah as if she thinks she does not what she is talking about though she clearly does i'm not saying i don't know what a jury would do with that with but why isn't that bias against an employee for her is foreign language speaking so that was very in addition there was evidence nec case that that section official had made disparaging joking remarks about at a number of allegations and claims in a case and by and large as is the case in this in this matter and this don't matter the the allegations he claims that the plans are made were either unsupported by the record conclusory or directly contradicted by is the person who designed the selection process and who served on so i don't see how you can say that they're not related to each other that is that they were stated that they somehow crossed with allegations don't in any way relate this case in fact taking you back to salazar that's exactly what happened in salazar salazar had a selection process just like us and a person participated in the process and in fact designed it determine whether we're bound by a case we will look at the facts of the case and the statements of the court and what i am telling you is that as i look at salazar i don't see a way to distinguish this case in terms of the process the standard we apply because it doesn't make a difference there was evidence in that in the record in that case in iowa similar in this respect that raised raised questions about the the building from that st distinction is what was strangling fishy about the selection process i'm sorry what was starting to look fishy about the selection process in cells are in iowa was that you had somebody here who in iowa like i said slew that selection official ended up putting the such official right at the center of it right now and that's why you know i just very briefly the other piece of evidence that's missing here that was present is that there was evidence of undue influence answer we don't we don't really know and that's that's not the case here you had there was a search on the record when you read the depositions there's a certain amount of deference on the part of the other panelist this is really mr taylor's decision to make and in fact at the lower end of the range creating the very amount of point difference that ended up being decisive in the case and there there is some evidence that a jury i mean there's also them that's true they didn't none of those questions gave the plaintiff an opportunity to explain to show her her more extensive experience and also just like in hamilton and in and in the other cases you know there was no i don't see anything in the record that indicated that the scoring had been validated anyway there was no difference  believe is primarily focused on of the growth of patients of the candidates in those cases the disparity between the selecting the plaintiff was much more significant than it is here for that part of the case so even in my reviews the judge a jury could wind that i don't know where that was i don't know what more she's supposed to do she creates a record of the sort that she has which is outstanding over many many years goes up against some of the substantially younger with nothing like the record that she had and she's got a place to s it doesn't account for the data dr green not mr green dr green who had a ph d from the top programs in the country in materials science and engineering and relevant experience both within the department and outside the apartment was a highly qualified individuals in our positions that no reasonable jury could look at these two candidates side by side based on the paper applications not talk about their responses right now based on the paper applications and say that the disparity between these two candidates was so what but the only exact field materials science and engineering and then when he came to the department of justice he had been there for four years prior to the selection last two of which he was of the same to use for team of mr l now i'd like to respond just briefly to the point that mr mr coun during during argument which is that there was no evidence that dr green had performed a work on technology policy and that's that's incorrect the example that dr greene provided an interview but also that we talked about in our briefs was dr green's work on the smart gun technology initiative and this is an initiative that had come down from the white house in two thousand and twelve after the summit of the shootings dr green was the point person for d o j on that entire initiative so just so i can focus and put it together with what's in the record which of the five buckets of go to i know he talked about that in his response i think to two of the questions technology policy is your shorthand for which of these or leader leadership work so might be yes my recollection is that it was a question for which i believe is the technology policy questions when that is in our discussion in the green or discussion of the panelists recollection of their own scoring  only one of the five selection criteria the difference is that technology policy in this position just this position is just fifteen years is fourteen if this person would not be developing the standards himself or herself is more of a management supervisory role so it's its name the work of other program managers who are developing standers it's interfacing with different stakeholders in the community law enforcement the research and academics the policy s the public at large is affected by this technology dr green's responses during the interview reflected that you better understood the distinction between the work that had been the focus of you about at this point about the plaintiff's alternative argument which is that even if you're right that if you say we yes she was better qualified but not substantially better qualified even if you're right who expressed that one designed the system and allegedly design questions to say that's their alternative and what's your what's your basic response to that that as i read fischbach though you're right that we said that the that the plaintiff's superior qualifications were not enough to go to the jury but in that case we pointed out that the district our reliance on this book you know is for the specific point respond to mr rose argument that she was the victim of course election procedures and in that case the court said that there is no there's nothing fishy about what i think the court said it's exactly reasonable bias you know evidence of bias treatment your observation of bias treatment by anybody in this case at the summary judgment stage where the inference are in the plaintiff state have some evidence said so so in essence stone might in your view have been the victim of what you call into poor action selection procedures but that does not necessarily equate sex or age discrimination and so when i had asked you earlier about things that concern me about not just that having a qualifications paper review and then putting that aside to look only at interviews whores and you pointed to bishop arkansas as supporting that that isn't necessarily discriminatory but i have had that pointed out that mr chilly sent his course the others before he got there was that he had in fact  who the finals were not including the sto before he got the other panelists corps that there was some evidence that they were really deferring to tillery and there was really hot and then the feature of him assigning a range of scores and rounding from history and running down to mr allen when i asked you about all those features i believe your only answer was this far and i just wanted to give you an opportunity to give a more detailed answer evidence that mr jope put forward that the district court looked at and addressed in it's very thorough opinion does not show that there was any effort to signal an intent to thank you which disgust said like to quickly touch on a few of them i'll start with the order in which take certain my discussion on substantial spirit qualifications  legal i would i would submit to you will that it isn't a unique situation we find ourselves here where almost all entities involved in this case it need to jury could reasonably find miss still better qualified i include the government in that who essentially concedes that in their brief them may have considered it an oral argument today the district court here recognized that a reasonable jury could find stoke more qualified and we would simply submit on this issue of when does that evidence rise to substantially superior when you have both parties admitting more conceding that it surely could find still more often it's the promise of a jury to  determine whether that totality of that evidence rises to the level of substantiality on the points turning to the nd issue a pretext i do want to point out that you know there are lots of subtle factual differences in the panel selection process here vs one salazar versus the one in ohio hard because you know people have different names and they have different backgrounds and the questions were in slightly different way and there's what salazar offered and in particular i want to note that here and we discussed this in our brief there was evidence from which the jury could infer not only that hilary had influenced i had the ability to influence the other panelists but that he did influence the other panelists as you all pointed out with exchanging the grades ahead of time  points that was for area of expertise if you look at the score in her scoring of green vs though she puts green way out in front of a stone she testified in her deposition that the one area that green had outperformed misto was on grant's management but then you go back and you look at her scores on that question number three dealing with lance management she scores to the same so there's a lot of evidence in the record not just that mr tillery had the ability to influence but that a jury could find could doubt the veracity and the legitimacy of the other panelists scores i  would just ask what about mr turner is apparent championship of mr trying to do the task on to get her job upgraded by using her to get more surprise or experience and really in some way a jury could conclude being a mentor and sponsor her up to a point well you're and i think you're right i mean a jury could certainly construe that that way and could say oh there was a point in time believed that he was behind her on that and had slow walked it but in any event i want to make the point that for some discriminators it's very different to have some lady in the corner office students her science stuff and give her that yes to fifteen pay grade because you know she's been doing that she has fifteen more for many years and it's hard to really deny it that's different than giving her the division director position and technology backgrounds because this is such an obviously a science dominated positions but whether they have ph d is just really did have some law enforcement background