that when she signed the general lease upon applying for and upon applying to the city of mesa that that in of itself and that that she was throwing away her rights as it relates to employment discrimination laws and as it relates to other federal statutes that protect individuals to check her background and that they would not have the opportunity or she would not have the opportunity to sue as it relates to those discussions but what was not waged is that they would use that information in a way to discriminate against her and put away the discrimination laws that exist in this country if you want to take the argument by the city of mesa to its logical conclusion then the city of mesa could with a stroman case and the cases before stroman and the cases after stroman i have stood for one proposition that it is not against public policy to allow somebody to waive their rights under title seven or other federal remedial statutes but if you look at the strawman case and it worked other cases that predate it and posted it stroman the facts are very important stroman we have the employee who have two charges of discrimination pending at the time he signed  then entered into an agreement whereby waiver took place relative to all employment actions at that time that's an appropriate case to say the waiver applies there we knew it was going to take place relatively to charges of discrimination by investigating an inquiry into her worker's compensation claims the force that meeting a conditional offer of employment why isn't that way because it's part of the investigation it's part of the investigation but the action taken from  issues of pretext that i want to discuss relative to title seven retaliation sure it does make an awful lot of sense to get a waiver and release for everything that we do and investigating your application for employment but then if we don't hire you you can still source does make a lot of sense it doesn't make a lot of sense to anybody especially an employer in the context of the exist in this country well ask an applicant to file a general to sign a general lease and to and get them off the hook for anything that occurs that doesn't make sense and it's not just if you're not if you're not hired that you have a right to sue one of the other things that are lies that may not be something that the applicant knew about well thought about when they signed that waiver in this situation we just don't have how we're going to construe as a matter of law  that was going to take away her rights under title seven when she was just leaving an employment context relative to a title seven charge of discrimination she filed you know we have based on the affidavit at the very least what we have is cover title seven and that she can assert a claim for discrimination i'm wondering is there an issue of fact on pretext when the when the city has an outside expert psychologist or whatever doesn't evaluation and can you i mean  direct evidence we have here is that the city of mesa relied upon a bad thing relied upon a wrong thing relied upon the fact that she was really gauging risk and making the denial that's direct evidence that this court can utilize as it relates to pretend with the litigation risk associated with the charge of discrimination or with the litigation risk associated with the worker's comp claims that she was pursuing he i can't tell you what that was but i saw it said litigation risk deviated from protocol by looking into these matters as nielsen their protocol was we don't work in to see charges we don't look into workers comp but they did that that is that's a deviation from the protocol t the time for a bottle normally comes out of the opening segment but we're going to give you two minutes extra for rebuttal and we'll add that time on for the kelly could have an extra two minutes as a judge will took the touched on it in his last questions the real issue in this case is because they are competent evidence that the psychological exam that ms nielsen failed was a pretext for not hiring her evidence the only evidence on that was that mesa asked her like every other police applicant to pass a psychological test yeah evidence was that she failed the test that was undisputed based on standard psychological psychologist testified to third the evidence was that pursuant to mesa's own policy that as part of the record on appeal because she had failed the psychological exam she was notified that her her process had been completed and she would not be recommendation was based exclusively on her test scores and responses during the interview so would it have been easier and perhaps would we not even be here had that piece of paper not been included in the package that was submitted yes i agree but i think it's clear that dr ford fact and i don't believe so your honor the question of what other exam psychological exams she had taken what those exams were how they compared to mesa's whether they were the same type of tests whether they were close in time mason's exam none of that was before the trial court the plaintiff had an opportunity to retain psychological expert to evaluate dr ford's exam and say that the questions that the the the standardized tests agency and say therefore maybe there's a reason to think not to trust doctors for the exam there is none of that in the record it is we are left with maces with the plaintiff's speculation of simply attacking dr ford's credibility there is no explaining on establishing a prime the facia case because there was a decision because the conditional offer was made there was an independent decision made by a doctor for evaluating her psychological status to serve as an officer and your honor i'm i'm not aware of any other any case in any jurisdiction that says you know i can't say that i've explored every case everywhere but i'm not aware of one that makes the point you're asking about  but that raises a jury question i think your honor can i imagine a case where maybe a jury question would be raised possibly but i think it goes to judge rawlinson question which is you know what facts were before the trial court that put into question dr ford's findings you know was that was the test improperly graded was that improperly given were the circumstances improper or something to suggest that it was a pretext i don't think that's the record that was before the trial court or on a apply to the questions that were asked and joining the course of her investigation into the suitability of her employment and while it is true that the language of the waiver actually waivers that she signed was broad with regard to this case mason is simply asking that that you know that really what this case is about is maces attempt to kind of deal with how she left him and how do we ask how do we find out about that which the trial court found was a legitimate  do we find out about that without trading in these more sensitive areas and i think that the waiver really goes right to that inquiry which is we should have the opportunity to ask these questions and  detectives should be able to explore this without fear of being sued that perhaps they didn't walk that line it as perfectly as they should have and that we think is really the extent of of the waiver that we are asking this court and that's if in the course of our questioning on how why she left him what were the issues with leading tempi if in the course of that we may have touched on the e e o c claim because that was part of the questioning to the extent that gives rise to a title one of the issues on the waiver was whether i think the standard instrument was is whether it was deliberate voluntary deliberate and informed and i think the record establishes that ms nelson was a inexperienced police officer had been involved in multiple types of litigation from personal injury lawsuits to wage claims have in fact the waiver directs her to consult an attorney to the extent that she doesn't understand the waiver we understand she was actually represented at the time decision was based exclusively on her test scores and responses during that interview not anything that mason had communicated to him plaintiff never present the trial court competent evidence to question dr ford's test results use of that information and i think that's where this court was going that was used against her it was used against her because the decision was made that she her application was going to be denied and was denied because of that information that she had submitted workers comp repeatedly echoed all the all too familiar complaints about assertive strong women who speak up for themselves they're difficult they have a negative attitude they're not a team player the problem and the district courts must reject these sexual stereotypes and learn to identify e and retaliated because of what you found and now i'm going to sue sue you and if we don't assign a broader validity to this waiver isn't this just something that keeps right on going on down the line the next time and found out about you and you get sued again i think in response to that question your honor i think it relates to every circumstance you have to look at based upon the facts here we have a