the first task today is two thousand and sixteen two zero one three five versus america transit authority of harris county you may proce this morning i am encouraged and reminded that anything's possible since the cubs won the world series last night so you have a better chance man yeah i hope so i hope so but  in my time this morning i really like to focus on why the record in this case simply does not support the truck or to grant a summary judgment and i'll use the vast majority of my time this morning to focus specifically on the issue of retaliation one way or another in this matter all roads lead to retaliation now keep in mind that my client has already shown that metro has discriminated against him because of his rights  well how do we know that he want to jury trial where he was awarded damages for discrimination based on his rights that suddenly stop we can't say for sure but regardless of whether or not they saw him of course compelled to allow return and show that discrimination continued against him there certainly cannot be any question that retaliation must go to a jury briefly yes the discrimination issue the trial court held on going to scream a nation was not possible because at least one hispanic was chosen for one of the sergeant positions and while it's true that at least one of spanish was chosen and selected for one of the sergeant positions this is not the standard by which to summarily dismiss a discrimination claim are we talking about when it was issued which people were testing that is correct your honor and there had to be a minimum score of seven that is correct and what mr hernandez school well hit his scores once this third party group submitted the scores were less than seventy a believe some were sixty seven that was it was certainly under the threshold of seventy but the problem here judge is that there were discrepancies worked with his scores and those were raised to metric in fact he made it known to them be right that's correct and so and the little the instructions say that you don't get the three points and last so you get the seventy that's right and he doesn't get to the seven b even after it's fixed well i'm just that was not corrected before they made the position of keep in mind metro is an entity that it was made aware to them even before this particular process for promotion that there was a problem with their system and they did it may delete take some efforts to correct it so they were on  notice and aware that their system was not correct and that's what happened here as well is there a claim in this lawsuit that you know to me there's kind of a thread in this in your briefing that that th the system itself is geared to favor perhaps whites and african americans over hispanics is that is that a claim in this lawsuit that that that the whole testing system is not appropriate or that it the case in franco and look at teal which is a controlling case in these united states supreme court cases it states that discrimination cannot be cured or disproven solely by favorable ethical treatment of other employees of the same rights even though we had hispanic put into one of the seven positions it does not mean that officer hernandez then gets to get his case dismissed as print course held otherwise even if someone within your same category is treated favorably i e gets a position that does not disqualify his client was treated and favorably that's the if if it's a test and it's not administered by those those people that said that he would never rise up in the previous time he testified at his deposition that they had they knew who he was this was supposed to be a blind testing process except they knew who he was and natural in the record admitted specifically this was our process to ultimately know it was stated as to what the region oh it was a discrimination lawsuit the testimony the statement was made in his community motion but you know there's something to that how do you get around the absence of any statement by that that's what happened simile here another but for standard it's told to him he will not be promoted how dare you see us and come after us you will never be promoted and that's what happened this goes back to judge wright's question on there's an objective and a subjective component to this testing on the objective side of the equation scores are through the roof he's scored at the very top he's college educated not everyone that applied for these positions was college educated so on the objective side of the analysis he's at the very top on the subjective side he's at the very bottom well this is a fact question that minimum natural is the middle east a this is our process to administer and if was not a blind process as it was intended to be or should have been then we have a problem here he only has an issue on the subject side and so it is their development in the record about what was problematic about the subject thousand and twelve where he makes a very clear there are issues with the testing and in fact it was a very laid out drawn out memorandum where he tells the chief we have issues with this and i think twelve memorandum from patrol officer hernandez to chief of police victoria dragon he asked for a meeting about the assessment scores he says that the assessment scores compiled so that he didn't pass the assessment center due to several math calculation and keep in mind there was an assessment center process they'd made it on the record that there was an issue with the scores now at one time previous what i mentioned there was issues with the scores and and i believe counsel for metro stated at the start at the summary judgment hearing that well sometimes lightning doesn't strike twice they were very aware that this was an issue in fact he laid out the specific errors that he found in a score sheet such as it into ra score between two assessors within the same exercise that there was a two point difference in those that an improvised assessor was added to one exercise but not all exercises but the most serious was at the score deviation errors between the morning group of twelve candidates in the afternoon group of twelve candidates exist and he lays out specifically with specificity exactly what happened and i think more importantly he states in summary in this was dated august seventh this is before the decision was made or that the candidates that were selected was announced i'm sure by now you've been advised that were the concerns and errors by other surgeon candidates and i know you will look into and take whatever cracks is necessary that never happened but he also states that unfortunate for me by the time you read this memo metro  probably working on other ways to disqualify me from the sergeant promotional process he ultimately didn't get any of the positions while he was at the very top under the objective standard of how this test was administer he didn't get the position now on the discrimination climb our main contention is that it was not dismissed under the proper standard than if the rationale which the court stated was because a span it did ultimately get into one of those positions that's that's flawed under under teel and under franco but on the retaliation side of things there's a fat question all day as to was the test sergeant in order do you have to have some evidence you know like a cat's paw can't be sure that's do you need that sort of evidence and do you have that evidence this is cat's paw now in terms of the direct evidence i wish i just he was there to to do the bidding of the president c e o lambert but we don't have anything that they were involved or going to visit him shortly before he made the decision or anything that could even be heard that states that it was told to him in no uncertain terms that you will always be a patrolman and you will never be promoted and that's ultimately what transpired in terms of the smoking gun do i have some evidence some e mail  or anyone else we don't which we often do not here we just know what happened and we knew what they threatened to do to him and that's what have you got a guy here who's been a metro for over twenty years is a lifelong  member of law enforcement that's all he's ever done in his life and career and dedicated most of his career to metro he saw some inequities he followed the lawsuit he won this lawsuit that's the we can't lose sight of that the credibility of those witnesses your contention is not that the whole policy of the seventy in all the whole thing was set up in order to get hernandez into chen is that within that that testing there is some subjective wiggle room and it was applied in a manner discriminatory to your client that is correct and because you have a subjective component that for instance here where you have someone can score a perfect s yet the subjective side could outright eliminate a candidate like it did here is that true even if you got perfect and all the objective he could still be below seventy that is correct i guess my problem is when i ask you for example you talk to me about and i guess i  equation so you have there is an x in there right so you know that the total be in seventy x you've got x plus y so regardless of how you are up there they can always basically get you out of to the subjective side of things i do that i've run out of yes we're not going to get to i don't i just don't know it's a series of tests like they do mock interviews they do different things that like on the bar exam well i guess we don't have that but you have where the objective written portion of the test is the objective rather the subjective is interviews and and how you deal with the media different things like that but the subject there's a lot of wiggle room in the subjective side of things and i see that i've run out of time and i'm just trying to follow up you work saying that the math questions on the written portion of the test are subjective right that's correct tang that some interview portion is subjective correct it's also part of the test is that does that or i just make sure we have had an argument correct up to that is correct and the record is clear that the the test itself is made up of two different components the objective and the subjective and that where is the record where the record is the is it true that even if you got perfect on the objective portion of the tast you could still be below seventy because of the subjective portion of the test is that's true no your honor if you look at going to roll call the two other components of the assessment center they were they did not even claim were incorrect or were subjective they simply claim that it was the mathematical error which upon correction did still not get to get them to the seventy point threshold the record shows that the behavior competencies what they were looking for the most sergeant in the lieutenant positions were clearly spelled out and that's why they did  the written test as the first stage as well as the assessment center which is the second stage while this estimate sooner is that people at metro deciding whether they have ethical behavior competencies or good communication skills or that sort the in the record on one zero six and one zero seven plaintiff admits that he did not know who just were and vice versa they did not know he who he was and that shows the objective component the educational testing so it's just a coincidence that he twice had mathematical error errors that kept him that that affected him negatively in two subsequent thing and instead of all the people lottery back in two thousand and eleven lawsuit the claim for retaliation was completely against different people then in the present case in that case it was against individuals that did not make the decision a couple of other things that kind of the contests of the subjective component we cited to this court case a little versus liquid air for the proposition that appellant cannot survive summary judgment on any on his own conclus he cannot do it for some metaphysical doubt so the whole concept of subjectiveness i would press the opposed to show to this court in the record where was there a subjective component the rank order that was given to chie rodriguez was from the external vendor v m b there were seven positions open for the sergeant and victor rodriguez looked at that rank order from the external vendors and simply promoted the top seven with numerical ranking and there is no evidence there is not even an allegation of any collusion of any inappropriate concepts between the external vendor and chief rodrigues but i thought officer hernandez argues that metro two different responses to complaints made by people of other races when they complained about the testing not giving enough  promotion no eligible people the what appellate was claiming is back in two thousand and eleven there was an african american officer that complained that the chief of police who just came to office didn't think to rodriguez in mid for hispanic candidates in the present case what appellant is arguing is he complained about the external vendor v neat and how they made a math error in his saw all the math did the math and found out that he was still not going to be considered because he did not resist seventy point threshold there's a difference there's a difference of why there was action taken upon because it did show back in two thousand and eleven that midstream during the promotional process for the captain position the chief of police took out the requirement for edge for education he would no longer so that was a wholly different concept and under the standards set before august this circuit it is under similar circumstances and we would submit to the court not only this not similar but the appellate failed to follow the other tenets of the legal precepts that is spelled out and that is they must rebut each reason that apple e has given why appeal was not qualified who was not qualified for the sergeant position he was not qualified for them to a position there were four reasons for the sergeant position i thought he was qualified previously for the surgeon position there's a route i believe does directly that's not an arrest not that he was not qualified lawyer for consideration of the starch and because sergeant that was in a previous testimony yes your honor yes jones or you're actually correct he did meet the minimum qualifications to be able to be considered but once you go to that two stage promotional process that was set forth by external vendors he passed the first one he got a ninety four in the written test but when you went to the assessment center and you look at roll call you look at a needy interview and you look at the component in basket exercises one mathematical error with a correction he comes out to sixty seven point four two and his court has correctly stated the other argument in dish report was but wait a minute i get three additional educational points and as the argument to the district court was this is the first time that metro has is there any evidence in the record that someone got three points without meeting those minimum your honor the we have to go back to the seven this took top rank to seven and to see if they had a bachelor of science that they have a master's degree because by operation they would get the three additional points because they reached the seventy then they get three other and i'm asking did anyone not reach the seventy but still get the three point that then you know mr hernandez did not get three points is there any one in the record who got three points that was below the seventy arjun i don't know your honor and so since we're eastfield college and in that case we submitted was the this circuit said that if the president made an independent investigation in that case that breaks the causation chain and we believe in this case it's very similar in a  qualifications but the rank order would occur and i think it's one of the reasons the additional three points would be important because even for those who reach seventy if you get three points of view scored higher than seventy seventy five seventy six becomes important because when that information is going back to the employer then you're going to be ranked based on a score just to say you can meet the minimum qualification but they may never get to you for example of their own to sergeant positions and you have somebody there seventy five somebody else with an eighty somebody else and they and you had a seventy three so you maybe you make qualify but it may be a while before they get to you get away for the victories because you're right  wholly irrelevant is different than well it cancels out any other evidence i mean that sounds very correct just all right and we have never submitted in this case as an affirmative defense or in argument that somehow a racial mix up is a license to i think that is lacking also but that doesn't mean it's lacking under the law you could still have someone fired in his protected class but he could still me prong for you have to look at the other  rebut the nondiscriminatory reason isn't that a better cleaner analysis of this case on the discrimination claim i think cleaner i think it's going to be up to each individual judge  assess whether it's clear but i think the burden shifting analysis requires each court each judge to go through that and judge allison did go to the pretext which in a cleaner context both firm call as well this mccoy vs city could conclude that that makes the promise that he makes a prime facie case and then the next step would be that so now the employer has to offer up some reason for the action they took and it gets you past the problem face you case it's much more problematic if the judge determines you don't even make a promise case if the district court makes that determination but if you get there and the and the employer says yeah but this is the reason we made th what judge ellison says no professor case he went through the nondiscriminatory reasoning as well as he went to the concept of pretext he went through all the burden and a shifting of each burden as required by mcdonnell douglas as required by the u s supreme court and there are a lot of cases as we all have read that clearly states there's a lot of times when appellant or plaintiff gets gets loses at the promise station level and the court does not even proceed to because the burden shifting i and just run around and go straight to pretext and i but i believe that judge ellison did look at the fourth prong and did make a statement that look under fur coat and connectivity all i can look at the intent i can look we're not this what the record establishes not unsubstantial assertions not conclusory allegation is not a metaphysical doubt which is not proper summary judgment evidence for this court to ask for an opinion there's no wrong in retrospect i would have asked for an opinion but i love new orleans and i like anyone here they get chance to watch the game at all last night but yes in retrospect i  think opinion would have clearly spelled out not just statements but set the standard opinion for this court to consider but i believe that the record is enough because this court is going to is tak he reached exhaustion issue which is now even before this court because appellant has not even raised it so the issue about retaliation is victor rodriguez was a decision maker as well as the one that promoted according the judge johnson found causal nexus in fact in his opinion states that there was a causal next nexus where we lost in retaliation side was on the pretext and again similar to the dull this quarter century stated that when you have this type of circumstantial evidence and you have these types of statements that if it's good enough to probably facia it should be good enough for pretext just because we have a but for stand on tele ation doesn't mean that you're never going to win on  just lost one pretext now i think another important item to present is that mr owned this process metro on this process in fact in the january twelfth two thousand and twelve memo that's in the record  rodriguez let makes it known to metro person now that there's been complaints world where there are process is flawed and we're going to take some efforts yet when officer hernandez raises these issues nothing was done nothing was other than not it was up to the managers and even metro test there was testimony that the managers got to decide ultimately who got selected it was metro's process now this external vendor you know i'm not saying that there are some conspiracy theory here but i am saying that lambert said you will never be promoted so it's a fact question as to the integrity of this process now you've got someone that scored it and i'm not just looking at the miscalculation or the mathematical error it goes beyond a mathematical error and it goes into a process that is tainted and the jury should get to decide the integrity of this process we have someone who scored ninety four on the objective side yet a fifty four fifty five on the subject of side out of a hundred points he six shy away from a hundred on the objective side yet he scores the equivalent of an f on every subject of component of this examination had he got a fifty six or fifty seven he would have met the seventy point threshold that's the difference here so we can't just assume an infer that it was just because metro said it was a blind process that it actually was and i wish i had that smoking gun and i wish i had that direct evidence of course the law in these types of cases doesn't require it but what we do know is that judge ellison himself did in fact find the causal nexus on retaliation now we can't overlook the fact that there were no efforts taken this by the knowledge and in owning of this process that no efforts were ever taken as to hernandez specifically to correct or even investigate the when her and has made it known that these issues the wrong number they took no effort to do anything about it because under the pretext that it wouldn't matter either way because out of the rejection i don't know what changing the record would be what kind of files are maintained i'm not sure exactly what you're saying here but meant to selection was over what you pointed out would not have put him to seventy so some sort of bookkeeping correction is what you're saying metro needed to do i'm not trying to belittle him by saying he said just a question that they've been corrected as far as i know it's never been but my understanding is she pointed out what he believed to be in error and it ended in that in the scoring records and well but if i tell you you got my score wrong and i should have gotten this many more points for