discrimination age discrimination and whether the trial judge made credibility findings in some of those areas as well as credibility findings in granting summary judgment where there was a retaliation complaint made as far as that goes i'd like to just mention we deal with this at our brief at pages one through ten in reply pages one through to the district court found in our favor that the complaints made by mr from allah were in fact timely because even though he was told by his report to apply competitively for a vacant position on a different tour which would pay seven thousand dollars more a  year he did not tell mr formally he was not selected for the basis for the position until after the june twentieth two thousand and eleven interviews that mr brady conducted which would be less than forty five days before from  fact is there any indication from the agency's e e o office that they were splitting the claim between the request for the noncompetitive appointment and the competitive appointment  it's been decided on the merits and the district court properly moved on it just said let's just consider it on the merits which she did the factual background  has discretion being the better part of valor he better go back to the post office and work full time so he tried to withdraw his retirement papers there's a big to do and he finally won in union ministre to proceeding  position back when he was placed on tort two which does not have an opportunity for overtime pay which is i think everyone knows are police officials look forward to positions that pail time in this case is a significant amount of money the mr morion one of the debates we have was about at least whether this was an adverse action at all because he apparently would have stayed in the same  grade and it would just have been a different schedule and i understand you correctly you think we ought to approach this basically as if it were a denial of promotion that's that's that's that's correct it's kind of halfway in between and because of a pay differential it's a significant pay differential under this court's case law and i believe that that differential in and of itself constitutes the adverse action especially in this case where we have allege over time and as we reflect in the briefs it's certainly a question there are some serious questions as to why i n c brady and they have sort of a pseudo military arrangement  of experience in and it's uncontested that he had the qualifications to for the position where there was a nine and nine compete transfer two years earlier  i think that's at page  over two thousand and eleven and then she actually used the words credible she found i am brady's reasons for going the competitive route to be more credible to be credible and that's a jury question at its essence heavily on trying to compare the point if to me is why it's selection to replace him on the from a post that he retired from right correct correct what do we have by way of comparison test and the answer to that is simply that given post a policy that at any point in time including even after the competitive process was over with sergeant for malik could have been placed in that  position shows that there's really that but whether or not there's a vacancy posts or not shows that the b use of the process you know there are substantially similar and let me let me be very narrow let me be more specific sure i'm i maybe i'm misunderstanding this but i had thought the wyatt's that management took the approach that they had reached out to wyatt and moved her to that position on their own initiative and that mr for melo disagrees with that if i got that wrong i think that sergeant white indicated that she would like to move to for it miscible evidence as to the similarities or differences between the way those two transactions were handling no one was noncompetitive the other was ultimately you know it was a competitive one but it was initiative  is maybe important and i'd like to know if there's admissible evidence about that supporting for mel as version of it well yes there is the testimony of  that she was just she just indicated her interest in the position and you know it was vacant and she was a sergeant and this is sergeants position these are not promotions in that sense in fact charging for melo when he asked for the vacancy in two or three that was not he was not looking for a promotion per se but he was already in that position but as a position paid seven thousand or more dollars a year more and the hours were were  on each shift she did not ask for it and that miscible evidence is in the record from captain williams himself he checked with the assistant inspector in charge dave golan and he assigned her to a different ship she did not ask for it but that makes a difference here without having a post a position for white to apply to she cannot be compared to from here further she did not ask for a transfer we have to remember this case is not about a promotion this is about a sergeant who didn't get a shift he wanted you know i know you've tried to portray it that way but we've got evidence that there's at least a noticeable salary their compensation difference here and council call that overtime it's not over time it's called premium pay for after six thirty at night it's more it's more akin i believe to a bonus to make things equals to make things equal for shifts that folks usually don't want to work nights and weekends what's important here is there's no evidence that pla provided that age race or retaliation played any role in the postal service action retirement as we'll call it he's retired again when he came back from his first retirement he did agree to serve on a tour to correct i don't think that that agreement says that in perpetuity he would have to stay on two or two i don't think that we can rely on that in that way it wouldn't be fair to do that in terms of the time when if i could briefly address that the issues accepted for investigations and not include the noncompetitive claim is included in mr families multi page e e o complaint it was included as a background fact suggested that perhaps the postal service didn't raise any issue about timeliness with the postal service could not respond to an issue that was not accepted for investigation why would the postal service respond to an issue that was not before that tri the split the claim the way you're talking about i believe to the extent that there is you know didn't issue a decision we have a final agency decision that's what i mean the final agency decision from the postal service did not really address th not competitive claim and in fact brought it up in the same way that mr for melligen calling it background facts and getting to the competitive client well i mean given the way he's trying to to make this kate click case by circumstantial inevitably a part of his evidence the problem is that it's different compared are for each one so we have to split them up he started on may eleventh two thousand and eleven asking for a noncompetitive transfer he was told that very day that he did not get that transfer he knew he did not get it it was not going to be a non competitive transfer forty five days should start taking to the extent he is compared or he has completely and always referred to sergeant wyatt in the competitive process below he referred to sergeant fields who received  competitive position he was a police officer who is elevated to sergeant so we have to split them because it's a different analysis we have different compared and an appeal he doesn't actually address sergeant fields at all from elop seems to abandon the competitive claim on appeal he never talks about the similar situated person of sergeant fields who receive the job there is a question regarding age there's nothing in the record that gives exact age as we know that all the applicants for the competitive claim to the extent that that's can rely on that now without knowing their exact age we don't we have to have we have to go over all that again in court what there should be something in the record saying what those ages are i don't think this court has to find that the that is a finding that you must rely upon there's nothing in the record t and there everyone's over forty in the protected class and i would point out on appeal for appeal purposes that age argument is one page of a parent's brief and i think that it is essentially abandoned here no because it's parallel to the  charge brady gave for selecting fields over from ella had anything to do with age in fact we have the record shows us that brady himself did not know their ages in at record forty five page seven twelve  plaintiff admits the brakes did not know the other two candidates ages or retirement eligibility he only admits that brady must have known his own because he'd already retired he came back but he admits in fifty six point one response that indeed brady to channel ten to go back to what you originally asking about there is a dispute a fact that as to whether why it did ask for the noncompetitive transfer from alan his deposition testified that to his knowledge she did ask regular extra pay it's neither a bonus nor overtime i stand corrected and as counsel for the government noted you get one of these tours that has this that's what you  you get you're guaranteed this additional money as a premium and it's in in their policies as far as the timing issue goes from ella doesn't know he won't get the job until the position is actually filled he just doesn't know so you know i don't think he was required to make any further actions that at that time a month later when he finds out he doesn't get the job he certainly claim he asked for the noncompetitive transferred or even post it posted right substantial age difference on their facts the question as to whether or not both parties were over the age of forty is is is is not supported by the case law that's not how we handle age discrimination braiding streets he was written up for coming to work late and yet the record reflects that captain williams knew that he had place for mela on a schedule where from hell it was to report to work at ten o'clock in the morning not at the regular time of eight o'clock in the morning there are just literally dozens of these kinds of actions by captain williams the embarrassment treatment the fact that to finally use his own sick pay to recoup debt and yet there's post a policy that was an approved lease that he was signed and he returned and so the particular format of the return to work was never it was never shown that that was necessary in order to get back on the job the we never received the matrix which  i and c brady was required to put together to show how he reached his competitive results and that was never produced and i and c brady admitted  that he listened to their statements about the job and he just concluded that while i'm going to go with this younger guy even though i have somebody who i definitely feel is qualified in the position i would ask that the case be revers