officer trey mansfield i'd like to reserve three minutes for there are two questions before the court whether do the district court erred in granting summary judgment in the favor of the city and whether the court erred in consolidating this case with another case brought by another officer against the city for employment related matter we would urge that both of those orders be reverse my client is a veteran police officer in the canine department of the city of  undisputed that he engaged in three acts of protected conduct following his efforts to stand up for his rights in the rights of other employees in the city he was retaliated against by the city the city does not tolerate someone rocking the boat so they began retaliating against him with a pattern of harassment at the hands of major hudgins which began in two thousand and eleven those horribly offensive comments are laid and i won't dwell on those now the essentially major hedges went from being a proponent of the unit officer mansfield participated in the canine unit to being a monster and blackballing that unit and and going after my client that continued all through this time until today when my client reports for work an adverse employment action occurred in two thousand and thirteen when my client was not promoted to that's the only adverse action that's before us this isn't a hostile work environment case correct your honor so i'll focus on that that after him my client my client was considered the acting sergeant of that unit back captain watkins who is in charge of the canine unit that's in the deposition testimony so when the city created this official position of sergeant over the canine unit my client was shocked that he was not the one who was promoted so he sued under the title seven in the f l s and shocked that they had the process that they did that is where they took up locations and what eight people seven eight people applied and they blah blah they were interviewed and so on was he shocked that that process occurred well that is their normal process ok they do it but as chief chrisman testifies he throws that out and he makes the final decision he doesn't even look at the rankings that process occurs in the chief makes the decision chief chrisman chose sergeant would someone who had absolutely no experience in the canine unit to be given this new position my client was never given a reason i thought the there was a reason stated that wanted a supervisor right that's the reason after he saved he s so he was never tell that he found his c charge and then we get a reason and that is that they don't have a reason there was a conversation between the assistant deputy chief fields and deputy chief bowen where assistant she feels says to deputy chief bowen don't worry all we have to do  with a reason why we promoted would and then they came up with the reason what's your what's your basis of the statement that all of this interviews and everything was just a sham is that from a deposition of chrisman or w what does christmas say that i pay no attention to any of this he does he says he doesn't even look at the rankings that it is his decision and he he makes the call about stops with me he essentially says that in his d so they're traveling on the supervisory reason as to why they chose sergeant wood but when you look at the facts and the irregularities in this hiring process that is pure pretext the reason they did not choose my client is stated in chief christmas deposition page three forty three of the record when he's asked point blank why he did not choose officer mansfield and this is his answer and he says i did not believe he was the best candidate there are a number of factors to be considered in that process but there are three that really are important to me one was that officer mansfield had been openly vocally critical of the supervision management and administration at the canine unit and the police department and one of the things that you want people that you're going to place in a leadership position to be able to do is supervise themselves first and then that doesn't correct me that doesn't say that it either relates to the f l a say or did the sex discrimination i mean he complained about lots of things well he really did not complain about a lot of things he complained about the f l s may a matter and that's the only thing he complained about there were lights to the entire police department so if you construe this in the light most favorable to my client that would be the only thing that chief chrisman could be referring to when he says that he was openly and vocally critical of the police department that will be the f l s a matter about what the phrase he says and administration of the canine unit and the police department right so he's talking about as soon as judge is asking you you might be able to parse that some things related to the entire police department and other things he complained about related to only the canine unit but he still complained about multiple things right and my point your honor is that the only thing he complained about that related to the entire police department that wasn't just a canine unit matter why would it matter whether if if he's viewed as a complainer ignoring protected activity or not if you viewed as a complainer and that's one of the things th chief took into account what differences make if he's complaining only about his own unit or whether he's complaining about the police department because the only complaint he made about the whole police department was protected conduct and that i see so that's why this to me is direct evidence ever tally ation at a minimum it is circumstantial evidence of retaliation and it is enough just right then and there to overcome summary judgment that we won't stop with that if you look at irregularities in its hiring process there are so many red flags that point the court to a decision from jenkins v national public radio one hundred six federal index nine ninety one the sixth circuit two thousand and four which said if you have irregularities in the hiring process that sufficient for causation and pretexts and the regularities are stark first this was a promotion position if you look at page four ninety six it is a promotion opportunity it refers to general order to turn general order to twenty four which is on page four ninety eight of the record and that defines promotion is being the selection of an individual for advancement to a position of authority and responsibility beyond that previously held promotions are usually accompanied by a change in job description and salary level and here what happened was not a promotion sergeant wood was already a sergeant he was given no new job description no different salary and chief chrisman admits on the record page three zero one two three or two that never before has this happened never before had they put somebody in a promotion opportunity as a lateral transfer out of the people that were interview were there others who would have been in the same position in other words were there  others that should not have been a lie and i take it you're saying that sergeant would shouldn't have middle allowed to be interviewed and were there others also who were already sergeants your honor everybody else was a patrol canine officer and one person was outside of the canine department if it was a patrol officer and so would you have the same case if one of these other people had been selected as a very good question and it's a hypothetical but for perhaps a look at the fact  mean officer holiday had been selected and he was given this question in his deposition he said well you know do you think you were retaliated because you were selected and he said well officer mansfield was the focus of the city's retaliation efforts they said he said he was the one that was the most vocal about the f l s a matter and that he was the one who the city was holding back the canine department because of him so i think you would have the same case because officer mansfield was the one that they were focused on so that urge you to look at it was really intitled to the position regardless of how many other people applied well according to the captain over the canine unit he was the acting sergeant he was the one who helped formulate policy helped deal with all the training records that are so specialized for this very specialized department this is so they didn't have even posted it that is if he was the acting sergeant he should have gotten it then and they have a process where they always post in they did interviews when you say he was acting are you really putting acting in quotes in the sense that it wasn't a title acting sergeant but but he was in effect operating as the person yes your honor and that those were that exact words of captain walk they spoke up and walk and he was kind of like my things are going right because this i mean they're dealing with animals who can kill people i mean this you have to be so trained to to be a canine officer it's different from just a normal you know uniformed officer that doesn't have an animal so that's why we say that the second big red flag about this process was that someone with absolutely no canine experience was chosen to do this someone who's never done this before who has to be trained to do this and then to supervise people who've been doing this for many years the question the job posting or the requisition form for this position is on page nine seventy nine of the records and it's it's giving the reason why they need to have this position it talks about in the second question on the second page how they're expanding the department and that having a knowledgeable person to oversee the unit seems a prudent course of action is the reason given and they did not make that choice because they did not want to promote my client or anyone who was rocking the boat at the murfreesboro police department if you look at page one of  position form it says that the cost impact the fiscal impact for doing this is an increase in salary of twelve thousand dollars and that didn't happen because sergeant wood didn't get paid any more operating costs for training up to two hundred fifty dollars and that didn't happen because i start it would have to be trained to do this which had been much more than two hundred fifty dollars and it says zero for capital and that didn't happen either because it would have to have a new car for to have a dog and so what was contemplated was someone who within the department being promoted because at the same time the city created new two new supervisor positions for two other specialized visions parks in motors and it promoted from within it did not go out and get somebody with supervisory experience like it did in this case because that pretext in the last really big red flag is the fact that major hudgens ordered off sergeant wood to apply for this position that is testified to by five different sworn police officers that sergeant wood said he was ordered to do this chief christman on page two eighty three to eighty four of the record said he would have never done that that's not what you do you don't tell someone to apply for a position or who is it that said that chief christman so when you look at the facts and the red flags about the irregularities in this hiring process that shows pretext cause ation and you and you just can't forget the whole continuum major hutchens comments started with that and continued his inflammatory conduct never stopped the relief that you want here is the promotion right well we want our day in court yes well damages ultimately what you want in court is you want the promotion and you want the back pay for what he would have received right yes you're just curious how that works when of the eight people that went before the promotion board mansfield came in fourth the there's no suggestion that even absent this alleged discrimination that he would have gotten this position so hot how does how do we if we were deciding this or how does a jury if this goes back resolved because chief chrisman said it was his decision in he doesn't look at the rankings that process so that's fine but that's fine but even if he doesn't look at the rankings you still have to assume you have to ask the jury to assume then that absen discrimination your client would have gotten the promotion in other words in other words ignore all the other so that's what we'll ask the jury to do and what's the basis for that the basis for that is my client's expertise and what was going on in the park department would you don't you don't allege that the other police officers that were involved in the promotion board harbored that same animists against your client do you some of them do captain ginsburg particularly he tell my client not to circulate the petition for the f l s a and that is a bad idea for him to sign it about the other one's a ring the other candidates higher than your client if you look at the rankings my client is right it made the difference between the rankings is just a couple of points they're all right there at the top end and that's not that that's not the determining factor because they didn't make us but i just my point is and i'm not sure what the answer of this is either but i guess my point is this goes back to a jury a jury has already got discriminated against we award him the promotion what what sort of claim then do the other three that rank higher than he did have in other words because he sued he gets the he gets the promotion even though they can't even though they're ranked higher just doesn't seem right well i mean they're not they haven't sued they don't they haven't made a claim i understand that or the corps is that of officer mansfield and i mean given his criteria his quotas i mean they didn't sue so too bad but i think it's a hypothetical question that that this is made if you have to look at what are cases where they're under the you know the standards whether we have proven the promise basic case and whether we've made america burden of proof is the question i think i'm curious your case was consolidated with another does that affect whether you have a final judgment that you're appealing there was an order in that case that allowed the other one to appear to proceed at and made it so i  i don't know if you have any cases that deal with when you have consolidation of cases whether when one your client's case is concluded so is there a final judgment visibly your client in this consolidated area i have not seen any cases where that is even been a question i understand that why you would pose that i think even though there consolidated my client's case ended i mean he has no ability to go forward with things the first is with respect to what is the role of the interview board the interview panel the seven police officers that interviewed the candidates that's clearly set forth in general order to twenty four typically when there is a promotion opportunity or a lateral transfer or a specialized assignment you have more than eight applicants the purpose of the interview board is primarily to reduce the number of applicants to ten who would then be in who would then be interviewed by the chiefs in this instance the eight applicants therefore there was no need to reduce the the the number of applicants who would be interviewed by the chiefs nevertheless did department administration decided to can to follow it's typical practice of impaneling an interview board and allowing them to interview the candidate so that that purpose there but it is true that when normally the interview board just reduces the number to ten and doesn't rank that they can know i'm sorry it what it would do is say for example if there were fifteen candidates who applicants for a position they would enter the interview board would interview all fifteen applicants they would then rank them one to fifteen in terms of in their the the at the average view of the panel members were the top ten applicants those top application top ten applicants would then be interviewed and only those top ten applicants would be interviewed by the chiefs but their ranking by the interview board is essentially irrelevant within that group of ten yet once you get to the chief's interview yes but i think it's relevant in this case because not too specifically an as an input or something the chief chrisman took into consideration in making his decision but it does go to whether chief christmas decision was reasonable and whether it w motivated by legitimate non retaliatory considerations so your opponent said that christmas that he does whatever he thinks is right regardless well that he can do under the general order he has discretion and has the ultimate call to decide who is promoted who is selected for a special assignment who is transferred from one unit to another a lateral transfer and it's true in this case that the selection of sergeant would effectively was a lateral transfer but there's undisputed evidence in the record that the reason the department set set the  process up this way was they were looking for the most qualified individual in the department to fill this position they needed a supervisor and it's in its there are two skill sets here there is the technical skill set of being a canine handler and detective and the kind of the more soft skills of being a good supervisor a good leader and the evidence shows that the department and the chiefs placed the offense or the emphasis on the latter they wanted a good supervisor that i don't understand why there isn't a fact question  facia case there's a requirement that they be considered similarly situated here or there they're not similarly situated and because they are of different ranks they had different experience one had supervisory experience this was a supervisory position troop officer mansfield had technical experience  qualifications as the person who was alternately selected for the canine position it is supported by the record but i think here the more important issue is comes to with the qualifications comes to pretext employers are titled to make  and have discretion as to who to place in a particular position that was true of chief chrisman here he had to put discretion to make what he thought was the best decision for the department given that department and the canine corps why wouldn't that be a fact question as to what motivated christmas is choice of somebody other than mansfield well there's there's no subject to question of being critical of the canine corps is not retaliation that's not that's not a protected activity but the criticism of the police department was based on that that and that i think if you look at the whole of chief chrisma testimony as to why he did not select officer mansfield and why he selected sergeant wood for the position it is clear that he's not talking about protected activity the context of that testimony and his concern has to do with whether officer mansfield is going to be a good supervisor whether he is going to be  out the policies in operation selected and required of him as a supervisor as determined by his superiors what do chrisman say was wrong with mansfield's abilities to supervise laid out fully in the in the brief the in the entire passage but specifically it was that he felt that he was that he was not a good supervisor of himself and that he needed to be a group to be a good supervisor and kind of follow the bandaids and orders of of superiors that was something that that you needed to have as a frontline supervisor you're dealing with police officers and you are in the middle between caring communicating the orders the policies established by  the police command staff and making sure that's implemented properly bought and carried out by frontline police officers i guess the you know the problem is that mansfield sort of made a name for himself in challenging the fair labor standards violations of the city right of the police it was he was one of employees giving them proper lunch break treatment well it what it was what the city determined is that treatment should be that the meal time essentially should be treated as time worked and so therefore whether they were actually eating or whether they were carrying out you know their duties as a police officer during what would be as a lunch break they were going to get paid so that was that was the reason you have that aspect and then you have appearance of bias he asked to be removed from the panel and he was removed his so he was not a decision maker in this case his sole especially with respect to officer mansfield his soul if he had played two roles one he at the request of deputy chief owen drafted some interview questions to be asked of all of the applicants by the interview board you know what those questions yes they are they are in the record your honor i don't have to cite but they may be pure they were fought he drafted six the chiefs reviewed them selected five of those six looking at those questions they are there is nothing looking at the face of those questions that one could reasonably conclude were intended or in fact would undermine  officer mansfield canis candidacy so that's that's not relevant secondly after the chiefs had interviewed all eight applicants the chiefs narrowed going to be the perfect people who were working closely with whoever was put in this sergeant canine position those three individuals were brought in and asked by the chiefs their opinion about struggling to make that determination but officer mansfield had already been eliminated by the chiefs so whatever officer whatever major hudgens said was in that meeting was not relevant to officer mansfield candidacy so even if he had retaliatory enemas towards mansfield it did not influence the chief's decision and in particular i remember correctly that your adversary indicated so what this really comes down to is whether the police department and the chief of police in particular have the ability to choose who they think is best suited position and that's what they did in this case and that decision is reasonable don't have to agree with it it might be it might have been the wrong decision but it wasn't retaliatory reasonable people could disagree as to whether supervisory experience should trump canine experience but as chief chrisman said tech the technical expertise of being a k nine handler is something could that could be learned and one final point of clarification with respect to the canine position here the dogs in the canine unit are not just white dogs or patrol dogs there are detector dogs and tracking dogs bloodhounds they're not all dogs that are going to be you know that are trained to attack and subdue so yes there is technical expertise but it's  it's in fact officer or sergeant would ultimately was received a detector dog thank losing i would just like to note that in in their reply brief the officer mansfield counsel cites to the jury verdict in the matthew road case that case is not before this court was not before the district court and any reference to that would be inappropriate the district court's decision is supported by the record and it should be scorching affirmed for the same reasons that are would i would tell you that my assumption is that it was something with that it was immediately appealable and that the district court since has entered a court order severing the decision that the cases  and with respect to you know consolidation i think the city's motion at the time it was made was was made in good grounds and should have been granted but it was delayed decision was delayed for six months so the city readily concedes that at this point in time if this case were to be reversed and remanded what what should happen is the court the district court should look to see the relative status of the cases and make a determination going through the factors that are relevant to consolidation and make a new determination as to whether the case it should be consolidated  on the record page three twenty two is where chief christman said it's his decision as to who to be made sergeant and whether that decision was a reasonable one is a question of fact we would submit out again directly to how officer hall boss testimony about that page eight seven to eight ninety nine where he also talks about you know choosing someone who has no experience to do this job and the aftermath of what that has meant to have a supervisor with no experience doing that job what that's meant to the to the unit regarding ho position in the f l s a matter there's no evidence that they knew he participated in that effort at the time they were considering the promotion to sergeant regarding major hudgins never before had the chief taken this extraordinary step of talking to the major to get his opinion before making the decision as to who to get this promotion chief chris and said he never did this before major hasan said this was never before so the chief solicited the major's opinion and he directed him to sergeant would but for major ordering sergeant wood to apply for the job something that was an extraordinary act but for him doing that he wouldn't have even been in the pool of candidates so when a major hudgins tells you to do something in this police department you are going to do it and i want to emphasize what a huge deal this f l s a matter was it not only cost the city a million dollars a year and increase our it turned the pay scale on its head for years it took years before the city was able to rectify you had majors who were making almost the same thing as captains as lieutenants excuse me and lieutenants who were making more than captains because of this increase in pay to the hourly employees the chief when he announced that the city changed its policy in roll call officer mansell testified that he did it through gritted teeth and said you'll get more money this was something that just is upset the command staff of that department to end we have memos from major hudgens in the record where he's complaining about the new pay scale as a result of this f l s a matter and all of these horrid comments from major hudgins when he changed his attitude to my client turned on my client being the vocal one of the vocal supporters of this matter and i just want that not to be lost on the court that when you do something like this in this environment which is a very retired tell you tory environment we have facts on the record about how ca told officer hall about who wrote a complaint on his employment review complain about how something is being handled and he said do not leave that on on your form or you will be blackballed and you will be a thirty year patrolman meaning you'll never be the same time that they learned of his participation in that major hudgens kept in watkins who was in that meeting testified to that saying that was it the same time that story which meeting the meeting where major  hutchens said to my client your little prince is going to f in have to deal with that i'm going to take the words k and nine out of my vocab at that meeting michael might testify the captain ginsburg had a copy of the petition and it's his belief that he told there's ginsburg knew it was signing the petition warmed him not to chief chrisman says he knew them in the city tries to say they didn't know about it till august when the letter was sent raising this officially to the city attorney but chief christman on page three thirty six says he knew that there was this movement within the department to get signatures before that happened you know appropriate language from the major directed to your client came in connection with the complaints about break it happened contemporaneous with that and it's a disputed fact and at a minimum it's a disputed fact we have evidence that that shows that he knew the city denies that he knew and for that matter the whole this whole case riddled with disputed facts and for that reason alone it's not proper to have granted summary judgment thank you thank you both for your argument the case will be submitted with the protocol the next case