district court had it right the st time there were genuine issues of material fact in this case that should have precluded the granting of summary judgment in favor of m g m grand and allowed to receive gibson to recede to a trial by jury on her claims that the denial of her transfer to the one position and the denial of her promotions to  a three positions were based on her gender your honour's she was in a male dominated profession the record reflects that in the department there were thirty seven people of whom only three were women this was a skilled trades position where she was seeking to improve and better herself st through a lateral transfer to the hotel position and then from there through promotions but repeated these are suggest that the two individuals involved had never promoted were women or about the district  i wonder if you could respond why that doesn't undercut the notion that yes thank you your honor and we do in our brief discuss my aim event and was not similarly situated and i am turning to those pages  of that example you go on and i believe we point this out in our brief that in fact amy venton that it was a different decision maker who was responsible for ms day is promotion but one of these  mandated by the collective bargaining agreement or negotiated between m g m and the union that was not something that valentine and louis had voluntarily on their own said here's a woman candidate and we're going to promote her that was some thing that was somewhat imposed upon them so the statement is does have support in the record in our brief we did cite to that support in the record that valentine and lewis on their own as decision makers on their own  initially found by the district court your honor there is sufficient evidence a pretext where again this isn't the summary judgment states this is not at the jury trial stage at the summary judgment stage  one looks at the facts in the light most favorable to playing to the fact the plaintiff had sixteen years of experience and your honor we do discuss in our brief some of the case law that talks about the fact that where you have decision makers that are employing subjective criteria such as well we like the fact that weldon had this experience in answering gast rights or we like the fact that weldon worked in this section of the hotel that that type of subjective criteria and interestingly enough your honors it should be noted that valentine and lewis that their scores in these interviews they always agreed with each other that this type of subjective criteria grania it is easy for this type of subjective criteria and this type of subjective criteria can be used that may be true but in most promotion are you going to have a rd degree of system however your honor as a significant piece of evidence the collective bargaining agreement did provide that were qualifications for equal seniority should have been looked at and consider in systems i mean i assume it has something to do with the t v on the other technology in the hotel rooms that strikes me as an object of distinction that the individual who got the transfer i don't know what it was the promotion for him he did have experience in those things that seems like an objective criteria when again it was not fully developed in the record exactly how much experience he had with and over the you know various qualifications that each pan was required to have how much weight was to be given to the bartek the technology etc there was evidence in the record that ms gibson did spend some time working in hotels in the hotel that she would be called upon to do work in the hotel as she did respond in her deposition when asked that question that anyone who came into that position that they would be given a period of training and that in that period of training she can certainly learn those systems and again i think the concern by the district or in the initial denying of the summary judgment is again how subjective criteria is you said your honor can be use when you have somebody in a traditionally male dominated skilled trades field who's trying to either break into a lateral position a promotional decision and how that subjective criteria can be used against  with a court indulgence i'm going to take one moment just to take a sip of water striking that somebody with sixteen years experience that someone with only six months experience was found to be better qualified and placed into that position what do you do or i guess for  on i guess i don't know the most relevant evidence it seems to me is is your clients are deposition where she suggested or she conceded that it was more qualified than her for that position out how do you respond to that  y well and in fact what she also said your honor in her testimony was that she was that she performed all of the tasks of that position that she had done everything break the two and the e three that she had done everything that the engineers in those positions did that she did all of those jobs she did the plumbing she fixed the toilet she did the pool that that was one statement that she made taken out of context but look how good or how would you how would you describe the context to it because it does seem like a pretty significant statement or a pretty considered significant concession that there was a reasonable basis to promote one individual over and over and  in the record we cite this in our brief we relied on the initial district court opinion with the position that weldon had relatively minimal experience repairing guestroom technology he did not possess most of the certification specified  agreement as required for the e two and the district court found based on that that said there was genuine issues of material fact regarding whether the wording that position the weldon was prete and part of the way well that was able to get the experience of being in the hotel that goes back to when the district court found this to be significant that goes back to the fact that he was awarded the lateral transfer is what happened to his kids and in this case it's where male employees did not meet all of the criteria for example not possessing a journeyman's license not possessing or checking every of every skill that was sought not being in m g m internal candidate where male candidates did not check every box or meet every criteria they were still in the case of marcus weldon and ultimately the gentleman hired questions st it's there's an inherent authority of the district court to reconsider in october you order that it's issued with there's a change of law and of course the court in this case the mcdaniels case reconsider the matter and felt that this case was very close to mcdaniel and therefore reverse this decision and issue what i just found that somewhat strange i mean this is an area of law where it's i mean the legal principles are well established yes and it's just always going to be fact and applications of the facts are really much more relevant the law i don't know why this later on published decision would be the district court to change its facts upon which the employer could rely to make the decision were those decisions actually are there were those facts actually the motivating factor behind the decision in objectively could those facts be trainee at the time this position came available he had experience in the hotel guest rooms he understood bartek next t v and then conned the entertainment in the phone systems within the hotel rooms in specifically he had he had experience dealing with a hotel guests which is a critical part of the decision making process in deciding weldon versus the lateral transfer transfer for  plaintiff significantly the plaintiff was that in g m granted from two thousand and two to two thousand and fifteen when the st position was available the lateral transfer and she took no dish no courses and yet wel seeking a certification in h back well then was taking refrigeration courses he ultimately got a boiler operator's license he was continually taking it vance training to prepare himself for future opportunities and indicated that the plaintiff was seeking to improve herself by doing a level position but she didn't show that in her conduct throughout the entirety of her time at m g m grand in fact lewis testified that he even offered to allow her to shadow when she wasn't on work within the hotel so she could get the kind of experience that weldon was getting in she declined to do that so with regard to the one position walton clearly had experience within the hotel that justified the decision to hire him with regard to the e two position in fact the plaintive did admit in her deposition that weldon was more qualified than she she said she had the qualifications but she agreed that weldon was more qualified in on those facts g m was certainly entitled to rely upon could rely on years of experience and that's what they did for the a two positions for the in three positions the record is clear they never hired anybody for their position didn't have a journeyman's license so even though they have i think th thought there was something in the record at the quite a bargaining agreement or something that said that you could have authority but you're basically saying that there is undisputed evidence that even though that was what it said it was up to your discretion and you're always required during the collective bargaining agreement also said that the employer could decide if there was specific requirement that they would they would have one particular position and they did it for the journeyman's license or for the journeyman's position but not for the two positions the bottom line  if you look at each of these positions middle applicants were also passed over in place of well done in a place of dates and some of those were internal candidates who had a qualifications for the position so there's just no evidence on the record and i think the court in looking at daniels and looking at the fact that this was a an exercise a business judgment on the part of m g m grand looking at the fact that sometimes you have people who might be on equal footing for example or need to position neither candidate neither the plaintiff or world and had all the qualifications but weldon was actually training in two of the qualifications he didn't have i mean they do i think maybe overstated things is suggesting that they're never promoted right but it seems quite clear that the promotions of women are pretty limited lewis wasn't even there at the time of the collective bargaining agreement in tw n valentine both were involved in hiring women valentine was involved in the promotion of winton from want to eat to to eat three he participated in all of those promotional decisions  and the fact is clear that women were also offered positions by both lewis and valentine and they in some cases this declined to take the positions so there's just nothing on the record to show that they had any gender anim have nothing further unless the court has questions i'm happy to answer thank you maintained that she was in fact highly qualified for the positions that she suffered with regards to those search and that you know mr beilin was more qualified for the  casino guests it is pretty presumably the level of hospitality that you would offer to a hotel guest or a casino guest how you would interact with that member of the public would not change based on whether your position happens to be assigned to the casino or happens to be assigned to the hotel with regards to the issue one taking courses etc the record establishes that in two thousand and two gibson did obtain the nest some of the necessary certifications that she needed to do her job that she did avail herself of educational opportunities and particularly when you weigh out with regards to the one in the eat when you take somebody was sixteen years of experience and you weigh that against somebody was six months experience ten months experience particularly when the collective bargaining agreement says that when qualifications are eat wall it should the tie breaker should be the more senior person that is sufficient to create a genuine issue of material fact regarding whether the denial of these two likes again that goes back to what i had said earlier where when it came to ms gibson when it came to a female she had to have every requirement she had to check every box the record reflected and we cited this in our briefs that previously for a gentleman named walker that m g m had excused the requirement of a michigan's journeyman's license and brought him in even though we had an out of state license  so again when it came to the mail a reasonable jury could find that when it came to the male candidates and g m was willing to work with and over look and say well maybe you don't have this policy cation but you have this one maybe you don't have a journeyman's license but you have experience maybe you're not from internal that you have this but that when it came to ms gibson they require her to check every box and in fact favored male employees either with less experience who are from outside the m g m system and we maintain as originally found by the district court that is sufficient to show discrimination based on gender th