public school district and i'm sure you know this is a case of alleged inner discrimination that was found by mr stephen luker in august of two thousand and six mr luker about an amplification for a teaching assistant position with decatur public school district he was interviewed for this position on august twenty fourth two thousand and six and then received a letter that he was not going to be placed on eligibility less throughout the meetings and at the  hearing although mr luker indicated that teaching this is a position on the front of his application when it came to find out was this is a substitute teaching assistant and it's not an actual position but it's an old ability left with the school district does is they have to interview individuals that they either approve or don't approve be placed on leave eligibility less when there is a substitute teaching assistant that is absent they will call someone on the salvage ability list and make me their choose to come in or not and so that's kind of the background of what happened here so mr luker received a letter that he was not going to be placed on the eligibility list for the substitute teaching assistant position he his qualifications and the for the second after rejection of the employers that africans persons of his qualifications that moment that we really have a problem here is the second element first that it is not sure that mr  luker applying for the substitute office worker eligibility list the application that was told of a mr luker said teaching assistant to beginning the hearing in front of the yale j mr luker said i was applying to be a teaching assistant there's no evidence that the school district was even interviewing for the substitute office worker i would you believe a list other than a conclusion drawn by vale j j said that the interviews were conducted throughout the year but this is not entirely true what the school district representatives testified is that if they needed more workers on this eligibility list than they were interviewing representatives did not recall whether they were interviewing for this position at the time  mr lugar's interview but if they were not she would have asked them questions regarding the office worker eligibility list mr luker was under the impression himself that he was not interviewed for this position  he testified at two different points regarding when he even found out that there might be an office worker position available not the substitute office worker eligibility list but an office for position at one point he said he didn't remember if it was took some office worker tax typing test and such it to establish that he was in fact applying for the office for gullibility less in fact mr lugar testified that you took these tests because you thought it might be necessary for the teaching assistant position it was mr lugar's burden to show that he applied her job that was accepting positions but he hasn't he hasn't shown that he applied for  exactly he never received rejection and the rejection that he received was for the he said he was focusing come to the conclusion you've been sad that the school district couldn't just sit back on this application and ignore it instead of rejecting him so i think that's kind of where the l j was coming from is that they were saying that what we did is we just ignored this application for the office worker type the thing that was changed here what he never changed he never came in and change the application and he testified to that the only thing that was marked on the i guess it was an interview sheet used by marsh the one who interviewed him was that he was interested in both positions but the testimony that came from that was just that that was done by an office worker who socket on his test scores and that's why she made that check it was just an assumption made by her and through his own testimony he didn't even aware about this position until after the interview that's what he said so that's where they are with bags he didn't know  i would you build the list i'm using the word hired though i guess placed on the list is a better term but i think you know what meaning so he did he came back after he received this letter about the teaching assistant position and that he wasn't going to be approved for the list and he'd then add that he has a disability that he's not going to disclose and it's unclear as to why he does that he says in it he said at the hearing in front of the able jay that it's basically in case he heard is considered for the office worker position now they can't discriminate against him because of the stability disability that they don't know it it's a little confusing because i think he was a little confused so that's kind of where we are with that but that an amendment that was made to the application and that was after he was rejected for the substitute teaching assistant position so moving on to the second element of the second element was about whether  qualified for this position so even assuming he did apply for this that eligibility list for the office worker which we don't believe the evidence supports at all he certainly wasn't qualified i'm sure you've seen mr leuchars application  professional references given there's no substantial work history for twenty years the only interest there only work has forgiven for the past twenty years is that a temporary election judge which is a one day event that he did or two years or three or four that's maybe four days of work and then a brief stint as a laboratory assist him for one semester so less than six months of work and twenty years he claims that he was collecting social security for this disability that he won't disclose and also winning sweepstakes which really has no bearing on work experience he told in his interview that he did not have experience with children and based on his interview and his resume the school district found that he wasn't a good fit for the position look at himself said that he should have given his full resume to the school district he admits that he doesn't do this we never will know what that might contain but they couldn't consider what they didn't have in front of them and what they did have in front of them was a very very sparse application in the school district testified that they would not hire someone with twenty years of no work experience and that as an h director about wouldn't be a sound decision to make good also later when discussing damages stated that he had applied at the local library he wasn't hired very very though i don't think that he followed filed suit on that one and he admitted it was a catch twenty two and he said again it was probably because of my work history and he said you know this is going to be a problem for me trying to get a job now that i haven't had a job which i think we can all agree makes perfect sense this isn't just an issue of credibility this is an issue of common sense this is an issue of the evidence the application of the testimony of the school district and of lugar and felt even if we probably place the burden on the school district to have some kind of proof here the school district provided a reason that they did not hire mr luker these are the same reasons that he was not qualified for these positions no work history no experience with children not a minimum this is not the end of the process like any job you're so going to have to have an interview you're going to have your back from a review all of those things need to happen it's very important i feel to keep in mind that this is a school district the best interest here of the children this is where the school districts looking at this is why the school district representatives testified that they are going to be looking at and i think like any business person interviewing for the job is going to know what the famous school the trid with the school district the difference here is by statute the school district and its employees are going to stand in place of the parents they have a responsibility to the parents they have a responsibility to the children and their number one goal is the best interests of the children we need to trust the judgment of the school officials when going through these interviews from going through these resumes when it comes to our children and when it comes to deciding on who is  be working within our school districts and and i think that the school district clearly provided a reason that mr luke wrote several reasons that mr luker was not placed on this eligibility list even if if the legitimate reason i given the complainant convention proved that this reason was not the real reason in doing so he needs to present evidence of some kind of intentional discrimination basically he can't just discredit the reason but he also needs to show some kind of discrimination and the reason for this is we can't simply say just because he was the only male that apply for this or allegedly applied for this office for eligibility less and he was the only that and not hired that alone does not create discrimination he needs to have some kind of proof here it is his burden of proof it is it was his burden of proof through each of these elements here and he hasn't provided he simply took that the school district said he was not a good fit to me when he was not hired because he was a male and because he had no children and was to be tested by sue he says you know i don't know why she asked me if i had experience with children but i assume it's because i had no children that i was a crier and this just keeps coming back and then he throws out that it might be because it's a male really what are you doing here is he's right he's starting out about every reason he can think of he's throwing out his marital status sexual orientation the fact that he's a male then even comes back to amend his application to show that he has a disability and he's basically saying well i wasn't hired so must be because of one of these for reasons and that's simply not true of course there are many reasons that people don't hire applicants that can be because of their resume showing they haven't worked in twenty years it can be because of a bad personality in a job interview and the fact that he was fired does doesn't necessarily mean there is discrimination and he hasn't given any proof of discrimination in fact there's evidence to the country the school district representatives testified it would never const their mind not to hire males there's evidence that males were placed on the substitute teaching assistant only to build a less than males of course working in the school district and like i said the fact that no other males applied in luker was not qualify that doesn't equal gender discrimination but focused on the fact that school district sa that they could hire who they want but really this is true of course they can not hire someone for an illegal reason but you can hire someone because they're not a good fit for you and that's exactly what the reason was given and there's been plenty of support for that reason what this does is possibly place luger above people who may have been on this list for ten years who may have a teacher in the past who may be of another protected class really we're just creating more problems by it by making this right or first refusal then by solving anything based on all of the evidence i think that the l j and the commission  decision was against manifest weight of evidence the conclusion here is clearly evident this is based not only on the testimony on the applications but also just on the common sense looking at this person and trusting the school district and the representatives to make a decision when hiring someone to work with our children the morning your honour's morning still may please the court assistant attorney general linda watching on some on behalf of the state response the question before this court is not whether a different trier of fact could have weighed the evidence in this case differently instead the main question here is whether the commission's finding that to cater discriminate against luker on the basis of sex was against the manifest way to the evidence and we submit that the commission decision in this case was supported by the evidence and that it should be upheld to establish his claims of sex discrimination through the indirect method which is what luke reviews he had to first establish a prima f discrimination here the commission found that he applied because first in his employment application luker completed the section related to the clerical position at decatur's aug ninth two thousand and six orientation luker filled out the substitute classified profile sheet and he checked boxes for both the office worker position and for the teaching assistant position decatur gave him the written test for the substitute office worker position as well as a typing tests and neither of those would be relevant to the teaching assistant position he expressed some reason why i took those he may have thought he that they were relevant but decatur as the school district as the employer would know that those two tests are not necessarily relevant to the substitute teaching mission or substitute teaching assistant position and the only way that they would be relevant would be for the office worker position and the record also shows that their application process was flexible so you didn't necessarily need to break down the specific position you were applying for as a substitute worker in order to be considered for that position one of his compared or his bradford route down that she was interested in the clerical position on her application but she was also considered and in fact given assignments as a substitute teaching assistant decatur also had an ongoing system of accepting applications throughout the year from people who wanted to be considered for both eligibility in place and again as i just mentioned the process was flexible in terms of being considered for a substitute teaching assistant position rather than the office or so these facts as found by the commission show that he applied to be a substitute office worker in terms of his qualifications the responsibilities for the substitute office worker position largely consisted of answering phones taking discrimination his testing same results were significantly higher than female applicants who were placed on the eligibility list and the fact that he was given both of these exams the office worker as well as typing  show that he was interested in the position and i think there's also evidence in the record that he discussed his interest in being a substitute office worker with someone from decatur and they told him oh yeah you can just write that down it meaning you know just indicate on so i can't answer that question but i think i mean their process would be to always maintain a list of someone was placed on the list i think that's pretty fair to say based on their description of verification process so that's in the room someone was placed on what is in the record is that they have this process whereby people are continually being interviewed for that placement on the list and i think they specifically describe that august ninth orientation where applicants came in and discussed you know found were given more information about the positions and were told about the process for being placed on the list and it was it and ongoing thing k the the district didn't communicate any rejection in regards to the office worker position i think that it in this case you know the same actions speak louder than words no they didn't ever officially tell him that they didn't send a written document to say you are not considered for this position by it being twenty fourteen in his having applied for a placement listen two thousand and six i think it's that both boxes were checked for both teaching assistant as well as office worker position she would ask an applicant what position he was interested in buying in their record also shows that if a tour of saw the exam results from the typing test as well as the office worker tests in an applicant's file that she would ask you know if there was any ambiguity whatsoever she would ask what position is it that you're applying for she didn't do so in this case think i'm not sure if he said specifically if you definitely didn't amend his written application but i think that's because he was told that he didn't need to do so by someone indicator that even if you were interested in applying for this substitute has written application stated he was interested in a teaching assistant position and he filled out a position where he filled out the section related to the clerical position as well filtered out when you say that was told again because he was told as the commission found he was told that he didn't need to he said that he discussed this with someone at decatur a believe it was their secretary in charge of finding the substitute there some finder i think is what it was referred to in the record so again despite having the documents in his file indicating his interest in both positions he was asked no questions related to the position and robinson initially stated only that he wasn't a good fit for the discrimination decatur had to articulate a nondiscriminatory reason for not placing him on the list and at the hearing they claimed that his lack of significant employment history and lack of experience with children made him  to be a substitute office worker the commission found that these reasons were pretextual and that they were not the true reasons for rejecting luker because i think that i interrupt you and i'm sure that you identified the reason  so i think it was more an argument presented in the hearing and there was some testimony as counsel mentioned from the human resources director saying that oh i would never hire someone without significant employment history but upon further questioning the condition discovered that they never really looked at his employment history while they were reviewing his application initially and and those are some of the reasons why the commission found that the stated reasons were protection so again you know when asked at the hearing whether a tour had looked at the bush job experience she said probably only briefly robinson stated at the hearing that decatur didn't consider him for the position even though she acknowledged that he took the test and that would typically signify someone's interest in the position and they couldn't explain why he wasn't considered robinson and i'm sure also didn't contact any other any prior employers for any other applicants to verify whether they had worked in the positions as stated and what their work habits were there  then with respect to thud experience with children there's evidence and there is no evidence in the records showing that decatur asked at least one of the female applicants who ultimately was placed on the eligibility list about her experience with children assistant position and in fact that's why the commission ruled indicators favor for that position because the commission found that prior experience with children would be relevant to a teaching assistant position but not to an office worker position where the responsibilities essentially are to tight take messages and to answer phones i'm sorry i said but i'm not sure you may have been making a point that i didn't catch there but it teaching system the individuals that weren't asked that question weren't interviewing for their position though as i understand it you're talking about individuals that were placed on the old ability list for the subs to go office worker  reeves e sanderson plumbing products the united states supreme court made clear that a fact finder can find on awful discrimination based on disbelief of the employer's stated reasons plus the elements of the employee's prima facia case and in this case the commission found the following factor suggesting intentional sex discrimination the disparity in test in typing scores between female female applicants and luke are the favorable treatment given to female applicants namely that the record doesn't show that some of the female applicants who were placed on the eligibility list had prior experience working with hearing why didn't consider him for the substitute office worker position given his test as this court observed in cisco trucking company the ultimate question is whether the record as a whole supports the finding of discrimination and they could commission concluded based on the facts that we've discussed and on the entire record that lugar has shown by a preponderance of the evidence that he create decatur and discriminate against him in the basis of sex with respect to the remedy the remedy issued by the commission was not an abuse of discretion it's authorised by statute to take such action as necessary to make the complainant whole and in this case he would have been placed on the eligibility list and given the opportunity to be considered for job opportunities as they become available but in this case because the commission found that decatur already discriminated against her and because of robinson's statement that we can do whatever we want it thought that some sort of guarantee that he would be considered was necessary and so it gave him a right of first refusal for positions that become available on a given day in are done only as a remedy for discrimination in not interviewing employee for promotion the employee was awarded the purple should the employer argue that oh she should only have the right to be interviewed for the promotion but in that case the commission found that because there was discrimination her qualifications wouldn't properly be considered and so it awarded her the job in this case because decatur discriminated against mr luker on the basis of sex just placing him on the eligibility place wouldn't be effective to correct the discrimination decatur claims that there's an injustice in giving him the role but these are substitute player propositions so no other worker on the eligibility list could have any reasonable expectation of being given a role on any given day so unless this co it is clear that each of these comparable females had a previous work history had professional references this is all listed on their application that that in itself shows work ethic school district considered luker for the teaching assistant position he was under the impression he testified i was under the impression i was only interviewed for the teaching assistant position in this interview although he was under this impression he didn't bring up the office worker position he didn't later ask about the office worker position he didn't do anything why is that what the commission is referring to in his application is the section called clerical position and which  minute data entry experience and all that he has testified that he thought that this would have relevance to the teaching assistant position because you might be typing and you might be using or practicing it and such as a teaching assistant and that's what this is all about this application was spelled out on august berry now the commission is saying he spoke to someone in the office at some point who told him he didn't need to change anything first off mr luker never testified when he talked to the office he said it could have been before or after the interview and at one point said it was after the interview so that they have nothing to do with this application here we know i mean hold out this section of the application here and it was because he thought it was relevant to the teaching assistant position it was later probably after his interview that he even talked about this office worker position and that was with the secretary it wasn't with anyone that he interviewed when it wasn't following up with the school district asking hey you said that you're rejecting me for this substitute teaching assistant position but what about the office worker eligibility list that never occurred it really just was kind of an afterthought to him at least based on the record that oh well i guess i can file a suit for this too and see what happens it's true that there is a gas meeting how were people can come in and apply for these positions and that is ongoing of course i could send my resume and anywhere and it would be ongoing whether i'm actually interviewed for that position is another story mara i did not recall whether they were interviewing for the office worker position after a time of lugar's interview so while they might be accepting applications that doesn't mean that they're actually approving people for the list it doesn't mean that they're interviewing people for the last and this is the reason that she gave as to why he might not have actually been considered for this office worker eligibility position despite the fact that he did take these office workers have she there have been no there's no evidence of any was placed on the office worker eligibility list around the time of loopers interview the three women that were placed on the s a year before luke or so from their records we don't see the evidence supporting the fact that they were placing people on this less than that there that they considered him for this last and that they rejected him for this less and this is a lucrative burden of proof