position at salt lake city's golf division the district court erred in three ways when they discounted mr sasser as evidence of pretext it discounted evidence that demonstrated that the deciding official director david terry's reasons for not promoting sasser were unworthy of belief it discounted lin langar in spry or treatment as the supervisor  and how that prior treatment was connected to david terry's decision not to promote sasser and it discounted how terry's use of both subjective criterion criteria and perce irregularity provided room for race discrimination the district court discounted evidence that demonstrated that golf director terry's reasons for not promoting sasser were unworthy of belief mr terry claimed that he did not pick mr sasser for the full time assistant professional position because he wasn't substandard substantial time in a golf pro shop at the time of the height at the time of the hiring however mr terry listed another applicant fifth on his list when he ranked from one to ten those people who should be interviewed an applicant that wasn't even working in a golf course let alone a pro shop that applicant that he chose but enlisted as number five was working at a retail pro sporting goods store additionally mr terry directed the panel members who were helping him find interviewees he told them to use the job description for the position the assistant professional position that job description sad that there was a qualification for the position of two years experience and golf apparitions or maintenance however mr sasser had over nine years of experience and yet gran or mr kerry didn't contaminate essentially or taint the decision making of mr brindley or mr schmidt all there are there are four independent decision makers each had twenty five percent of their ranking that would go into the decision of which a individuals to interview and that's where he lost out so i searched in vain for a case that deals with this scenario where you have you know lots of committee decisions where there's a huge there's a consensus but here there wasn't a consensus each individual individually voted what do we do with the fact that mr brindley and mr bell had collectively fifty percent of the vote and there's really no evidence like you have focused on with mr terry and mr l of mr miller for example in mr brimley mr brumley reviewed the applicant application materials and in those application materials it talks about mr sasser having tournaments experience mr  that this was important to him and making the decision he ignored the fact that mr sasser had this turn meant experience but he credited miller and there is no resume for miller in the record but he credited miller for what he thought he understood about what miller's turn meant experience was even though there's no proof of it so now we have that issue that goes to pretax of elevating one candidate application materials and qualifications and dead a great ng mr staffers additionally with mr brimley he thought he testified that he thought mr sasser had a reputation of being abrupt bear in mind that mr gramley never worked with mr sasser he ignores but admits that he knew that miller took a negative tone with customers so again this type of disparate treatment of the credentials the same credential could show the pretext of mr brumley himself separate and apart from whether or not there is taint then when we go to mr who is the fourth and the youngest member of the panel the newest had pro in the city system that was on this panel mr terry is the cause here for mr what mr smelt it mr schmidt was told by terry and he was the only pro who was told this don't look at the rich don't look at anything but the written materials do not consider what you know about the candidates except for what's in writing mr smell and mitts that he would have interviewed mr sasser it would have made him put him on the list to be interview if he was allowed to consider what he knew about mr sasser and what he knew about mr sasser was that he was an excellent junior golf professional  teacher he had won a junior golf professional statewide award and he was actually mr chanel's kids instructor and had he been able to consider all he knew about m he said he was definitely one of one and him to be interviewed so i don't think you can consider mr schmidt apart from the influence that mr terry had on him when he told him that he had to consider only what was in writing about but he contradicted what we what he wrote to the head pros in the recruitment for this position he sent an e mail out mr terry did saying that he wanted to let the head pros know that any of their seasonal employees should apply for this position not seasonal employees who are currently employed in the pro shop but any seasonal employee additionally we have the problem with mr terry with the resume up so the system the online system that salt lake city was using for applicants had a glitch and several of the applicants resume's did not upload to the system mr terry reached out there worth of those that did not blow three city employees resumes to an upload two of those were white and one of them was mr sasser who is black mr terry reached out to the two white city because remember smells told only only review these candidates based on what's in writing and when mr terry doesn't say sasser bring in your resume smell never received mr  so not only can he consider when he knew he mr sasser it was treated differently than his white co applicants and city employees and he was then out  the the the plaintive and so you are defining the universe of people as being those three the two caucasian current employees but of course there were two caucasian non employees that were treated exactly like mr sansar and so how you know help us out yes if how do we say it was a huge it did it uniquely impacted him when all four of you presumably agree that it really didn't uniquely impact him because it also impacted two caucasian non employees who were also vying for the position and that goes to the issue of what mr terry says is part of his legitimate nondiscriminatory resent that he just he was just concerned about folks who are presently working in pro shops but city employment if if the record is looked at as a whole mr terry actually believes that city employment matters it matters if you're set a city employee when he touts there's an e mail he sends out and he touts the hiring of jeremy miller for this position he talks about six of the nine interviewed were current city employees he makes a very clear point to say that this was important other of the mr brimley am mr langham poll say that city employment is important so that is a question i think for the jury as to how important it is and whether that was a differentiating factor but when we look at it here i think that there's enough to still send it to a jury on that question of whether or not city employment was an actual factor that mattered and if it was he was looking specifically at city employees mr terry was and so you can't just say oh these two other people whose resumes didn't upload and by the way if you look at their application materials for the two nonsuch employees and has no information whatsoever it doesn't say whether they were working even in call for at that time so there was no way to make that determination but mr terry knew that sasser had worked in golf pro shop for salt lake city for years didn't happen to be doing it at the time but only reached out to his white coworkers to bring his r could they tell law or they had no idea that they did not there's nothing in the record that indicates that they had gotten anything in response i'd like to reserve the rest of my time for a bo may please the court counsel jonathan capa sideris along with allison parks from the solid city attorney's office representing the absolutely in this case salt lake city corporation your honour's this appeal presents a single issue and that is did the district court correctly conclude that mr sasser failed to a deuce evidence of pretext sufficient to withstand the city's motion for summary judgment here mr sasser advances numerous periods of pretext in an attempt to organize these and present them officially we believe that they essentially fall into four separate boxes the first box is mr sasser alleges that the hiring process at issue here improperly relied on subjective transmission of resumes is another factor that provides in disha pretext third he asserts that he was the most qualified candidate for the position in question and fourth he speculates and and somehow infected for lack of a better word the entire hiring process based on the fact that mr land grant documented certain instances involving mr sasser for a four year period let me start with the issue that ms skolnick took up first which is the per the procedural irregularities question with regard to the resumes and i think it's important that we look at the standard that applies in a pretext in court inquiry now it is true that the court must consider the totality of the circumstances when evaluating pretext that it's axiomatic under this court's case law but in evaluating pretext it is likewise axiomatic that the court is required to examine the facts as they appear to the person making the challenge employment decision in other words the court needs to look at what information the decision makers at the time had in front of them second the court needs to assess whether the employer believed its proffered legitimate nondiscriminatory reasons and acted in good faith upon those beliefs the question is did the employer honestly believe that similar this court doesn't ask whether the employer's decision was wise or fair or correct or that it might have been mistaken or might not have been of the proper exercise of business judgment rather this court is examining whether sufficient condition exists of intentional racial discrimination that's what the pretext inquiry is is is there an are there enough inconsistency irregularities things like that that could give rise to a question in the minds of a reasonable of her as to whether the proffered legitimate discriminatory reasons were race in this case race based animus and then of course the fourth critical component is that mere conjecture speculation assumption and innuendo are not sufficient to overcome summary judgment now let's first start with the procedural irregularity that's the issue in this case and really it's one procedural irregularity and that is this issue with regard to the resumes just backtrack to get to your question and to answer that this there is mr terry's decision to not inquire of all of the individuals and five individuals whose resumes fail to upload that may not have been wise that may not have been correct that may not have been fair but what it's missing is any that it was based on a discriminatory reason living let me let me let me probe that a little bit now particularly on summary judgment viewing the evidence a light most favorable to mr  sasser why couldn't a reasonable fact finder say mr terry knew in this recess or was an african american that the in a current employee obviously you know the sec that that the two caucasian current employees or the two other employees whose had same which were caucasian and that he obviously thought fairly highly to some degree of mr terry he did write him i mean mr terry of this recess or he ranked him tenth so he wasn't automatically considered you know beyond the realm of being a potential somebody to consider there is evidence that this risk skolnick has pointed out in a break and today that mr kerry did value current employees status he did want to promote you know from within and so why couldn't a reasonable fact finder say well he didn't do it for m sasser because he was african american he did it for the other two because they were caucasian and if he had just told them the same thing we didn't get your resume because as you answer the importance of citi seniority to the position now mr terry testified that in the list of factors that he deemed were most important to the director of golf city seniority it was near the bottom and if you examine the record that's very clear mr terry did say that what was important was if the individual had been serving in a position that was a stepping stone position to the next one and there's no dispute that mr davis and mr miller had both been serving in that stepping stone position for the past few years prior to this job posting becoming opening becoming open so it's not it mischaracterizes the record to say that mr terry said that city seniority in any position or no matter how remote was relevant he never said that in fact he specifically emphasized the importance of the duties of the of the current position translating into the responsibilities and the duties of the position that was being sought with respect to whether a reasonable jury could conclude whether this could go to a reasonable jury i think there could be circumstances here but they're not present in this case that would warrant this factor possibly going to a jury for example if mr terry had contacted all of the non african american applicants whose resumes did not upload to contact them and say hey for whatever reason your resume didn't upload that would be pretty strong and disha that something was a bit irregular there why would you contact all of the white or non african american applicants and not contact alone not american applicant african american and similarly how did mr sasser been serving like mr davis and mr miller in a position currently for the past years that had been a stepping stone position and had mr terry not contacted him again that would be stronger evidence of pretext because it would beg the question if the if the criteria that you're most concerned about is individuals experience in the steppingstone position and you know mr sasser is in the steppingstone position and the only difference between he mr davis and mr miller is his race that would be much stronger in disha of pretext your honor but we don't have any of that here and when you look at the case law on procedural irregularities in this circuit this case is dramatically different from the cases cited by plaintiffs for example the plaintiff cites the muhammad versus callaway case from one thousand nine hundred three that is a vastly different case there's no dispute here that every individual including mr miller met the minimum qualifications for the position the city doesn't dispute that mr sasser met the minimum qualifications for the position in muhammad versus callaway the minimum qualification for the position was a bachelor's degree in engineering the candidate who the decision maker selected didn't even have the minimum qualification so when you compared that that was a procedural irregularity there was it there is also evidence of procedural irregularity where there is proof that the hiring manager can manipulate the criteria that's a stepping stone was stepping stone part of the job description was up close to know but if you look at the duties if you look very closely at the duties in the description of the job it is very clear and this is very similar to conway your honor it's very clear that the majority service merchandising and handling pro shop inventory operating point of sale and running group golf events as he summarized it it's running a boutique business in a golf shop in the recitation was there any  notice you didn't say current correct in that's exactly your adversary's argument that he had plenty of pro shop experience well let me that's wrong and it is undisputed that mr sasser had no even doing the position in correct your honor mr miller had been serving ads in approach shop in a city pro shop for five years prior to when he got the position mr miller served from i believe it was two thousand  true that from two thousand and eight to two thousand and eleven mr patten gill had been the assistant manager at a sporting goods store now that actually ties to one of the things the city focused on which was merchandising and handling  prototype inventory that's significant relevant experience but it doesn't stop there if you look at mr penfold resume you will see that from two thousand and two to two thousand and eight so prior to accepting his employment at the sporting goods store he was a consistent simply a retail person the reality is from two thousand and two to two thousand and eight mr patten gill was working as an assistant professional at two other golf courses it is undisputed mr sasser was not why does that matter if he's worked in a golf shop or golf not sure at a golf course in the shop in years past it's not lying there have been revolutionary advances in the golf shop working business are there i mean he knew how to do it well that might be true your honor i don't think we can go that far the record is silent as to whether or not significant changes happened but obviously the passage of time from two thousand and two to two thousand and eleven many things in society changed but there's no evidence in the record but he was doing some other things that are also on the list he was running tournaments in southern utah well let's let's look at that your honor if you look at it again viewing the facts in the light most favorable to mr sasser if you really unpack what mr sasser said he did as the tournament director at coral canyon it essentially consists of three things it consists of taking the reservation collecting the deposit and making the signs the signs for the placards he was not the assistant professional a despite what it says on his resume there is no evidence to indicate that he was in fact i would know if you actually look at mr southard resume which you know he claims was a critical factor in not getting promoted and that at three fifty three he listened self as having been an assistant professional we can point at the city you have his job description mr saucer was never an assistant professional at one point out salt lake city but he knew how to run tournaments is the point he may have known how to run tournaments your honor again the facts in the light most favorable to him but mr brimley focused primarily on he did mention tournaments he was the only one who mentioned tournaments mr brimley primarily focused on the merchandising and the point of sale system and if you look at mr sasnett resume there is nothing in here that indicates any of that that's an assumption the plaintiff is asking to make in fact i wouldn't hurt a summary of the experience and what this summary of experience reveals if you read it is mr sasser is emphasizing his abilities frankly has conceded outstanding abilities as a teacher and it is undisputed that although that appears in the job description that was not the primary consideration here teaching ability was a factor but it was not the factor and if you look at the resume it's simply it doesn't hold water but isn't that going directly to the selector manipulating what's important and what's not all of a sudden here you have this great golf teacher that's not so important anymore he's the only one who had his car which is was considered to be important at one point i'm not sure your honor if you look in the record was credited with trying to get it but that was all the minimum qualification required your honor that the minimum qualification didn't require class a p g a membership if it did this is an entirely different case this is much more similar to mohammad if the minimum qualification was you must be a class a p g a professional rather than have done what mr miller and the other options did passed an initial test and progress toward membership it's a different case then the class a p g a membership is possibly much more pro but that's not the minimum qualification here it just isn't i see that my time's about to expire your honour's if there's nothing further thank you so just a few points on rebuttal first of all even if mr lang grins over race discrimination and bias is removed from the situation as we discussed when i was up the first time and he was just one of four panelists there is adequate reason and pretext because there's disparate treatment by each of the panel members maybe save mr schmidt now who is influenced by mr terry that would allow there to be pretext the cases have said that disparate treatment is perhaps perhaps the most potent form of pretext that we can put forward and here there is destroy a treatment between the way mr miller was considered in this promotion and the way mr sasser was considered certainly the resume issue just screams that you mr miller bring it in  we don't need your resume the other issue is that several of the panelists mentioned that they understood that mr miller's tone with golfers customer service dealing with them in terms of the golf course was perhaps negative or harsh in some way or she had a problem with authority but that was all taken with a grain of salt on the other hand  gren of course says that mr sasser could be a little rough or har and that was credited with why he wasn't interviewed mr brimley heard that he had a reputation for being a propped and that was important to him most perhaps most importantly there's been put there was prior misconduct and mr miller's part that mr terry knew about but choose to to put put aside specifically mr terry knew that miller had been the source of a customer complaint because he was intoxicated at the golf course and that was a recent piece of misconduct prior to this two thousand and five two thousand and ten is what mr terry said miller had something no one else which is he had been working essential the doing the job after the n enough because that's not exactly what the panelists sad with the panelists oh i see my time's up can i answer your question certainly ok with the panelists said it is mr terry said there were management functions that your me was having to take on as a result of full time employees potentially not doing basically their jobs mr brimley said because the head pro didn't like nimbly golf course for some unknown reason brimley just knew that jeremy was an assistant not on salary this was the hear tell about what was going on over there and mr langridge said he helped run it late for map so th so it's not clear from the record that he actually took on any substantial assistant pro and in fact in the record there's no increase in his salary he's not made a full time employee there's no indication that he took on that temporary