please the court my name is mary mahoney and i represented paula mcdaniels in the lower court and here in this court i reserved five minutes for my here today because paula mcdaniels worked for seventeen years for the plymouth canton community school district before she hit her glass ceiling in two thousand and thirteen she applied for a promotion three times on three separate occasions each time a male candidate was selected and we contend that that selection was based on a discriminatory purpose and for discriminatory reasons this case in fact tests the reasoning of the employer and the proffered reasons that it gave to support the selection of these male candidates the trial court found that the  established a crime of fashion case that is not in dispute in this case this is really a pretext analysis the trial court determined that the district's basis for selecting male candidates was not a mere pretext for discriminatory treatment as alleged by paula mcdaniels paula appealed because we believe the trial court made certain factual determinations and applied the law to those facts that was inconsistent with what the evidence actually showed in the in the trial court and on the record the trial court also declined to limit the authority of the school district to exercise its business discretion in a nondiscriminatory fashion and that's the reason for the appeal the case of interest was ren versus g it's a six circuit case and the court determined under rent versus gould that the employer's business judgment should prevail over any other issues that arose in the promotional process we claim to err because the criteria used in the exercise of the business judgment we believe was discriminatory the point where the e e o c with regard to all three positions or more she filed the complaint after the third opportunity and it was based on all three it was based on the pattern of selecting these male candidates over her did she put that in her complaint that had to do with all three turned out i believe it was alleged in the complaint that was not contested by the defendant in the underlying case in of the promotional opportunities the other thing argued by the district was the honest belief doctrine which the trial court found that the diff that the school district had an honest belief that the selected candidates were more qualified based on their discriminatory selection criteria well of course what exactly was wrong with their criteria that in as i understand  one of the criteria was that the others had more experience on hand of doing the kinds of things that are supervisor would be be required to do they only had more experience by virtue of experience that was unrelated to school district experience paula mcdaniels was hired by the school district when she was very young she worked there for eighteen years the plant engineer job description says you must take responsibility for the heating a check of ventilation it's all all of those mechanical plumbing things that's all contained in the plant engineer job description in the h m the assistant head maintenance job description it's indicated that that position must assist in those endeavors and the language is identical so during the period of time when they're a h m which is also a supervisory role they are assisting with maintaining the building in all of those same regards it's not that the plant engineer only can do those tasks the h m s is expected to assist the what goes to the point that you major honor is that the criteria that was considered was outside experience in construction trades that's what these male candidates possessed that my client didn't possess i thought there was also the question about doing various complicated tasks within the school that the male  had there was testimony that michael oakes who is the third individual had very extensive construction experience he had dug trenches and set footings and hung dry wall and done all kinds of things in the construction trade which of course my client had not the implication was that the school district wanted that kind of experience in case the need came up and the analogy that they used was of  course the c p r if you know some if you have a kid who's only just taken a class versus somebody who's done c p r every day then of course you're going to pick the c p r person and my my point was that that suggests and i think necessitates that the position involve doing c p r every day and there was no evidence in this case that this position required these advanced construction skills the only testimony was that michael ochs was commended by his principal because he had retiled the bathroom and there's no evidence at all that paula mcdaniels couldn't have retile the bathroom i know on those home improvement shows that's the task that they always let the homeowners do because it's very simple so there was no evidence in this case that there was trenches to be dug or dry wall to be home or any of these advanced construction techniques that was just code for we want guys who know how to fix stuff and we don't think girls know how to fix stuff that's the grab the men of the complaint in this case it as it were so the evidence was lacking in respect to her not having the requisite qualifications under the actual job descriptions it was only by virtue of considering this other unrelated experience that the men then came out favorably we contend that that is discriminatory because it disadvantages female candidates who never had the opportunity to work in the construction trades or did the people who made the decision position so they could see what he could do both that's what they claim and the way they did have an opportunity to see what those candidates can do they had they had no opportunity to see what paul and the daniels could do they would have relied on harry lao the overall director of the of the agency they would have relied on him to tell them whether or not she was qualified to maybe exceed the capabilities of the person that they were familiar with and of course he never advocated for her in that regard because he didn't know either in mr wolf case he had worked extensively with mr wolf he had not had that same opportunity to observe ms mcdaniels rabbet an improper factor to rely on your familiarity with one of the candidates and your knowledge that that candidate has done a good job in the job  contend that it is where it has a discriminatory effect as it did in this case your honor i would say that the briggs vs your d case really just has nothing to do with this because that was a case where it was two people of the same gender the male subordinate was upset with the female director because she had had a sexual relationship with somebody else and favored that person in advancing that person and i know that there's many cases where  the genders may be reversed but that same type of thing happens where there's favoritism in the workplace so it's not inherently suspect when there's favoritism but i'm saying that when it has a discriminatory impact as it did in this case on three separate occasions that it's not permissible under rand versus school which disagree says so long as the motive is not discriminatory the business judgment will prevail and that's my contention morning your honor is my name is kenneth jaffe i'm here on behalf of the police can community school district were asking that the court affirmed the decision of the district court to dismiss the plaintiff's lawsuit as has been discussed the reason why the school district had chosen the individuals for the plant engine in a position that they did because these people had demonstrated during the course of their employment with the school district the ability to do the tasks that are required of the job now plaintiffs had test just spoken a second ago that some of these tasks were indeed things that were done outside of the school while the things that the school district relied on was both their overall resume and the witnessing the to perform in the school harry wow had testified about witnessing multiple complex things that dan wolf had performed during the course of his duties with point with can schools those things included changing out p traps changing slone valves changing out light ballasts a whole number of things but the point is those things were done while working in the school district before he was named a plant engineer and those are the types of tasks that he would be required to perform while planting as the evidence indicate whether the plaintiff was given the opportunity to do those tasks yes i believe it does your honor what specifically do you rely on  plaintiff's cites to a long passage of testimony from mark my current line supervisor the supervisor says that she he showed her how to do these tasks now mind you that my current line wasn't always  supervisor they only work together for a short period of time but he did show her how to do these things and his testimony was that she just didn't do it she didn't show the initiative now that was the separating factor with these other candidates harry loud testified that he looked for curiosity and initiative and that's what dan wolf showed initiative he went out of his way and sought out this type of work that's the same thing that jim johnson testified to was well that while he was principal in the building he noticed that there were clear right had gone out of his way asking people if they could if he could do those types of tasks in actually did them mr johnson also testified to a number of things that he saw the right performed during the course of his duties as a a h m that would ultimately be performed by a plant engineer again it was a long list of complicated things  i know that that your opponent's brief has a long excerpt of hard lines depositions suppose one got the sense from that deposition of her client that hardliner was stereotyping females it's being afraid various things and and that it was in heavily in his mind as to what he thought he could do or or was willing to do how should we factor that in i don't think it should be factored in your honor because my current line was not a decision maker at it for any of these jobs that were posted the distance didn't make the testimony that you just relied on suspect if her line says she didn't do any of these things and then we have deposition things where he says i don't think she would get up there and do it anyway why not because she would be scared to get up there when would she be scared about to get electrocuted did she express any fear of heights no i mean there's some really stereotypical views in his deposition i could see how they could be viewed that way your honor but when looking at the overall context of that longer passage she still says he shows her how to change the light ballasts so he is not actually saying i'm not going to show her because she is female he's showing her and she doesn't do it so i think the conclusion is coming to he's just not doing it because she may be afraid see i wouldn't do it either but the point of the matter is your honor the decision makers had viewed the people that they chose doing a lot of these tasks that were performed during the course of their more complicated than drywall no those are also tasks that he performed while at the school district that impressed the supervisor there is no evidence that the plaintiff had that kind of experience and she even concedes that two sixty seven and on that e e o c charge it is only related to the april nineteenth two thousand and thirteen employment decision related to the first plant engineer job a gala more that's the only one i'm aware of your honors your position then is that the others were not exhausted wrec now this case really boils down to whether an employer can use their discretion to hire somebody for a position when they know that the person has the demonstrated skills to do the job they've actually witnessed the person the one great uncertainty when hiring somebody is you really don't know if they can do the job so you go through an interview process sometimes you put them through some tests and put them through some scenarios do you know how to do this you know how to do that just to find out if the person can do the job but in this case we had three candidates that actually shown while working for the school district that they had the initiative and curiosity to do these jobs that they were able to change light ballast and do the plumbing things that were necessary derek about that yes your honor should miss mcdaniels testifies that she did attend most of the training sessions about fourteen years earlier now these training sessions are half day of classes on these issues i don't think attending a half day class fourteen years earlier is any substitute for actually demonstrating that you can do the job now the whole point of that class is so that you can learn to do the job now the school district did give her the opportunity to do that and she could take any of those classes if she wanted to to learn how to do this type of work that was through the district and i guess judge moore that answers your earlier question about my current lines testimony the district gave her the opportunity to learn that type of thing and she went to those classes fourteen years earlier but as i said i don't think that that is any substitute for actually showing that you can do the job because the point of those classes is to be able to end up doing that kind of work now another thing about those classes mcdaniels did not complete them all she testified that her greatest threat to this job was just maloney a male candidate because he had completed the courses mr malone he didn't get the job either and if you look at our record if he gets eighteen dash  nine it believe page id one seventy seven indicates jeff collard also didn't complete or he also did complete all of the courses no courses are noted to be missing he also did not receive the job so the classes finishing the classes didn't disadvantage plaintiff was not disadvantaged because she was female it just the classes were no substitute for demonstrated experience in this area as for seniority she's also made the argument that she had more seniority but dan wolf will receive the gal more position was hired seven months before she was more seniority in fact the most senior apple can't was might get gollum he had been hired by the district eight years before paul mcdaniels and little more than seven years before daniel he didn't receive any of the jobs in connection with wool i was where in plaintiff's brief she says that but i found it on page seven of her grief which i guess is where that's a contender but then you say without citing to any record evidence she claims that he was classified at a lower level and that this is a citation statement but if you go look at page seven it's not citation free at all just three sided day sions so what am i missed it looks like that's just a blatantly false she references an evaluation from two thousand and six that says that he is the custodian that seven years before the application so it isn't citation free i acknowledge that that was an incorrect statement on most of those those in attendance record representing that status as of april two thousand and thirteen confirming that it was custody and when you go look it does and it's a it's an accurate characterization of the record so she's citing the record citing something in the record and your response is not to answer that but to say she didn't have any support you know that makes it hard for appellate judges to sort of parse out what's in the record when there's something like that i don't understand it is that kind of conflict when i see that kind of complex i go and see well who one of them got it wrong your honor and is misleading us in that and it doesn't appear on this minor point it doesn't appear to be your pain i mean i would agree with the way that it that it's worded i've got that wrong i would i would be relying on would be document dash nine page id one seventy seven that identifies the end wolf as assistant head maintenance a which is a high school level looks like that's why i mean that that's the summary that was made as part of this determination right there's some sort of summary of who has which qualifications as part of the process of determining who are you going to promote you know it's the summary of who they  looking to promote who they're looking to promote as with that but if the underlying documents suggest that the person was a custodian and the summary document says that the higher rank is that which one would you believe you believe the underlying documents should i mean an evaluation is more likely to be correct characterization of your position is and then the summary that goes to the decision maker well i suppose that could be  even if they got it wrong at least the decision makers thought that he he had higher level experience wrecked your honor and a lot of this is based not on just the positions that they held but the demonstrated skills that they had and that is the determining factor that really led to these people receiving the positions that they had demonstrated the ability to do complex work during the course of their performance didn't sit in the schools so hypothetical giving her opportunities to do the kind of work he said then the failure to have experience be a factor that could be dispositive in this election without violating either elliot larson or titles of it i think more facts would be necessary to answer that question your honor and i say that because the school district aside from what this building level supervisor allowed or didn't allow her to do the school district did provide these training courses that she did go to they did allow and there are other people who just took the initiative to do the type of work and this supervisor in particular did show her how to do things like changing like dallas so i think they would just need more information on the hypothetical coming to a kind of my argument are there any questions thank you for yours thank you for the opportunity to dress shoes again or was will because tony an early or was he also age he was a custodian because he never took the classes that's never promoted out of the custodian position and those records not only establish it but paul mcdaniel also testified to it everybody that worked at the district knew the situation with will use that i found it notable that mr champion relied on the curiosity as it was set forth by mr loud when dan wolf wasn't even kurian it curious enough to to take the classes the classes incidentally were something that was provided for under the collective bargaining agreement and specifically referenced that these are the things you must do in order to be considered for promotion the wolf will refresh my recollection wolf was  somebody who the decision maker knew and had worked with yet it was based on a personal relationship yes with both mr lao and with i believe that building principal and for that reason he was allowed to leapfrog over because they were happy with his work and again what i'm saying is that that specifically denies opportunities to the women who are out there who are not being considered for their qualifications in the things that they have done paula took every class except for the heavy equipment class and there has been no question that she was qualified except that sometimes we hear in the defendant raising these these claims that maybe she wasn't qualified because there was no evidence from her supervisors that she got on the ladder to go change something in valuations that are attached and you can even compare paula mcdaniels evaluations with i believe it was mr liberates evaluation his says something like always it early her says always goes above and beyond does everything we ask her to do sometimes there were exclamation points about how happy they were with her where is the evidence that her conduct or  so that would be consistent with the idea that they were there's some evidence that that was their mental process i don't believe it accurately reflects the true state of affairs paula subordinates came to my office and wrote a an affidavit indicating that she showed him how to do all these and the other reason that we know that she's qualified this is completely not in the record but you know i don't bring it up not a record and i was just going to point out that she applied for a job and was hired as a plant engineer about a month ago at the school that your opponent said that there's only one ear of c filing on page id to sixty seven and that it refers only to one promotion  either another year of c filing or is there something that i'm missing in that your honor i don't have those records in front of me i know that i didn't become involved in this until the mediation session and at the mediation to session it was discussed that she had also been denied other promotions i remember that being discussed and i don't remember any objection being raises to the fact that it was not a part of the charges this was a continuing violation i suppose as it were i'm out of to know which one judge moore is referring to yes i think that the evidence in this case fairly encompasses a continuing violation because all three were leading up to the same thing is that she kept applying and kept getting turned down in favor of any other words the previous turndowns were of the fact that in support a nation with respect the last correct you're really what we should be focusing on the last one and whether these other things say something to get us to a theory with respect to the