our seventh case for this morning is hussein against federal express the district court level the court failed to consider the facts in the light most favorable to the nonmoving party in other words my client should be you saying we pointed to specific examples in the brief where we believe that the district court failed to look at facts in the light most favorable to miss hussein to specific examples that really stick out would be with respect to two current federal express employees who were represented in their depositions well that would be thompson gillman speak specifically testified regarding the decision maker and its treatment of women that he treated them aggressively they were complaint against the decision maker she countered she stated that the decision maker had called her passive aggressive at least five times and he made negative comments about her nonverbal communications and facial expressions which is nearly identical what he d d my client in this matter as well despite all of this though this his district court did eventually find that true steele's track record of perk of not promoting females operations managers the senior manager positions as well as the complaints that was made by sheila thompson did find quote some evidence he harbored discriminatory attitudes against women but it was still the complaint was still dismissed in its entirety so your opponents are rely heavily on this interview panel and the scores that they come up with and she does not come in second let's say for that so so how do you respond to that sure i think that that's two different ways here are the first way is the interview panel was not the solution maker in this matter because what it comes down to is michael phelps was the top scoring candidate george crew still the true decision maker in this matter decided that he was not going to hire mr phillips because he didn't think he was qualified for the position based upon a discussion with his manager and did not think he was ready for a position at a major station he even picked john second then the issue comes to at that point the panel becomes a suggestion not decision maker so the panel scoring to some extent is a red herring that being said beyond that i think we have shown that the panel it's also questionable about their scoring because what it comes down to is true still can did he basically control this entire process with respect to the panel what he did is he initially went and chose who was going to be on the panel including mr griffiths direct supervisor and actually did it in a way that fed ex change their entire corporate policy based upon who he put on this panel then he picked all of the interview questions including one where it was asking the question if you were in this role what would you do in thirty sixty and ninety days while griffith was in the position for almost thirty days talk about giving someone an absolute leg up next he then chose who to interview under some of the matrix that were shown by fed ex griffith wouldn't have even been i'm sure griffin not even been allowed to testify i'm sorry to interview after this pro i mean true still he oversaw this process and then the scoring itself was done his consensus score which means they sat around after each interview and scored true skills the highest ranking member in that room he's the direct supervisor of to the individuals and he's the highest ranking person in the building of the other person to say that he didn't have some overarching ability to really control that discussion i think would be somewhat disingenuous  at the true decision maker in this is the gender discrimination aspect of a correction and not the national the national origin is based on these remarks about being stoic like an indian if that's correct say truesdale remarks  about being stoic like an indian when my client is indian like an american and well that was what he his explanation was that's correct your honor and i think the national origin case one thing that i think it is a thinner case but i also think that one thing that i think that the court did rule is that part of the reason that john griffin was promoted for his position was the fact that he was african american and as such if that was truly what the fed ex's one of the rationales was choosing to hire you know a black male over an indian woman i think that is also proof of the gender discrimination and the national  discrimination itself and i think another really important thing to note on this is the way that this was also handled by truesdale the very outset whenever this position became available my client was anyone and i think under the direct method between the testimony of these individuals truesdale switching of this position truesdale gendered stereotypes that he gave in the meeting with respect to calling my client aggressive et when other people they were in similar meetings with her never saw any of the things that he saw as well as the facts and that rodriguez who testifies to them that's correct your honor what one thing that george threw still point on that meeting is during the discipline procedure that's done in house at federal express he saw my client being aggressive and i think harsh may have been the word with employees that worked underneath  george choose down who was the managing director and the ultimate decision maker filled this position using a four person interview panel and which included a member of the fed ex human resources department but isn't there a problem with this panel since obviously his decision with respect to philips shows that it was an advisory panel but it was not a panel that was giving binding advice because he checks with the st louis manager the person says mr philips doesn't yet have enough experience for something like chicago truesdale except that in quotes and and overrides the the interview panel  and it seems that there are other problems with with mr trichet so was it once we focus on mr truesdale as the decision maker there are problems such as remarks that look an awful lot like what the supreme court criticised in the pricewaterhouse  case there are there's his track record there's the possibility of manipulating the scores with this consensus scoring why isn't this enough to create a jury issue but you're an art raises a lot of different issues the first with respect to the use of an inner view panel is to provide an objective basis for assessing the candidates and to get other people's input so it's only input though and i'm just saying even if you think the panel the other the not him you know the other members of the panel are giving advice he's the he's the decision maker we need to focus on who's the decision maker corrector and he's a decision maker who feels comfortable both manipulating the scores that the panel comes up with which affects the ranking and also overriding the panel's advice when he thinks he has a good reason to do it your honor even if the truth jail did over it as you say override the panel that wasn't far and is not a legitimate reason he does after michael phelps scored the highest he discussed michael phelps with his direct supervisor out of st louis who advised him that he did not believe that phillips was ready for and large  in this next rank of the supervisory positions well the plaintiff in this case was not the next candidate in the law and she was well but that's where we have to get to the integrity of the in the rankings and there's some evidence in the record that whatever scores truesdale gave out manipulated the process there is some discrepancies maybe half a point but they're not an app to make a mathematical difference in the ultimate ranking of plaintive as for behind philips behind jan grappa who is the next person in line and was the next person operate the position and followed by robert smell and then followed by saying this is fit and that's something he does in his sole discretion yes these are the reasons that he chose chose john grant this was his interview score was one of the factors his desirability for the job the fact that he had more managerial experience than plaintive the fact that he was a minority candidate and and that is how diverse and out factor in so was she well it was just part of the how do so the bigger picture i was a little surprised that fed ex wanted to rely on that it was lives also in the nor this was just in the testimony of george tuesday i believe and that it was part of the diversity effort at that actor but he was also the second highest scoring candidate and he scored at second above plaintive who was merely for true still score for hussein was lower than the score they did look at their the procedures and thought it best to determine that you didn't have somebody in the same position let's say a senior manager of somebody who is applying for the senior manager position but that doesn't mean that the process that was in place before was inherently unfair one that they went influenced by the presence of george truesdale on the panel as well plaintiffs had the opportunity to depose these people in fact she didn't even depose morris who also sat on the panel to get any testimony from him as to any influence by truesdale well and there's fierce no evidence and the record is just pure speculation that they were influenced by his presence and couldn't make objective determinations on their own but that then there seemed to be a distinction do not whether you're an operations manager say or a senior manager in a in a chicago operation or a suburban opery i mean in the minds of the oranges as to what is a more desirable position but i'm running out of time but i just wanted to address you know the mosaic there's really not enough for this two for a reasonable jury to conclude that this promotion decision to hire john griffin who scored second in the interview panel over hussein who scored four was a of any discriminatory attitudes based on gender or national origin with nash national origin the only evidence in the record is that single comment that choose dale made in this post interview leaving where he about her that she should be more like an american indian which is should be treated as an admission in itself but even if you made that comment it doesn't show that this hiring decision was a result of any and being of indian origin she just wrong kind of i nderstood to have meant that you know for her indian origin but if it did it didn't show that this place that basis for a hiring decision to choose john griffith over  judge i think with respect to your comment the fed ex change their policy with respect to the senior manager position i also think it's important to note that they also changed the hiring guidelines for interim senior managers as well basically setting up a whole new protocol and a whole new  basis for those hiring decisions so that they couldn't be done in the way that george truesdale given this matter in addition he also violated normal fed ex policy whenever he did not accept the panel's recommendation of the highest score i thing is littered with things where george truesdale went outside the scope of what was normal fed ex policy and procedure to make sure that his chosen candidate it appears was higher this is not a summary judgment case this is a case that should go to a jury there are absolutely sufficient facts that would allow a jury to find the misuse ayn was discriminated against and not given this position due to her national origin her gender or both  with respect to the scoring going back to that issue that was raised one thing that's important to note is john griffith was basically given the answer sheet to the test in a lot of ways whenever his scor whenever forty percent of the scoring of the panel was based upon what he would do in the g y y p m position that he currently held thirty sixty and ninety days after he was hired for it that's the equivalent of of giving a kid an answer key to part of a test and then being surprised that they're number two on the list with respect to also the scoring the scoring is an absolute mess the score sheets have numbers crossed out on they have some numbers that are averaged there are some numbers that are consensus scoring they are an absolute mess and we talk about that in our brief as well again i don't think this is a case that should have been dismissed on summary judgment especially when the arguments in the light and the facts that