black female over the age of forty through several protected classes that we are alleging that is at issue here she applied for and was qualified for various positions rejected for positions in these positions were given to someone outside of the protected class who was not better qualified i think there are two things that that need to be discussed and that is the fact that the application of the stork program as to what is mean by who was not better qualified and i think at the lower court level the court required my client to show that she was more qualified at the kind of factual level rather then she should have been able to show that she was equally qualified or that the other party was not better qualified but instead the lower court required at that level for my client to show that she was actually more qualified once that kind of fashion cases met the burden then obviously ships to the defendant to show why the chosen community was in fact chosen and in this case the reason given over and over again was this candidate was more qualified more qualified more qualified without anything else really the up the other second actually this second promptly applied for there are two positions that were discussed at the lower court my client applied for i'm sorry there were two two positions there was an academic dean position in two thousand and ten and then there were assistant principal positions in two thousand and twelve and i think those two positions are closely intertwined in the first position there it was determined that my client wasn't a night  promotion because she did not apply for that position however and it gets a little bit tricky she had been applying for principal positions for years over and over and over again this position in two thousand and ten the academic dean position was not  advertised as a as it ministry to position was advertised as a teaching position my client wasn't looking for a teaching position she was looking for an administrative position therefore she did not apply she didn't want to be at the teaching level she wanted to be at the administrative level however once the two individuals were given the academic dean positions they were then touted as assistant principals placed in assistant principals offices had assistant principals duties there was even a newspaper article advertising one of the academic deans as the new assistant principal obviously my client again to don apply for those positions because they were at every place at the teaching level so i think there is some some issue there are so so so there then how can she claim there was an adverse employment action or that she was somehow really are well that the main position at stake here is the assistant principal position which comes along later that's really the main position we're concerned about however cited that there are occasions where that second problem can be excused if a position was pre appointed or someone was pre selected if the position wasn't promoted to go there wasn't an application process and i think that is the case here with respect to those academic dean position they were promoted as administrative positions but then they were hailed as administrative positions there was testimony by two of the individuals doug thornton superintendent of schools in the principal frank search that this academic dean position was a stepping stone or an i dish and for an assistant principal position because my client wasn't able to technically apply for those or did not want to because they were deemed administrative positions she wasn't given an opportunity to get that experience which would have been a stepping stone to the administrative position then when it came to the assistant principal positions there was another issue i believe that sort of went wrong at the trial level once my client complained that the assistant that the academic dean positions were not advertised to her those positions just recklessly disappear then reappeared as assistant principal positions for which she did apply she was that chosen for either of those positions they were at two different schools beyond the chosen candidates one was the younger white male the other community was a younger black female the lower corps analyzed these two positions together and actually the rest are several things that happened in the lower court's opinion they indicate that at oral argument both parties conceded that the only protected class to be discussed with respect to those assistant principal positions was age there is nothing in the transcript that ever indicates that plaintiff in particular ever conceded that the only issue at stake was age sex age and race still should have been examined for those assistant principal position both late to the board point to or at least to the screening committee school inclusion that they thought the recommended candidates were better at answering questions relating to policy and criteria and they point out that she tended to criticize without giving solutions well and i understand that however the and i think then we get into pretext a little bit i mean i think it's far as proving the private financial case for providing evidence for the private education at the summary judgment stage you know i think she did that and i think when we get to that fourth level she did show that she was equally equally qualified if not far better her accolades to jump off the page as one would say she had thirty years of experience she had a principals places she was pursuing her doctorate she had pursued minority initiatives been in charge of every organization imaginable for many many years so i think she meant that fourth prong when the employer was not required to come back and show it's legitimate nondiscriminatory reason they again are just say more qualified and then they do it they do it in the that the individuals who are better at answering the interview questions however those interview questions really had nothing to do with the school's own policies they had four or five criteria in their policy sort of a pecking order as to what was required or what was important in order to become an administrator and my client had all of those things in in the pecking order there were  this country i'm sorry ron i couldn't if you're trying to show pretext in this context though i mean don't you have to really need a high burden that no reasonable person would think that the other person was not a real struggle in this situation i think so but number one i don't even think you get to that level i think we win the candidate shows that she met the kind of fashion requirements at that point she took a few then it's up to the defendant to come back with the employer to come back and say here's our legitimate not discriminatory reason i just gave you the reasons in terms of the interview process that's at least where that's what they're saying how she performed during the interview process and it was it was also dealing with issues in the system where she criticized but didn't give solutions i understand i think that this can be this we can use the fisher case in that regard i think this case is very very similar to fisher i mean not identical obviously but in the fisher case that that levy levy the woman that applied for the positions in that case wasn't given the opportunity to be an acting director and then when it came time to apply for the higher up job they cited the other gentlemen's qualifications of experience as the acting director it's similar to this situation where my client wasn't given the acting director opportunity or the epidemic dean opportunity and  believe they went on to say the employer gave similar similar reasons that the candidate was equally qualified the employer came back and said accurate call it that was done she did better and that that the gentleman did better in the interview process or not but there was one slight he was he was slightly up in one regard in the court i believe in that case said that that wasn't enough to show that he was more qualified that it should probably here is this in their criteria that was set on terms of order of priority in terms of what qualifications they were looking for and this issue of length of service was in the last category in terms of the rankings right i agree running that that with the service was last however it still was a criteria and if you look at those other criteria she met if not exceeded all of the others she was in the academics are in the assistant principal position one of the individuals that was chosen this geneva adams who was the younger black female had absolutely no experience whatsoever she was i believe twenty four years old very young very inexperienced did not have that seniority didn't could not possibly have had nearly the level of experience or years of service or for  s that my client had i mean it when you compare those two well certainly my clients call patients jump off the page and i think there's something interesting also with this geneva adams with them analyzing the assistant principal physicians together they are one position and the court looks at them together he says well she can't possibly plaintiff can't privately you know meet the criteria or cannot possibly claim race discrimination or this kind of discrimination with respect to the assistant principal positions because they chose a young black female but what they're missing is if you look at the jason drastic reduction in the geneva adams position there too there's two should be two different analysis there it's not one in the same and i don't think you can excuse discrimination in one situation just because you thank you may please the court breadboard for the apple we owe her community schools i think it's important to take a step back because there's a lot of discussion certainly in the district court's opinion about several different positions that the account was denied and really to focus only on what our position is is that three positions that they have fallen on appeal the courts discussed them a little bit but just to be clear the first is an academic dean position that the appellant was denied in two thousand and ten the second is a blazer connection for nader position in two thousand and ten that is essentially relates to after school programs and the third are two assistant principal positions one of central high school the other in the moral high school in two thousand and twelve to all three of these positions of the schools overall position is that in the final analysis it selected the most qualified candidate in each instance and as the your honor has noted already that is a substantial bar when the employer has advanced that as a reason under the millbrook decision there is a recognition under this some of the circuit that the court doesn't engage as a super personnel department their role very limited and it's limited to a pretext analysis namely who is the prophet reason in this instance the overriding thing we selected the most qualified candidate for the position is it and why and you have an abundance of evidence to indicate that is not the case and on the appellate side of the ledger you also have an abundant or an absence of evidence indicating that's the case i can walk through each of these positions again well and if you could specifically talk about adams i know you will if it be i'm sorry the woman who got the assistant principal position that was african american who was younger is counsel pointed out oh certainly i can start with that i think right she was one of the assistant present principal positions  in two thousand and twelve and she is of the the same race in the same sex as the apollo and granted she is under forty years of age and what's in the record before the court is on contradicted affidavit testimony from one of the members of that committee that the court's already alluded to is that there were statements the effect that the appellant wasn't terrible she wasn't miserable during her interview but she just didn't answer the questions and she didn't do certain things as well as the person who was chosen miss adams the most qualified candidate and what's more is there anything more in the record on adams and time the first skills are her experience there is evidence that at the same time a right around the same time adams obtained their administrator license they were in what i believe is referred to in the record as the same cohort group during their academic study to obtain the proof the principal credentials which these are  the highest factors that your honor had alluded to already is or seven or eight factors that guide the committee when they make these recommendations to the board for ultimately hiring and i think i think we have a little bit of  package the notion of experience in this concept certainly be a college has significant teaching experience the teaching experience guided by the by the factors that relate our board is the least significant criteria the district court talked about this and so when we're talking about experience yes it all might have some significant teaching experience but ask him to look at him so they're both stand on the same footing with respect to administrative experience  i think you know other information the record that has again a back to the notion of the question in the interviewing process the tendency of the of the appellant to criticize about coming up with her own solutions to administrative situation again it's not that she did terrible it's not that she maybe even did miller oh she was good enough to get to the final interview before the screening committee but ultimately this committee comprised of a diverse cross section the community made a determination of the best qualified candidate and they did based on the indication of those factors many factors of which rank higher than the notion of pure teaching experience or moving sort of backward in time again to this academic dean position in two thousand and ten the court also already addressed it w account it fails first and foremost for the simple reason that she didn't apply for their step position testimony from the apology to the effect of not necessarily i disagree with counsel on this not necessarily to the effect of i didn't think i should apply for it because i didn't yeah i looked at it i didn't think i was qualified and for purposes of a failure for my own analysis that's the end of the story she cannot establish a private foxy case for the simple fact of matter she did not apply for the position now you'll see some case law i believe these poet sites in a circuit case that in certain circumstances you have certainly the application requirement can be read can be relaxed but that's not the case based on her deposition testimony they have a plausible reason for acquiring this type of longer teachers with respect to the blazer connection for an inner position again after school position you will find that the district court took the position that it did not constitute a substantial increase in terms of of law and again that's one of the highest burden i think if you look at the millbrook decisions and the reasons behind that that the employer's decision in this context particular when they have a committee particularly to have a factors should not be second guess were were actually pretext the blanket statements that they other than the interview questions they continually make these plain could statements in the summary judgment motion that each candidate was more qualified more qualified more qualified well again without much more or without pointing to how they were more qualified going through that pecking order that they created that are in their own policies and procedures they haven't shown how these individuals were more qualified simply i don't know that simply answer in terview questions a certain way to qualify i think constitute more qualified in addition to that there are other factors in the record combined with that that i think points a pretext in the past my client was incredibly involved in diversity initiatives and cut incredibly involved in projects to uplift young black males everything she did was related pretty much to minorities she constantly faced criticism in that regard she was involved in a karaoke program that was designed to assist the diversity of the diverse population and had to go through hoops to get copyrights whereas an equivalent white group did not when she was applying for a particular position frank search she wanted to bring in mentors older black males to mentor the young black males and frank surges quoted in his deposition i'm sorry to freak search had told her that he didn't want prisoners and hoodlums brought into the school you know to do that mentor and i think comments that the problems she faced with her diversity issues combined with the fishing us of just the title or the the quote more qualified point to pretext i think that in addition to the fact that after she complained about the academic dean positions not being promoted to her as semi administrative positions after that happened then those assistant principal positions were promoted and conveniently a young black female was slipped into one of those positions somebody who didn't have that diversity background who wasn't in charge of initiatives to help the help the black population instead they put somebody in there that was young that they could mold and i think all of that points to pretext the fact that the economic team positions were promoted to her which would have been a stepping stone for her and he actually been able to apply for those positions she would have had that it ministr experience which would have put her in a more advanced situation or at a more advanced level than both adams and grassy i think by while pursuing her doctorate having thirty years of experience all the initiatives that she made on behalf of the students if there's nothing further your honor like my time is up if you have any questions probably have a minute ok it read like college i wanted to trap door open ok i started orange scared me but i think all of these things combine show pretext again you know i had she been given that opportunity at the academically dean level to apply she would have had that stepping stone which she would have had that auditioned just like great s t did and she would have surpassed him she by far would have surpassed geneva adams i mean with that little bit of administrative experience she would have been far more qualified than geneva athens but she wasn't given an opportunity and i think