seeks reversal of summary judgment remained for further proceedings and asked the court to entertain reassignment in oral argument i'd like to summarize the case say a word about diversity a word about  spend the balance answering your questions and discussing the facts in a presentation different from the written briefs a summary of the case the in of the job candidate with the best qualifications both minimum and the preferred according to the employer's own written standards scored higher and won the majority of the votes of the hiring committee but then the chair of the committee went against the majority something that is apparently never happened connally's experience is anything in the record indicating that she had to follow the majority vote so to speak i submit so the the record is clear that a hiring committee is required the record is clear that the procedures require a rating if everyone in the committee is required to rate each candidate where the record miss evans testified that she's not obligated to follow that procedure which is fine but on summary judgment in the life she didn't assign a rating to she she left her scores blank so miss evans who by the way did screening interviews before the interview committee left her scores blank when asked why she said sometimes i do sometimes i don't know other explanation so the  on this record it has never happened before or sense that the principal goes against what the majority of the hiring committee that was a three two vote decided was knowing that two of the five members of the committee had previously written letters of recommendation so they had some familiarity with your client ordinarily if if you were going to put that much authority in the hands of a committee would you expect to clued to members of the committee who weren't coming at it fresh and i'm what i'm not saying is i'm not saying that the process they use was improper i'm saying it seems to me that this was a step they went but i'm not sure that you can put that much emphasis on what this committee itself may have decided or tallying scores of all the individual members you have that it wasn't a a fresh light for everybody while your honor i think that's a reasonable inference that a jury can make a trial but in the light most favorable to the nom of a party miss evans who hand selected the committee miss evans who had the applicant's material before she decides who sits on the committee would have access to that information i think the but the i think to i think the same point that judge clifton is pointing out nothing binds her to the votes of the committee the committees formed they assist her in interviewing  they score she didn't even score it came to twenty seven point five for the winning candidate and as for your client thirty a minuscule difference between the two so there's lots of factors to take into account when you decide who is a better fit for a particular position she has the ultimate authority she made it what evidence in the record suggests that her proffered explanation is a pretext so with regard to pretext v when miss evans was asked what the decision was founded on her answer and i'm looking at excerpts of the record one sixty one  question was why didn't you hire her meaning ms fergus answer because ms aseem had the ability to teach multiple subjects the position was temporary elate be funded my decision was to go to the candidate the greater ability to teach different subjects later that same her interview if she could teach more subjects if it was not the interview question form it was not asked and by the way miss evans was responsible for writing which questions were asked in the interview for question so you made a decision without knowing if she could teach more than one subject answer i made the decision based on the information i had later same page the tipping point in ms hiring ms seamless her ability to teach multiple subjects so the decision maker tells you what her reasons were now the district court and the defense have a lot of other reasons they want to talk about the decision maker in this case told you what her reasons were and her reasons he said two reasons one she felt that the winning candidate was a better fit and two because of her engineering degree she had the ability to teach multiple subjects now give me your best pretext argument she can't tell you what better fit means and in other cases courts have decided that better fit is the kind of vague answer that could be pretext and with respect to the teaching multiple subjects that decision violates the collective bargaining agreement so it would be a violation of law for her to use that as the basis well i'm not sure i agree with your premise but even if we accept it so what this isn't a statute that enforces the collective bargaining agreement you have to draw from that an inference that the real reason was something different and frankly somebody in her position i'm still with uncertain funding having somebody with this engineering degree which says to her this is a person capable of teaching more strikes me as entirely logical that there may be a problem with the union down the road doesn't tell me that it's not a logical reason so in pretext analysis if the employer's reason is unlawful that is eviden pretext and how he get unlawful out of it the most you can get is in violation of the collective bargaining agreement that's not unlawful electric collective bargaining agreement isn't written into the statutes so it may be a violation of the collective bargaining agreement which i'll use instead of unlawful that still doesn't tell me it's it's not a logical reason it's not the reason that you might actually of have relied upon the court can consider if i'm willing to breach a contract in order to get this applicant that this is pretext and then when you combine it with the other evidence i believe we have what we need to establish pretext the district court where think when things went sideways at the district court level was that  the plaintiff in the district court level was put in the position of trying to establish using circumstantial evidence what was in the minds of the decision maker and here's what we're up against this is miss hersman who opened the committee meeting by saying what we need is more diversity and when you say in education you look at that mean shy she tells everybody could mean a lot of different things well miss her son tells us what she meant when you say in education you look for a workforce that reflects population in diversity do you mean in demographic terms like male female race and national origin answer yes  later we miss her and we want our students to see people like them teach in those positions when she was asked  about getting people from different backgrounds answer i don't know any other diversity other than what i can see when i asked her well if someone's wearing a cross or a religious headdress does that give you any information i would see those two features yes and so would that be diversity in the context of religion right answer no this is what we're up against people world this is certain answer people world jury that may or may not be a part of what their religion is people wear clothes that may or may not be part of what their religion is question so someone could wear a cross that has you no information as to whether or not that person is one thing so you're told to be a christian out of context because while miss hersman did say that when you asked her so that would be diversity this is follow up on the question about religious head dress and wearing a cross you asked is it miss hersman mr hershman mr sherman you asked her and so that would be diversity in the context of religion right she said no and you said it would not be she she said no can you explain your answer she said people wear jewelry that may or may not be part of what their religion is people wear clothes that may or may not be part of what their religion is and you said so someone could wear a cross and that gives you no information as to whether or not the person is holds themselves out to be a christian answered that would be no assumption that i would not make so what do you what do you make of that testimony how does that help you given those answers your honor our position is it's just not credible if someone wears a religious head scarf or yarmulke across around their neck how do we know this is a religious head our position is that religious items like a cross around the neck or yarmulke a religious head scarf is something within the lay person's ordinary ability to see if we need to call in an expert to say that it's a headdress well i think that would be a decent approach if what we were required to do was to prove that she was actually a muslim following the abercrombie and fitch case we're not trying to prove that the winning candidate was a muslim what we're trying to prove is that the employer the decision maker regarded her because he guarded her as a muslim other than what mr connelly said based on his own assumption that's not supported by the which decision maker made that assumption  if the employer can simply deny race or religious discrimination by denying that they know whether someone is of a particular race or a particular religion well now you're giving employers a secret path  not a secret path a clear path all you need to do to avoid discrimination is to deny that you recognize someone has a prick but someone has a religious icons you can't recognise based on that it's an assumption that is unwarranted unless there's a fact a basin up back it up in some way right so mr connally's declaration says it it is in the record it was not stricken it's in the record  candidates photo is also in the record so the court can see what it looked like and we had to take that extraordinary measure because the decision makers were unwilling to admit to such a basic fact i'm not asking you to fight to find that she was or was not a muslim i'm asking you to find that she wore a distinctive headdress that there's no other clear logical explanation for and on summary judgment i think that's your argument i just don't think it's warranted on this record if you want to save the rest of your time thank you morning judge fernandez just clifton just when you may please the court keith kemper on behalf of k twelve and he's co counsel and i mr baker will be playing our time this morning and mr baker has generously conceded ten minutes of our fifteen i'll do my best to cover copious record within the ten minutes that i have welcome to seattle for the record judge clifton it was not i who chose seattle over honolulu for today's hearing and if we have a chance to do this again i'd ask that we get to come to your home looks pretty nice here in seattle as opposed to honolulu but the judge from spokane wrote a heck of a good decision i suppose it's cliche for the lawyer on the winning side to look at the decision it in our favor and say well he's a good judge  but being as objective as i can i remain impressed with the way that he cover the entire record had command of the case law and address all the issues that were raised by all the parties and he appeared i submit to grant to the plaintiff all the reasonable inferences that are appropriate under summary judgment at the same time declining to follow her where she overstated the record or or went off track and i was tempted to just read his ruling into the  bit more than that there's also an old cliche that says if you don't have the law argue the facts if you know the facts are going along if you don't have either pound the podium i plan to discuss a few the facts because the facts support dismissal i plan to argue the law because the law to the next step of mcdonnell douglas and ultimately the question of pretext counsel for the plaintiff in the briefing as well this today makes much of the fact that these interview questions were preset and they did not include the question of the ability to teach multiple subjects and that's one of the main reasons proffered by ms evans for selecting the winning candidate over the plaintiff can you address that specific absolutely excellent so let me start with a couple of the facts you understand the nature of the position the temporary funding the fact that the jobs likely to go away here is another fact that bears directly upon that that  is not emphasized in the record below but that i think in hindsight is extremely important and directly addresses what you just raised and it's this when when prince and number one  can't point you to the spot in the record as i stand here but it was not the principle evans that crafted the questions it was nick sutherland one of the other members of the committee that said ms evans a week before these interview sends an email to nick sutherland and to be fair with the record the email which was part of the record below did not make the trip from spokane to here but we argue it in our brief and it's referred to at least two other times in the record at excerpts two ninety four and three zero nine which are my declaration and the statement material facts you and can teach another subject the reason that's huge is because it completely torpedoes the plaintiffs argument that this is a post hoc creation or a pretextual afterthought instead it was something that jamie evans was focused on before the interviews it was the reason that she provided to the superintendent when asked about this what is this meeting the email says i asked if need to schedule all seven applicants because two of them have engineer backgrounds and we may be able to offer them a pre engineering c t e part time position question mark is that a reference to teaching multiple subjects yes classroom time equivalent she good she could fill in we can use her in other areas is that is the long and short of it and of course there there were seven applicants originally there was four that were that ended up going to be over interviews one dropped out of the last minute the only interview three of those busying was the only one who who appeared and had the engineering background and would have been answer to a question by ms evans that when asked says yes she may have been on kick asian that's as far as she goes in addressing the but but judge writes finds ok that meets the presumption test k twelve comes back with but we had this very clear common sense reason for hiring one applicant over the other that's a business based decision so let me take that head on  as you point out the other applicant had an engineering background could teach multiple subjects and it was for a job that's likely to sunset in the funding expire that's a killer fact a case wrecker if you will in this circumstance because it's an rebutted it's undeniable and it's my concern here is this is summary judgment of a grand jury and if we got a jury verdict and the standard is the same as we got a jury verdict in the courts to decide because a reasonable jury couldn't reach that conclusion why couldn't the jury decide yeah that was a reason but it wasn't the real reason it was just floating out there and maybe it violated the collective bargaining agreement anyway so we don't believe that and what profits a jury from deciding i don't believe that that was really the reason well as as you know of course on summary judgment were were number one were required to merely articulate a nondiscriminatory reason for the higher but that doesn't and the case it doesn't and and i don't think the argument the serious argument here is a question of whether the employer offered up a justification the question is going back to the underlying issue the jury didn't know did the jury have to believe that was not only the justification offered and it had a legitimate basis but that was really what motivated the result as opposed to playing his argument that it was really this desire for diversity that motivated the result and so i couldn't a jury i mean i i may not be i mean i think plaintiff's case is very persuasive but that's not the standard and the judge rice didn't think the case very persuasive isn't the standard either the question is could it jury have reached that conclusion and if it did that the decision of an unreasonable so  frankly i think you're flipping the bird not me your honor that no because this is summary judgment the burden is on you you've got to establish that a reasonable jury couldn't reach that conclusion and let me go ahead and introduce the other subject which actually gives me somewhat greater concern which is the district court distinguish between race and religion and national origin i find a lot of employment discrimination cases and i can't remember one where in the more typical format the minority the african american in this case the woman who appeared to be a muslim from middle eastern descent actually was expected to offer affirmative evidence of race religion national origin and that the employer thought that ordinarily if a black man walks into an interview everybody understands the employer recognize that the person is black but in this case apparently the failure to put forth affirmative evidence was taken by the judge as a basis for saying well there's not a prime a facie case that she was of a different religion or more more to the point of the committee the hiring committee the employer didn't infer that she was a bit of a different religion when in fact we know that one member of the committee did infer that fact and nobody has ever argued that the inference was factually so so how is it that a jury couldn't reasonably conclude that in fact there was a distinction between the successful applicant and the plaintiff and the distinction was that they had different not just race but religion and national origin or you give me a lot to respond to their soul and see if i can break it down so going back to the standard we have to raise we have to raise a nondiscriminatory reasonably believe that the reason that we stated no not really do have to establish that it couldn't reasonably have reached a different conclusion not that the jury could decide you win but if the jury decided you did not win that decision would have been unreasonable that's the standard on summary judgment the bulk of the evidence here supports the fact and so i think it would be patently unreasonable for a jury to decide that there was a true reason other than the jamie evans gave when it was something she was focused on ahead of time that something she discussed with others that she ultimately said was the reason that she chose and she said consistently throughout so let me come back oh back to the factual record that the district court relied on which is that the time that ms evans reached out to the references she got mixed reviews and miss evans noted that she did so that's isn't there some contemporaneous record there's certainly evidence thoughts that's there at the mixed references that played into the decision making process there is in those or other facts that that we in our favor in this case your honor that there was negative information that was provided about the applicant that was not selected at the end of the day i don't think those played a big role because it appears to me fairly undeniable that ms evans was focused on one thing when she went into this interview and that was to hire a person that she might be able to keep on at the end of this program where there are other bases for that decision as well yes there could have been those those help support what she appeared to be focused on at the time that she did interview fact i'll go so far as to say your honor that she may have had her mind made up before these interviews took place and it might have even seemed unfair to to ms fergus that she came in and she didn't get asked of course is make any sense to ask her about can she teach another job because they have a resume she's worked for a while before she's been turned down by omak before those things are on the record that  are known quantities about the other applicant i know you wanted to yield some time and it's very i didn't time i do need to yield let me so let me say just this in finishing and i'm sorry just clifton i didn't get to all of the issues that you raised but i think the bulk of the facts here would be what would bring a reasonable trier of fact to our position and make it very very hard based upon who would be unreasonable for a jury to conclude that plaintiff and the successful applicant were of different races religions and national origins because based on judge when's earlier questions it whether mark conley is willing to engage in rank speculation about what type of religious headdress if it was a religious headscarf you have an interview and nobody i hope today ever asked those questions what religion are you what race are you but everybody draws inferences and i really have trouble understanding how it is it would be unreasonable for a jury to say that this committee didn't figure out that the successful applicant was of middle eastern origin that question without cutting and my colleagues time question the question is could the jury have concluded that people might have been able to tell and this religion be playing religion no could she have been of middle eastern descent and been a cop palestinian or other christian absolutely so if the point is you're working hard not to answer my question well i'm not maybe i think it is be reasonable for someone to infer a different result my question which i've said several times is it would have been unreasonable for the jury to look and draw the same conclusion that mr connelly drew i think a jury trial in fact could have looked at these two people and concluded that there may be differences but didn't have enough information on which to so wrong about what reasonable for them to conclude there were differences if you don't answer that question yes i don't giving this point i think that's why i think that's why they're i think that's why judge wright found the presumption because he found there was just a nuff to assume that there was some for the race not for religion not for national origin as tension which well i'm sorry your honor i can't go with you on religion because there's too many religions outside the united states that could have worn  no can i add one more thing i quizzed myself when i got this case i went to the internet and i looked up a bunch of pictures of women wearing religious head scars i was wrong more often than i was right when i made assumptions about what religion they belong to if we let if we let the plaintiffs make the same wrong sumption i think we've missed the boat i'll and the k twelve is an organization of the puget sound and k twelve to do their online schools they're required to who thought with some school district and they were with a different school district before and then they hooked on with olmecs school district so all next school district was not involved whatsoever any any way whatsoever with the interviews and there's nothing about her race color religion national origin did nothing so the only way i think that they or black school district could have any kind of liability is through some sort of agency principle and that and that gets into the cat's paw and under the ni circuit's case in poland and the stop case by the united states supreme court we're talking about a biased subordinate and j v evan evans was never a subordinate or  it that k twelve was not acting as an agent for the school district if it was going through the process of identifying who when it is a successful candidate and propose it to the school district where they were making a recommendation to the ohmic school district abut they weren't it wasn't in this the scope of any employment with school district i mean if if a bit for the relationship of the school district it wouldn't be doing any hiring at all wouldn't conduct interviews wouldn't solicit applications it's only because they have this relationship that that they're going through that process i think you have to put the tort principles involved let's say that jamie evans spilled hot coffee all over the plaintiff during the interview portland case in the stop case they don't talk about really don't talk in terms of agency they talk in terms of subordinates or persons who are actually in the  in the scope of appointment or not decision makers in the same organisation or any other question i'd like to focus just on a couple of key points first declarations that only white or white looking employees were laid off was sufficient evidence  position a minute ago i told you what the record said with regard to ms hirshman view on diversity the district court substituted the evidence and gave a definition of diversity here you've heard from how about miss evans the decision maker she said what do you think she meaning ms hersman was talking about when she said diversity answer i don't recall what i believed when the word was mentioned so the district court substituted the evidence for a theory that the rest of the opinion diversity is important using the word diversity in the employment process doesn't lead to automatic liability it's just what do you make of the e mail that counsel referenced indicating that miss evans from the start even before the interviews really focused on individuals with engineering degrees because it created flexibility in terms of what they're able to teach it's a competing inference that loses on summary judgment if if it was important ms evans had the power to put that in a question if it was important ms evans could have asked miss fergus made the decision without asking miss fergus whether or not she could teach another class like thank you very much counsel for both sides of the arguments the matter submitted for decision by this court and that was our last case for the argument calendar today we're in recess until tomorrow