good morning i believe that we have judge sykes on the telephone is that right thanks yes good morning thank you excellent all right well we have one case for argument argument that was made below you were very specific below with the district court challenging your client's answer to that one particular question and the fact that he didn't get full credit after they permitted him to explain the process with respect to this pump but now you're expanding it to all of the questions how does that fall within the framework of the st date  predecessor braid the argument and stuck with what i'm arguing and i understand it's not clear cut if you look at the broader issue of inaccurate scoring and that's what i'm trying to you have argued shows the discrimination here how does receiving permission from the interviewer to answer a question in a particular way suggest that he should have gotten full credit for that question it and that's where our game comes on that part of it so this is judge would again i want to come at this again a slightly different perspective one of the questions i always ask myself anyway when we're looking at this notion are we simply expanding an argument already made or we introducing new material is what would have been different if if we had known that the new material or the different proposed expansion was there and i take it that you are looking at those forms that the interviewers had and a little tick marks that they seem to have made on some of the question and you're drawing an inference that  both that those topics were covered and they were covered satisfactorily and they lead to a certain score and it just strikes me that there's a lot of factual material that you are inferring from those little tech marks and i believe the city would have wanted an opportunity to introduce its own evidence about that that's one of the reasons it seems to me that the evidence itself that relates to the other questions is really that i don't know but that's something of an advance that he had made that argument in the initial motion saying failed every single question got to pour scorn almost every single question and then the response we picked one of those questions discrepancies that you base the failure to promote claim on and your clients age is there any evidence that would make an age related inference reasonable rather than just there were scoring ski a long time city employee received a promotion to group a engineer in two thousand and thirteen at the age of seventy four dollars less than a year later he applied for another promotion to a higher position but he like more than half the other candidates who applied did not receive the promotion mr cavers he claims in this lawsuit that this was the result of age discrimination but there is no evidence that the decision to select other candidates for the two thousand and fourteen promotion had anything to do with m such claim by filing fee charge about that time as for the claims he did preserve concerning time working at the central park pumping stations in two thousand and fifteen the record doesn't show he experienced any boils down to the fact that mr hepworth he was obviously older than the other candidates and he wasn't promoted many had some criticisms of how his answers were scored but always been against a backdrop where there were twenty nine candidates who are eligible for the promotion if they passed the oral exam of those only thirteen did so mr tabor if he was among sixteen others among sixteen who did not  pass the oral portion of the interview of the examination and he doesn't have any basis to establish that his failing school on the oral examination had anything to do with with  failed the oral exam just like him but that younger person presumably under the age of forty was promoted in other words is it the lack of a comparable employee that's the flaw here i don't know i mean that the district court seemed to look at it that way i mean his theory now is that there was you know some animists against him based on as a judge and that that meant that you know that his failing score was given because he was because he was older because i seem to think that they were trying to trap him somehow he said can i answer this pump question with respect to one particular model they say yes and he thinks there are sandbags right but it is a failing that there's no there's no evidence that anyone who was younger employee who was given the promotion you know gave comparable answers to him and then were scored better than he was but there's just a real failing in this notion that the scoring of his exam was somehow flawed in the st place and absolutely nothing tying it to his age the thing about the question of pumps you know his idea the contention but he was told he could answer one way and then he was penalize for limiting and answer in that way you know one of the questions i think really one of the questions that one of the authors raised i think accurately characterize assists as a miscommunication more than anything else but you know as a general matter of interview ask if you can answer a question about a process by describing something more limited an interview an interview or agrees you know that doesn't necessarily mean the interviewer graeme the interviewer is going to get full credit for getting a little limited answer the interviewer might interpret that request to give a limited answer is an indication that the interview with knowledge is  switch and beyond that there's just not the slightest sense of evidence that the interviewers handling of that question or any other question was motivated by mr tiber ski's age and beyond that as we point out in our  assessment without any objective support but as we pointed out in our brief the district court recognized even if mr kite versity had been given full credit on the pump question that was one of five questions  even giving him full points for that question wouldn't have been enough to put him above the sixty percent required for the oral portion of the of the interview and we explain in our brief that for each of the five or interview questions which were rated on a one dollar to five dollars scale an interviewee was entitled to a point for each of the bullet point answers listed as a possible response on the interview or scoresheets that we make explaining our brief that this doesn't make sense as a matter of elementary logic because only two of the questions had only five bullet point answers to just that but to the extent that mr tabor ski still eager to promote claim depends on the notion that the scoring of his oral exam was flawed because for some questions but number of bullet points interview was checked off with greater than score that's a theory that should have prison been presented before the district court when the parties were  evidence for summary judgment because you know the interviewers would have had a chance to explain more fully how that scoring works so this is not as mr erika's argues fuller responded that he should have been scored higher on one of the five questions than the city pointed out with reply brief that this wouldn't have been enough to raise a score this wasn't a new argument the city was presenting its reply brief it was merely pointing out the inadequacy of the argument that mr todd bearskin made if he had a theory then about other problems with the scoring of the exam question it was up to him to raise those in the district court and he certainly had the opportunity to do so fourteen participated in giving him a promotion less than a year earlier you know two and he was now then less than a year later looking to be promoted to a higher level  excuse me i just wanted to since i think we have discussed the failure to promote claim pretty well and i believe mr erlich may want to return to tell you hostile environment whether there was anything you wanted to add c charge you know the case law is clear that at a minimum you know the charges have to relate to the same individuals in the same general conduct and that's clearly not met where it's an entirely different workplace the time mr diversity was working there at the time but how should this mention of an employee from that facility impact your exhaustion where was he she claims that o'malley that one of the employees at central park had central park is allegations of true involve conflicts with some of his coworkers and some individually of noxious behavior seems like there were there were definitely personality conflicts any heat there was  instances of colleagues and gauging and some professional taunting sometimes relating to his age but he doesn't there's a few problems mainly as a district court recognized there's no basis for employer liability he mentioned that the chief operating engineer at central park he believes engaged in harassment against tumult or age discrimination but there's actually no evidence of that the chief operating engineer andre hall and some complaints were brought to his attention tigers he complained that one of his coworkers brian from there was you know had had made comments about  sumner in order to make tie bursty his supervisor to try to alleviate some of those conflicts the other employees that he had conflicts with actually were working at a level below him and there's no evidence that there was any any adverse action taken against him based on either you know based on any harassment or or based on his complaints about it you know he was he was transferred to  is simply the a match or had complaints about his work performance and mr trigger tigers he said he interpreted those those complaints being about his age there's not actually any evidence of that and the in the workplace they had a an argument once and mr tabor city by his own admission swung a foot long metal wrench at a bench and hit a metal bench and it was based on that incident in which he was found to when it is certainly a whole different set of people working with deans what kind of investigation do you think the commission is supposed to do when a complaint about one facility such as central park for a very big organization is made are they supposed to just open up the books investigate every office every every plant now what they wouldn't be expected to do is ok the in the organization then maybe other plants come in because they're under that same leader but i just don't see any personnel link between this this case central park people and the people i think we're looking at two different ways to approach that's one of them as you're on a just referred to but overall just are there issues that would have been investigated by the city we're sorry your conference is ending now please hang up