was a member of the fellowship of friends which is a religious group located in the small town of oregon house noise was not a member of the tallish at the fellowship of friends it's not a social group as kelly would like you to believe the what i don't know if that have in my head your honor in the end the person who got the promotion continued working at kelley while she was laid off so he was employed for another year or two after my client lost her job promoted to the manager position or is she also claiming that when the other gentleman was hired and brought in there was one person brought in at a higher salary because he needed it for his lifestyle  honor just shows the disparate treatment that she suffered because she was not a member of the fellowship he was paid more than she was and he got a ten thousand dollar raise right off the bat she never made as much as he did and the the real claim i think the real damage goes to the issue that she was never a manager and she doesn't have that on her resume at this point it's impacted her ability to get a job in management she went to school and got an m b a in order to to do the type of work that she was qualified to do and i cally she was qualified to a statement as to legitimate reasons so then it should spec to you on the pretext issue what do you think are the factual issues that would need to be resolved so that it wouldn't be the the manager position but mid span often been told by heintz the boss of the shop that my client was off the table wasn't to be considered for that job so were first of all claiming that that recommendation in of itself was for promotion based on the nondiscriminatory reasons articulated by barnhart the court's findings lead agree with that finding but the court has already found that there is a genuine issue of material fact but in expe analysis where would i recognize that there was a statement out there that she didn't want to be i wasn't interested in being a manager and so in the one circumstance when they're going out to promote someone they offer the job first to a person who's not a fellowship member and then there's some discussion about well we have to be careful to look like we're not i guess not discriminating i think was the word they use r one ninety four kinds knew that ms walker wasn't going to take the job i don't believe that's speculation i believe that's due to the fact that she had previously had that position and she told hines that she felt it was a step backwards  that you're argument there would be at least there's an am friends subterfuge about the offer subterfuge in this whole case it's a very complex situation mr hinds used others to promote his fellowship agenda he didn't consult m fellowship member who is ultimately promoted mr hines saw that and use that to his sect his agenda he would use people he was very clever and manipulative person and promoting his his idea that the fellowship you know should get the preferential treatment at the workplace we we have more evidence i think there's compelling numbers in this case the fellowship is just a small minority of any group you care to name except for th economy and they have over an oregon house and the number of workers that kelly services in nevada city the evidence is you know you don't even need an expert in and to explain the understated facts are that when there's noise her lawsuit in two thousand and two nine out of fifteen employees on her floor were in the fellowship in early two thousand and three thirteen out of thirty five full time employees in nevada city were in the i just i don't understand how this case could not get to the jury and it was a an advance on the record that's what the population of nevada city is and what the population of the fellowship is no there's no evidence  the population in vatican city i'd make an offer of proof you have about twenty five hundred people in our town it's a very small town there's the fellowship doesn't hasn't taken over our town there in oregon house which is even smaller town in a neighboring county and and the fellowship it's just a common it's i'm asking you would be asking a juror just as a regular person to explain to me why thirteen out of thirty five people were in the fellowship and this group the fellowship is is just a tiny minority of any you know any group in nevada city or even you the county i don't know about oregon house because it's it's fairly rural it probably has you know she wondered people makes a difference there if if this case where they go back and it was just you know hypothetically is done in time to use it to oppose the motion for summary judgment but it was done within the time to use it for trial was within that discovery cutoff period as this red cross recross with was within the expert discovery period the cross is the expert so t in the end but it was it was the last time he didn't show for his deposition i remember his upon the posing time counsel saying he didn't think he had a good reason either for not showing it was really it was poor form but even  was lying to ms bahnhof about my client's interest in the manager's position his motives and his credibility are something that can only be evaluated by a jury that he can understand what was going  the case was told do all the issues of credibility including questions on intent have to go to the jury and a plaintiff in an employment discrimination action need produce very little evidence to overcome a motion for summary judgment because of  essentially let them go and so at a minimum doesn't the case have to go back at least to try those players i don't think so i don't think the issue is was even a brief for this court the issue of whether or not the trial court diversity jurisdiction although i can't find the the pledge jurisdictional amount in the complaint maybe i'm missing it but it would seem to me that the district court would have to deal with that wouldn't it because the jurisdiction is something that the court needs to consider i guess that's conceivable you are but i don't believe that issue has been posted here and i don't know that that would be an appropriate grounds grounds for jurisdiction before dismissing it do you have any authority that says to judge you didn't need to do that there would be whether the court would even have jurisdiction ok but i guess the issue i was going to raise was that this may be the unusual case where i don't think we really disagree on what the law is i mean the law is relatively straightforward  i think the district court got it right but may have not explained it as well as he should have what the what the law is is that you need to show pretax but then you need to have but you need to recommendation that's where this all comes down to this manager recommends this person for the job and we say we hired this person because he was recommended but there's no teeth because there's an argument yes he was saying she wasn't interested in his job or heinz was a question of fact that i mean it seems to me that you could make a good jury argument just as you've made now but to get to  agree with you i think you need to decide that what she's telling us is just it's just not true appointment what the reason for his making it wives and there is evidence that he had told both of them both both so the other supervisors that she didn't want the job your to anything like that then that big grand conspiracy is just a question of whether the heinz who is the one who made the appointment whether he was doing it you know way is that was it's not the same if they considered all the teams and so here there's a bunch of them consider all the potential people she picked the person that she thought was the best from who she thought was available i respectfully disagree on that on to there's another factor where the things he said to the city or the f d a to be was that it was a consensus and there were certain so many other people and then they put on evidence that some of those people said well i never said  statement as to the reason for the job description and that comes right out of all the supreme court cases so it seems to me that's precisely what you have here maybe an inconsistency that could be explained with further testimony for it may be an inconsistency that is real i don't know but it seems to me that our question is not to figure that  that you're placing all with the emphasis on whether there's an issue with regard to the bottom there word maybe maybe there was a recommendation there first genuine but that doesn't mean that was the reason that hines actually made the promotion there are all these other matters concerning his telling people if she really didn't want the job and so forth that would indicate that regardless of whether one of my had made the recommendation he was going to promote joelson straight out discriminatory comments and we all know from reading the cases that it happens that more often than not people are pretty smart and that saying you're kind of screwing it or not i don't know but i just think in general people are pretty smart and they got a lot more sophisticated than they used to be so they don't say things like you're a chink i won't promote you or you're not a fellowship member instead there are other kind group was under a lot of stress the group was fractured and that what the highest need of that group now was someone could die heal and otherwise be acceptable to the entire and give them a more nurturing fellowship members are from europe and they have to keep up their work requirements in order to stand this country and when you see me and she knew i was your opinion she knew that you had a degree in social operations manager position this was the two thousand and one prior to that issue yes what did he say he indicated that he thought she wasn't really keep that keen on being a manager and he felt her skills are better used elsewhere so it goes back to that although she may have made the you have other than lady short reference to step back or if we have anything about the pay grade or the title or anything else as far as the management group alleged consensus i think and you've a false reason alone can be enough turn for discrimination we have a lot more than that but i think the district court made an incorrect conclusion when it said that we need to show both that the reason was false and that discrimination was the real reason we don't need both all we need is and substantial evidence showing that there is at least an inference and as your honor pointed out i don't believe there is a common anymore to have direct evidence of discrimination and i don't i don't think that's not required if you have any other questions i think not thank you i think both counsel for your arguments this morning a case of noise versus kelly services is submitted