there are a number of issues before the court and i would submit initially that i think that the briefs cover them all i would like just to highlight what i regard as the the more employment discrimination the district court acknowledged alan's evidence that eighteen applicants were hired in the year two thousand at the same time alan was being rejected but held but alan had to offer evidence that all the other applicants had similar problems polygraph well i mean to me the answer is either yes or no i don't know i think there was evidence that there was some shaking of the needles when he answered certain questions on a arrest record including an arrest for kidnapping a partner on a wasn't one of the arrest for kidnapping yes it was and that's not disputed that is disputed that it's not just today that he was a d it's disputed that it was relevant to the background information when he had a finding of factual innocence on that matter so it in a sense it was a false arrest so background investigation competent background investigator what explore that and determine the facts and then make a conclusion not simply look at a record and say well there's an arrest and therefore he's automatically disqualified here decision is that although the county may have come back with and that person happens to be a spaniard and says an insult that's a racial comment it is i think it's an inference of discrimination if i mean it's probably debatable whether it's  the sheriff's department in the person of mr goodman who did not investigate that matter came to a different conclusion and rejected it because of that if you put these things together i suppose you could say that there are all different answers i mean if you look at the fact that he says yes one time and know another child and then you can hear rationally decide that those are different answers because it could be it could be yes and no at the same time is that what you're saying i think that matter needs to be explored by the background investigator and and one of the arguments that we have made is th determine that the person just forgot what they put on the other application and then put on the application is what he it's what he has in his head well but but what he has in his head is is asking him to remember what he did nine or ten years before and it's asking a person who doesn't use drugs at all if we never use drugs and he's trying to remember being exposed to one single instance of being asked to take a puff on a marijuana cigarette when he is either nine or ten years old or thirteen or fourteen and is the person who has been drug free since that time and yet the sheriff's office in their memo concluded that he lied about drug use well the standards for the sheriff's department right now are that if you haven't used marijuana up until twelve months before the time that you were being asked about it then you're not going to want the background based upon past use of drugs and here's a whole entire purpose of that question on the polygraph and the background and it is to determine whether or not the person ever used illegal drugs and this is the person is relatively drug free is trying to recall a single instance of exposure to marijuana that's the kind of thing that a background investigator would explore in an interview  background investigation that's far different from discrimination that's a case of negligent investigation perhaps but if you accept the facial answers and i understand you just a few those you say well your answer legitimate nondiscriminatory reason what's your best argument on pretext because so far you're just saying look if they just looked into it he would have passed i don't i don't think that's quite enough i mean i think a part of the pretext is number one they've he had already been hired by the same department i think that they cannot explain how there's there are two different conclusions from basically the same facts typically when the conclusion competent way and well first i think there's sufficient evidence there's not enough evidence to my liking but that's because the county if you noticed in and the appeal there was a huge disputes over discovery we were in the record that meets what i just described there was there was one individual whose whose whose name was watson who was hired by the sheriff's office around about the same time subject to appeal in arbitration the sheriff's office hired him and he that was certainly constitute a serious issue in the background investigation in terms of present employment now the same county and the sheriff's office which essentially had had some kind of jurisdiction over the department of corrections knew he had been terminated for excessive force and hired him anyway he subsequently lost his that was that a case where they knew about it in hardy many ways or found out about there were problems and there was a competent background and someone not of color was hired right that's correct now back to my initial question is there any proof in the record of anyone adequately established that mr allen was made of qualified nor suffered any discrimination but i think we don't have to talk about that because the the reason that the county provided for why it did not hire mr allen as a definite sheriff is essentially undisputed he has in his background and has had in his background repeated instances where he offered inconsistent responses with regard to the drug use quest she hears he failed to polygraph examination scuse me he has a number of instances where he was arrested and indeed i would submit that with regard to that kidnapping arrest that was not necessarily something that informed the decision by the time we get to two thousand certainly he had been arrested but the county knew and understood that he had been exonerated of that whatsoever to make the claims that were put before us this morning and indeed all of that evidence was objected to and the objections are noted in our brief the district court excluded all of that evidence so i don't believe that that's in the record for purposes of this of this of this case and indeed how do you how do you respond to the argument that this trial impasse from background checks previously the two two responses and in fact they're not the same he passed a background investigation when he was hired as a corrections officer there's no evidence that the corrections  background investigation is equivalent to that of a deputy sheriff nor would it make any sense and since corrections officers are not peace officers under california law as deputy sheriffs are there's also evidence in the record that is essentially undisputed and that's undisputed and of and of the district court so found and indeed the people doing those investigations at the time he was hired as a reserve were not trained by post unlike when he actually applies for a deputy sheriff position so we don't have we don't have evidence that they did not put in evidence that they were equivalent or the same background types of investigation they may have shared some similarities but they were not the same furthermore there were incidents that came up in one thousand nine hundred sixty and then in two thousand when he applied that were not included within the background investigation when he was when he was hired as reserve deputy notably there was a workplace sense that e where he lived with sensually about where he was he said he was he was a family thing when in fact it was offered something else and then there was an old interchange he had with the sheriff for self in two thousand while he was applying where he essential he lied to people about what the sheriff had told him about getting a concealed weapons permit and those were two issues that came up subsequent as part of this process that would not have been before the folks and that when he was when he was hired as reserve and it's and it's interesting nine and independently grew his own conclusion that sean should never have been hired as a reserve so he was consistent throughout he said i don't think he should have been hired as reserve you've got too much stuff in his background and then these other incidents came up later as as part of the process so there's no question that the person actually making the decision in two thousand had a consistent view having looked at the record twice with regard to the issue as to whether whether he did a competent i think your honour's point is exactly right if they have a problem with the way in which the background was undertaken they should have deposed officer sutherland and they didn't do that they didn't depose him to ask what he's done and how he did it differently with somebody else perhaps they didn't undertake that discovery and they were interviewed sutherland was they could have deposed and they chose not to likewise with regard to the question of whether people other white officers for example were treated differently at the background stage they never asked for any background information from any other officers it's just that's just not in the record and it's not in the record because they never asked for it so they didn't under didn't do the work they needed to do if they thought there was a question of fact they just want to sort of throw these things up in the air as if there's some some problem there already trying to raise issues that aren't issues at all and we submit that that that they have not come up with with evidence of any pretext i mean the the was pretty clear that any evidence or pretext both in the ninth circuit and in in california and of course california law applies to this particular claim is that it's got to be specific and substantial it's got to be enough for somebody to conclude that a trier of fact quoted in the brief testified at some length about why is that the sheriff's department doesn't want people with evidence in their background of inconsistent responses particularly when they're under oath get in front of some trier of fact in a criminal trial and that's that was potentially out there for defense attorneys to utilize and destroy the credibility of the officer so the sheriff's department doesn't want to hire somebody from the from the get go who has backed kind of material in their background i think we understand your argument why don't we hear the rebuttal argument that there's anything else on any of the other is i don't think ok brief counsel for the county instructed the counties to thirty six deposition witness not to answer questions about the backgrounds of seven non african american individuals hard by the sheriff's office that was part of our motion to compel production  information in the district court deny that without explanation so it's not correct that we tried to do this like i hate to use these words but i think it's it's appropriate and my final comment here i think the kinds of details that you have here where somebody goes into a file find something and then simply makes that their mind is purely subjective they didn't conduct a competent background i think it's a lynching of sean allen by the sheriff's office in regard to the background i think it was  proceed to work against desert southwest annual conference of the united methodist church