it please the court my name is dan barnett and i represent the plaintiff appellant amy greene and i'd like to reserve two minutes if i may for rebuttal i'd also like to begin by saying i i too have a summer cold mine has taken up residence in my vocal chords and up until two days ago i had no voice so i don't more nearly sound like a member of the cast from the little rascals a different voice so please bear with me and i hope you'll be able to understand the points that i'm i'm trying to emphasize i also cough once in a while and so if that happens again i apologize  this case your honour's raises a number of interesting issues probably the most important from the plane is perspective has to do with whether there is sufficient evidence that was presented to the district court to demonstrate the existence of pre purposes of this case and i would like to emphasize something that justice brier said in the burlington northern santa fe railroad versus white case and that is context matters and in this case it particularly matters given the history of what we put forth in the record about the discrimination that has taken place both historically in the firefighting services and more particularly at the buckeye valley fire  again i'm only obviously speaking for myself there are only two areas in which i had going in a disagreement with your position and one is that there were some discrete claims that were held to be time barred and that seemed to me a correct application of morgan but the one that i'd like you to talk about is the application for the captain position as distinct from the other positions what and  specifically what difference does it make to your argument that it was actually a different decision maker involved and that the other people chosen for captain i had actually been acting captain sun i know that there was a claim that she should have been an acting captain but in fact she never got to that point so it seems a little bit more attenuated and i'd appreciate your addressing that sure thank you  first of all we don't believe any of the claims are time barred under the one thousand nine hundred three claim there's a two years to actually imitations it applies and we think the court district court overlooked the application of the appropriate limitations period under the one nine hundred eighty three claim and although the title seven analysis still applies there is a different period of time that we think captures the time within which those claims would would be relevant secondly even has been different decision makers we think that that's genuinely a fact that's in dispute here we had evidence in the record where chief ben both said well really was chief alexander was making the decision and then we had  testimony from the chief alexander saying well it really was the two of them together and then they both said well they really wanted to have the another assessment center decision made but that really was done by the board the board said no but there never really was a clear indication at least we believe in the record that there could not have been this internal assessment center conducted in which miss green would have had another opportunity to be considered who is the board of the far apart the board is the is the and defer to mr hattaway to get the number correct but it essentially are they are the elected individuals that oversee the fire district a taxing body that's how it raises its revenues and so they sit on the board but at least in terms of the day to day operations and almost all of the decisions we think the record is pretty clear that those were made at the level of chief ben bowen chief alexander you think the more was more of a rubber stamp i would be hesitant to use that term but i certainly think the record could allow the jury to make that conclusion that they did not make an independent assessment they probably i think from the record judge gilman could be more interested in making sure that they didn't operate in a deficit that there were the bills got paid in that they approve the bills as they came in and that they took the action that ordinarily would be taken but they did not appear to be involved in the type of personnel decisions that were narrowly we find in a title seven were in one nine hundred eighty three equal protection clause i as yet there are three facts i secondly chief alexander encourage your client to take the captain's exam and finally your client herself was offered a full time bar fire position just before she resigned so those facts don't help your position then well i think a jury could factor those three things in light of the context of all the other evidence and come up with this conclusion first of all in this capital you know although she was made a full time firefighter didn't happen until much later in the process after there had been these other instances that have been raised by other female firefighters in the district about discrimination that my client was not the only one who challenge the policies of the buckeye valley fire district has been discriminatory base on gender bias secondly with regard to chief alexander he did initially out of the gate encourage ms green and that's not disputed to take the captain's exam but we use the term backdraft in our opening brief to describe what's in the fire services has a particular meeting it meaning it means that when there is a change in the environment and over remember the movie backdraft from but but when there is a change in the environment then there is an implosion and then an xplosion of flame and in this particular case i don't think chief alexander expected the brought back draft from the male firefighters who clearly made it very very clear about what their sentiments were with regard to taking orders from any female and their record is preferred with a number of statements from these same people who had direct input into the decision making process about what they thought about women in the fire service and not taking orders from anyone who would be a female in a captain's position finally with regard to the last point that you raised judge hill and with regard to finally making the offer undisputed that offer was made to ten people before it was made to miss greene all of them turned it down for the same reason that ms greene turned it down and that was there was questions about whether or not it was in fact a permanent full time firefighter position that it was tied to a budget that placed the person on a rescue vehicle as opposed to being on a fire engine and again when you take into consideration the other testimony about the difference between women being assigned to rescue the ambulances and not getting time on the on the on the engine not getting engine time which would then determine the ability to to advance more rapidly that miss green would have a doing nothing more than taking the same the same type of subservient position that she had been to that she had been given as a reserve firefighters so those three facts we think the jury can certainly take into consideration but draw inferences from them a trial that it just doesn't overcome the discriminatory animus that existed within the department and it doesn't overcome the impact and the very very clear that there was no established criteria for coming up with these prioritized hiring lists chief telling chief lee's even described that his only instruction in putting these lists together was to  stack them you know there really was nothing more than what a number of people both male and female within the department described as a popularity contest in fact chief lee's i believe also made the comment that look we were just going to see who we thought could get along the best with everybody else on the crew we can teach firefighting anybody well that's not the written policy that the district had in pla about recruiting and duke and coming up with these eligibility lists that are supposed to be used to determine who gets hired and who doesn't get hired on how does the record shows that your clients popularity if you want to call that on that list dropping over time now if in fact the basis for discovery was gender discrimination why would she drop she would drop because as many many of the people said in the record again is very clear on this in a number of points they got tired of  complaining complaining about how she was being treated and so it's certainly a jury could infer retaliatory motive in saying you know we're getting tired of mr green raising these issues all the time in fact chief alexander's wife karen alexander who also worked in the administrative position in the department said that when they had these social gatherings at the alexander's home all of the  wise were getting tired of amy bringing up all these issues about mistreatment well retaliate torrie certainly if you want to make sure that somebody isn't going to be considered for the next round of promotions you'll lower them on the list because you don't like the fact that they're they're continuing to raise these issues certainly there's enough in the record from which a jury could make that inference and draw those conclusions and unfortunately for my client we believe or the district court heard was in wayne that evidence and coming up with a conclusion about where this may all of them we wind up rather than recognizing that at least at the summary judgment stage that's for the t make that determination not not for the court and the only other point i think i'd like to make at this juncture and reserve the rest of my time if i may is it is the notion  that there are what was statistical information that was presented in there was some discussion about the fact that we're really the statistical information was not fully developed in there wasn't a sufficient amount of information that was presented to determine how many females actually had applied that had not been hired and certainly we are not suggesting that this case is one that stands on statistics alone the city of carlsberg very similar to this situation is this crane was passed over for promotion and the court looked in that case at statistical evidence and said it is a factor that can be taken into consideration in determining whether there's enough evidence to and the assistant chief mr alexander chief alexander to answer judge coleman's question about the board there is an elected board it's either three or five people i'm not sure i don't meet with them i met with the the the chief but what they do is they work with the chief mostly on budget type issues dollar type issues the chief typically puts together a budget and then the board oversees and makes sure and so there is a financial there is a financial interest there and judge graver you asked about the different decision makers and i want to back up a little bit in the mcdonnell douglas analysis and just make sure i cover what the plaintiff asserted were some unbelievable claims when the district and the defendants in this case asserted certain reasons which were nondiscriminatory for their conduct well let me clarify the one thing that does concern me and that is with respect to the captain positions as distinct from the full time firefighter and acting captain decisions is mr barnett correct or incorrect in stating that the record is not completely clear as to who made those decisions or if it is clear who made the decisions the decisions according to the chief alexander when he was deposed are decisions that he and benbow make together they meet in terms of decisions and with respect to the captain position specifically chief ben both and alexander would have made the decision with respect to the acting captain positions after the assessment center in november of two thousand and nine failed they had the same decision when the union came to them and asked for mr medina to be put into  vacant full time position they didn't have a decision in fact the board made a decision contrary to what their wishes were with respect to the move of the acting captains and to the full time captain position and the evidence was fairly clear and it's and it's in the excerpt record our position is that with respect to all of those there were nondiscriminatory reasons that are not unbelievable that were provided and then again i think that council agrees that they're that they're at the third step that is that the question for us is whether there is sufficient evidence human inference is to the point if of pretext that the nondiscriminatory reasons given were pretextual so i think we're all on the same page that that's the locus of the conversation in the brief there were there were issues raised by the plaintiff and i just want to make sure if it's conceded today that that's where we are then in terms of the issues on pretext the plaintiff is raised a number of different issues on pre checked pretax one is that our our system is subjective in terms of promoting full time firefighters into the firefighter position  in addition the union might have some involvement in that you know in terms of the subjective the cases in this district like the jury get case where they talk don't i don't know if attacker to call the popularity contest or not but what i understand your client to say is that well look we didn't discriminate against her in refusing to promote her to full time firefighter we just went off the list and it's not our fault she's at the bottom of the list but i think what the argument on the other side which has some traction with me is that while the formation of those lists them's the that that fact itself became a vehicle for the discriminatory animus motivating a lot of male firefighters within this department to be you know that sort of got translated into the decision making process and it kind of invalidates the nondiscriminatory basis for that that reason for not promoting or so that's what i have a hand well it end what you need to do is to closely scrutinized that that procedure and one of the things that militates against the conclusion that this is a vehicle for discrimination is just what judge goldman brought up initially and that is the christine capita know a female made it to number one on the list in april of two thousand and nine but that doesn't negate the possibility that in earlier years there was discriminati it's certainly a permissible thing to argue but for purposes of summary judgment we have to give all in for instance to the point about where the evidence is but what we're looking at is is this timeframe that this point if alleges discrete acts under titles of an a failure to promote and at this time we have a female who has raised up to the number one level under close scrutiny additional things just don't make sense if this is a vehicle for discrimination they said they specifically brought up a tally in chief norm cooper of the battalion chiefs were the individuals who had the ability to actually put the numbers on paper and give it to the chief this is an individual they say has expressed this animists and he's in a position to do this and if you look at at but tell you in chief cooper lists beginning in november of two thousand and nine for the next three that list and the next two here rated a woman tamara peterson number one the suggestion is that the only reason that this plaintiff would have demoted is because the the district is out there in gauging and discrimination well there was lots of evidence from various women who  were there talked about this is a guy's world and they let us know all the time that that's what it is and they say very unkind in unflattering things to us and there are seventy or so positions and only four of them are held by women and you know why he isn't that enough at this summary judgment stage first of all all of the evidence that came in concerning these statements that were being made were were statements of her coworkers there was no indication of any there's no indication that the chiefs in this case who are the decision makers and who are the ones that need to take care of this title seven violation is for  a hostile work environment which is not a that's not her claim or claim is she should have been promoted she's not saying i mean that's her primary claim at this point so i'm not sure why it there's something wrong with having your co workers testify under oath about how things are her claim is she should have been promoted to acting captain and the evidence suggested that there was no pretext with respect to that position her claim is that she then should have been promoted to captain when mr medina was but there's no evidence that this was a the do you know vs plaintiff were made do you know vs the acting captains this was a yes or no  if you examine the the subjective nature of the the preference lists there is there is a request without any evidence by the plaintiff consider that it's discriminatory in nature and that it was used discriminatorily and what i'm telling you is that that just not the case a woman made it to the top of the list the battalion chief who claims they claim has this anim rated women number one and another a piece of evidence if you take a look at the april two thousand and nine preference list that's the one that they say showed amy green at a particular level and then the next one in december shows her off the list she was tied in april of two thousand and nine with a with a man named clayton at thirty three point eight and mr clayton did exactly the same thing she did on the next sheet he shows up at the bottom of one he shows off off one he shows up higher on another one and they both are about the same people i mean the evidence is and the testimony was that people moved on these lists and the suggestion has been that the only reason that amy greene moved was because of discrimination and all i'm saying is that it has not been proven and that's not a given and i think i mean the main problem i see is though that there's lots of evidence in the record that her male firefighters had negative stereotypes and comments about so it looks like they're citizen makers of outsourced the decision making to the rank and file and there's evidence on the record that the rank and file don't like women in the far far there is evidence in the record that some of the firefighters had problems they've listed ten of them by name this is a seventy person firefighting group and and so this is a small percentage it this is not unusual to ask the firefighters to provide their input with respect to people in a dangerous profession that they're going to have to be working with and a small team there are discussions about that and it's in the record you know these in terms of discriminatory animus there's a real question about whether you're calling ms greene some of the names they did simply indicated that they didn't like her versus they had some cuyp of gender bias a question of fact for the journey why did they do it but i don't see why that's a subject for summary judgment well i mean i guess that's what i understand your your argument and tell me if there's more to it but as i understand your argument it's that the fact that this is the subject of list produced women at the top suggests that it couldn't be the case that all of these rank and file people had an across the board animus toward women in general because if that were true a woman would never be at the top so it must have been something personal to this particular plane and that's part of it plus the the additional if there's a battalion chief out there they say has the animists because he says the things that they're listing and then he goes and rates a woman number one three times in a row that suggest that suggests against the argument that this woman is being discriminated or the system is being used to discriminate against her ok but isn't the reason that might be particular to this plaintiff as to why she's dropping is because she had the audacity to apply for this position that everyone then resented her for and doesn't and in part the reason they're resenting her is because they don't think a woman should be should rise to that rank doesn't that sort of still involve discriminatory animals and that's not what the i think the evidence is your honor the evidence was that people resent her because she was a rookie she was a reserve who had the audacity to think she could jump the queue and go from no experience at a fire to a captain on a fire truck well if that were true though then the comments would be i'm not taking orders from a rookie the comments were i'm never going to take orders from a woman she should get back in the kitchen or do whatever right so that's not consistent with what you're and that's not all of the comments know that one or two perhaps there's a suggestion too that the union in this case had some input and that these were the same type of firefighters who were working with the plaintiff i just point out that in terms of the union involvement we have no evidence as to exactly how they prepared their lists what kind of votes they took there was one reference that there were some discussions or conversations at the union level i would just point out to you that even if the union on all of these subsequent occasions had rated the plaintiff number one she still would not have made the list heigho enough on the list to get promoted even if she had continually been rated at thirty three like she was in april of two thousand and nine she would not have made it to the point where she would have gotten an offer and and the position is that this is just that there's a lot there but there's it's just not material thank you your honor i would direct the court's attention to the dominguez curry decision which we cited both in our opening brief and in our reply brief for the proposition that doesn't matter whether chief and our chief alexander harbored individual discriminatory animus or even knew for that matter if any of the other firefighters harbored improper discriminatory animists in the language in particular on page ten forty of the opinion that i would particularly direct the court's attention to is it reads quote thus contrary to the district court's conclusion evidence of stacey's just going toward remarks that was the subordinate  questions that one of us again remember that they also pretext can be established here through the shifting explanations that have been presented out of the gate one of the first things that was mentioned to ms green was well there are some financial considerations veg never clearly just articulated what they were but never mentioned in the e e o c position statement that was submitted then later at the during the thirty six deposition when chief alexander the designate was asked about the budgetary consideration couldn't even articulate what those were the jury on those facts alone certainly could make a determination that the shifting explanations demonstrate that there is that there  finally the last comment i'd like to make is it isn't just the rank and file who are making comments that could be construed as evidence in bias even the evaluators themselves at the assessment center used terminologies like she's too easily old must control her emotions must get gain composure over her emotions those are not terms that are used to describe men who are terms that are used to describe what's on her performance or in the assessment part of  that right and i think that from what i remember from how the performance went down there was some basis for them to make those comments and i think your client acknowledged that she there was a run in with her supervisor from the other employee and that might have affected how she did that's true judge wapner but my point is making an observation that someone didn't answer well someone didn't show confidence something and someone didn't give the correct answer is the kind of thing one would expect from a an object of evaluation what i'm saying is there are cases  about and certainly i'm sure the court is aware of implicit bias and stereotypical phrases catch phrases like get a control of her emotions we don't and we don't hear those things about men and if that's still you know long and i remember right that she cried at one point during i think there was some testimony that she was concerned about the fact that all the sudden on the second day of the sussman assessment center her former employer her current full time employer show up and so she thought these male firefighters had tipped them off and so yes she was upset about it and i think there was evidence that she was at one point seen by brenda train tina crying in the women's restroom but not in there's no evidence that she was crying in front of any of the evalu and even miscreant trained kena gave conflicting testimony about whether ms green actually admitted that she lied or whether she just missed trink you know just concluded that she had lied so i'm just saying i don't i didn't think this was the strongest point for to come back we appreciate both of your arguments and for this