d like to begin by saying that the case does seem to stand for at least three significant propositions as i read it that relate to this case the first being that circumstantial for not promoting and number two on has additional evidence been provided to support the contention that there was a discrimination in this case and i'd like to address both the both of those issues starting with with the that that he and the chief of police and the city manager and others were examining the existing structure and reorganization of the local police department he later says in stark liberation that turning two thousand and one there was discussions about creating a p s a a police service area with the inference being that during two thousand and one these you had not been resolved that it was still up in the air are that were they going to have a reorganization and was this occurred that p s a format was in place and she was promoted to acting captain in january two thousand and one in area to as anybody promoted during the so crazed began in the late summer of two thousand and one chief word in his deposition and this is a page three ninety ninety the excerpts of the record chief or testified the crees didn't start until december two thousand and journey in two thousand and one it's in my client's declaration the sergeants and lieutenants were promoted i'm talking about lieutenants to captains there were no promotions to captain during two thousand and one but there was during fiscal year and if you look at chief word staff position and he says he understood the phrase was supposed to be in effect from december two thousand and one to july two thousand and two which would be the end of the fiscal year from the new  to when the firing freeze began and not only wanted began wide existed in how long it was supposed to last but i'm not clear straight your answer to that still doesn't matter when it began in terms of was anyone evidence in this case why the free should be considered to be protection or and suspect and really an issue of tribal issue in fact was there really a freeze it all what difference does it make what we call it during that time no male and no female was appointed the issue becomes it's fine if you try and francis in her favor and she has said in her declaration that she was told by the chief that he intended to promote her from the l as soon as captain her retired she was in the acting captain and during from january to august of two thousand and one she was filling that position and being paid as a captain which undercuts any kind of budget argument promotions are made and the only excuse was a rationale they can come up with after the facts are shifting explanations oh it was the budget we had when we were working on this b s which we know was false it wasn't a budget reason at least we positions were available during that time and they never only made in any of the p s a had already been implemented long before august september of two thousand and one so so on the one hand yes and no promotions were made during that a reason that they were questioning because of this reorganization and the p s a plan going into effect was a reason to question are we going to eliminate captains positions or should we promote more captains we know that was happening in two thousand the year two thousand is when they were actually beginning to implement that p s a and to implement the reorganization that is already been done by two thousand and one saw with that was in fact a legitimate reason for them not to promote any captains or if they were not going to promote captains because they were considering eliminating captains and why did they promote two men in september two thousand  at the end of the day what we have here is before this list during this list and after this list will complete compartment had nine slotted positions for captain that were fully budget during the entire period of the time and to suggest that they were trying to this was about creating a new position this was never about are we going to create a new captain position it was always about filling positions that were budget this position that opened up when captain here retired in august of two thousand and one was budgeted was an existing position it wasn't a new position in the normal course  morning marian would you put ten minutes on the calendar please we shorten the time to ten minutes there you go morning good morning you please the court my name is rachel wagner i represent the city of oakland in the individual defendants in this case including the police chief richard ward i did also receive the court's request to discuss mcginest i'd like to back up for one moment the guinness did not change the law not the longest green court of the law the circuit now was very clear that is that freeze or a refusal to promote my scrope and bob and ward are all consistent that must grove and bob refused to promote anyone to that position and furthermore glen da hearing the information that the captain's position was in controversy that there might be elimination of captains positions and that there was discussion that they weren't needed she heard it from deputy chief dunbar at meetings because he was for direct supervisor she heard looked at a combination of factors your honor mcginest first look at the absence of documentation about a freeze that even the manager didn't know about that even the person entering the position didn't know about that no one knew about until that perfect analogy is a law firm or named partner has a veto and says we're in the middle of restructuring equity not equity partners we're not going to make any partners this year there's five people up her partner one of them the woman and the partner doesn't know  doesn't care the edict has come out it's never in writing are not usually politics and personal decisions at this level the refusal to sign off on something does not need to be in writing to be credible you're saying  i'm saying that again it had a combination of factors had discriminatory motive shown through pages and pages years and years of incidents to which other witnesses testified as well regarding rees i think that mcginest should be limited to its facts i think th the evidence and some of that here much of it here is from going davis herself she heard about this freeze for months whether it was called they don't promote anyone they're blocking it they may eliminate the position she heard about it she didn't hear anything that was gender related they don't want to promote you she didn't she didn't bring forth any specific stansell evidence that it was based on a discriminatory mother but did then turn and say well the city for the company could it done more c forth a different kind of evidence is to change the burden of persuasion entirely i don't think mcginest intended to do that i think mcginest was struck by the facts with which that court was presented and found the discriminatory motive in the long and creatures indeed and in fact at page four of their reply grief a list for reasons which if you look at them carefully are all the same and are outlined in both what ward said to her and the letter that robert bobb sent to her before litigation ever started and that is that no and robert bobb said this in the letter that was sent to her that no promotion to captain was authorized by his office during that period despite the fact the department lobbied for it that's right in the letter and in terms of the budget concerns it's unequivocal both in his got his deposition why not take that budgeted position and use that money to fund sergeants and lieutenants who were indeed promoted during this same period why do we need a captain over area two that was this position if we're going to have seven p s a is headed by lieutenant s two promotions that did occur over a year earlier in september two thousand and did not involve the geographic areas one two or three they involve youth in community services it's this particular position over area got a promotion to captain and none of them got into the area to position and that list according to em all you had to expire did expire on january second both chief and glen davis in their seventeen eighteen years with the department never heard of a list being expended we'd be hearing on a different lawsuit if it was just arbitrarily extended in contravention of the m o u that's the cycle and during this particular cycle three organization was many captains move someone else into that position who's already a captain you got my number what i was going to point out though is that that consultant and the record is that five forty and five forty one says that she was consulting with the city of oakland on the reorganization in one nine hundred ninety nine two thousand and two thousand and one her declaration provides absolutely no support for the idea that this was over or done they were in the middle of figuring out this reorganization and how to take areas one two and three the traditional set up with three traditional captains and combine it with seven new p s a is headed by lieutenants but there's this position  no way to know where she would land or anyone else in fact the gentleman who was ranked number one wasn't in the top five at all on the last list it's the luck of the draw if you well people are known to die on the west is one davi crane work or alternatively by simply producing director circumstantial evidence demonstrating the discriminatory reason more likely than not motivated g t e so so it's clear to me that the mcguinn kind of change the paradigm and to the extent this court for the lower court in this case felt that sound they somehow mcdonnell douglas framework required pointed to somehow put in direct evidence to show oh the dog ate it well how do you prove the dog didn't eat it but simply because i can't prove the dog didn't eat the homework doesn't mean i don't have a tribal leader with facts so these kids who are jury sho dog eat it how about something in this case it's all take my word for it if they can just make it up as they go along and because i can't prove that the dog didn't eat the homework i don't have a tribal issue in fact to go to a jury i submit that we have submitted substantial evidence and not only that to hold these pretexts minutes but look at the record here of how they treated her before she told them that she was pregnant and she planned on taking a