it please the court my name is craig berman and i represent dr sharpshooter my time is limited i understand that so let me give you a quick overview of hiring for a chief of medicine position the process is if it's a competitive selection and and there is a application process there is a certain list prepared the certain list goes to the pre selection panel and the pre selection panel recommends finalists to receive an in person interview in this case the process was interfered with tampered with solely to retaliate against doctor dr terry had testified in her deposition and it's discussed in our reply she says i don't bother with d the  dollars provision the spring construed there and if the two if bad has some application what does it do to mcdonnell douglas and convincing mosaic standard under which both parties here really  have in my assessment based on reading the rehearing briefs that your honor has is under consideration i would say there is a bifurcation between liability and damages you could have liability if the process was not free from either discrimination or retaliation and the order to get back pay there has to be a determination of but for causation however the question is not clear who bears that burden we believe the agency would one hundred dollars louis case we d cite in our brief and we would offer testimony of dr l mean who says dr probably would have been selected if it if the process was not tainted by retaliation but again that would be for trial well but i guess i'm you know guess i'm trying to we're here on summary judgment and i don't think it's necessary because i think if mcdonnell douglas is more demanding than the free from discrimination language and if you reverse and say he has a district court said there was a promise facia case that was the  st opportunity to retaliate so i don't think you would have to re man and i think st of all he did novo review your your honour's are capable d of discerning what the facts are we believe we believe the trial court simply he did not consider circumstantial inferences he actually believed dr terry a d even when dr pearson and missy both contradict her squarely and i don't want to stray from your question too far but i don't think free man is necessary but i mean what you're asking for a trial right so yes that would require agreement and yes we want to on an island saying oh i felt that it had to be reposed to get her st deposition before the e o was d i can make a selection at any time window open window close no window at all i could make a direct hire and so as to june we believe we've exposed a direct hire rationale as a pretext for retaliation and but that doesn't mean that happen in this case if that's a jury question this was not a direct tie or a direct heart would have been made before june th because dr turi says a i want to hire her but i waited for her application to come through well if it's a direct hire you don't need to wait for an application to come through so we think she's exposed herself again to unfavorable inferences d consistent with the robert edwards case which is actually the the the lineage of all circumstantial evidence holdings of the u s supreme court that if you are vacillating if you cannot explain yourself with any degree of credibility then you are exposing yourself to unfavorable inferences dr says i don't bother with the surplus but why was she looking at it without finalists and why is she looking at it in march because in march we know from that the certain list before the certain list was even read the dr terry a told her and this is all quoted them the breeze told her there is going to be a rd vacancy announced this is before this is after dr dura plies after she tells him quote do not worry i've received all necessary materials in will upload them for you to receive consideration certification there was no direct command director and you would not expect that in a circumstantial evidence case but you would want you would know you would have to know who had applied before you made a back up back up list which by the way dr terry a reviewed according to ms siebel frequently to but nonetheless the fact that he was excluded under these unusual because dr terry herself says he should not have been excluded so she sort of saying see in ma and argue the jury could find she's blaming siebel for excluding him when siebel had no on march twenty six when she says do not worry i've received all necessary materials but it's not going on this correct no it's actually just the opposite she would not have they have to notify you expressly that did not happen in this case so that's part of the web that they cannot extricate themselves from simple it is the quote subject matter expert  she knows that she admitted if it was untimely i should have told us and she says i didn't tell them because i knew from doctor she calls her that there would be a  posting she actually somewhat nefariously says i was trying to help dr but here's the upshot of that miscible says if he did not reapply for the rd posting he would not be you know as you know a time can already hearing and until there's a decision there it's our position that trask continues to control but i understand the argument that bab has the same language in a retaliation case that you might use about four but we would agree with mr b here that it doesn't matter in this case because under either standard we believe that there is failed to carry his burden that this record said there was a crime to face a case this case really turns on whether or not dr dhar has proved that the reason for hiring d at the documents themselves at the testimony uncontroverted testimony in two thousand and fifty hiring for the chief of medicine position somebody had to go into the usa jobs and submit their paperwork and richelle siebel testified expressly there is no distinction between a direct hire and regular interview and finalists and that process that had been started in june either way the documents had to be in there and if there hadn't been existing post may then they would have had to create a direct hire number to allow dr pearson to apply so to judge branches queston there's nothing in it that prevents the government from switching it as they did here it's a very simple dr theory or like dr pearson there's seventeen pages of testimony published she had already decided to select your son yes and again you know two years after four years after the events there may be some areas that are a little murky but not on a material fact messy so whatever richelle siebold said and i thought at the time she was trained said yes if it's late i should have uploaded it but at the time she did think she was helping dr he applied late there's no getting around that is judge branch the system call it's a computer program at michelle's people has no control over as of one thousand one hundred and fifty nine if you look at the posting that's in the record after the fact it says this posting is no longer available you physically can't go in and type that application after it closes d hire her it's that simple and they simply yes your honor i just wanna make sure that i'm understanding because with respect to the june on her decisions so when you and i'm just talking we understand that there are testified before the e e o c that she knew before the post saying that she was going to hire pierce but then in her deposition right she said i didn't make the decision until june rd which was after the posting was made so that sort of out of both sides of her mouth which is it right i understand that your honor if you look back at various testimony as i said where you asked for it he says ok that message has i know is around the time you filed complaints as well as complaint was filed on this day says oh ok my mistake it was august it's the same kind of thing she is she wants dr person for the job she's watched her on the job and had said she'd be a good candidate certificate great the only way she can return a significant is to go into that system and click on that button and that's all she did it's nothing more definitive than that so is i understand or you can correct me if i'm wrong obviously persistent he was emailing her over and over again and she was concerned especially after june when he came in in person and she said raised voices you know i went out there he was extremely passionate or she said she felt like he was harassing her she walked that back and said you know you raised his voice he was extremely passionate i was really worried that he was going to think that i hadn't helped him so she wrote the reporter contact and she told herself people excuse me dr varian but all of these issues don't there's no jury question here on whether dr ferrier knew in inferences that that there is urging on this court but there's uncontroverted testimony and it's just simply not reasonable where there's no basis other than say you know saying that this must be because of this is must be will logic says it's common sense says th submit your honor it just simply we have to look at the record what is a reasonable inference so let's say ok dr ferrier dr three or in june wanted to hire doc appear said and she decided to direct hire her after the after the certain list had issued and there is the process was underway what is the inference to draw from that that that she does that she testified and says and she will testify she has nothing to do with when things are poster for how long they're posted that's nothing she has nothing to do with that of then they would probably need a rd posting that's the end of it h r is completely responsible for a jail and posted and a few months let's do it in june we'll do it for three days she now you know it's not it's not unusual in these cases for an advocate for one side facts and when you say you know one side believes his witness says yes i believe her witnesses that is true what witnesses here what witness is there who says who provides any evidence other than speculation that earlier said in march keep her off the list what evidence is there that there are said in june i'm going to have to hired dr pearson because i know dirs going to be on the last years the theory there is going to be on the list he's such a great candidate they can have no choice to interview him and then i'm going to be exposed for my prior  know he had applied in june she doesn't read there is no reason for her to read this or this and if you look at the testimony it's very clear docket there it doesn't it's not an e mail attachment she can just scroll through it she gets an e mail saying here's a link to the start list her assistant then sends it to the panel there's twenty or thirty people on there there's no reason for her to waste her time she supervises two thousand people there's no reason for her to go in there and start hunting through twenty or thirty people when she specifically has an interview panel their sole job is to a website if you'd like thank you thank you mr berman you've just heard the agency's opening statement at trial and it's contradicted by every witness pierce and i was never asked to apply i was only told in april i was doing quote a pretty good job tyria you admitted she never cleared would offer them the job and not quote wait for her application to come through and the reason that's suspicious is if it goes to the pre selection panel they may not think the same way about dr pearson so you would not wait for the application that come through and that's what makes an issue of fact because the pre selection panel might say well dr durham looks pretty good he has been there twenty some years e strong reputation so again that is not credible judge branch that you would wait for an application to come through here the obvious thing about june nd this conversation si's first of all people said she was surprised that selection was made that quick which undercuts this theory about zero again serious testimony i asked her if i could do it and she said ok well again why would she will say i was surprised she made the selection that quick but here's young thing about june nd before the selection as to how because peterson says i never told her i was applying and says i knew she applied either she meaning pearson or h r told me i can't lie siebold telling her who's on the list again that's not customary so therefore the there's been the reposed in here is my stuff so simple so duty bound put him on the list she couldn't keep him off and therefore they had that discussion on june nd and judge martin's comment that there be no reason to discuss there being an applicant after the selection is made because syria can read the surplus herself and see who's on it so therefore we believe that conversation occurred on june  a she was applying in fact if pearson felt the job was hers she would have asked dr terry a hey you know what do you think you know do i have a chance should worry jury can waive that and say do not worry means it's timely and even simple set title thirty eight is so flexible that we can accept that location's after because the selecting official can always make a direct hire even if your application is otherwise on time so the st question you asked me to arrange is the answer to this question is that there is no reason to keep her off the list of title thirty days is so flexible it's flexible in march as well but yet he's kept off the list so now you're hearing my closing argument and this is a case where the agency says we failed to prove something it's summary judgment the only