summary judgment on three failure to hire claims more particularly we're here to review whether or not the plane to provide sufficient evidence to raise genuine issue of material facts as to the pretext related to the agency's reasons for taking action against mr chappell we're not here to talk about the the prime fish case for several reasons but most particularly this court's start st versus wallace case in tw seventeen following the united states postal board versus akins in one thousand and three from the supreme court finding that when a defendant presents a legitimate nondiscriminatory reason for taking action against  a plaintiff the focus becomes whether or not there's evidence a pretext and the prime facial analysis falls away related that the st position is the two thousand and fourteen director of licensing and credentialin dollars employees over a five year period an average of three hundred dollars a year are coming back retirees are coming back and taking their former jobs or other jobs that they qualify for mr chapel also testifies that it was common knowledge and learns of miss borland's educational background and her work experience miss henderson in that program only meant toward women even though there was mentoring for women and women in that program  henderson then goes about changing the criteria of the position and in she does so in violation of the agency's policies as well the state auditor's policies by making a bachelor's degree required on certain areas a field of study where the policy says that should be a preference she makes a preference for an advanced degree all in favor of miss borling because she knows her background she then takes away the experience equivalent which is part of the state auditor's recommendation for this particular position of course that would protect against any returning retiree to include mr promoting miss borland acting in support of the white female she also hired the nd time she hired for that position in two thousand and sixteen the rd position she hired a white female again and if you look at the evidence miss borland in fact is not the most qualified candidate not just heads to mr chapel but if you look at h h s sees the agency's own chart of the applicants which is record x or fourteen you'll see that there's at least five people that have better qualifications them is more than for this position but she is trying to promote the young female and that's where that mentoring comes in where she's only mentoring females in her deposition henderson tried to deny that she met a mentor only females but in fact later admitted on further examination when it comes to deciding who to interview then the pretext gets even stronger because miss henderson tells the e e o c there's two reasons why she didn't interview mr chappell one is he wasn't a current employee which has nothing to do with the job of either the posting or the doing the job and that he has a lack of an attention to thirteen but you have mr smith who was interviewed who had multiple complete typos in his job application as well as the fact that mr schmidt didn't even make the required  bachelor's degree in a particular field of study that mrs henderson it had placed on which then and if you also look at the fact that he's doesn't have the years of experience so she picks a male to go up against candidate that is patently not qualified for the position and is in direct contradiction as to why she didn't interview mr chappell for the position she also testified that mr chappell was the rd most qualified candidate at that no assessment by h s c that she met those four but word for word you find that language in record axis fifteen the justification for higher so why are there these contradictions time and time again these are fact issues these are genuine if the material facts are that a jury needs to decide not to judge we then also their corporate representative miss tippi in the record excerpts number ten her deposition exhibit excerpts she says that the interview questions that were asked had nothing to do with the d l c position specifically they were just general management questions so general is the decision maker in this role there are several reasons why we present that mr boeing knew of mr chappell's protected activity and its not just general information as the court found general knowledge of specific information and specific circumstantial evidence when taken together would raise a genuine issue a material fact as to whether mr bowen knew about mr chappell's protect activity which include mr chappell complaining to commissioner trailer commissioner robert wise and bomb about his discriminatory experience from two thousand and fourteen in august of two thousand and fifteen and then in october of two thousand and fifteen mr chapman meeting mr bowen in an interview and recommending that mr bowen talked to the two commissioners about their knowledge of how what a good employee mr chappell had been for the eight years that he was there and of mr bowen telling mr chappell i think you should be you would be good for this other position so up interviews the day before the interviews happened she identifies mr chapel as the th interview we and that would be found in her deposition i mean her emails of record  and she she tells mr bowen that we i'm adding mr chapel and she does the interviews she identifies mr chapel as a suit that has the top candidate mr bowen then the that action was taken the bosky versus stark county case from this court holds that if if a defendant does not explain specific decisions that is evidence of pretext  so it doesn't stop there mr boeing and mr arnold his assistant create a quote unquote new position but it's not a new position if you compare record excerpts nineteen to record twenty the eight dig per position versus the d e r position the director of external relations we have the same director three position for both we have the only differences between  if you look at the central functions and the knowledge skills abilities they're the same because they just shift the phrase ology they just kind of move one phrase from one sentence to another  again why when he says not to fill the position why does the philip when he when mr chapel was a successful applicant and miss comm call tells mr chappell i'm going to keep your application for the future and mr chappell never hears back about that the last position is the two thousand and sixteen d l c position in this case mrs henderson absolutely knows about the protected activity because she's preparing responses to the see related to mr chappell's complaints ms again the d l c position has not changed from when mr chaplin done it there's no evidence that it changed at all all the way through even to today but she hires there's several issues here she still interviews mr schmidt even though he doesn't meet the required bachelor's degree component and he's still in the top three but somehow mr chapel now goes from being the top three candidate down to not even in the top ten but doesn't explain why and so and then we have her interviewing three people instead of just two this  time the rd person now there was a white male a white female and now black female it's kind of a benetton approach to define it defending it's of discrimination complaint of course this isn't discrimination claim at this time this is a retaliation complain and so but what's interesting is miss dr all read she has a ph d so again there's no there's been no evidence presented by henderson that the increased degree would would result in a better performance of the d l c position the d l c position has nothing to do with health care of distribution it has nothing to do with  managing whether and how they provide health care it's only about managing the process is about qualifications for receiving licensure and certifications and managing that and communicating with other it was just general management comments about her having great ideas and having done some research about the topic but dr all reds degrees were not in the specific areas that w identified by miss henderson as that field of study that she would have prefer for this candidate and therefore you know she could have been you know a ph d in ancient greek it didn't matter because met the educational requirements and the educational preference that was specifically set out in the screening criteria and she was considered the top applicant with regard to dr all read she was also deemed to be the most qualified she had an advanced degree requirements she had a dispute resolution experience which ms henderson thought that be an advanced degree and have the bachelor's be bachelors degree be in the relevant field she removed the experience requirement it was not to exclude retirees and in fact begin to write retiree is not a protected class the types of changes that she made were business decisions and the th circuit has specifically held multiple times that the courts do not stand in the place of of managers henderson was not in charge of setting the criteria for those positions and in her testimony and in the testimony of her manager the former executive commissioner of the department of aging disability services  it was it was laid out that it was her just question to determine the requirements for this position and and she felt that this is what was needed for the job given not only a departmental you know this is the licensing position requires not only performing the licensing functions for nursing homes assisted living center as adult day care centers home health aid agencies which are definitely in miss henderson didn't know mr chapel she wasn't making its decision in the context of knowing that she was trying to exclude someone for not meeting and that the degree requirements she ha discretion to set set these requirements and she did so experimental psychology and it ph she had experience of psychology and miss henderson testified that she thought the administration of psychological practice was related to health care and ministration and was relevant i think so helen raises issues about the testimony regarding the interview questions and the screening but there's really no evidence that and and mr arnold who was also in that division testified that the reason the position was to be repurpose is because the it that only the next turn relations functions of the position would remain in the policy and strategic planning would be removed so and the job requirement the job requisitions support so here with with h h s ca's interpretation of the chapple during that interview and that without any providing any evidence that he then spoke with mr traylor or the executive commissioner of a take just seat about mr chappell there's nothing to support that it's purely speculation and and in fact what the next leap that you have to make is that they specifically spoke about mr chappell's complete hell is another theory regarding knowledge is testified and provided a sworn statement stating overtly he did not know about chuckles complaint mr topples complaint or or his charge and in fact when when speaking states that it is possible that a complaint could be discussed in these executive team meetings that is just not enough if it is it is speculative and you've got testimony that mr trailer was part was trying to provide through john why is the law so the conversation that mr chappell has with mr trailer is regarding a potential job opportunity and his conversation with and indeed appellate acknowledges that in the interview with mr bauer mr cohen was also encouraging him to to apply to other positions so it's difficult to imagine that these same executives who wanted not only these speaking to each other about an eight a single individual compliant especially when there's testimony to the contrary and and the fact that they were in positions to help that help him and were actively trying to do that has to prove that he's clearly more qualified than the candidate who was chosen or the interviewees and that actually he is under able to do that because he doesn't meet it's and it's not  district court appeared to apply a prima facia strange the clause a sham element at the prime of patient cases is less burdensome i believe and so it would be appropriate to apply there as well but you know it's our contention and it was our contention that the district for that that even under the final facia case mr chapel was not objectively qualified for the position but certainly the priest pretexts age paula five he cannot raise a fact issue as to that with just that repeated assertion so he really fails to get there there's just no there's no evidence to support this this position and order those qualifications talk to race or gender and it is evident that this screening did not apply in a discriminatory way because a and jumping back to the inspector general position just want to know that ms kong kong was the hiring manager for that position i'm the appellant does not refute the fact that she had no knowledge she testified that she had no knowledge sworn as a sworn statement that she had no knowledge of mr topples complaint or or his charge and so if you even if you subscribe to this theory that  is wrong miss anderson and the agency provided no explanation for the removal of the experience equivalent there is no job specific reason to remove that experience equivalent other than to promote ms poorly and to remove competition from returning retired is there's no explanation for other than i think it would be good to have advanced degree there was no job evidence of ms anderson only mentor in females and then in her deposition trying to say she's seeing she's an attorney herself saying that it looks like she has a preference for females trying to say she had males and oh no you know your mistress well i said mr smith didn't fit the criteria if you look at the record that's it fourteen there's a question mark for him there health education that's p there's curtis walters and a james yoakum but they they're they've got more yeses on their names than even ms moore does they don't they didn't get selected for an interview mr chapel had there's a question about a question mark on one of the items and then two other items left blank when mr chaplin done the job for eight years exceptionally well there is no documentation or certain from the agency missed chapel never met their requirements in excess of their expectations but they don't even want to admit it in their in their own document reviewing  agree with that in course it's your job to appeal to judgment i understand that only half your client if we were to look back at what judge parks did here and and the orders that he issued where might we go to find out specifically where he made a wrong turn and i understand that you made several different criticisms of what was done but where might we look to to to see where he may have misunderstood something that that we can we can focus on is right i think he gets the standard wrong tries to say that i have to show and have to establish pretext instead of raise genuine issue of material facts councils says that that i'm asking the court to take lea them to court to make reasonable inferences as per the standard of the court also mr mis doesn't actually analyze the case and the claims of mr a chapel  you know the agency has never provided a legitimate nondiscriminatory reason for making the changes to the criteria for the job and the court simply takes their representations of what they did and did they apply it correctly assuming that miss henderson has the ability to make these changes and she did and therefore she applied them well if you make she made these changes before chapel line right correct and but she made these changes in violation of the policies she doesn't have absolute authority to make these changes she's supposed to get them approved by h r supposed to get them approved by her supervisor she did and they violate the policies of being there's a specific policy that says in and record x or five and it says you cannot make the criteria so restrictive that someone that they could reasonably be able to do the job would so it was one of these situations just in talking about the criteria alone which i we don't have to rely on because we have the decisions not to interview the contradictory decisions not to interview mr chapel and interview mr s and also not interview the other five returning retirees that would have qualified for the job there were more qualified than this board men and women all right thank