of gender discrimination she had the most seniority she had more real live work related experience and other applicants she served more time in the assignments of a for one the assistant superintendent than any of the others education and training required better than the others and no attendance issues so this horne was hired into the division of waste collection city cleveland on  authority well i'd have to say that they were perhaps more severe so there's a lot of emphasis put on this december five two thousand and eleven incident where she went off the clock and collected garbage after work hours and she got a one day suspension but the males who were promoted one male got a two day suspension so on its face i would say that's a more severe disciplinary infraction was of number of days but but it was here for off the clock some have a cover up well out it was a cover up that he was he was helping somebody move furniture into their house you know while he's getting paid by the state equipment so you know use your judgment as to whether that's more severe and any get a two day suspension for the other guy had mr mason had that tendency shoes and checking in and so forth so there's a lot of emphasis put on this december five incident being off the clock and we're going to use that to differentiate her from other people that they were going to promote but you know the big the big picture is that she had more seniority she had more education trade she was actually working in the position for which she bid on namely the so called foreman one position and understand that there are nineteen management positions in her  division there are number of different stations there are three foremen at each station and there's one foreman soco one foreman one dish want so she was one reason they game was a lack of interest because they said that she was promoted to a foreman one position at the ridge road  and that after she served in that management position for a time she requested a transfer back to her old position which was a foreman of the waste collection and that showed that she didn't have an interest in going up the ladder and in management and they said they did that was a factor they used against her what's what's wrong with that nondiscriminatory reason the the city constructed that way but if you look at the current they allowed to have me we're talking about a management position as opposed to a non management position and our decisions normally give a little more discretion a little more deference work to an employer when they fill management positions and why why should we give a little more deference has to the reason as to the shows a lack of and because in fact she didn't show a lack of interest the c was that enable seventeen she wrote this one paragraph note that said i want to transfer back but two days later she wrote an explanatory letter as to why she had submitted that and explain it to a letter said i was i was in the position is that informing one and while i'm on vacation the city put somebody else in there who i supervised ok so she didn't express a lack of interest she's expressed a lack of her is expressed dismay if you will resign from that management position and ask for old position back right she resigned from the management position as for all position back  is that it doesn't demonstrate a lack of interest it shows trying to undercut her position for a pretty promotion ok was a lack of interest of the city argues that it is but it  in context of it it wasn't supposed to second guess that management position here not at all not at all but you know you note that in the trial court the trial court puts a lot of emphasis truck court relied on subjective judgments and put a lot of emphasis on the so called decisions maker decision but there are no affidavit pseudo support for that you know so the  reasons that the city put forth for for not promoting here and that it's a pretext all we submitted the pretext is shown by the fact that believe that supervision reviewed her interest in the job in we think that she was equally or more qualified than the other  d it was imposing its own subjective judgment on on the facts of the case so at this time i would submit that we have satisfied mcdonnell douglas test well you'll have your she are in the distinction of being the first woman and still only woman to attain a management position in the division of waste and i think that the law is pretty straightforward in this area and i think its emphasis is on because it's a difficult area and the burdens placed upon that the courts but cancel to establish their cases and this case i think is an example where there's been an absolute failure on the plane of some herd to meet its burden of assuming that the prime of facia case was established there were legitimate proffered reasons for not promoting her specifically that the disciplinary incident  demonstrated specific lack of aptitude for the position she she missed a route she showed an inability to read a rabbit map and then she attempted to cover it up by working her crude off the clock putting the city had risen just that she worked off the clock but she directed her crew to work off the clock and to do this for a route that th missed earlier correct and she was in a supervisory capacity the time as it as i did foreman to actually violate the rules yes and what she was she was applying for a promotion to a foreman one position and assistant superintendent position the one the one gentleman who was promoted to foreman one above her mr mason he is his discipline was was definitely poor judgment and he use city truck to move furniture while on the clock it's a severe infraction but in the in the opinion of management it did not go to the aptitude to do the job  themselves but here she's instructing her crew to violate policy which as a supervisor i think is much more serious than perhaps a supervisor doing something on her own what did the supervisor move the furniture on i don't know i know that she was she was of which the only time she ever served in forming one she was in an acting capacity and that's what she relinquished voluntarily which showed th that correct or not it was not irregular or and but in the opinion of the supervisor still showed a lack of aptitude because there was unchallenged testimony that each truck contained a rab man and it was it was incumbent upon the supervisory personnel the be able to read the route map she she actually had the bad luck that that her superior the general super interpreter tenet of the vision mr ludwig lived in the neighborhood where the rat was missed and so it was it was a particularly bad bad situation for her and the happened on that truck where they came back in and they had missed it she happened to been on their truck they missed the i mean to me i don't know i mean i guess i certainly i certainly think that you can equate that with  legitimate nondiscriminatory reason i think the simple answer that question is yes so then the burden shifts back to the plaintiff to show pretax now mr drain mentioned mr owens mr owens was the ultimate decision maker in this case whose deposition he didn't bother to take so mr ludwig who was involved in the decision making process it was his testimony that was taken at the  grievance over the failure to promote and in this case so i think that was specifically for example with respect to her relinquishment of her position where m not review her explanatory letter in the average refund that a significant fact presumably mr owens had because he had the letter was addressed to mr owens and mr owens was the one who made the ultimate promotion decision so again in terms of the burden in this case i don't think it was met by the appellant but the i think that what what's very significant is that is the relative qualifications of all the applicants there was no evidence and i thought i had to tell us this at the ivory trade as well which mr drain was not involved and there was no evidence that these gentlemen who were promoted ahead of her had inferior qualifications there was no evidence at all in regards to their relative qualification to one another other than with respect to security which was mrs horn's was a period that's a matter of record there was a comparison of the paris disciplinary record the one other item was that was the performance reviews of her superiors she was the only one among all the candidates who had received negative performance reviews so if you look at the relative qualifications of the candidates clearly management's decision that they were more qualified promotion than her was legitimate and rational now as to pre the negative to peer review is no they were based on performance overall performance so in if if the court accepts that the proffered reasons for non promotion  legitimate then the plaintive has the burden to show pretexts and to demonstrate that they have to show that there was no basis in fact for these decisions there were bases in fact for the situation whether anyone here disagrees with them or nat did they actually motivate the defendants challenge conduct absolutely because even the arbitrator had wrote that the ten contract criteria that management was required to factor into the promotion brown says were considered an that the city violated the contract by not promoting her to foreman one but it did not in a leap of illogic violate the contract in knapp promoting her to assistant superintendent so the only rationale i can think of that is that is that in computing he in comparison in comparing her disciplinary record record with mr mason construe the contract and here the issue is whether she was discriminated based upon her sex in violation of the civil rights law whether retaliation right i mean correct well the different issues a traitor didn't resolve sex discrimination and in fact the arbitrator right to beginning he specifically made the statement that he was reserving the federal claim then there's also a stipulation that the and asked her how her qualifications were superior to the other gentleman and she flat out said she didn't know that she could not articulate her her superior qualifications to that of the other gentleman the union didn't establish didn't meet that their burden of proof because it was a contract violation case and i respectfully submit to the plaintiff as and met that burden in this the retaliation claim is is a difference in time just so the court's clear the retaliation claim is that after this failure to promote her union grievances were delayed to be heard and that she would and that she received a fifteen day suspension as a result of her filing dual charges with the equal employment opportunity commission the while civil rights commission well she received a fifteen day suspension for a very serious incident where someone on her crew was involved in a serious motor vehicle accident and the job and the division was alerted by someone from the city's prosecutor's office that she had gone to the victim's home with the worker who was involved in the accident in an attempt to convince the  e victim that her coworker was not involved in the accident that was the that was the basis for the discipline she was lucky in my opinion she wasn't terminated over that incident but and again i submit that that infraction is not more serious more more severe than the other individuals involved with respect to the  decision the city acknowledges that and they quote certain sort testimony and evidence admitted the up attrition is relevant to this case and that the relevant evidence includes it's a legal argument because we're trying to determine whether there's a genuine issue of material fact ok and so if material facts you buy one fact finder come out one way and they come out another way  with another fact finder that in itself posits a genuine issue of material fact that perhaps a jury might look at you know one way or the other so let's find out from the jury let's not rely on subjective judgments from the trial court relying on decisions of a decision maker who you know may or may not have been discriminatory in his his decision so that scrimmage but that's that's the argument we have here is sex discrimination and that the federal law standards the arbitrator looked suddenly at the contract to determine whether there was a breach of contract by not promoting a more senior employee and i just see the the issues different that's all it is obviously a different standard  exercise of motion the most for summary judgment and the arbitrator decides the evidence clearly shows the grievance the appellant was equally or more qualified than the other applicants for the other form one position so appellee wanted to argue that there wasn't any evidence of qualifications but here's a fact finder who heard evidence and found that she was more qualified so i guess i'm not the same evidence supports that she was qualified absolutely absolutely and thank you very much thank you mr crane case case will be submitted may call