my name right michael garth moore good morning it's my privilege to be in this magnificent suit of justice to speak for my client kathleen huggins as i was preparing and i'd like to reserve two minutes your honor for rebuttal as i was preparing to come here i made a comment to my wife that i had an uphill battle here and she not being a lawyer but an artist said why and i said well if you look at the statistics eighty five percent of all discrimination plaintiffs never see the inside of a courtroom with the jury because summary judgment is granted against them and upheld by the court of appeals more than eight hundred and eighty eight and ten and when i said that to or she said well how long has this law been in effect and i said fifty  or she said to me well that tells me two things and i ask what but what it is she said number one either there simply is very little discrimination going on in this country it has been eradicated by the enforcement or there's something wrong with the enforcement of this law that cases are being broomed out of courts on summary judgment that should not be this is one of those cases because i went back to the this court's holdings and i found for example ensure that you get that eighty five percent because that or your honor where'd you get that eighty five percent that doesn't sound right now because number one there's cases that go forward that we never see that people don't appeal absolutely and that i'm not at all sure that in the th circuit that eighty five percent of summary judgments are affirmed that may be true because those i think it's more like sixty percent those statistics did not break out by but anyway we're case by case and understood understood oh let's let's look at your case one of the things i want to ask you now your client was how old when she got hired like about sixty one something like that yes and she also got a significant promotion after she was hired and then she didn't get the job that we're talking about here right and then after that she left about a year later a scrip so she wasn't fired on brick that she left but why shouldn't we apply the same actor inference here  because your client got the same person that did not give her the job that you're questioning gave her a promotion which was like a thirty percent promotion in salary so interesting shortly before interesting question because it does bring up same actor inference it's an inference not a rule right this case in this case your honor what we know is that kathleen hogans was working in two thousand and fifteen for the company that was headed by a different individual than riddle morton was his name and by that time she was already performing the the p h r functions because it was already understood guernsey who was the titular head of the p h r was an incompetent so my client was already performing these duties when riddle came on he learned that my client had gotten an offer from another corporation and was thinking of leaving and because they were desperate to have a v p h r functionary without getting rid of guernsey she got the promotion so when she got a promotion for was to do actually do the  work getting paid for some of the work that she was already doing but what you've just recounted doesn't seem accurate with respect to the record the record indicates that your client was hired she was working for miss guernsey your client was offered another job mr guernsey learned of that and went to mr riddell and said i don't want to lose her let's keep her on board mr riddell agreed to the promotion and then mr riddell hired an outside agency to evaluate the effectiveness of his management team and that agency  dentist cited that miscreants should not remain in her position actually this all happened after mr riddell had already given the promotion to miss hug and actually the testimony from miss hawkins is it was known before riddle came that and guernsey was in fact not capable because she was given the promotion and he agreed he gave her the promotion so why doesn't that raise the same actor inference that you have to overcome to show that he has some discriminatory animus if he's already promoted a person a woman who is sixty one years old the evidence supports for a jury to determine whether that was done to cover for a period of time until he was able to find someone a male who could handle that position so it's not an issue of determination here and in fact the court below didn't address that she didn't get removed from the position that she got promoted to no i don't she continued to do that work and he gave her that promotion and  testified all during the weeks and months leading up to his choice of our kills as the v p he was quote unquote interviewing her for the same job the position that she was in the position she held was not the position of vice president bitch or even though all the evidence was that she was actually doing that job so she was simply a fill in for riddle until he could locate someone who he felt more comfortable with but he never but but he didn't take her out of that position and she got a thirty percent raise so loosely but we're not talking about whether or not that particular promotion kept  riddle's discriminatory animas from promoting her to the b p h or position at all but that's the whole thing with the same actor inference if if he hadn't promoted her once with the n then you have a stronger argument  on the nd one i mean that i don't know i'm going to ask them they whether they're arguing that but let's assume that you get over to create taxed and i mean there's a couple of things in terms of that it's not a classic application for a job what she said was well i know i'm probably not the best person for the job or whatever and sort of floats out this thing but you know here maybe this that or the other so are it's not clear to me that she applied for the job so that apparently i'm going to ask them on the other side and when an exhausting the administrative remedies that i'm not sure whether they didn't concede that she applied i as far as that goes but what's your evidence of pretext you refer to haggans experience leading a japanese church congregation and working at a japanese company but these positions were not listed on a resume so why should we consider them in assessing whether rock wall bros position that how haggans was unqualified with protection she was not they were not listed on her resume because she never received the monster dot com listing of the job duties and key responsibilities which she would have and which she so has done your honors in this case in exhibit twenty eight  attached to her declaration in which her experience shows she was equal or superior to the man that was hired or kills or kills was not fluent in japanese well our culture is not right just say she was equal or superior and her desk deposition energy say i'm not better but i'm not worse what did she say she said that she did not make that determination as of whether she was better or worse in herd declaration she listed them side by side and as you can see her declaration shows that she was at least as qualified as real in fact a jury i think could find more qualified but she acknowledges that the  essentially sealevel people directing and working with management level at and a japanese organization there's nothing in that that said the person had to live have lived in japan or speak japanese fluently and she's actually worked for two japanese corporate she didn't have this experience and she conceded that she didn't have the experience of working with the border influencing japanese management or japanese board directors she worked for a church job she had the same years of experience at management level and as i said if the goal was to be able to integrate a new c e o into japanese culture and business culture she was a period to him riddle had not been involved in that for thirteen years she actually had a fluent knowledge of japanese an integral knowledge of the business culture in japan but let me move on if i might because i understand your questions and i'm running out of time here you are asking about pretext pretext well this court is held in pain question of pretexts and one for the jury because for one who tells the truth need not reciting different versions of the same event and we have substantially different versions of the same event from the e position statement to riddle's testimony in his deposition which i called little one and then riddles subsequent in the reply declaration that he filed we actually have substantial differences here if you look at the position statement itself again the company said reynolds st choice to fill the position was a woman kay with whom he had work so on and so forth riddle testified that he had not worked with this woman that he says he contacted who was yana and he did not bring her to end low that he just spoke to her now there's a question of credibility the trial court said well i was in korea intrigued by this language talking about the e e o c position statement the language is not factually true but substantially accurate not factually true but substantially accurate so it could be a lie but it was substantially accurate in fact it's not substantially accurate and if it is laid your honour's this is quintessentially a question of credibility for the jury what evidence did you proffer that he in fact had experience influencing a japanese board of directors or of a for private profit corporation when you talk about experiencing the board of directors i don't believe all their offices or groups right she she worked for japanese corporation that was its proffer of her experience in that area nothing nothing now the key here though when we talk about her experience is what was it that motivated riddle not to give her the job and this is where the e e o c physician's statement comes into being because r testified when he was asked if she was qualified for the job if she considered for the job he said he was interviewing for her for the job for weeks and months weeks and months he was interviewing for and it was only h e mail in which she said i don't want to job made him stop considering her wadia so she was qualified for the job or riddle wouldn't have been considering her for a job when she was actually doing the v p h r job so i'm about that i see my time is about over here and i think you want to retain that for and you can hear what they have to say i'm republic happy to i'll be happy to come back thank you ha worked as the manager of human resources for nippon airways for twelve years it vising this is quote advising japanese executives and board members on each hour build out dot dot dot dot so there was evidence from mr r cal's resume that virtually identical to the experience of the lady no no your honor not not even close that this is no slight on this miss huggins but she's pretty much been a career compensation benefits h r person that's what she was hired into and this is i think this is kind of gotten lost a little bit from in this case is not on the district court judge i guess but she was hired in as a compensation benefits person and shortly after mr riddell became the c e o as as the panel has noticed he promoted her into a role and then her the person she reported to by virtue of the recommendation from an much been a compensation and benefits person alla ok i think that mr brattle is a little problematic in the sense and maybe he's a little problematic in that he doesn't like he's not as direct as he should be with people because he you know maybe he was trying to be nice to her and rather than just saying i'm sorry you don't qualify for x y and z and make the end of the story he does he says sort of equivocal things and you know and ten miss hegan steps and helped things by you know i have i wouldn't consider it to be an application of someone sends this e mail like well there's no i'm probably not the most qualified but x y and z and you sort of flood the pollution out and without actually putting yourself out there then see how someone responsible he didn't exactly buy but he didn't exactly say no until later so you have all this stamp to get ambiguity and then you argue in your brief that there's no evidence that she was tonight at the position that she never applied but i look at your position statement that you filed with the arizona applied admittedly that i mean and that that's problematic admittedly but it's not it's like it kind of drawn a dagger in your foot so it's problematic but it's not dispositive of anything at all and this is why number one in order to determine whether she was denied she has to meet the standard that was unknown stated by the supreme court in one thousand seven hundred dollars infirmed which said that an applicant has to do everything in her power to apply for employment so if she can't establish that she secretary did no no i won't get into that your honor and someone ok longer with the firm but in any event if she didn't apply she couldn't be denied whether he was considering her surreptitiously or whether it was considering  directly that from a prime aphasia case perspective i think the st issue is did she meet that burden or not you read that e mail the sounds from the materials that we have before us as if she was the considered doubt mr riddle's testimony that he was considering her but i kind of liken it to i think this happens in corporations all the time there's a position that's going to come up in that and the company takes stock of who it has in its ranks and whether those any of those people are capable of filling that role does that mean that if i determine that none of those people are capable in my opinion of filling that role that i've denied them a job when the supreme court standard says a you have to do everything in your power to at least  out i think that's the issue he was considering whether or not she was someone who could do the job he alternately concluded that she couldn't does that mean that she was denied the job in the legal sense i think that's good and i  kind of a grand you argue all bar and then he told her what we're looking outside the company at that point right after he had determined that look i don't think that she's did has to help her i think your more tactical than strategic that no one could fill out a formal application it was in a job where i don't believe there was an application within wall that she could have grabbed and filled out but she certainly could have made it known that i would really want to be considered for this job i think i'm capable of doing it and she said everything everything she said was the opposite of that and these are all fair questions but i think at the end of the day they all and this is where i think plaintiff's brief focuses almost entirely on the prime aphasia case which well if we put her past if yes let's since you both have given varying explanations of that let's say maybe there is a tribal issue as to whether she apply ok then you get to what your business explanation is for why she didn't get it right and then and you get one and then if then she gets to go to pretext correct so if at pretext what is he counsel for miss hegan sustain that because mr reddell gets and consistent statements that that and there is there is case law out there there is as that circumstantial evidence can come together for pretext that the inconsistency is in the context of employment discrimination cases have to focus on different reasons for the explanation for the decision it is shoe he has not offered varying explanations for why she didn't get the job the testimony and the issues that counsels trying to bring forth to create a question of fact relate to the nature of the person who he contacted in the position state when that was submitted to the e e o c it was it was stated that it was in fact as the case went on and and more rocks were unturned it was discovered that no it wasn't k k was of a female amongst many by the way who they were cruising search firm had identified as a potential candidate and she eventually took her name out of the head as did one of the other females yana who is one of mr riddle's former colleagues is the person that he reached out to the point of all that is to simply indicate it's a tangential fact to further to the ministry that mr riddell has no animus against females or quote unquote older employees is the something to her like we're looking not for people side the company but we're looking for women outside riddle said we're looking for i believe the testimonies we're looking for a certain type of person outside of the outside of the company and identify that person by gender i think there are two it one is the statement he made to t plaintiff's it during the conversation that was mentioned earlier and then the other one is who did mr riddle reach out to if anyone about this job and he reached out to a female that's the only thing a talking about the conversation the st congress that you know he did not specifically reference any gender in that conversation he just said we're basically he's said we're looking for someone who's as different qualifications well ok you don't really have to size very much inference is common sense if i treat you favorably knowing you're protected characteristics it's very unlikely i'm going to turn around and treat you unfavorably based on the same exact protective characteristics and the district court judge astutely pointed out we didn't say same after inference and when we argued the lower court but we made the point riddle promoted her monts before he filled the v p h r position knowing she was female or is female and knowing that she was heard her approximate age why would he then disqualify her for discriminatory reasons because she's female and of a certain age well it doesn't make any sense if the couple other random acts and i'm wondering if they matter at all in mis she says well everyone knew she was incompetent or this that and the other so does that mean anything and then also somewhere it comes at that had a prior discrimination suit at her prior employer the start with you for the fact i don't think either of these are relevant to the issues before the court the fact that  then he finds another place for misc right he she had a dual role in h r compliance so he kept her in her compliance way seems to like to let everyone down by easily rather than just tell him directly they're not whether or not he could have handled it more directly or not that's not evidence of discrimination what i think is interesting in this case though if you think about it is missing he's identified by the outside consultant is not being the appropriate for person for the  job because she doesn't have the skill set and then here this morning we hear that plaintiff should have gotten the job because she was affectively performing in groups whose job that's the very job that the outside consultant said is not the appropriate job that you need going forward so the fact that she allegedly and this is pure i mean it it's really taking the evidence and stretching it out that she was performing in guernsey's job that's really her view of there's no real record evidence to support that but even if it's true she was performing a job that was not the job that was needed for the company going forward so because you're not going to get a chance to set up you don't get the last word ok and counsel for miss haggans is going to get up and is going to say what her best argument for pretext is tell me what that her best argument is and why it's not good enough your honor i'm not saying that if you say he's not going to make one your know he will but and i'm not being flippant when i say this there is no evidence of pretax nine there is literally ninety seven and i well he says he's trying to create he's trying to create mountains out of more hills based on alleged inconsistency is with who riddle contacted was at this female or was it that female and he's trying to create a legend consistencies by the fact that he deemed her not qualified but he stopped considering her when she said she didn't want the job as a district court pointed out those are both consistent i've come to the conclusion that you're not qualified and you're telling me you don't want the job oh great now i don't have to think about you anymore that's essentially where the district court ended up it's like ok you let me off the hook that's the best case of that afghan's i mean that's her best argument the bottom line is there is not a single there's no evidence of a single comment that would demonstrate that mr riddle had any enemas towards women or quote unquote older employees he promoted her and she was sixty one a few months later there's this other job open there is a substantial search that includes females older employees or candidates there's not a single piece of evidence said that a single candidate was excluded based on any protected characteristic females were included older employees were included and the and the three people who were all to millie the end for consideration huggins admit every single one of them had the qualifications that were on paper for the job and that not one of them was she more qualified then i think she says i think quite went council is going to is sane is because she sort of got nipped in the bud here are got that whatever occurred to her resume wasn't tailored to show that she had that experience that could have put her in the running what's your answer to that well to number one and i think judges are appointed to the earlier the experience that she's claiming made her call five for the job had nothing to do with  sea level pete was she ran a congregation in japan and was so far long ago that it wasn't even on the resume that she attached to her email that's how in in significant the experience was but the district court noted correctly that whatever experience she had or didn't have the only thing that the court can consider kind of going back to the hearing that we just had before this is what was in front of mr riddell like what was in front of the administrative law judge in the prior hearing she can't she can't embellish her experience and credentials after the fact of the litigation the issue is what did real know or didn't know he had no idea about any of this alleged experience which again was running a japanese congregation in japan some twenty or twenty five years earlier there's not a single piece of evidence suggesting that that experience translated into any type of business  all of her experience in japan that she didn't click on her resume is that accurate i've your honor i would assume because when i took her deposition i presented her with the qualifications as the three finalists had presented them to and lo the search firm and i here they are would you agree that they are qualified yes i would would you agree that you're not more qualified or they're more qualified than you she said i would agree that they are qualified and that i am not more qualified than them so i assume that took into but it's very clear from from this circuit and in fact an opinion judge that you offered in that authored in the th circuit you have to you can't just say i'm equally qualified therefore discrimination the task in this circuit is you can establish pretax my showing that you have sapir your vastly greater qualifications but to say that a jury gets to decide whether to equally qualified candidates if that's a basis for pretax no that's that's questioning the business judgment of the employer which is another hallmark in this court which is that the courts are not allowed to to nd gas decisions that on their face don't appear to be discriminatory so at bast you have two or four if you include the other three candidates you have four equally qualified candidates while breaux selected the candidate that it believed was the most qualified and plaintiffs can't dispute that he met the minimum qualifications and that he was minimally qualified for the job and there's not a single in dishes in the record that the search that led to those candidates was tainted with any type of discriminatory animus at all so when i say i don't think there's any evidence of pretax i genuinely believe there is none i think all the only really philosophical argument is probably on the primal facia case ok thank you thank you very  much i'll give you three minutes thank you your honor for your time one thing i would like to say because this hit me early in the argument your reference to the same actor in terms i've done i've done this kind of law a long time and the only application of the same actor inference in any case that i'm aware of is where the individual hires this person into that position and then later terminate said that individual from that position i've never heard the same act or inference applied to somebody promoting to a lower position and then denying a higher position to an individual but i'll i will again that's an inference that's for consideration by the fact finder in any of that what about  then you have me a mr case in any event in any event we're talking about same actor inference and we talk about inference we're talking about weighing credibility we're talking about making a decision is the fact finder the question is whether or not the explanation given by mr riddle and by wall bro was not worthy of belief that's the issue but it is even more framed by this not that it's not worthy of belief but it can a persuasion but as you see here and i'm going to be done here shortly as you see here there is much more here than simply the statement of well mr santelli is a super good lawyer great lawyer and as he stood up here he said well well seemed to accept this explanation and did not protest and when i put mr riddle under oath and asked him that very question he didn't say i went there and gave her all this information he admitted that he went into her office and said i'm looking for someone else outside the organization and turned around and walked out now if that doesn't create for a jury  determination that there is ambiguity here and your honor you have used the word ambiguity ambiguity is for a jury to decide my time is up i thank you very much for your participation and keep out there are your arguments in this matter let's dance of method