promotional opportunities now that the state does commit that my client does not have a good work history and with a poor performer that you never received respectively told my client that he was not going to be promoted because he was you know so your point me a point i take it is that leaving the position vacant doesn't refute discrimination it just means that the agency chose nobody in preference to mistress i can as opposed to choosing somebody in preference to mr so i can but if he was if absent discrimination maybe it wouldn't have been left open because even if organizations and ultimately had to find a theory on these promotional opportunities although he never met with any candidate and it was basically bumper stamp from probably get subordinate in that resume which was training counseling subordinates and providing feedback to support the summary judgment on mr cycles claims regarding each of these positions should be affirmed based on the undisputed record below for the position in the owner addictions unit it's undisputed that the agency elevated the person with already been performing the supervisory role for several years and it's also undisputed that the only person mr steichen accuses of discriminatory animus miss mccrae didn't know who else applied for this position so there is no way that animus against mr psi can could have been a motivating factor for this determination next for the property management your position it's undisputed that all three decision makers accurately represent a supervisory and training experience the strict autonomy offered detailed under but a testimony about his views based on his personal knowledge of mr nd performance mr scola reference the fact that mr psychic hasn't received an satisfactory rating but being satisfactory in a non supervisory job doesn't mean a person is qualified to be promoted to a supervisory role and supervise others  reach based on his personal knowledge of mr strike and resume and a supervisory experience and that's at page five hundred and forty four of the record so there's no evidence for this position that there was any unique c and i can remember the wording he just used but how can we say that there is no you know that no reasonable jury could find discrimination just in light of that i think for a couple of reasons in the unique facts of this particular offered any evidence that anything is mcrae contributed to this hiring process was the cause or a proximate cause of promotion denial or i think four or five different people in those interviews and multiple decision makers above this mccrae and it is mr psychic burden to demonstrate either that a contribution by ms mcrae was a buck or cause or at a minimum a motivating factor and looking at the facts of this particular hiring determination he hasn't done that there's nothing in the flow chart that evidently came from his mcrae there is no other evidence that anything she said as opposed to something lance contributor mr china contributed or the deputy commissioner contributed was a motivating factor for the determination to keep this position vacant it's also for this particular position is undisputed that the agency rejected several candidates with considerably more supervisory experience than mr psych and i point the court there to pages five hundred and forty five dollars of the record five hundred and ninety three  he had supervisory experience so that's a period of maybe one month before these interviews took place and in early december and does not support the statements used to school made about mr nd supervisor experience so the comparison is between i don't want to comparison there were multiple candidates who didn't qualify for this position to fight having between one and two or more than two decades of supervisor experience and mr sipe at the time although not recorded on his resume candidates he had reviewed their resumes had formed opinions about the candidate based on his own making the rounds in the agency and his view was that mr psyching was not with among the weaker candidate in the record pages three hundred and eighty five to three hundred and eighty eight that show issues that mr nd had with two different supervisors at the agency documenting issues of that nature   he was one of the final interviews his references were being checked and ms mcrae who is the person who the jury could find was biased gives a very damning account of mr  remaining interview with mr slike and so mr baker has testimony is that that's what the group determined after completing mr nd interview and it is true or at least it is understood that as part of his normal process of group decided to hire mr locke once the remaining interview was completed and the remaining interview as described there based on the dates with mr cycle but was that before or after his references were checked that i understand was you're saying that the no no reasonable reasonable jury would have to conclude that if ms mcrae had told the maaco when he checked the references that mr psych in was the greatest employee ever it wouldn't matter because it that even when asked whether he would take the job if he couldn't keep his short of schedule mr cycling well mr nd responded that he would only consider taking the job if he could keep its progress schedule and those comments are reflected and enlightened person might think shows some bias and that gets written off as a stray remark is there any case where we called something a stray remark where it was expressly a judgment about  based on somebody's religion or other protected category b it was made directly to that person and see it was linked to a statement that you will never get promoted if you keep behaving the same way i mean that's pretty hard to call that a stray remark isn't it i think that that's a fair point and i can point the court to any particular case where that is what occurred and which is why i want to get to my final point which is an rebutted point in the state reef regarding inconsistent version reference to promotional prospects and here he says he can't remember the date it happens or whether it happened in the macraes office and less than six weeks later on the st day of his deposition he mentions the sleeping incident and  his testimony this is a page one hundred and seventy four of the d record and two hundred and twenty two of the record are just portray starkly different versions of what is purportedly the same conversation in one he describes a but yeah i just want to say it is it doesn't make any sense that someone would interview a candidate determine that candidate to be horribly enough like this to a determined that that there's no way to get his