appeal the fact the number one the reliance of the police on the issue of immunity is extremely well talked about it in both briefs and we are still of the belief that when this agency was created well this unit of the album department of education was created there was no system a nation that first of all it was the state agency it state department i mean from the from the one nine hundred eighty one claim i mean it it's it appears to me that the state immunity is i just don't see how you get around it not incur immunity just by being part of a state agency and also then the second argument would be that he take the state department of education itself and choice community yes in the  days and i think there's a fairly decent law a lot to say is that the federal social security act says that a state agency makes the disability determination that's what the federal law  provides that is the reason for existence for this this agency and then when you look at alabama the services one of the divisions and services of the state board of education i'm looking at sixteen to three it's organize is empowered to organize and carry out its work and patiently it's overseen by the state superintendent who reports to the state superintendent i mean this does not appear to me at least to be your most promising hired as a state employees i'm not sure if they want to i think now did you actually fall on their personal board rules but once again they were not originally designated as state employees they were added to the state i wasn't clear on from from the record as i understand it you have a failure to promote klein yes you know so it looks like to me that your client was was met the recommend or it was just one of the requirements is a hat where is the record developed on the reasons for the recommendation or is there anything in the record about that there is not your and also this regulation well it doesn't have to be does it i mean if the reason that those individuals were promoted was because they either matter exceeded standards and had received a recommendation from their supervisor and they and agency assert that was a legitimate nondiscriminatory reason for why they were promoted sure whether whether there's a rule about that or not  inference because proud to them doing away with the standard roster process by which they select people for promotion so forth there was no requirement that you recommend about supervised you simply have understood it to me their argument was whether she was eligible for a promotion it's kind of beside the point the reason she didn't get it was because the ones they actually promoted were folks who had been recommended by their supervisors and you know there evidence in the record that you have a policy prior to this you don't have to be a policy i mean so you don't have to have a policy for why you pick one person over another you've got people all of them are eligible according to whatever the policies are now so you know conceivably they are all capable of doing the job but you want to pick the best person i mean look at the person you look at their their employee reveal and you've got individuals who always made or exceed standards and have been recommended by their super motion then you have a chance you have to identify a specific job for which she was not promoted the and i suppose that was vacant and and you know you had an opportunity to promote him to that at that particular time to that particular job that is percent i'm completely irrelevant and i'm you know i'd be willing to bet you could call our court and get well then i guess i mean you know it's one thing if if you get if you really have a case that's on point  that it's common that is just recently come out since everything and it really has something that about which we are to be aware that we might not know about it but boy i can be very helpful but that the number of times i get a twenty eight eligible to be promoted we hadn't that in the same like she didn't know that there was a requirement that she needed her supervisors recommendation i mean what did you know in the in two thousand  two thousand and six or larger standing here this morning and say and they were never aware that that was one of the requirements until this litigation there was a letter she wrote in two thousand and five saying that or her supervisor had failed anyway but the failure to promote in order to be promoted you register the register is put together by the state personnel department the department of  disability services cannot promote somebody that is not on the register and she has not been on the registry since two thousand and seven so anything that she couldn't be promoted after two thousand and seven without violating the r is talking about before that ok and so i think she just about it i think it's in the order somewhere  for the terminations this case is all about there is no similarly situated individual that she was treated less favorably we've gone through all the the i can explain to you if you want it how all the writings are done is very complex not complicated just takes a little while to do it but there are four responsibilities that each disability specialist say yes reading from zero to four is a chart it's in the record of how those are met three of those are objective or totally a mathematical equation the simplest one you take a percentage and if so it falls within each category then that's what the writing is those are that's set out in a document sixty eight forty one through four that lays out the three of those are based on mathematics the other areas developmental quality that is based on the informed opinion of the supervisor they go through to look at the files i think it's too weak at least two week to see what's being done whether or not they're making the calls or whether they're following up with applicant whether they get the medical records the she was told you got six months to get your score up to meet standards she was at a t n she need to get a sixteen point seven at that point she makes complaints that she has more files on other people she does have more files and other disability specialist because she didn't do getting the work out completely she makes a big deal about her qualities course she admirable quality scores but her job is to and all disability specialists job is to make a determination whether an applicant is to receive disability benefits in a timely and accurate manner and that's the problem is the timeliness that she was given six months after she  and she had made it in a deposition that she had received a case management action plan which is given at every three months if you aren't meeting sanders from six or seven of her supervisors it's been a problem all along you main standards if you get a case management plan the order entered by the administrative law judge in the personnel board hearing said that she failed to meet standards and lives one of the four areas of responsibility in the years two thousand and five six eight nine and eleven and twelve so this isn't a recent problem let me talk a little bit you know the summary judgment standard she's got her she never came forward with any credible evidence or any evidence in this bill evidence that she was treated any different than anybody else you know the only person that she compared herself to is jackie  first of all the lead amendment immunity is just part and she pointed out says state law i mean the federal law says it's to be determined by a state notice of terminations she appealed it through the personnel board which is all state related all the grounds all the responsibilities that are set out for the evaluations are determined by the state of this state department of education so everything involved is the state except for the fund and this is really only relevant to the night in eighty one point rather a great eighty one in seven have the same standard held the defendant's motion under the eleventh amendment was under developed and defendant made reassert this argument at a later stage in a more developed record and in a footnote said the denial of the motion to dismiss as alito appeared for the deposition on the date it was scheduled that council chose not to depose hip alito despite his offer to stay as long as it used to and despite knowing that he was unavailable on the twenty ninth and i see no evidence evidence sworn testimony to contradict that in this record the argument ours if i'm remembering the record correctly and it did do you want to i mean are those the compared to others that you think are the best ones or is there a better one i think those compares or are essential but also the fact that there are the entire agency had numerous other disabilities the termination service specialist what's what's your best compare