general with the state in one nine hundred eighty eight he's had two stents as a hospital director performing the actual mandate so the job he was a hospital director from october nineteenth ninety nine to march two thousand and five he was a hospital director from june two thousand and six to june two thousand and eight the position yes it would appear that we have to qualified candidates one with clinical client had been in a job for eight years so if you look at the original job description for a formosa that's where they have the original criteria the whole purpose of the civil service process when they create the job descriptions they go through the whole the now  to determine what educational requirements it essential to the job they're looking at whether or not whether or not there's a special skill required for this job mind you my client had been in that job in the past sixty percent of the individuals who are directors has five positions sixty percent do not have the requisite criteria that was disclosure near the criteria that the defendants create so the first place to look your honor is looking at the job description itself the second place to look at the neurons the position which we classify to a level eighteen which is a promoted position that that job description does not contain they add it criteria in list clinical responsibilities as an essential function of the job so you have these things going with simultaneously which change into the criteria we have a situation here where in two thousand and eight my client had prior protected activity he filed complaints against his boss in two thousand and five challenging her credentials as a result he followed technical complaint technical complaints go through the state civil service client challenges that as a result of that at some point there was some resolution where my client was given a position as a director at the water with the facility and then we have a situation where the position becomes open again in two thousand and  other alleging again they don't revisiting the two thousand and eight mitigation because he had already had a trial and that the trial was not completed until march two thousand and eleven but you do have a scenario in that wonder what time the requisite person had two years of direct clinical experience direct clinical experience as a physician psychologist or psychologist to make this a little more explicit in terms of the retaliation claim as i understand it the person who was removed from a position pursuant to a come ministre to live removed even though your protected class if we talk about qualified for the position he's clearly qualified for the position when i say it's a promotion it's an increase in supervisory responsibility is a bit bigger budget sixty five million that is position so it's actually at first employment action what one thing that doesn't seem to be clear here in the record is the with respect to the so called selective position a requirement quite a was created by sent to kelly joe collins they created the criteria they knew and they testified that they were aware that prior to the time that they created his criteria what kill holden's qualifications would be what my clients could then choose were in the room poorly it's important to know that to position was relegated it was relegated to an internal posting only to that department so they knew they had a time who had clients from being qualified for the position exactly in retaliation and differential treatment in terms that they wanted my client to be excluded if you couple that when you wanted to fact that the judge made a a crucial error in his analysis a whole case the judge indicated that if the defendant had that criteria well as an important criteria when another director's position became open what they do is they still let another directive who doesn't have the criteria at all he has a major in political science health administration he doesn't have the requisite scale said that they claimed today was moving one direction to create so that undermines the whole argument that that's the prefer criteria because the opportunity had presented itself to hire a director and hired a new director and that person doesn't have it so it undermines their credibility in that regard we talking about credibility and i'm just saying getting to a jury in terms of a jury a jury would at least be questions i'm sorry yes judge i'm sorry well i mean we talked about the clinician experience that aside what about the elephant in the world your client was disciplined and removed from a hospital directorship two years before this what reasonable business person would hire somebody who'd been disciplined and removed from the position well one had ever had a business justification to tell you the things that's important in the defense is first responded to the e e o c complaint they indicated that the only reason that my client didn't get the position was because he didn't have the requisite criteria it was only in the midst of litigation defense has created that the case law is clear if you change your rationale and you have chipped in justification in the midst of litigation then the other thing is attacking her directly my client was not disciplined it came to a situation where think he went through the technical complaint process and they learned that it wasn't disciplinary because they had a right to reserve the right to transfer him to another facility so it was a disciplinary so they cannot have the best of both worlds here so to address that directly the hiring of richard also a caucasian male after the fact does not help my case because mr young was hired before the s p r was created that's untrue and that's true factual least in the process that this was not allowed under the civil service rules so it's not good faith you can say good faith when everybody knew you had to beginning that this was not the law going to be able to change the civil service rules to accommodate that civil service in the facilitation room at this point i doubt that the argument that you were making may resign your papers for us that the clinical requirement was put in there  so that the defendants could back the preferred person that they already have decided that they want it and that's exactly what you and your client that's true ok so you're out of what do you have to say about that sure let me tell you who i am an assistant attorney general john fund and skim hearing on the half the state of michigan let me begin with the question judge strange rose which was what do you look at when you have two qualified candidates i think the presumption in that question is carol holden met the minimum qualifications mr weeks the plaintiff met the minimum qualifications and i think the answer is you look at the record evidence and you look at what legitimate business criteria the plaintiff was not qualified for the british and because you had to have clinical experience and he was made one of the two finalists with the person who was selected even though he didn't have the clinical experience so the question will and then there were other applicants that were excluded and the question arises why did you mean why did your client make him a finalist if he didn't have the threshold qualifications t even be in the process or what what would what would you say about that well i would point out a few other facts i think one fact is that mr weeks submitted a late application so on that basis alone his application could have been screened out and so if there was a retaliatory intent or motive here to discriminate against mr weeks why go to the bother of this grand conspiracy to create a special position requirement the involvement of the civil service staff  the review and approval of that special position requirement is important because it breaks the chain of causation for both the race discrimination claim and the retaliation claim the people who knew up to the fact that we th discriminatory intent over a tally of tory design then that and that gave rise to the decision in the first place well i i would respectfully disagree on or it does because the people have been identified as being aware of the prior protected activity or cindy kelly might head and job collins but they did not control the process for creating and approving the s p r people who didn't know any of that protected activity were the ones who reviewed and approved it you honor the reason that they said that because it was in light of what a hearing officer in the civil service commission decided which was the way the rule is written you can have narrowing of qualifications for example we require a bachelor's degree for this specific position but we want a science based bachelor degree the difference here was a higher order of experience is what the s p r called for and mike had testified as to what his business reasons for that were and the civil service staff looked at and said well this is a bit unusual usually it narrows what their experience is it doesn't elevate it but what they also said is in the case of for example a general coun position where a jersey doctor degree would be required in those cases a special position requirements were approved where the minimum qualification for a job was a bachelor's degree and as to treatment pointed out in his opinion this presents i think record evidence and a solid basis for the civil service commission while or that civil service staff while ultimately mistaken subsequently once a hearing officer looked at the issue and read the rule when they looked at it they said well we have some precedent for this let's run it up the chain of command they don't know who resent this weeks's they don't know any of the history of the litigation or the technical complaints and it got approved and once the department got that approval they use the s p r the s p r i think in terms of its practical application simply screens for interviews and screen candidates what the hearing officer recognised and what judge friedman recognised is you need to look good and on a higher level of causation and that is what have made a difference anyway judge black mentioned the elephant in the room what business what government operation would hire someone who has the checkered past and the performance issues they m that the record indicates that you didn't exercise your business judgment that what happened was she narrowed the category down to two candidates and then you said you're not qualified because you don't meet the our requirement and you did not in fact look beyond that i'm just i'm struggling to understand how you can rely on business judgment when you didn't exercise it well in terms of care or holdens qualification there is a record basis for that there's a memorandum written about what her experience was her resume but no the question the nub of the question is what actually happened here you had seven candidates  you looked at the two and you said you do not qualify because you don't meet the s p r so i'm not understanding how we ever reach independent business judgment because the whole ball getting is that he is removed from the possibility of having the job because of the s p r and so are five other candidates of various rebut and we're talking about this one and then here help me understand it seems to me that when you made that decision all of your business argument justification fall away because you don't get to use those age as a justification nail because you did not exercise business judgment then so we're there is any evidence that there was a desire to have clinical experience or any inform policy that would state that or anything per the deposition my kid who is the supervisor of sin the kelley who said he relied on his years of experience in the department community in mental health where he said we want to avoid patient abuse scandals we want well run hospitals and facilities that are run by people with clinical background in my judgment based on my experience are better wrong and mr mason mentioned that sixty percent of hospital directors don't have that experience while those folks are grandfathered in and they have a track record of running a history in terms of hiring practices and the hearing officer and judge friedman both said it's a plus it's a bonus having clinical experience running a facility and yes judge he suggests that having a clinic clinical experience helps avoid patient abuse that's right that's what judge atman reason i'm sorry that's what judge friedman reason that's what the hearing officer reason than in his decision rejecting the grievance here in the plaintiff was removed from his prior directorship based on a patient abuse scandal that's correct and his interference in an investigation that wouldn't that highlight the business judgment decision to be sure that the new director is a clinician absolutely i think it would and  in terms of what the record has and what the record flecks there wasn't fact discipline imposed in that situation it was a written reprimand you know i'm having one problem here here that the the position you've officially taken in their briefs and such is that you say that the plaintiff is qualified for the position and and if if if he was involved in some kind of patient of abuse something different well your honor i don't mean a split hairs but i guess if you need to look at the body of qualifications i think minimum qualifications is what is set out in a position description and a position description says a level of experience level of education things of that sort of doesn't say lack of prior performance issues and what we have argued in our papers is that these two candidates were not similarly situated and that's important both the race discrimination claim and the retaliation claim but that that argument is based on the s p r because it's based on the s p r but it's also based on the backgrounds of both the both the candidates carol holden his ph d twenty three years of increasing experience she was acting director of the very facility that was looking to have the position filled she worked with the prior family you can help me here let me let me just get into what's concerning these are all really good arguments these are all what you're saying are good arguments for why perhaps the plaintiff was not the best person for this job but my concern is that that wasn't why he was excluded what we have as i understand the record and correct me if i'm wrong we have seven narrowed to two the plaintiff was excluded because he didn't meet the s p r that was it so i'm not sure how we is judged this can come in later and say well you would have won anyway because that's not the basis of your decision it seems the question before us is is there a dispute of material fact on the s p r itself because that was the criteria used to exclude him you know you could have not only excluded him on that and gone down the whole nine yards in that what we'd be looking at is that record and your exercise of business judgment a problem is the way the case is presented well i see that your hon but i suppose you know maybe i don't know if it's the right analogy but if a court dismisses something on standing in and says in the alternative you'd lose on the merits you have two issues there and there's one that's operative we are not the  the personnel department and i don't if there is a dispute effect as to whether it's more important that you hey ed a problem in your record or it's more important that you have no administrative experience that someone else's decision that's not ours the question that's presented to us is if you exclude someone on this criteria which is what you did the and is there a dispute of material fact as to whether that criteria was discriminatorily imposed i don't see how we have anything else before us well and if that's the sort of road of least resistance of say based upon this record and judge friedman's opinion and the analysis that's p r was legitimately presented legitimately approved and in it which intimate business reasons behind it and all the plaintiff has presented are conclusory conspiratorial type allegations about the creation and the application of this s p r and i think the the causation argument i think can bolster that argument because really just you are simply denied an interview opportunity it didn't entirely guide the decision if you look it in terms of ok let's set aside the s p r what would have happened mr weeks might have been interviewed or would have been interviewed and ms holden would have been interviewed and then what would happen and i think this court can determine as a matter of law between those two are they similarly situated who has any reasonable prospect of being hired and the decision to hire holden is there anything unlawful or improper that requires federal review and the answer there is no and the merits of the decision to appoint her i think are important on their that framework because it's not as though someone minimally qualified or under qualified or someone who really had no business getting this job got the job the selective position requirement here who wrote that well my understanding is that as the requesting party of the partner community health would write it up and so it would have been a team effort of head collins and kelly and then the civil service staff robinson and cooper would have taken that and run it through their independent review process ok what don't you see a problem here and sent to kelly was involved in writing the selective position requirement that resulted in her been getting the job in plain of not getting the job in your kelly was removed from previously removed removed from her position in the ministry of it as a result of a complaint that the plaintiff had made and all of this from saab obviously in relation to the a list retaliation issue i guess what i would say briefly is my time's expired is that the case law in the kates temp or proximity is not enough and i think in any situation where you have an unsuccessful employment litigant who's previously alleged race discrimination o retaliation this case mr weeks went to jury trial did not prevail that shouldn't provide license for subsequent lawsuits simply because the yeah they all still happen to work together there was no one else in the chain of command who would do this she has to be able and free to go about her business the department has to be able to free to go about its business and mr weeks is still on the payroll and the fact that he's in that chain of command up itself on the back to the prior have clinical experience if there was a desire to have clinical experience then hire a richard young who doesn't have any of the holes criteria undermines that entire rationale and creates a understand that it's a it that the qualification process they only indicate it one purportedly getting a reason what i'm saying is that it filtered down to two people and only disqualifying fact it was to create it as p r just  experience in this holding head is not even a job we quiet for the job clinical responsibilities are not important for the job if it was it would have been contained in the reclassified position that miss holding get what is there in the record that says quote clinical experience is not appropriate for this the civil service rules that all the way up to change that clinical experience was not a requisite of the job based on the clear language of the job description and has been a ruling on that in the new civil service new passively that this was not allowable was that which are quite former boss it was about that this exclusionary  addition was unlawful and made it want to trial it was dealing with issues in terms of discrimination terms that a position that miss miss kelly had gotten to be with the boss he was challenging position and they didn't look beyond the one reason they look at behind the reason retroactively today but they only had one reason and for those reasons i think they are contested genuine issues of fact and then respect