department violated custom and its past practices in making these employment decisions and there are major issues about the honesty and credibility of the key decision makers and the reasons they gave for the employment decisions or the decision makers he added the same on all three cases well there is a linchpin in this case captain david fudge is one of the key decision makers chief atwood is one of the key decision makers and would result in old three cases we have the same decision makers your honor in in essence we have in this case three cases folded into one we have the case of many garcia i think that makes it difficult by the way in what sense  sense of trying to separate out each of the cases yes i believe that the court should look at each of the cases individually and distinctively two in evaluating the case but the court should also note that the evidence in support of one of the cases for example many garcia also lends credence to the other cases in the sense that captain fudge was the evaluator a man and garcia distinctively what i'm saying is only this that some of the evidence in support of some of the cases might also support the other point of sort of you know as you know has to do that i'm asking i'm asking the court to look at the evidence fully that we presented to the trial court and to this court and look at the cases individually but i thought you were just saying that you wanted to basically weigh the evidence again in one of the cases and apply it to the other two or the other one is that what you're saying all i'm saying your honor is that the court is free and should as we argued look at the treatment of mannie garcia for example and that i appreciate the fact that all of your clients feel they have been discriminated against and they may or may not have a case but each of them individually has they have the burden you have burden of showing the prime of a shit case the city has the burden of showing it legitimate in quotes business reason for what it did and then you have to show pretext and each case is different for example in the case with wolf they claim it didn't know that your client was a native american but i know that i saw no evidence anywhere that says that they did and yet that's the lynchpin of that case is it not what does that have to do with garcia well a couple different points  ok first of all in respect to your earlier comments i disagree and we have put before the court ample authority showing that no the plaintiffs below can use the mcdonnell douglas burden shifting scheme if they choose it's but one tool in the bag to employ in appropriate circumstances the plaintiff is free to disregard that test and that's what we're all case so we're not deciding this under mcdonald it was we are deciding that we have argued big donald douglas in respect to the failure to i would like to address a former question just real quick there is your honor evidence that captain fudge knew that recall thinking was native american we set forth a bunch of evidence in that regard the trial  knowledge to the captain or to the chief here in this case yes i know the court so that we've never done that in this kind of case before have we i understand that the court has repeatedly said that it analyzes these kinds of employment decisions regardless whether they're brought under one thousand nine hundred one one thousand nine hundred three title seven that you will implement clause in the exact same way and so that's what we're asking the court to do here that there's ample evidence showing that captain well that's not determine of honor your honor the defendant will always set forth illegitimate nondiscriminatory reason to always say well this particular person has some sort of performance issues and look we evaluated him favorably in some regards and up here in the others it is not our burden whatsoever in the case law is clear on this point to disprove each of the so called non or nondiscriminatory reasons presented by the defense we don't in fact need to disprove any of them so long as we can point to other evidence that gives rise to a reasonable inference that a significant factor was the person's race the plaintiffs race in this case can you answer my question then go back to answering my question yes your honor would you please remind me what your question why is the different whichever test we use outcome determinant or is it come to term it may or may not be outcome determinative our issue with the mcdon douglas test as applied here is simply this that not all cases fit nicely within that framework and sometimes it's it the trial court will end up reviewing the same evidence over and over and will focus too much on the so called legitimate reasons given by the defense and that's what we think the trial court did here your honor is that it did not draw inferences in favor of the appellant's and if in fact let's talk about the facts that because i think your time is whittling away and so with respect ma ok yes your honor what's your best evidence that there was a discriminatory motive or pretext facia case by showing that he's asian american and despite ranking number two and then number one on the eligibility list for promotion he was repeatedly skipped over in favor of caucasian officers now the defendants say that well montana interview well in these completely subjective chiefs interviews in two thousand and ten two thousand he acknowledged he did interview well well that's that's an issue at in dispute your honor and in fact not out of this hole pour interview sort status that i'm in in a reply brief your honor yes he did send an e mail to chief would saying i didn't interview well and seeking her assistance the deposition testimony of him further says that he didn't believe himself that he didn't interview well that's what he was told by chief atwood and whether or not he thought that anyway which he didn't and the record shows that he didn't believe that he was just told that that doesn't decide or is determine of this case and i would like to walk and then worse talk then about his supervisory experience i think he was also toed that if he wanted to be you know really a serious candidate correct first of all i just want to highlight that the defense does not prevail if they can point to one legitimate reason no there can be more nimble of couple i just this is your chance to respond so if you say that's correct he didn't apply for opportunities that he was told he should and then he doesn't get it after that where where is the discriminatory motive here it is it's in all the pretext i would like to walk the court through this in respect to the m p o position that you were just discussing your honor first of all there's evidence showing that that didn't make a difference in at once decision whatsoever right repeatedly sought to be appointed to a long or short term acting sargeant position by order of the chief chief at what testified that it in p o position gives a candidate experience because they get in that position to be an acting sargeant yet she would repeatedly denied mas known requests to be made an acting sergeant instead questionably appointing an officer who was who failed to promotional exam which was in violation of the department's past custom to appoint an officer from that's on the eligibility list so there's we show that the m p o position didn't matter she'd been appointed another person to the m p o position a caucasian who had known deficiencies and there's ample evidence of pretexts also and i'd like to walk the court do that this goes to garcia you have three three people here let's go to garcia give me your best your best evidence on why there was discriminatory mode with respect to mr with respect to mr garcia there is discriminatory motive in a variety of ways first of all this was the first demotion of any officer who had been promoted to do ten in the known history of the department and it was done based entirely on the evaluations of david fudge who has a history of race discrimination and for which a jury found him and the city of liable in the past he treated garcia differently than other caucasian lieutenants his whole demeanor his tone of voice use condescending dismissive belittling of garcia the department refused to allow an independent evaluation of garcia's performance or to extend his probation and he was period like they had done in the cage improvement plan from what i recall because he had trouble with the paperwork i want to know more about that what was the trouble with the paperwork from your view and why was that pretextual many instances where he claims that miss represented the events that he set forth in his evaluations that ultimately led to this development plan that was done late in violation of department policy that misrepresented and exaggerated the number of deficiencies in regard to the paper work that he included events that occurred outside the probationary period in violation of policy but importantly he can text contests the factual underlying bases of these evaluations is mess misrepresenting these issues in the evaluations and your honors i really do encourage you morning your honour's james sanders for apple leaves the city of everett former chief of police cathy atwood and current captain david five may please the court let me start talking about the standard of that was presented argued because it does make a difference i would say it's outcome determinative because summary judgment was appropriate regardless of the standard but if in fact appellants decide to do away with mcdonald douglas test they have no chance of prevailing at trial mcdonnell douglas gives them or a summary judgment mcdonnell douglas gives them a presumption a rebuttable presumption of discrimination without mcdonnell douglas they do not have a rebuttable presumption of discrimination and they need that in this case because we've got three different plaintiffs roughly a dozen different decision makers a very ample record that was fully litigated and there is not a single instance anywhere in this record of a single one of these twelve or so decision makers ever saying anything that evidence to a discriminatory bias towards chinese americans or asian americans or native americans or mexican americans there's not a single shred of evidence of anyone ever guilty of discrimination my record shows that it didn't find that he took any discount reaction is that correct or that you know if you're correct election is correct or honor and that highlights an issue that i would i would urge and it frankly it seems like the panel has done that already but i would urge the panel to look closely at the record and not so much as well as what is alleged in the briefing and here are a largemouth there is no evidence in the record that david five has ever indicated any sense of racial animosity towards anyone he had a citizen complaint from an african through that and i don't think that's correctly stated your honor or is supported in the record the way the rule of three works is that any time for any individual decision for promotion there must be three candidates to choose from so if you have four people on the eligibility list and two openings you have to add other people to the list as soon as you run out of it so you could you could actually work for you actually could could get there but you at a certain point you have to add people to the eligible eligibility roster because every time you make an individual decision that somebody is going to be promoted there must be two other people that are being considered for that same decision and that happened in every single one of and this instance larcher on from the civil service exam exactly scores well it's not just scores you're on it there are other factors that come into play as well including seniority sergeant garcia for example got a significant bump in his position by virtue of seniority with the department and so there are other factors that come into play as well it's test scores there are some oral examinations there's a variety of things that that go into the civil service score but it's not just a test you understand that there's a case called how long that you follow and in applying this rule of three correct there's a in when they're concurrent openings you're making the decisions contemporaneously zero simultaneously as opposed to one by one now well if you did it one by one the rule would require that you bump up people if you do stumble taney asleep then you interpreted the rule to double you could you could meet the rule of satisfy the rule by doubling the number of positions you'd still have to take each selection from the top three candidates right so he does the decisions can be made at once but they still have to be done sorry on in terms of the actual decision when you make a decision there's got to be two people also in that pool for that person so you wouldn't necessarily wouldn't you couldn't go down to number six for example because you had one two and three you could when you made your third selection you would have to have at least two other people still remaining in the pool and to understand correctly the under hello long as you have the three people selected you could conceivably have one person that was in the group of three repeatedly and not be selected so long as it's not discriminatory and still comply with elements like that or not is about is correct that is correct there is no there is no guarantee that because you get on the lest one person and then you make the decision again and then you add another person and you make that's what the hell i'm according to you provides and that's what the rule and that's what was done in this case i mean it is critical i think to a functioning the partment in this is  for prospective here this is we're talking about pulled the police department one of the most important functions our government the us leadership within the police department is very important the rule of the three provides that they can you always have candidates to choose from it's not an automatic selection process that so the interview process then is the only thing then that the police the people who are decision makers have to decide on but certainly not your honor this is the department has roughly two hundred employees and they know each other a lot of these people have been here forever chief templeman right now the current chief of police who was involved in most of the decisions this case by the way asian american he started as a as a city employee then joined the police department as an officer then became a sergeant then became a lieutenant then became a captain then a deputy chief and then finally the chief i mean they know each other so there's other things that come into play as well as your personal experiences with the officers their performance reviews people in the leadership people that are making these promotional decisions review performance evaluations so there are many things that come into play in addition to the interview and the tast cuts both ways when we're looking at the well and i do agree with that usually i would think an interview will not disqualify somebody from being promoted but this was an exceptional case so let's talk about each of about like with your with your colleague across the bar here so with respect to mr ma sound like the had a poor interview he had knowledge she had a po interview and that was enough it was it was an exceptionally poor interview your honor the every single member of the panel thought it was one of the poorest interviews that they had ever seen and the actual details of what was said are largely not in dispute you can look at officer mas testimony it's that's at the further excerpts of record one thousand to one thirty three most of the very same things are discussed but there's one in particular i want to highlight because this was and at least  hellman's mind the most significant issue when you're promoting an officer to the sergeant position they are now making a transition to no longer be a peer or a body of their coworkers and that they're not going to be a leader and one of the things that officer m stated during the interview when he was asked about an example of when he had shown leadership was that he had observed another officer do something that was inappropriate per the policy and then he advised that officer and this is his own words from his deposition how to perform his duties in a way so he quote wouldn't be focused on he also describes as how to perform his duties without drawing attention to himself and to avoid being under scrutiny that's all from his deposition testimony and in it in chief you that was one of the most significant issues because he's got to be a leader he's got to enforce rules he can't be telling people how to cover up compton also referenced that someone was appointed over him who had fail eligibility exam can you talk to me about that there's no evidence of that in the record ok now let's move on to mr garcia ok mr garcia i think similar to that similar we don't have a acknowledgement or a whole universe of officers decision makers saying he had the worst interview here it was about paperwork i'm trying to figure out exactly what's going on here can you talk to me because  i mean he was put on a performance improvement plan because of paperwork well every every sergeant has promoted a lieutenant has a one hundred eighty day per probation period now sergeant garcia was promoted by a panel that includes event chief shar f deputy chief cathy atwood who later became chief and also dan templeman those are the three people that made the decision to promote him he was then put through the probation period just like everybody else and you can see there's a very thorough record it's that excerpts of record ten starts at ten thirty eight and goes to eleven twenty six three very thorough written evaluations of how he's doing during a probationary period and paperwork certainly is one of the issues and it's an important issue for lieutenants because they're now at the role where they're sort of ministry of lee running and we're talking about the first demotion in your part in the department here so i mean it seems a little suspect it is the first time that somebody did not pass the probationary period but the details in the specifics are very significant there are multiple instances and these are detailed instances that are not disputed in the record there are multiple instances where sergeant garcia is turning in paperwork missing forms missing pages missing signatures and it happens over and over and over again and it continues to happen until one hundred eighty day period is over now at a certain point you have to rely on a lieutenant to be able to perform these basic functions of their job without worrying that they're always going to get a wrong sounds like though from everybody all the plaintiff's perspective mr fudge was an instigator in a lot of ways and seemed to be all around these three individuals application i  guess that can cut both ways well talk to me about your best argument regarding why what is alleged about mr fudge should not be considered or should not go toward the discriminatory motive that will have to i would propose that captain figes focus is more a lawyer choice than it is reflective of the record or what's actually happened in reality now captain five had just been promoted to captain when he took over  f during his probationary period and he is the record is undisputed captain fudge is a tough grader he is a tough commander he has very high expectations from everybody there are more multiple instances of the record where witnesses confirm this so what happened to sergeant garcia this happened everybody else know his case was consequential absolutely he lost a promotion but he has there's no real dispute about whether or not captain fudged was correct or not in the concerns he it was a discriminatory motive well let's start with sergeant garcia because we're focusing on that right now captain fudge is not a decision maker in that case sergeant garcia is promoted by and we're running out of time to run through each of them  quickly sergeant but captain five is not a decision maker he provides input through the process including the performance development plan but dan templeman current chief is also involved at every step of the way and in fact is meeting with sergeant garcia every week every period you also have kathy atwood's declaration where she says she was apprised consistently throughout the period of what was going on and had a chance to look at it and see what was going on as well they made the decision that no involvement whatsoever in the probation and the promotional decision that the claim is that he had input but that's not supported in the record he wasn't he wasn't even involved he was sergeant washington supervisor for a very brief adly was the decision making at what was the decision maker a regards to sherman ma sergeant garcia is not involved i'm sorry captain fides there are so many names captain figes not involved in any way shape or form with sergeant mas decision never supervising was never involved in any way from i had not done the things that kathy i would ask him to do and that was that after meeting with him to talk about what he needed to do to do better right well this was subsequent to that right she had she he has his first interview does very badly when she meets with him gives him period that the first list it's at e r eleven fifty nine has mr mock ranks second and miss carmen is not listed the second list is that eleven sixty has ms carmen ranked first and mr ma is not listed and i just kind of confused with these two lists and the overlapping applicability dates i remember there was there was a there was a subsequent list generated because had run out of eligible candidates and officer mob was was as a courtesy was put back on the list the lot another chance for for supers it was this was the it was a second entirely new list that was generated after a second round of testing question i do i'm sorry i know we have gone a little bit over have to couple questions so does the department the size but he's someone on performance improvement plan do they do anything to help people get  from sergeant i've imagined diversion is important i would think to city of everett dallas aleut absolutely not and in this particular case the performance improvement plan was exactly that this was an every week every week captain and deputy chief templeman sat down with with sergeant garcia acting lieutenant r c at the time every week they met with him to go over things to help him and he did actually improve in a lot of areas throughout the course of the promotion probationary period so they worked very aggressively with him but he never got to the point where they felt like they could actually trust him unsupervised to get the administrative details of the job done right and that's critical critical in policing other thing is even though mr fudge wasn't decision makers seems like he was giving mr percy a hard time you said that he's just a hard person and would take the allegations is true seemed you know one perception is that he was giving him a hard time i see you smiling so i hope you don't have a serious response no no it's a no it is it's a serious question i would captain fudge there are multiple instances in the record were caucasian officers also said that captain fudge is very tough he is very tough i put sometimes that's what you want in an officer in place he is a very tough commanding officer and there is caucasian say that just as much as  garcia i have just one last but the last question mr compton argues in his brief that we should apply this as a think is a strong case the u s supreme court case where we use the fact that mr here he's arguing that mr fudge knew about the native american status of mr wolf in turn and go ahead and assign that to captain atwood based on this stall versus absolutely absolutely and in addition it's undisputed kathy out with everybody else involved nobody had any idea that sergeant wilkinson identified as native american and nobody had any idea about the complaining made frank what's in terms of their television there's no counsel thank you honors i would like to address a couple different things counsel was a little bit loose with the record we do cite to e r six four to seven through six four three ten that show that captain fudge does have a history of a race based discrimination only about that you cited earlier case you claim that he was found to be discriminatory that's not what i understood was he found to be discriminatory in that nine hundred ninety when he testified that there was a lawsuit brought against him and the city of everett and that it had to do with race discrimination that it was brought by an african american woman and a jury found him in the city one third liable for that for that event that's your does your first point to other evidence in the record to support his claim that fudge has a history of her races attitude or behavior i'm just trying to figure out what we do with this lone citation  especially when you're alleging a history known history a racist attitudes and behaviors your honor this is just what we are just talking about someone playing a loose i want you to address that ok well first of all we draw all reasonable of the plaintiffs of course of the time of trial we've put more evidence about this on but that testimony from david fudge the reasonable inference is yes it is about race discrimination that's what  asked him specifically and he said a jury found him liable for that allegation but with respect i think you're really distorting the record here really is there anything besides that case that on which you base your allegations just name a date place time anything where he has been shown to have racist attitudes what are you citing your honor that is a reasonable inference based on all the testimony from many garcia the other evidence that we put in the record we do not need to show that he made some direct statement hey i don't like you know a certain class of people you know these kinds of cases are often and appropriately based on circumstantial evidence the wrongdo melt announce his or her motivations and proclaim that he harbors some sort of animosity and the supreme court and i think we have your point your questions by my colleague ok thank you your your time is expired we thank both counsel for their argument in this case the case just argued is