title seven case and nd to determine whether their granting of summary judgment in this matter was proper and when we look at the standard under title seven the nine hundred and ninety one dollars amendment to the civil rights act granted a plaintiff limited recovery if they can demonstrate that gender was a motivating factor in their employer's decision just goes alone because yes the mixed motive amendments really because i understand the law come into play at the stage of jury instructions and strategy from both sides i think it would be most helpful today if you would focus your attention only evidence concerning the way ms trawl and the other candidates were treated in the process and the explanations given advisories times by the school system for its decisions yes absolutely so throughout the process for two different assistant cross country coaching positions in the same school district she st applied for the girl's cross country position then she applied for the boy's cross country position in both instances she was up against one male candidate both times she faced different treatment through the interview process and then received different explanations for why she was not hired drop this entire process there were no females making any part of the decision on behalf of the school would miss jo learned of the girl's assistant cross country position opening she had to enlist the help of her union delegates to even get granted an interview the male candidate that was coaching in a different school system and had no ties to the district didn't need to get any help getting the interview when ms jo went into that interview for that coaching position she was question more about her personal background and her commitments to her family than about her experience as a high school runner a college runner and a coach at three different levels it's the middle school level the high school had similar kind of background in the sense that he had dropped out of an earlier coaching position for family reasons and was not asked about the correct that is that's what the evidence shows is that when he went into his interview he was asked about his coaching philosophy and his position as a coach none of these questions were ever asked him his job the only female applicant for that position afterwords even though our athletic director hofer said that they are not going to look at references intil recommendation is being made to the board eighty hofer chose to contact each of ms jo references that included boys cross country coach erin craig who said she would be phenomenal for the position and another administrators from within the district her principal mr polite mr polite while giving a reference said that she had a dominant personality which the athletic director ed made it gave him pause and hesitation when considering whether to hire her the record also shows my understanding is she coaches track but i don't believe she'd go to cross country doesn't she coach both boys and girls yes if it was a true back at the time so were years ago when this happened yes when she was coaching she was coaching both boys and girls so she had experience coaching both at all three levels of thinking now after the school chose to hire the male candidate that had no ties to the district previously they explained that he had more recent high school coaching experience as the reason that they hired him and not his job was or any reference to mr or dano having a better reporter with the girls there was no reference of that what there is reference in the record though is that the former assistant girls cross country coach worked at a local running shop with mr donahoe so that the belief is he had knowledge of the position before it was ever posted next the boys assistant cross country coach position became posted at that point mr face one male candidate and after going through the interview process again when she was not selected she was told that  he had a bet the other coach had a better report with the boys later that explanation changed to he was already in the school district you know shows will be right you've got it in the in the high school excuse me this shows pretext on its face because none of those criteria were established documented or provided to candidates at the time of application and these explanations were not provided until after the school was trying to justify their reason for not hiring ms no i mean an employer is not prohibited from you know since coming up with new criteria to distinguish among qualified candidates right the fact that i understood your case to be focused primarily on the you consistency between the rationale for the girls and the boys decision and the shifting explanations rather than just the fact we relied on some criteria that weren't published correct but that the criteria changed throughout it and the case law is clear that aid employer cannot rely on criteria that were not published at the time that are developed retroactively as their explanation without there being an inference a pretext and that was not the only inference a pretext in this case his job as the only female applicant did not have a chance to discuss or coaching philosophy as i mentioned and when she applied for the boy's cross country position the references of the male applicant were never checked because the athletic director sat he was already within the school system at this time i'd like to hurt reserve unless there's any jones claims of discrimination both test to gender and discrimination as age related to two hiring decisions and because opposing counsels and an argument was focused on what he perceives as the differences between those two interviews i kind of want to jump all evidence before the score for example counsel just testified at that ms joel had to get her union help to obtain an interview she has no idea as to whether or not that interview would have been scheduled otherwise whether or not another person had to also get you know help or whether she just simply asked her unit for help and didn't even need it it's purely based on speculation that the only reason she got this interview was because she had to get her union involved the other thing is that mr joel relies on in employment decisions and in employment decisions i have not had that specifically referenced in employment decision and my experience defending school corporations that being said there's no evidence that the reason why she wasn't hired was because of this dominant h coaching at i believe at the track and then also had been volunteering as a cross country coach at the time at the high school and when the going to coach high school said mr craftsman had been coaching high school track and volunteering as a cross country coach at the high school and i apologize if my notes don't specifically state when he started but that being so that was an important reason for both decisions but another important difference that i think that plaintiff doesn't point out and i think matters is that for the st interview it wasn't i thought attractor normally the thought of director and the head coach are the ones that perform these these interviews st and coaches write that letter charger was out on medical leave so they had someone else substitute that's logic director that is the one that comes back in and checks the references for the girls cross cross country coach so when you see in the briefs they're talking about eighty hoffer that's who we're talking about eighty hoffer participated in the nd decision now and boys cross country coach which interestingly enough the head coach for the boys cross country is someone that wrote her a of athletic director they know what's going on she gives two reasons one i don't have time to coach right now because i have my two girls and i'm going to their track meets and i'm trying to make time constraints number t know her other daughter was down to college and so she just didn't have the time to do that so when we fast forward a year and a half and what was her situation situation was a totally different school corporation they didn't even know that he had them the year before that i can't have my husband being the only one driving the kids back and forth i can't be my husband have my husband be the only one attending these means so when she put that out there the year before and then literally eighteen months later applies for a job i think it's fair for them player to say listen you resigned from a position that you had with us because you had these time constraints and concerns what's changed  he had resigned from a similar position from the same school corporation they didn't have that background knowledge that the questions they ask questions about availability they did ask questions about i've availability i believe that's contained in the record but specific as to whether or not she could parent and i think that's disputed but for purposes of summary judgment let's assume it's true they asked those questions based on the background information they had regarding her and what why she had resigned from her position they were before and so that's not a gender or age specific reason that's a reason based on the relationship that they had with her because she was a longstanding employee and so when when as a community school says we want a coach with more recent high school coaching experience the records undisputed that these two both did that's a gender neutral reason that's an age neutral reason there's no evidence before this court that anyone at all praise a community schools thought that reason was dishonest that they didn't actually believe that reason or that they didn't think it was a good qualification and that's what pretext is right it's not nd guessing them players association it's saying in the grand scheme of things did they believe this decision was the right one to make and your honors there's no evidence before you that valparaiso didn't didn't believe the decision for not hiring mistral she stays on as a teacher in fact she coaches of middle school level now this isn't a situation where valpo is trying to hide some sort of discriminatory actions and quite frankly this whole case turns on pretext that that's what plaintiffs has now been kind of pounding the table on and on appeal and there's no evidence that anyone at dapo harbored any respectfully i think if you take a good look at the record one some of those circumstantial treatments are i'm sorry some of that differing treatment is not based on a missile evidence it's based on the still speculation and in fact she said when when she was testified in her deposition when asked why she thought she was discriminated against because of her gender she said two things none of them having anything to do with the pretext things we're talking about today she was discriminated against on the basis of her gender because nobody that interviewed her w for i don't actually know if she had worked under him but she had worked with her i think it actually she had been one of those coaches back in the day because she is i think substantially younger which and that's another issue right that's another issue but she also as we sit here today counsel gave us two criteria that she said the school corporation relied upon but the facts were not that they were one criteria for the the girl's position and then different criteria for the boy's position and both of those criteria were the pretext that was meant to exclude ms jowell from having a fair shot at this position counsel came up here during her own argument and tried to justify every decision that the school corporation and every explanation she gave to these panels questions and what we raised in our brief demonstrated pretext more and more and more ms job faced two younger male candidates for two separate coaching positions both of those positions were decided by all males and in both of those positions she was given different treatment and different justifications both jolly did not get the job yes she remains employed in the school corporation but she has not been able to coach in the school corporation because of their discrimination and we look at the case and that the controlling precedent what we have to consider here today is whether there are enough issues that summary judgment was improper and this case should have proceeded forward everything that has been discussed today are genuine issues of material fact and issues that should have been put to a jury to sort out counsel came up here and talked about ortiz briefly wh it's important to consider in our tease is that case had less evidence of discrimination than we're talking about today and that case was remanded by this court and allowed to go to a jury another case that was discussed in the briefs and and circumstantial evidence of discrimination for those reasons we asked that this court remand this case reverse the summary judgment and allow the matter to proceed to trial