retaliation for private sector activity now in as an initial matter with respect to the mcdonnell douglas factors the agency has offered no argument either here for this court or below case you simply need to put forth competent evidence that they have a very legitimate nondiscriminatory reason well the evidence in this case if the court looks at the record establishes that my done so at least not in any records have been before marsh when he made the filing the final hiring decision and before the revealing an either in an interview or on the resume review however there is evidence in the record that chief marse was well aware of kerry colby's disciplinary record and a bit and informed us of all of it prior to the selection but in any event getting back to what i was saying there's no the panel itself in the resume review in the interview pedal it's relevant because as i was actually it's highly relevant and key to the case your biggest hurdle here is to overcome the fact that the interview panel was preceded by this blind graded resume review by a different panel where the identity of the applicants was redacted and they were looking strictly at merit qualifications and doing a ranking based on objective factors and based on that ranking your client came in seventh and they only interviewed three so this just  valid nondiscriminatory legitimate reason for his exclusion from the candidate pool and the fact that marsh didn't move him up in the rankings over the person who actually came process went again an agency witness conflicts with that he says no the selection was not made according to the panel it was not made according to the scores it was made based on the v r a those scores did not matter after the after the  certifications grew from whether they technically mattered in terms of the agency's rules about how long the list stays viable doesn't really that that's just a red herring here i him because he came first in this apparently expired selection process for compiling the candidate's latest so even though it was technically expired doesn't make any difference if that was the reason that he offered and there's nothing to contradict that then you lose i mean that respectfully or a screw that i mean if if cross testifies that the selections were not made that is a conflict of facts that the he  fact that the list expired that's what crossed that the list expired we had to start over right that that doesn't really matter if marsh testified without contradiction that he picked colby because he scored first in the blind scoring process and was recommended by both the resume panel and the interview panel so there's nothing to contradict that it you know if the agency says in the form of mr cross who is into million volved with the process at the beginning at the end and or in the middle and at the end he pulls the certificates incense to mars and  decisions with respect to the police department also underbody and not address i'll give you another m me please the court counsel this is a discrimination case so we're looking at the motive that underlies the selection which is at issue in a place argument confuses the selection process with the administrative means by which the selection was implemented if i follow it just all one has al davis showing that marsh had a racially discriminatory animists no i don't think that's what is borne out in the record that he they did present declarations from a number of individuals who had their only yield complaint attesting to their personal belief that they'd been subject to discrimination and if he had been able to list experience as a criminal investigator on his resume i think a couple of answers to that one is that chief marshall was newly arrived at this facility in march of that year so that the time it during which this investigator position was open and people were acting in it goes back to before march's teen years those are things that were done by other people second the evidence doesn't show that only colby was allowed to act in that position the testimony of a chief marshal was that various  people acted in that position but the main one who did it was col so for both those reasons and colby was somebody who had a lot of experience as a criminal investigator which is deal detailed in his resume mr henderson had comparatively minimal experience as a criminal investigator and in fact he wasn't even doing the job of a detective for some time all that snow i keep wondering why we should even consider the result of the merit selection process given the colby was not promoted pursuant to that process and i think that's the point of some main argument and you know i think the answer to that is that you have to distinguish between the selection and then what h r did in order to implement that selection and i magine that you hire law clerks and that when you do that you conduct a review of the resumes that come in to you you interview candidates and then you select the person who you think's best person for the job and then after the last thing has merit selection process for law clerks that's add you know apples and oranges what i'm saying is just that that's your role in the selection process and after you've made your selection then you have people i assume just like we do in our office who are human resources people that are experts all we don't need s eight never in g s nine what's that have to do with anything i don't think it has anything to do with why well the because the selection process consisted of the resume review and then the interviews and neither of those stages was the g s level you know what the people we're looking at that we're looking at a budget that colby was properly promoted from the g s a level up to the g s eleven well now it's true that for insuring you know there are a lot of complicated rules here that can apply  under the merit system promotion rules at the v a and one of those that's in the record is that for internal v a candidates they were supposed to have time in grade to be promoted to the g s eleven to twelve so he should have been at the g s and nine a level or whatever the exact levels were he didn't make it so he was eligible to be hired at the g s nine so this position of course was post i got you have me so lost that i mistakenly terrified colby for g s nine eligibility even doesn't mistake i really don't understand what i think the best answer i can give to you is just to take a step back just for a second and we can talk more about exactly why the grades were done the way they were and why that was proper but but rather than talk about that i think we're better served by focusing on the selection and the reason i was giving the example there is because you know it's common for decision makers to interview people hire people and they do it based on the resumes and the interview and then you have h r people who handle a lot of details here and certainly that is what chief mark testified to he said look i wanted to hire the best person i selected the top scoring individual internal candidates under the mare promotion rules it doesn't apply to a person like mr colby who's a disabled veteran and has considerable experience outside of the v a and that is what the human also qualified under those rules so those are all good technical rules that apply and we can talk about those but you know that's all that is happening after the selection is made so the selection has been made and now it's up to the h that the decision as to who would serve as the interim acting criminal and that you cater was based on race buttons that were there were no black supervisors that marsh said he wanted to keep  black and white that the employees called heinz the plantation and that american police lieutenant scott marsh to rotate so that he and others could perform the job and marsh responded that it was probably the right thing to do but he marsh was not going to do it so how do you deal with all those fact you know there are a lot of facts that you're talking about there and i assume you're talking about some of the things that were said you know judge i actually don't remember all those facts being part of what was argued in the summary judgment motion but it but the decision about who was serving is that acting criminal are serving in acting role as the criminal investigator is a separate decision that predated all this  so and the question of the selection here was based on the resume review and the interviews and so there's no evidence to contradict chief march's testimony that he based his decision on the going to the list even though it was expired when i was a relevant experience can substitute for the time in grade isn't that what the rules provide is that the way only for outside employees what you're saying they bring somebody from the outside who's never been a g s employee correct and mr mr colby prior to the very selection clearly was of a internal completely did not qualify for the g s eleven circuit or that yes is that the rule for this to be are a program that's the question because that's the authority that the chief was invoking here to to promote him to promote  that that interprets that but i haven't seen that thank you thank you counsel thanks to both counsel the cases taken under advi