takes sixty five the drawing a legitimate entrances from the facts our jury functions not those of a judge had that basic proposition been followed in his case summ judgment never would have been granted on either the discrimination client or the retaliation blindness case as to the arsenal had a position and not and then did you have some evidence that she's the better worker to keep because that's the clerk says that she's the one she needs that when you have out you have a lot of evidence a on how she's named it nobody else can do it and then the black automated joan stated that barbara that's actually the black alderman sister trying to call and you had to do the job that's what the black all of them said well myself to try and her and she knows how to do the job that's the last  in the minutes on page three of september fifteen minutes so that obviously she's influencing the other all and the jury could pat your honor that she was right in the prejudiced or that that she jones held a rice against her because on page four fifty one of the record ms horrible talks she's asked how did she get along with all of them and she said well fine except ms jones was get known to him a several times because i wouldn't give her a refund back at the clerk told me i couldn't give a she paid somebody else's taxes and she wanted money back and the clerk tell me asshole when you can't give a money back as that's not something you can do and she wouldn't do it so a jury might think well that was a race issue if she's making unjustified complaints they will leave her alone and miss hope also said she had a problem with her with that of with the with  what you have is jones speaking out and then the subsequent vote there's nothing beyond that but i don't know how you could have anything beyond it john she spoke badly there could be discussion theoretically there could be more evidence i'm just asking what we have except than just your theory is you have sufficient evidence by the fact of you have a statement from jones and the other subsequent vote those two things are enough to get a jury out of it yes not that i think i understood your question i have trouble hearing but i think on stage our ponders i'm having to ask again the evidence that the board was it was tainted catspaw type theory is that jones spoke out and then you in a subsequent vote and  in your theories that's enough you don't need anything more than that the other thing was that there was evidence that there was some hostility between jones and ms hall some hostility that's on page four fifteen where output has nothing to do with the other board members issue that has to do with it because that jones is against your client i my question is jones is not the typical jones can act alone if jones needs to board and so your evidence that the board basically did jones is bidding is the five six to two but what i wanted to point out to the court  night when they're talking about fit in the position we know we got all these applications but in the board minutes in may and then he spat eighty three fatted through the board minutes in may and they got all these applications and nobody says  thing in the world about the fact that we've got this lady that was here ten years it's got a pen and you say charge instead here's what happens mayor parker states that it is the consensus of the board that the clerk's office should be re advertised  when you notice me please who are the majority white board for the city of houston mississippi did not eliminate the point is deputy city clerk position because the plaintiff to this white noted that same board hire a more qualified candidate for the higher that the city that the majority white board to the city of houston mississippi did not eliminate the planet's deputy city clerk position because the plaintiff to this why are you arguing that people can't discriminate if they're of the same race  summary judgment should be affirmed in its entirety the starting point here is that the two challenged employment decisions were made by a member board in that situation the plaintiff has the burden of proving that the collective decision making eliminated there are several problems with the plaintiff's attack on the other woman jones first jones was actually the board member who made a motion to hire the plaintiff when she originally came to the city that triggers the same act or inference which dilutes any suggestion that jones had anything against the plaintiff because she's one second as judging about the pointed out courts involved and said that it's in it's inappropriate to equate what might be suggestive of nepotism to racism people alone may be related but the more important point is that the plaintiff herself concedes on page one of the record that she has no reason to believe that jones has anything against her because of her race but the most important point of all is that even if the plaintiff could impute some sort of discriminatory animists on jones it would be entirely relevant in the context of this case because she was one of only five she was one of five board members who unanimously voted to eliminate the think the city of course did not have a chance to address it because of the way it was invoked in this clip case but even at this court were to entertain that all are going to still couldn't carry the planet where she ultimately has to go because there's no evidence that she exerted any influence over the other board members tony you here in opine that harmful stop with season zero and where did you get that idea the plaintiff herself that ms that these tax notices logically go out certainly reasonable to say this particular lady's primary job responsibilities are smaller seasonal in nature than the other three deputy clergymen everyone knows that it's undisputed these tax tax notices go out one time per year and the fact that this particular white alderman led the charge to eliminate the plainest position cuts again see any suggestion that she influenced the other board members in fact he was that he was the one that led the charge standard in its ruling it what regard to what i do not agree with that when the district court relied on the pre reeves case to say the existence of a competing evidence about the objective correctness on top of it automatically anymore i think i think even really says that there can be cases where there can be but that's not the general rule that's not the general rule of course of course but one other foot point on this cat that i think is important you got to keep in mind that the race claim was brought under by the title seven and section nine hundred eighty and the latter which of course has to flow through one thousand eight three because we have a municipal center there's a large body of case law that says this particular case but i just make it to the point to highlight that there's all these issues surrounding the catch fall theory that nobody has ever addressed because it's a way that the plaintiff interjected it into this particular case but it is important that we get the correct standard when you add on top of that to the fact that this we're talking about a collective decision making the most member board in the planet just has not met her burden anybody and the reason that the plaintiff has not been able to pierce this collective decision making of the board is because of the proffered reason by the city is just as strong what about the allegation turning to the retaliation claim the district court granted summary judgment correctly on that claim as well and i think it's just from the gate it's important to point out you know the type of litigation strategy that these particular claims are built on because you see it all the time in employment cases you have a pool and he's laid all of that you can see george they didn't apply for a completely different job for the employer and when they're not hired they tacked on a retaliation claim to this already pending lawsuit but mayor less allegations of discrimination should not be a springboard for merit was claims of retaliation under the supreme court's decision in the last year of the causation standard is even higher in the retaliation context than it is in the discrimination consulate case versing brought up which is beneficial to me in  that the plaintiff is not hired is paramount the planet can't hear psyche in the collective decision making of the board because miss sanford qualifications are so much superior than those of the plaintiffs we automatically look at those at the reason for the adverse action is the test and the reason is the qualifications and the sanford you have to keep in mind she had an accounting degree she had thirty years of counting experience she was in the process of getting a c p a and she worked for another municipality but the plaintiff by contrast did not have a college degree at all and she had far less relevant experience and not only not only was mis centered or not only was the plaintiff not clearly better qualified than the stanford  was clearly better qualified than the point and this court under the clearly better qualified standard has always said that and we automatically have to look at that even though i think her she says the discriminatory action was earlier but i clearly better qualified standard this is triggered that's also important not to backtrack but that is important in the discrimination claim as well because the plaintiff theory of that case is not that the r fast forward to more in march the city clerk a completely different position resides and then for an eight month period the mayor steps in and begin performing these job options of the city clerk so what you have going on during this time is the city is receiving a savings by not having to pay the city for position and then at same time they're trying to figure out what their ultimate lee going to do with this position and there were all these different ideas that were floated over that eight month period there were conversations about not having a city clerk at all there were conversations about hiring a outside consultant there were conversations about maybe giving someone a part time basis and this is documented in the record because we have a situation where the media would show up at the board meetings and there's there's newspaper or else in the room so these things are clearly documented if you have you don't going discussions about how to best juggle the  individual responsible for making the budget for the city the board was in the middle of a budget shortfall because of the budget that maybe was not the spaces that they were not listening to  recommendations but more importantly the city clerk at the time it will it's not like she said she was trying to save all of the party jobs it was not like she's saying this is some terrible employee her actual rationale clarify that was that they did not hire somebody to come in to consistently perform these jobs in august of two thousand and sixteen they got someone from the county tax assessor's office to help them on a one time basis this deposition she said they didn't choose the black city clerk because they were afraid that the they would come to trial when pressed on that she was forced to admit she had no reason to believe that that was entirely speculation the city clerk she didn't want to deal with the allegations and that's why she was there were no allegations that the city there was some racial things going on in the clerk's office that's what the city had said someone had accuse her of racial profiling but again the city didn't hire and say why didn't the city clerk ultimately to replace her there's just no evidence in this case that the collective decision making of the board was tainted by any racial lady who was not chosen for the real and under this court's nearly identical standard i'll do that as a concession that they're not simply situated but even if you could get similarly situated we explained on page sixteen of our brief a comparison of these two individuals qualifications while the plaintiff cannot overcome the clearly the clearly better qualified standard again jones had a college degree and she she performed duties water and sewage that were performed on a monthly basis that the city certainly had a right to see you as more important than seasonal tax duties which again is conceded these tax notices go out one time per year just  doing to first principles here this this court has always said that the employment discrimination statutes were valid and acted to prevent unfair decisionmaking or even arbitrary decision charged with that responsibility they came to completely reasonable decisions in a in a tough tough situation which everybody concedes you know they were experiencing the extreme budget shortfall and their actions were certainly reasonable judge one good opinion you know from this court is the read versus knee of opinion that the children of the top executives reasonable standard and how that is applied as a matter to council might have very interesting comment when he said that they had evidence which one contradicted that before they fail this clark position all kinds of ideas were being floated ryoma about why that should fit he is absolutely right there were they came up in the minute every thing in a world that you could think of as to why not to feel the park position and that the problem as and this is the whole seven minute issue devalue the whole problem is the jury was entitled to infer that the reason was i don't want to give it to miss horrible she'd been there for ten years they'd been repeatedly advertising it sets up more cheat at she'd applied for every ten march april may until they came down to all of us when she was they only application and they still wouldn't be and found it still wouldn't give it to her and they'd never  he said it's a town of thirty five hundred i think the better qualified a jury could find a better qualified person as in the great case is a person who's been in the clerk's office for ten years and knows all the people and knows how to do the job and they added that qualification of a c family hired this a p a it's in the minutes six seventeen they give no reason as to why they rejected the other person interviewed me as horrible they just said we're hiring this the lady that's asleep the jury could infer that they were going to say pages so they'd have you were not offering her the job if you're having financial trouble did it make you mad that she got somebody suing the city and filed three of say charges the latest in october did that make you upset cross examination is that essence your honor of the seventh the member right to trial by jury if we can't cross examine the witnesses of course we can't win a case and you come out here in a very skilled hour can give up reasons as to why you know why the state his decision was just bad but this ought to be left for the jury