passed over for the promotion was clearly better qualified than the party who was awarded the promotion compared what i've heard this morning that seems pretty straightforward  it's a summary judgment case you know the words clearly are never straightforward when lawyers say clearly about anything it sort of raises the antenna yes no i'm not sure that's ever been even if it's statute or  case when you say clearly it makes somebody stand up and pay attention and said clearly better qualified more qualified so if the boss ific lee what do you mean the degree of the experience what is it you're eating below that you know made your client's case overwhelmingly better you can go through the the areas in which she was better qualified with qualification as her counterpart both she and the other have master's degrees but miss robertson king my client had an additional fifteen hours of graduate credit in assistive technology related to the provision of eighty assisted technology devices and services provided to him losing her we both patients services consumers and such as hearing aids wheelchairs home and vehicle modifications in the like my client had worked for the state of louisiana since one thousand nine hundred eighty nine and sense and since two thousand and one with louisiana real big rehabilitation services the woman who was promoted had worked for the state l r s since only two thousand and eight regarding supervisory experience my client had supervisory experience having been a first sergeant of the nine hundred seventeenth medical squadron and retired from the us air force reserves after more than twenty years and having supervised proximately ten enlisted personnel assigned to the nine hundred seventeenth medical squadron the person who was promoted says her supervisory experience was limited to supervising one rehabilitation counselor associate associate excuse me for about two years my client had been selected to and attend leadership academy which was a program in which individuals could take training or be prepared to move up in promotional up to opportunities within the agency it is a training in leadership skills and  es the person who is promoted had not been selected to and had not attended the leadership academy this was some of them to the decision makers production quotas is another issue of the it is agreed by the decision maker and by the person who was ultimately given the promotion that the closed rehab objective is the factor in statistic that is directly referred to on the employee's performance evaluation system is the primary goal of l r s in the year before the promotion my client achieved one hundred four percent of reclosed rehab objective the person promoted achieved only thirty eight percent less than half of her production quota in the year before that m achieved one hundred twenty five percent of her close rehab objective while the person promoted achieved only ninety two percent l or s actually went back to previous years to try to even now see if they could make the numbers look better they got a little bit better but they never could catch up to my client's production  every she was better on average for those years that they could that they could compare the fact is that the person who is promoted had not been there very long so there weren't very many years to compare m she could have compared years going back much farther the difficulty for me is is both i mean there were four applicants these two in particular had had actually looks who personally qualified your client has some terrific credentials but on the other hand ms former especially at that certificate  which is emphasized in that was fairly brought up in all the interviews so it just seems to me the law says if we're going to in her animists employment discrimination from what are valid different credentials just two talented people you've got to be able to show that it's just it was outside the realm that your client is clearly more qualified so it's just the courts defer greatly to business judgments that are based on what you acknowledge are both different in good credentials ms porter had good ones in the rehab certificate in particular if the other supervisors all had it that that to me is the difficulties very hard to see an intent to discriminate when they're selecting as salient a credential your client didn't have and she did that would be true you are if in fact the worst salient credential the fact is that the objectives  it ok what it does is means that you've gone through some training to be certified as a rehabilitation counselor has nothing to do with supervising  people management skills that's the leadership academy that my client went to that mr patten the other person did not go to so if you've got two people pretty well even going to qualify which i don't even think that's the case but let's just assume for the sake of discussion that they work and my client has a leadership academy and there's has certified rehabilitation counselor that doesn't give her any edge but the people she's going to supervise are rehabilitation counselors so so you certainly would expect a supervisor to be particularly certified continuing education the interest in stamina to obtain at that would be quite relevant and i think it's true that the other supervisors have that certificate the other point you might address is when you say the leadership academy is so important is it correct factually that your client didn't put that down on her application knew that she had gone to the leadership academy had been chosen and had attended the leadership academy also knew that mr patten who was selected and promoted had not been chosen  attended the leadership academy so whether nicely put it down on or application and i kind of immaterial because chuck long line had been it was well known my client had been selected it's a big deal to go to the leadership academy but if it's such a big deal why wouldn't one put it down it's well known it's a point of view you know how would you know want to put it down is it's it's i don't even know how to answer that i don't want to stand in argument that it's significantly important everybody knows it yet it's an application and one doesn't put it down those two don't work i mean it's i've read these cases in the outcomes of the mistake a plea that she had gone to the leadership academy the other had not and that the decision makers were aware that both of those factors you know responded to the question yes and that's got the job yet you say though it was important she didn't put it down because other people were aware of it i'm not asking about what other cases say just the practical caledonian the common sense nature that  one is applying to something you put out all the good things that you have so that whether somebody knows about it or not it's on the paper in ops if it was asking you a straightforward question not about what cases say but why wouldn't one put down the positives that one as to portray you better than other people who are part of that's all and i think she was it was theirs in the first place have preferred element the same is true of the certified rehabilitation counselor certificate not listed as a required or desired or preferred element i don't know whether this patent listed that on her application or that was just something that mr bowen was aware of similar to his awareness of my client's attendance selection appointing authority complaining of this discrimination and when he read her grievance he wrote her a letter and said after a careful review of your grievance a decision has been made to overturn the selection process this means that the position will be announced again and all interested persons will have to reapply the individual selected for interview will be scored according to objective criteria w appointing authority on reviewing the information this means that a reasonable juror could have looked at this and said you know maybe maybe there's some way it's coming nation process maybe she is better qualified clearly better qualified if the appointing authority him self says to her i'm going to be sad and this whole process and we're going to start over redo it we're going to have a promotion an investigation he testified in his deposition i did make an attempt to pump the brakes if you will on this decision until such time that i could have some comfort level people were going down to shreveport and take a closer look at what's going on as i stated earlier take these types of allegations seriously so he testified that once he discovered that there may have been some unfairness in the process he tried to resend of the promotion and was unable to do so so this is not a situation where he just went across his deck destiny rubberstamp that it's not a situation where he reviewed closely the  compared the the applications of the different persons who were applying he got a grievance a new look and he said out well oh let's rescind this we're going to start over and do this all over again we're going to have an investigation now to me that's evidence that a reasonable and i don't have to prove pretext at this to he's got to prove that a reasonable jury might might find that she was clearly better qualified and if the appointing authority is going to rescind the promotion in and start an investigation that i think that's pretty strong evidence case if this is not the case where someone is clearly better qualified in meets that standard you may as well just scrap that standard altogether because it's not going to apply to any case this  case i understand that there are rare instance up to do this is the case where it happens you know pleased to court i am danielle brown and i represent the state of louisiana workforce commission we ask that this court affirmed decisions of the district court on two issues the first one is that allegations of unlawful discrimination and violation of title seven do not give rise to a claim under louisiana civil court article twenty three fifteen the second is that appellant failed to salvage that louisiana workhorse commission's legitimate nondiscriminatory reason for selection of miss myra lott paddon was a pretext for lucio workforce commission selected mar plot patton because she was the most competitive candidate for the position she has a master's degree a proven track record of success having achieved the highest level of rehabilitation counselor that be in mass accounts or in just three rehabilitation counselor just as the regional manager did and the two current district supervisor apart i'm sorry appellant has the burden of showing that the proffered reason is merely a pretext for racial discrimination appell attempts to meet this burden by alleges she's clearly better qualified which is a high bar to meet let me stop you there the c r c designation you say it was the same that was held by the district manager and who who else they some app can say commiserate other experience or commensurate similar credentials etc etc you know if you're not you don't feel qualified because you don't have it although some things may say preferred so two  was at the defining it was in i was a defining because it was that in addition to her other qualifications but it was something i set her apart from the other applicants as the other four did not from this roberson have had that certificate would would we be obliged to reverse eartha just so deferential that i don't think you'll be a blush or a verse i think you would he has had twenty four years twelve with the state twelve l r s it took her twenty four years to get what was marla patton got three years and so i think in addition to that her interview as well as her master's degree i think those title seven protections i know but you see what i'm getting at in other words this is where we're winning what case could you point to was it any of the three you mentioned where court actually says an example of clearly more pretext can be inferred how egre differential is it i think if we're going to be in the hypothetic it would have to be and languages that we refer to but has been overturned by supreme court where it has to jump off the pages and say this person is obviously more qualified when you have applicants that are similarly the supervisor over mr vaughan is an african american male mr bond is not an african american male so there there are some other individuals who would consider we consider being protected class that was part of the decision making are the oversight as it relates  for grievances to the appellant i'm sorry they appoint already expressing her discontent her discontent for not being selected and even in one of those allegations she makes  she makes she talks about how she's unhappy about the selection but she also talks about an ethical work assignments so again and the opposition makes a number of complaints they give rise to the investigation it comes even though they appoint stop the process to investigate it more thoroughly he could not however he did continue with the process of investigation and he did have a finding that there was no basis to any of her allegations so even though he couldn't give her the  stop the breaks pump the brakes on the situation he did follow through on the investigation as i was stating appellant attempts to create her own criteria's for this position she relies on those particular areas that we discussed in an effort to justify our belief that she's a clearly most common qualified candidate appealing create her own publication supervisor experience a history of success and leadership skills she lives on her of her years of experience which clearly qualified candidate for the position at best she so that she similarly situated to the african that was selected this court has a time of the better education work experience and seniority does not lead to being a cool clearly who's on my panel then i go find out the cases that you've been sending oh and then i see that you say this case and i'm like this is golden so that's why i just raise it to cite your honor she just mentioned that investigation will just give you a point for future reference number one only a fraction of our cases go to all argument and a lot of cases like this wouldn't be argued and number two the cases most principally are decided on the press during the process in a twenty a j because we're going to do our research but we rely on counsel to do the work and so we're looking for a case that's why we grant oral argument to have an argument and so it's not the best help if we don't get the best case i see what a couple of ideas is not the best help if we get your best case i mean you could still win on it if it really is but it's really helpful if you dig that case out to make statement of anyone who is involved in any investigation so you can just disregard that by hearsay you will not find an investigation a record of  it's in that i'm not asking you if you can see to that i'm just saying you prefer to rest on the brain on that point you have a choice you know that well you do have a choice you can say for argument this morning