words if you want to make arguments you don't have to you don't way beneath things you want to make arguments about three of them start with one tell us who you're talking about and make those arguments and let us ask any questions and then go to the second one and that sort of thing ok understand you to contest in the district court that they were i didn't understand you to take the position the district court that they weren't behind in the inspections are that they hadn't kept computer records of when they inspected am i wrong about that you know you know well but that ok so so they were behind in they hadn't kept records why is that not a non retaliatory reason for taking the action well  accurate same pretty strong to me i mean you had people saying we gave him the money and you had no record of remember turning the money over and then as i understood it his explanation was he gave the money somewhere else other than it was supposed to and the person to whom he said he gave the money said no i didn't get it he said he gave the money to the chief who said that he lives in that is stolen so there's a factual question whether did the chief have the money of the chief who alleged that calls and stole the money you know but he wasn't supposed to give the money to the chief that he has been doing i didn't see the breeze and now the prosecutor dismissed the charges ok so i called was not prosecuted and let me ask you one question about this retaliation time line of argument were colson and bradshaw aware at all thousand and eleven so they knew they had not completed as many as they should have and they knew they were not keeping computer records but you're saying the chief had never said anything to them about their fire investigation i would say that they knew that he had a complete they knew that that whether th improvement was not did not address the issue of the fire inspection that the chief used to make his founder determination to reassign them if they had never engaged in any protective conduct every thing had run smoothly at the department nobody had planned for anything or been demoted or anything like that you would concede would you not that the failure to make more far and commercial building and hazardous materials inspections and the failure to keep the records was a valid basis for taking some action the question is the motive behind it and the timing is it not  quarter you question if that was a requirement of a deadline amount that must be met and they were told they must meet this well they were told to keep records and they didn't keep records on the computers and then they said that we kept records but some of them have mysteriously disappeared that's got to be a ground for what i'm trying to do is focus our our inquiry here ok i guess you know even if there was a ground for about right now we're getting some well it's a valid basis for taken action but you can't take an action on a valid basis for an invalid reason as naturally stand exactly as what religion that was too long and what will continue you know that there were other things going on prior to that final decision that the chief made to reassigned him but also constituted some retaliatory events axin building up and  much experience they had as firemen or suppressants or suppressors are the administrative position i thought it just had the date of hiring but you know i've never heard of department that just hires people right out of school and everybody that hires right out of school as opposed to working for another department came in or they work in another town they came in and so forth they allege that you don't have enough strolls you know we started with the entry level when they started and then we bought about four for the time period which this case is limited to two thousand and twenty fourteen will help me with what's a compensation study adjustment and what we're saying that even with adjustments that was made the african american firefighters still may they may lift salary wages then the other from no matter how alone they may but the issue that's being challenged is that you're just by simply saying these are the salaries that that's not an if information to compare you have to know more about you have to in this circuit you have to have a comparative must be nearly identical to the plaintiffs in order to prevent the courts from second guessing employers reasonable decisions and so you're talking about a burden that they might have but don't you have to get the past the initial burden of not just showing a salary discrepancy but saying and the reason the salary discrepancy matters is because they had the same amount of job time they've been firemen for the same period of time they are have the same qualifications they've been receive the same certifications isn't that where you're falling short on the burden that you have well think about and i think my chart shows that the one that i use they were hired at the same time but how they had the same time i'm hiring at the same time and even having the same title doesn't go there's there's more there you could have two people hired at the same time who have different experience levels once been a fireman for two years once been a fireman for five years and they might have the same title and one's about to move into another category but just giving us the hiring at the same time in the same salary doesn't really dig in enough to give to to let us know that in fact there is discriminate no to follow up on what the judge is talking about let's take michael manley for instance apparently he got a compensation study adjustment he also got an e m t incentive which is five percent and he got something called a hazmat incentive that you did your client did not get would make it totally different there they're not comparative well you know that well that takes is up to the third argument that you know the incentives in the promotions they were the a has a history of not allowing these firefighters opportunities that they provided the other firefighters to either get training get sort of a case a get promotions dismantle certifications for example and they doesn't show if there are additional certifications because of discrimination for example our test scores you know the highest test score do that international firefighters test whatever because there are several instances here were people got promotions inside the department there for more money because the chief without any contradiction  record that i can see the chief always promoted the person with the highest score which is the safest way to avoid a lawsuit so if these people were promoted it different rights and into different positions and the un contradicted evidence is whenever they were test given to determine who got the position out of the promotion the chief always gave it to the highest scoring person i don't see how you can make you always evidence to that you know that was not always the case that it went to when the key question is when there were tests more often than not that was not the case it was as but we can't tell from the chart which went with which and well i didn't have opportunity to do any of these things so we can't say that let me ask you to do this so we can focus and i'm not asking you to throw four people under the bus but pick your best case for wage discrimination your best plaintiff and let us look and focus especially on that one after we take the case under submission and if you make that we'll look at the others but if your best one doesn't make it by definition the others are not going to make it i mean we'll look at our but tell me where we need to look beyond the chart own the best plaintiff's case you've got so that the best one  gene and july of two thousand and eleven derry carlson and curtis bradshaw underwent an evaluation with respect to the fire inspection work they were also notified and they lost their state certifications now when is that in relation evaluated so we know that happened it's also in the human resources director came to a mcdonald's note where they and i'll go without just meant the two men they had not understood why they were paid less than their white counterparts they make claims of discrimination against african americans with respect to promotions training and hiring ballots and types and this is the context that we examined there later claim retaliation told the gentleman that they were not meeting the benchmarks and thus they would not be getting the additional one point five percent increase in part quote worth of the benchmarks and other words i thought the city you've conceded as you had to that they couldn't how often you'd have to do the inspections i think i'm not sure that the benchmarks and suppress they say that i do think that they expected the businesses in each business be inspected once a year or ten been for years i thought and i didn't understand you disputed that there was no way they could inspect all of them each year well that's certainly what they said well i didn't understand that you not much of an right action on some of these warehouses that that's why they were focusing on the ones that were the ones that were most disappointing were the ones about what i'm asking you if you don't know understand that it's a big record is there was there wasn't there at that time in writing something that said you must do it x number of times during x period i don't believe that's and in the rest so that so there weren't specific benchmarks about the time that's correct i wanted to see improvement another fourteen this is two and a half months after the c charge record shows that both men were transferred from fire inspector takes a protected conduct action and the next day you make a decision the transferred to motor whatever and you don't announce it for four months that's temporal proximity is it not that there would think that's their argument their argument is under the facts they made the decision before the actual transfer was announced and all i'm saying is that until that the deed is that till the transfer is officially m it might be undone that make me any number of things that happen but it wasn't undone and if i made the decision not to undo it and they made the decision to do it rather if they made the decision to do it one hour after the plaintiffs walked out the fact that they that then and then where we go with that is that that the chief is given a very legitimate nondiscriminatory justification for the transfers and therefore they've done nothing with that is that's a try that's a different joined in and less grievances most of which had not been made contemporaneous with the claimed offenses as a matter of fact i do not recall any of the appellant's expressing agreements or complaint between two thousand and five when brown proper came chief and two thousand bradshaw explaining why he promoted him to life safety educator and that later letter he said i'm promoting curtis bradshaw as my new life safety educator i had other applicants with more experience in time in the fire service and curtis however teaching skills dedication to the community in this department along with his overall positive attitude enabled him to achieve that position and this is shortly after he caught became c this is not a person that they have described in the show that the person is qualified for the position either because he's not taken the test as or as is required for the lieutenant and captain positions or because some other prerequisite has not been met like an arson investigation you've got passed on the captain exam but that didn't qualify him to be chosen because the chief said in his book that speed and he always he always selecting the top person with the top score secondly their claims fail because they can't have so they applied for the position as i'm sure let me ask you counsel about what i think you weakest defense is on their strongest climb and that is the power line claim of klein of power as to the assistant chief position i'm not talking about interim chief because right when the chief leaves everybody court barred it is that he didn't the platform but we've held more than once that the failure to apply is no excuse our defense if the posting was not if the job was not posted are should not have been known through constructive notice to the plaintiff and of course he had constructive notice on the interim chief because the chief and left everybody knew that they probably knew it the day it happened but on the assistant chief which was the creation of a new position nobody has understand i'm sorry he's climbed and there's no evidence to the contrary  that nobody knew about that inside the department except the folks who made that decision mr so how can he it is claim be dismissed on the grounds that he didn't apply well and i understand those cases that talk about  informal procedures for identifying candidates the plane is medicinal must demonstrate the employer knew of planes design to be considered for the position yet but it but he's a you can't be informed of it unless you know it's going to exist i mean he didn't apply for ombudsman either but we can't say he wouldn't interested in in that position if somebody created in the future the idea is if the position is out there and it's posted any doesn't apply far out he loses because the chief didn't know he was interested in it but for the chief to create a special position in say i didn't know that anyone was interested in the previously nonexistent position and just doesn't fly right and you're also talking about a person in mr powell that was a battalion seat at the time and making more money than anybody in the department  and for example who's in charge when the chief guy right the assistant chief now why wouldn't a chief have thought that power might have liked to be in charge when he was gone then they may have been with what we're talking about is a climate of racial discrimination and the defense i didn't know he was interested when he didn't know to be interested because it was a non existent position right and i don't think it's a r that he had expressed an interest in it and therefore the chief didn't know he was interested in it i thought that was the so basis of her the response to that and the and the district courts are conclusion paid more than their white counterparts some of them white white and employees are paid more than the black counterparts we nobody has done a expert statistical analysis of the wage claims taken into yeah i can tell from your brief comment had ten years last experience then pow that's the only objective factor you cite to even your brain right the neck cut the other way that well he didn't apply we didn't know he was interested course you didn't tell him so that doesn't at least speaking from a doesn't do it and the second one was well he's already battalion chief so it really wouldn't have been an adverse employment action or the denial of a favorable employment action but hey be the boss when the chief wasn't there and you know privilege of the  job the way i look at it is the chief makes the decision that he's going to he needs an assistant body that he thinks he can work closely with that he said good experiences with and will carry out the duties when he's not there so he chooses canell doesn't open it up to anybody else in any of the other people in the department i don't think that on its face as it is reasonable ever since race discrimination well why didn't you proffer that chief gets along better with chief position would not have been a promotion and we've talked about that of course when the chiefs not there the assistant chief would be in charge and that arguably makes it a promotion what were the salary comparisons between assistant chief and battalion chief of the record shows and has a higher salary which is in sixty thousand dollar range and we don't have the kind of all salary in the in the record that i know of so it's not really he makes a higher salary that he  is it isn't a record that he made that he's the highest paid employee in the department other than all right but it isn't in the record that he makes more money than he would make as it would have fit been a system change so you know i have if your argument is that he wouldn't have gotten a pay raise do we know that we know that mr canell didn't we don't know that about what in the world are you doing with somebody with early onset doing hazardous materials inspection so and there's no evidence that at the time that the chief made that decision to put mr khan in that position  was suffering from early onset alzheimer's why was he being driven around he wasn't at the beginning i think after he put him in that position and i'm not sure ahmed's knew what the timetable is but later own is no question he suffered but the stand that i'm focusing on i understood the argument in your brief maybe misunderstood and misunderstood the argument you were making is that the time that your two plaintiffs were placed on the supplemental letter brief and it would seven days be enough just given us the site this is the early onset alzheimer's and complete discussion because it's not in the briefs complete yet sign this document that document this document that document and then counsel if you want to respond within seven days if there is something else in the record pertinent to that narrow question we would appreciate it because that you don't see that much