so the previous motion panel chaired by judge jacobs is reserving decision on the motion to stay and then and this panel which includes just a nice coat of the southern district will now argument calendar and the first case on that counters who are her heart vs town of crime now good morning good morning on may please the court my name is josephine miller and i represent the this is an employment discrimination lawsuit that was brought by officer robert houghton who has been a long term employee with the town of crime well police department in the year twenty thirteen officer houghton sots a special assignment which was in effect  promotion from the position of patrol officer to that of a detective within the department it comes with a pay raise that's correct whil caldwell considers these to be special assignments this particular petition position of detective is more akin to a promotion because by contract with the labor union that represents the officers there is a ten percent increase in pay that comes automatically want someone is assigned to that position one of the things that i think it's important for this court to note is that the town of caldwell police had a very loose manner of even making employees aware of opportunities for these special assignments they didn't post anything on the bulletin boards they didn't give any of the written notice to employees it was basically a word of mouth process often times people who were seeking these special assignments and or promotions were not even made aware or until after someone had been selected for the position was sent in conformance however with the rules  promotion was that in conformance with the union contract while the union contract did not specify as i'm aware what process the thinning the employer had to use for these special assignments there was no violation of any rules no violation continue are ever it simply goes to show that there was a fairly loose process by which the town operated in this particular instance officer houghton who is an african american male had may known to the department his interest in being assigned to the deck detective position what is most critical i think with this court to look at is that the most important criteria that was used in deciding who should initially be looked at for this at her deposition she said that what she was looking for was a seasoned veteran and that means more than just time in grade not simply state seniority but someone who was a seasoned person in the department that's what she said she was looking for she then approached two individuals who were seasoned veterans and neither of them were interested in the position knowing that officer hotton was interested and was also a seasoned veteran she completely abandoned that and when it to the individual who was ultimately selected for the position officer pamela young we have to juxtapose this seasoned veteran officer houghton who had been on the police department the police force for about twelve years at the time and over on the other hand you had officer young a white female who had only been on the partment for two years it kind of jumps out at you as was stated in one of the cases in the brief that how any reasonable juror decide that there was something amiss here if the department was looking for a seasoned veteran there is no way that you could say that a patrol officer of only two years could compete with the qualifications of someone who had been on the department for twelve years out so yes believed that mr harton had fine people skills but he had poor skills in terms of report writing and followup work on investigation she thought he just wasn't good at that particular job however i think the court has to look at the fact that chief lamang ton only d faulted to this matter of report writing skills once we were in the litigation context before we were involved in litigation she was looking for the seasoned veteran later was when she went to the report writing skills she was forced to explain why she didn't go to mr horton for to become a detective and she gave her reasons well where her bruises pretextual set your argument that is our argument that her reasons were protection will even as she was stating that the seasoned veteran is what she was looking for she admitted that she didn't even think about officer young because she clearly was not a seasoned veteran she also attested that when she spoke with officer young officer young didn't want the position officer young felt like she did not have sufficient experience as a  order to accept this detective position but kind of forced it upon her in effect i think the court also has to look at the fact that prior to the litigation the department itself spoke favorably of officer hot and there is very little difference in the qualifications for a detective and that of a field training officer before was doing he was a field training officer he was promoted or assigned i should say the position of field training officer after he filed and was prepared to just dispose of it without following up on that i think the court that is that there is no if there is no question that that was an incident that occurred prior to the decision to not assign him to the detective position where did she say that the main criteria area was being a seasoned that was during the course of her deposition in this matter she specifically said that that's what she was looking for she did she did say that's what she was looking for there's a passage of the appendix one ninety eight where she says with respect to the officer young  it made it may just have been the more seasoned veterans that i may have spoken with does not belong you're on that's that's correct but it doesn't say that's my main criterion  just says that may have been the crime the it may have been the more seasoned veterans that i may have spoken well but that the context of that is that she was being asked what why did you what were the decisions that you were making in terms of how you decided who should get this assignment her actions also demonstrated that she was looking for a seasoned veterans because she went specifically to two other officers both of whom more seasoned veterans just as officer houghton was i'd also point this court's attention to the fact that before we became involved in the litigation in november of two thousand and four there was a letter from chief salvatore in which he discussed the investigative skills of officer hutton he talked about his diligent investigation of a particular matter and said that his performance was exceptional so prior to litigation they had good things to say regarding officer heartens abilities and even if you look at the criteria that they used in deciding to assign him to the field training officer position that list of duties expectations are virtually the same as what they said was necessary for someone in the detective division and so your time has expired but you reserve to minutes for about oh let us hear from the town before you continue es pointed out this was an employment discrimination case what it basically came down to was worthy of legitimate reasons that the town provided for not placing mr houghton in the detective position w can i ask you counsel i see in chief salvatore's deposition that he listed three qualifications i think this is a page eighty three of the special appendix for the detective position one that you'd be able to work alone with minimal supervision that i don't think is very surprising to that you have good investigative techniques or skills i don't think that's very surprising for a detective and three that you have good report writing skills would you agree that those were sort of neutral across the board qualifications for appointment as a detective that's correct and that's what had been maintained throughout the entire process i think it's wrong to point out correctly the seasoned veteran is a is a red herring issue  or isn't doesn't sort of capture at least some of the components there that chief salvatore had listed the ability to work alone with minimal supervision good investigative techniques which you hope one would develop over years of experience on the force that's correct ok that's correct and basically what happens at this point is you have officer young and you have officer haughton at this point officer young or off hard i mean is required to show that his skills are just so superior that nobody using impartial reasoning could ever choose the successful candidate that's the test that you believe we should apply once we get to the pretext portion that's correct at the disrepair level there was some argument as to whether the plaintiff had it been able to make out a prime aphasia case however the real me of the argument was o young was better than officer hall and in the report writing in the time where she's investigated things officer young was better than officer hall and with respect to documentation to communication in various aspects of the police position that are important to the detective job she was just better at best they at best at best they were equal but even in that at that point the town is allowed to choose among equally qualified candidates why isn't it a jury decision whether or not this this case says described by the plaintiff of having a situation in which twell officer with twelve years of experience asked to become a detective which comes with a pay raise is not asked and instead three other people none of whom asked to become a detective are asked the first to turn it down and the third one who is asked has just two years of experience why is a digit jury question whether in those circumstances they couldn't find intentional discrimination based on race because there's simply no evidence connecting race to any of this the only aspect of race here is that a white female officer received the position and mr houghton who's black male did not otherwise there is no evidence of any a ever uttered anything that he felt was racist and there's simply nothing the plaintiff was required to demonstrate that he was just so much better in the simple fact is he wasn't and he couldn't demonstrate that and that's why there is no way to create a tribal issue with respect to legitimize nondiscriminatory reason proffered by the town unless the court has any other specific questions for me i'm going to rest on my preferred bank you very much there's no you have two minutes for about do you have any evidence of racial animus in this record there is no evidence of racial slurs statements that's not unusual however it is rare indeed nowadays that employers are so lacking in good sense as to make those kinds of statements i will state however that officer hearten was the first african american officer on the police force if you can believe it that didn't happen until the year two thousand one and even as he was in the police academy he missed some of his coursework and chief salvatore wanted to terminate him even before he could complete the assignment so there is some question at least with regard to whether or not the town wanted to have this african american on the police force i just want to follow up though on this issue of skills being so superior that you have to accept off so young i don't think that that's the appropriate test to be applied as it relates to the report writing skill because it  ts this issue of the seasoned veteran which is what lamontagne said that she was looking for one outweighs the other that even somebody with poor report writing skills should get the  point yes because either the police department can say yes he's been here a long time but we needed tech to who can write good reports and this fellow can't do it you say that's not a good enough well no no not in the context when you have the department itself saying we want the seasoned veteran and then they abandon that then when they default to the issue of report writing we still have to look at what the chief himself said about officer hottentots report writing skills when he assigned him to the field training officer position what he said was that he can write in clear concise and effective manner they themselves recognize that even if you look at the report writing skills officer had that skill be a big help and get into that program right correct and i think if the court were to look at the decision and berni versus town from well it was said there that it makes no sense whatsoever to assume that somebody who's been in a position for twenty years would not have the basic skills so that i don't know if this is extra record or not mr hartman was the first african american is he the last where have they been followed by other african american officers there have been others that fall i believe there were two others that followed him but he was the first and indeed the first one asked to be fill this detective position was also african american that's correct but he was a seasoned veteran he had been on the department for quite some time back to this issue though about someone who has been in a department for multiple years as the court said in bernie it's not credible that a person who's been in a job for twenty years would a lot of the basic skills for the position we say the same thing is true with regard to officer houghton twelve years in the position of a patrol officer it's not credible to say that he couldn't do the basics of being a detective after all officer young had never acted in that role so she was going to have to go through some period of earning  nothing whatsoever to suggest that she was so superior in that regard that she should have been selected over officer hi thank you thank you thank you both will reserve