security when the court security sergeant position became open she applied for it and if you look at the objective on paper criteria like years of relevant education and relevant  the most qualified applicant but the job instead went to a male candidate true sherburne or before talking more about the fact i like to talk about the law the crucial legal issue here is the pretext analysis from the mcdonnell douglas burton shifting test so i want to talk about the strongest evidence of pretext in this case considered through the lens of the summary judgment  standard and the defendant the county articulated a nondiscriminatory reason for promoting sure instead of prevail wright county says it did not promote purple because quote of her interview performance  and that you know that's clearly laid out in the briefs in the district court's order that that's the nondiscriminatory reason so here are two most important arguments that that pretext st the promotion per process here is highly unusual and subjective and based on the objective interview no purple actually did better than sharper on her interview contradicting the interview panelists testimony so i want to talk about that st most important reason for pretext the promotion process here doesn't actually seem like it's designed to select the best person for the job the process is that everybody applies and everybody who meets the minimum qualifications is interviewed and those minimum qualifications are an associates degree council this is like we do our judges in many states where there's a screening and then a certain number are said to someone who appoints so really this process was designed to create the top five right judgment and that's correct tell me the gender composition of the top five the top five are all male great thank you pretty so and the you know actually everybody who applies meets you know the minimum qualification standards because they're all deputy sheriffs right and so then what happens next is that the interview itself happened can i interject a question on that when you said everybody who applies qualifies because there are deputy sheriffs want their more basic qualifications you named the associates degree what were the basic bottom qualifications just to even get in the door sure judge kelly this was addressed actually if there's an e mail chain and there's you know that discusses what should the minimum qualifications be and they include things like post certification or not what should they be but what was the minimum qualifications regarding certification certainly judge look and so the minimum the post certification is actually that's a license that you need to be a law enforcement officer and also the police officer license that's correct that's correct and of the listed qualifications i believe so judge kelly i mean there was some discussion about whether they should require a minimum of five years as as a deputy but i'm not sure whether that actually made it into it's not it's not clear to me whether that actually made it into the qualifications but hofmann testimony in his deposition is everybody who applied passed because they were all deputy sheriff two female seventeen males right that's correct  so and then it comes to the interview performance so everybody passes everybody goes to the interview and the interviews are twenty minutes and they are completely on scored the three panelists judge interview performance mean testifies it's about whether you make eye contact whether you communicate clearly it's not on whether the content of your answers suggest you'd be a good fit did miss probably the top three or four of any individual panelists st they picked the top three or four right that's correct your honor and she did not make the top for any of the three of the h r the two officers that's correct one was a captain and one was a tell me the other two it was a captain there was another person from the command staff i don't remember his rank at the time and then there was a person from human resource a woman yes that's correct but it actually unusual this is the st time that the interview isn't scored if you look at the interview notes themselves they lay out the criteria you don't have to go on answer this at length but is this is this a cat's paw argument or not not a cat's paw argument i don't feel how do you get past the fact that none of the panelists who are being accused of biased interview ratings none of them was it was a decision made all they did was screen so judge look at i do believe they were decision makers because the relevant decision here is to reject deputy purple who was the most qualified she didn't even make it past that so there are ways if you're the only relief you get as she should have been a finalist where does that get you in the lawsuit where is where is the adverse employment action of not being a finalist well because your honor she couldn't if she wasn't selected as a finalist she couldn't be selected for the job i mean at the argument here is saying the decision the at the decision was the screening that's correct she was strict screened out of there are independent authority to to look beyond the screening course just like screening judges i mean typically the the senator and the president will trust the screening committee they've set up at least up to a point yes but the problem here is that purple wasn't in she was screened out the sheriff never had an opportunity consider her what's your best case forward for a screening process of a claim that the screening process was the decision  was the gender or otherwise of unlawful discrimination well i think if you say otherwise you have to you know you have to acknowledge that you're in a in a world where somebody kind of meant gender or no i meant gender race etc etc ce well i think it does actually your honor because if you if you think about you know what happens if the screening process actually screens out the best qualified applicants you know you just simply insulate yourself from liability by if you true objectively a strong argument can be made that she was the best qualified but in all certifications and degrees and so forth don't don't get your job to job promotions if you don't have to a better word the people skills but i think there is actually evidence that she did have the people skills which is part of the pretext and i also think we don't know that we don't have on that that's that's that falls within our you know we don't search it as a super personnel committee certainly not but if you look at the actual objective what did she say on the interview her interview answers were highly relevant or not and she wasn't given credit for these highly relevant answers compare her interview sure burst this part for purposes of pretext i think you have to the nondiscriminatory reason think that many cases your toughest hurdle especially the end of it about subjectivity in a way i think it's it's after two hours and yes it is out in a way it's tougher on you than the torsion case is so dress address the many cases i bet you're familiar with yes so i think i mean and i think for many of these cases right and the many cases you have somebody who comes into the interview process and they actually they actually end up revealing you know being confronted with  fact you know that they lied essentially about their contact with police officers you know at some earlier point and then they're very you know i mean it's very defensive very upset about this and that seems to be the primary thing  disqualifies him and importantly there is no evidence suggesting that i mean he was the most highly qualified applicants so i think this case well that's not quite true at the end of the case it says sorry i don't even know the answer is it looks like he that that he was better qualified you know i think there's not a clear cut evidence one way or the other there certainly suggestions but i don't think it rises to the same degree that it does here with credible prevail has ten years of experience in court security she while she's in court security she earns her masters degree she does three certificate in court security and uses the apps to design you know from the ground up an alarm testing plan that still in use today and she helps with alexa paul policy manual these are all of the things that are on the job criteria for what the court security sergeant does and i just really quickly want to address some of the interview questions and i want to reserve some time for a bottle but i just want to point to the differences between prevails and sure ber's interview answers because in fact this is the nd piece of pretext here there's evidence that she actually did better so if you look at for example question ten and review the interview notes for what each of them says question ten says describe an occurrence at work that challenged your employee probationary period was extended and he didn't like it at the time but it was probably for the bat and if you look at question eight give us some examples of suggestions for change or improvement you've made as part of your work in this department says she worked on the l o policy manual i mean total questions were there there were ten questions i pursued and i think the three last ones are the most relevant because they talk about how do you incorporate your job skills it's a question eight years answer is  answer it's certainly not as good as providing relevant work that you have done for the department i think you know that's a question that needs to be left to the jury as a credibility question are going to court room i care he had never worked in the courtroom your honor and so therefore he's disqualified because he can't give relevant answers and answers based on the courtroom experience i don't believe that disqualifies him your honor but i think that leaves the fact question is automatically someone who is coming out of a courtroom assignment is going to be better and must be objectively better in the interview i mean that's what i hear you say well i believe that it's a relevant factor if somebody in interview answers is providing evidence to the factor but to the panel but it's not relevant to to a judge trying to ferret out employment discrimination but the fact that these factors weren't considered at all as part of this highly unusual process i just don't react because that's what they testified to they testified she didn't meet th she you know we didn't consider her experience depositions of two of the three on the panel right you had depositions of two of the three on the page one of the three and a one of the three and that affidavit see attitude yes i do have only a few seconds so i'd like to reserve that thank you wright county in this matter summary judgment should be affirmed because wright county articulated legitimate nondiscriminatory reason to not promote deputy purple to the sergeant position and that was her interview performance while deputy probles education and experience got her to the interview she still had to perform and write county it was entitled to  interview performance and compare it with the other applicants so was it once there was the cut off of a certain minimal set of requirements or qualifications were those factors taken into consideration in any way in the process or was it in an entirely subjective interview that that ultimately resulted in the five that were submitted to the share but i believe it was a mix of both i mean a captain happened to test so i don't say i believe we're talking summary particularly ask about education experience so it is asking them to apply the objective criteria in the interview so i don't think it was completely subjective in that how they asked the questions they were applying the objective additional questions that they asked that the interviewees and i'm just trying to sort out whether this truly was one hundred percent just a subjective gut feeling interview once you got through the gate or whether those factors were factored in and maybe there's not a direct answer well so is this actually a three part process but you did the neo got the application and b the answer that question would have to be found would have to lie in the depositions deposition or affidavit by the panelists and captain have to address what they what did they address that maybe they weren't asked to but if if the counties submitted their affidavits and didn't address this question then i think  there's a there's a bad record for you captain have many testified that he'd be objective criteria the education experience got them to the interview process and then from that point he was assessing communications skills the clearly less qualified objectively based on experience and education and another objective criteria the number one and number nineteen was a finalist a number no one was not that would raise some the screening is a comparative process on what basis where they comparing was it strictly subjective or did they did they factor in the differences qualitative differences in the minimal qualifications of the nineteen captain happened testified he had their neo gov applications they gave their education experience but he was primarily just judging the interview how they performed in the interview and i think target about the about the horsepower of the object of horsepower of the applicants well captain haven't testified that he wanted deputy purple to explain why her education and experience made her the better candidate the a captain and cement also echoed those things he wanted to hear what about your education experience made you the best qualified candidate and she failed to do that i've heard peter purple's counsel wants us to nd guess every interview answer and compare how did sherbert perform and how did deputy purple perform and say that somehow based on the notes that deputy probabl performed better and i just don't know how we can do that under the brooks to be a m indecision interview notes don't have to reflect every single impression of the interview panel and so i don't know how we would be able to really nd guess that there's a claim that  skills well that's not really supported in the record what we have are the interview notes it's up to the interview panel to decide whether they felt like she had the people skills particularly for their supervisory position one of the  testified to is he's looking at eye contact can the person give i contact in the interview because when they're giving discipline later as a supervisor it's a little hard to give discipline when you can't even look the person in the eye so he's looking for those types of subjective things but but that is a legitimate reason to move them on to the top him as a top candidate if they are able to do those types of things and i think torgersen and the other case as a meanie they also support the idea that you can look at subjective things you're going to have impressions about plutocracy even the tortoise in case cautions against the use of subjective considerations because they are easily fabricated and many case repeats that process but but if we look at the but what the fire chief what it came down to was the interview with the fire chief interests and where he found that he had awkward communication i mean things like that are definitely subjective and attacked as relevant education and relevant experience but it's for the employer to decide what is relevant and what and that's how they did that unless it's discriminatory right exactly and we there's no indication the interview panel was discriminating in any way there was no gender bias i mean the closest we get is that question that was asked about a barrier and deputy principal admittedly misinterpreted the question and thought they were asking for  barrier and so she answered about taking off her duty belt when she goes to the bathroom that's as close as we get to a gender comment in the whole interview and it was brought up by deputy preble so i think it's a it's really hard to establish that this interview panel any type of discriminatory motive when they were these interviews were not recorded right no they were not you know one of many they were recorded and that's where the court came away with a flavor that many was defense even educated argumentative restated the mission statement and gave a little a little more to that but he wrote restated mission statement on the notes and you'll see that i'm captain ansermet notes too so i do think that it and the interview panel was entitle to consider the subjective criteria and they did they if they pick their top five i think it's very important that not a single one of the panelists put deputy probabl in their top five i thought the st three or four they came up with  involvement in the interview process so he didn't he didn't provide input on what he was looking for or what he wanted out of the candidate was a son disputed that five were names were submitted to the sure ye top five that he received were all good candidate so he saw no reason to go beyond that so one thing i do i don't know i didn't hear it sounds like maybe it's being dropped a little bit but these i do want to comment on just i would like you know to take a moment because i don't know the other side stressed it isn't their briefs but do take a moment has the authority to go beyond the five and we do have some statements by him that  her interview he didn't ask how anybody of the others pointed out that he acknowledged that he had the authority to look beyond the finals but he had never done that and he saw no reason to do that and this is the reason because it's testified as to gender comment we're going to hire this big guy cause he'll be a good firefighter had absolutely no relevance to the planes we have to target has been used as it is relevant how big you are and how strong you are right but they said that it did not relate that statement was not evidence of discrimination because it didn't relate to the plaintiffs and it wasn't about the abilities of females or the same reason here he wasn't making a comment about deputy preble going on maternity leave so about women going on paternity trouble actually only a couple officers and that he  wants them he's trying to recruit women he never said as bad as has been alleged that he thought they were less reliable in any way he wants them to come back to his force so i'd really it's not even it's really just him a reality of the sheriff's office am i actually a lot of professions that they faced with women going on maternity leave and deciding to stay at home and so i don't think that it was relevant  we've talked about it going just wasn't relevant to probably because she wasn't on maternity leave she wasn't anticipating to take a maternity leave in any way so it really did not even play a factor in  right after she was not selected she approached him and asked how can i get promoted but otherwise that before or after he made the decision that was after he made the decision what does the record show thank you your honour's very briefly i just want to point to some points in the record st of all cripples answer on the duty belt question which you have to credit is it joint appendix fifty four to fifty five it's a good answer joint appendix to eight the process is entirely subjective and the sheriff knew what he was looking for generally and thought it was so obvious that women would go on maternity leave you mention it unprompted in his deposition we would ask that this case be sent to a jury think your honor thank you coun