over sequestrations could not survive summary judgment when by simply explaining that in a candidate was not best qualified based on their the reason they said that was because there was no way to gauge whether those criteria were that it was insufficient for an employer to provide a list of criteria where it was not set out which of the criteria were just they save or how they were applied again the issue is that the employee is  an information deficiency without that information they cannot elaborate on where the pretext came in whether those criteria were applied or whether there was in fact discrimination and i are in process and that's the issue here and because the department did not set forth that legitimate nondiscriminatory reason with sufficient clarity mr fieger relic does not have that opportunity another way to look at this is discovery on those that were promoted to show in order to show in rebutting pretext that he was significantly more qualified than those who were promoted and he didn't take had asked all of the right questions and even if the department had actually responded to those questions with sufficient discovery he would have no way of demonstrating pretax because there is no way to show he is significantly more qualified on every single one of those thirty criteria what is needed for mr figure out is for the department to elaborate where he fell short and another way to look at that is the cases in this circuit which step forth that a subjective reason is required to be supported by objective bases so in this case it's very possible to look at the explanation that mr figaro out was not trained highly enough as a subjective criteria in fact you have testimony from one of the board members saying that you know that was just understood as whether he was suitable for the position or we really can't get more subjective than that and so in order to support that we could jeffrey what we needed was you know we're in these eight pages part of criteria that mr fieger awful short such that he can go back to his evaluations and look at the end are you asians at the other candidate and say no you know in the leadership criteria i have i received excellent you know observations from my  the first of that would be the destruction of the us and this is something that was sort of not even has upon by the district court and i think it's a significant oversight because the destruction of the notes when coupled with sort of all of the evidence that the criteria were not in fact applied and because that's the government's explanation the fact that they were not applied should be significant evidence of the guys that coupled with the note shows that he really did face an issue here and it's something that he should be able to take to a jury in addition and on top of  and self contained so you're saying simply in light of that question it seems like the district court just did not resolve the issue or fell by the wayside this was a long and complicated case before the district well and what is surprising about that is all of his supervisors for the previous six years had recommended that he be promoted immediately and he was not so there is nothing in his evaluations that would tell him where he fell short what he sees and those asians is every reason for him not to be promoted which again i'm sorry for him to be promoted which again raises the question why he was not and that's what's lacking from the record and what could have been in those notes and be it was in those notes and there should be a negative and friends over that's correct your honor and if i may it's also nothing new that the state department has been charged with discrimination and that is something that they have a very long history with and again it goes back to sort of the need honor and just start at where women are so that they are significantly more qualified in order to succeed on qualifications based events that would be very difficult i think to prove in many cases in less there is in the notes clear evidence of pre and again we don't know what was in those notes here that's why night and france is important but i think another thing to note is that the rule that we are asking for that a department or an employer must set forth its reasons for the employment decision sort of lengthy or vague guidelines that would make it impossible for any employee ever to demonstrate text whereas the rule with say would force the department to focus in and look at his thing and and say you know journals and you know it says he's i understand and so that would be a question on review of the record elate of the particular role again if the no to been produced that would be one way for the department to show what the actual reasons were for the decision made so that the extreme example the state department could have all of these criteria and they could be on the books and the board members could have sat down and looked at mr figure of this thing and say well he's hispanic so i don't think he's suitable and that there what the there something in the record though from a decoration or about his he was either operating out of his cone or the recommendations came from out of his to exactly the type of evidence he needed to prove protests in his individual case and he simply failed to do that these precepts that are issued in this case are not something that state has just come up with the individual officers for for promotion in a given year and it is as a judge at risk pointed out it's a relative qualifications it's not absolute and so the the standard that amatus is asking the court to adopt here which would be an entirely new standard for this court that has never been never been applied in previous cases in the circuit or any others or for that matter the standard that mr figure only because rest in court to apply in this case would be impossible for state to satisfy in this case it would have been impossible for states as i know this case and impossible for state satisfied in any future case in which an individual service member in a foreign service challenges a decision and the reason for that is that there are hundreds and hundreds of candidates under review in a in a given salary class like mr b rose for example there are more than four hundred eligible candidates that were eligible for promotion in that year in two thousand and eight so the idea that months or even years later this department could identify a specific deficiency that every each and every one of those individual officers had in that year and that's but that's not the evidence in this in the record this case shows that that's not how the world operated and that that level specificity particularly in these early rounds of the the selection boards review where they're going through a great many number of  that under the board's documented policy at that time the notes were were destroyed at the time of the board's dismissal and the only the only record we don't care about what your policy was meaning if you're notice that there's litigation in the in the notes still exists you don't get to come in and say well our policy said we destroy the knows well there's there's no as we would say admissible evidence in prior to when were the notes destroyed that's in the record it's they were destroyed at the time the worst as i don't have a specific date but it's it's in our brief where we point to the fact that the boards the boards were dismissed or  the director general accepted the board's findings and recommendations and in the director general memo it says i hereby dismiss the board and accept their their ratings and recommendations and that one time when the borders notes were destroyed nothing was kept from the words of liberation except that final list of recommendations and ratings and then it was i think thirty to sixty days later somewhere in that timeframe that mr figaro initiated the process  promotions that promoted war middle rates or lower rates and i think there was a numerical score that was given for a particular candidate in a chairperson averaged out those scores and then you come up enough time to be taking detail notes in for the were members be having really thorough deliberations about individual candidates now when they got to that step of the review process where they discussed their scores and came up with a number if they were really why this discrepancy and so the question in this case it may only be a question on a system that is really not satisfying as opposed to remove tori understand the different questions for the room but it certainly can  if i'm the last woman tell tell your honor that that the law student here is the specific criteria that you are judged on you know in this class this is what your answers on in the final exam needed to say this is the you can pick apart you know the fact that you know he isn't untrained person didn't do discovery correctly with ultimately the problem i have with your position on this will be very direct with you is that if we accept your view of the law then the state department could have a meeting of this ward where the board  a criteria in moving one we don't like him and that doesn't have to be documented you don't get discovery of that if it was ever was documented it could just have been destroyed and he would be left with the only way that he could prevail as far as proving that the reason that was given which was was false which was that we applied to criteria and he didn't meet up to the criteria would be some sort of a disparate impact theory or showing that his qualifications were so much above everybody else yes those are ways that one can prevail as a plaintiff but they aren't the only of the reason that was given well two things are wrong i will say that in this in this case be think that the plaintiff notwithstanding that he was a pro se litigant pad as you say a fighting chance to to there are a number of of safeguards that are built in to the good promotion process of a few of those top my head are that the candidates are already divided by two separate courts there's the class war then there's the so that an individual candidate is receiving two independent reviews the this election where members don't receive information about the candidates races and national origin of the characters that that's who are native speakers for example or trying to draw an inference from some of these name that's that's just not plausible that in in a limited time that all these folks have to go through this huge body of occasions to to raise your rate these votes that they're going to be going through trying to find reasons to scrutiny it's on this record there's no evidence of any kind to suggest that that's what the word members are trying to do or that they in fact found three things and one that mr figure of be able to show that any information that would existed in those documents would have been relevant to his individual claims let alone helpful to him and he pointed to the testimony from the state department that discussed as i mentioned earlier that the board member of reviewing high volume of applications number two that this report found that  so i just have two questions one this forced retirement is it tied to the age of the employee as well i mean i think he went ten years without being promoted but if he were a young person c as a matter of course represent the state department in this case i mean well i know it's in this case i'm just i'm surprised by that and i just wonder if that's a change i  how the different boards arranged candidates or what not one thing that is is worth noting it is important to note is that procedures for both of the boards set out that members were to take good notes they were intended  friends but what was overlooked was in particular the observation of the ia officer is documented in its report that mr taylor paul p a r for mr figaro and review the board notes that were on that and what correct so though the lack of notice at the of reasonable the lack of reasonable notice of litigation with at the point at which the board's concluded and the notes were supposed to have been destroyed by policy the to i think the overarching most important point that i want to make here today is you know the problem for mr figaro is that he cannot tell where he fell short the entire point of the mcdonnell douglas burton shifting is to acknowledge that there is information a mmetry between an employer and employee in order to her that he's in a tree they set out this burden for the employer the employer has to set forth their legitimate nondiscriminatory reasons for an infinite decision reasons not criteria again because the fifth circuit alvarado versus the texas rangers that all of these opinions are saying that you need reasons not criteria and so to hold the same to impose the same role in this circuit would be very much in keeping with what others  done and also in keeping with president from this court that says a subjective reason or as one board member you know sort of summarize the criteria whether a candidate is suitable it is not sufficient without further explanation and the further explanation would be either  is for hundreds of the n standard for this foliation entrance and with due respect to the district court the only evidence that there were not know is this statement as pure angelo who was not of your member well there are two questions one as you just at the district are found there was no evidence that they were existed until where the district and i think there is there is evidence for up for both questions for mr figaro like you were appointed by the court