reversed the key issue here over and again it is that we provided page after page of pretext in pretext is the key to rout this case first the medical center retaliated against ms roy when she filed a charge of discrimination with the e e o c just that he was rich before that your honor she was not it was four days judge cl after she found her charged with the e e o c that she would there's an allegation they didn't know about it your honor dear is what we provided in the record is proof that she was told just days before she found her ears she complain the person who ran the medical center judge dr crews had given her a general assurance of safety in fact the phrase dr crew she used them is really was i'm going to use everything in my power to keep from laying people off there that he didn't know about the complaint at the time it had not been following it the only thing that changed from that guarantee of safety in the week later her being fired the only thing that changed was that she went to the  virginia discrimination so reasonable jury your honor could have concluded that the fact that her supervisor the person who was in charge of the whole medical center were this department the medical center had given her that general assurance of safety and it wasn't just a sort of a we're going to take care of you judge it included a specific plan of action because what dr curry's admitted in her testimony is to say was that they had a plan to avoid layoffs this was not your honor a requirement from the legislature because that the medical center division she worked at is publicly funded this was not a requirement from the legislature that they should or the division or that they like people off it was a budget reduction the would very significant frankly judge jones i think it was twenty one percent it was significant here on however there was a specific plan judge jones that they while they knew the budget cut was coming they had a plan to keep there from being that after she had had the conversation with dr curry's she thought no one would get laid off they had a specific plan of action so it wasn't just that they generally were going to try to make promises not to lay people off that specific plan was they were going to shut down satellite locations because of the way this worked was they had most of their main employees judge in jackson that's where his really was located in jackson mississippi along with other people who worked to try to keep patients from smoking it was part of the general plan for to what they call tobacco secession the legislature had begin to cut the budget towards stopping tobacco usage so they knew this was coming on and they had told roy we're going to try to keep you say in a reasonable jury to have concluded than the fact that ninety six hours before she was fired she went to the ears see this was protection and that's exactly what evidence of retaliation now in that case it was as long as six and a half weeks that the court concluded could manifest itself as prima fascia retaliation here we can measure it not just in weeks but in hours that this tobacco cessation specialists were treated differently than the women there were two man in two women and that's important judge jones because one of the other issues with the pretext and her record was the fact that these two men had been secretly promoted over the women while the medical center had a pattern and practice of it would always post new positions asserting when they were opening a new position or new opportunities for promotion judge and they did not do that in this case so a reasonable jury could have concluded that she suffered gender discrimination when they passed her over for promotion because they didn't even post the job it didn't publicize the position and it not only secretly promoted the two men it kept it secret the medical center kept it secret for five months and this is all ongoing at the same time while they know that the legislature's budget cut going to have to be implemented a reasonable jury could have looked at this and concluded this was pretext their reason here wasn't that they had a budget cut their reason is that they were keeping her down in the workforce and then when she complained about gender discrimination they objected to her bill looking at the evidence most favorable to ms roy as we were bound to do in the district court of course this court does as well there was key information that was not included in the district court's analysis it was in our records but it was not viewed at all let alone in the light most favorable to ms wood in the district court's lengthy in and very detailed opinion it did not include these general assurances of safety from dr crews the supervisor of the department and it did not know that as must be noted that there was even a plan of action to keep people from being laid off it's also important the district courts full analysis was only on the reduction in force policy this is a general plan they adopted several years before these layoffs happened in two thousand and twelve the general risk plan as they call it was in two thousand and nine the general plan then is keep the senior from ploys in junior employees however the district court focused exclusively on the two thousand and nine plan but ignored that they didn't have to lay off anybody at all and there was testimony not just from dr cruz who was the supervisor of the whole division but also dr payne who is in charge it appears from the record more of hiring and firing even though dr crews have the ultimate authority now why do you thing they didn't have to lay anyone off are you talking about in main medical center or as opposed to the satellites or what he said in other words like they had a choice to make as to whom to lay off is that were you saying your honor they not only had a choice to make as to who they laid off and this really was not the only employee who was laid off although she was the only one in the record that we know if who had complained about gender discrimination or engaged in protective activity but there was evidence in the record judge jones that while they were having that twenty one percent budget reduction it didn't have to result in layoffs and that was part of what dr cruz a told ms roy was it's she wanted to take care of the employees in jackson we were talking about the satellite locations your honor we're talking about rental space because jackson were rather mississippi is a predominately rural you often would have the staff focused in jackson they would then travel to rural areas to provide the smoking cessation counseling provide prescriptions to the people in rural communities so the plan as dr curry's had articulated and as she admitted in her deposition testimony was we're going to start shutting down the satellites part of that your honor was because in a record one of the ways they were going to focus their budget reduction is they were going to reduce their patient workload so they were seeing a thousand patients at the time your honor before the budget cut from the legislature they were going to reduce that to seven hundred and by reducing the patient workload they were then going to start shuddering some of these rental offices that was part of the ultimate claim they used so again looking at the light and looking at all this evidence in the light most favorable to ms would because they partially implemented the the plan they had told her about realm of what they were planning to do with their with budget cut so we thought they could get rid of misrule iran or what if we went to a jury that issue would be the credibility of the supervisors versus what ms roy's recollection of these conversations would be that's a that but i mean the only alternative for them they would have in your view would have been to not  unclear from the record places the u n and sat down with the patient when you go out in the countryside that's closer to judge the three people who are all ultimately laid off here were the two men women the two women tobacco cessation specialists they kept the two men and they also laid off in the ministry of the system so the fact that a jury could reasonably look at this information your honor in concluded there were other ways of administering the budget cut that's the most important thing here you honor in and if we were after a jury trial judge jones this case would be a lot harder because if a jury family against us and said we didn't think there was retaliation then our hands would be taht it would be much more difficult the difference here being that at the summary  your honor it does not have the full deposition testimony what it does have is selected excerpts from the deposition of dr karen cruz who was the director of this division of the university of mississippi medical center it does have selections from the testimony of ms roy and also has affidavits from all the brassfield who is the director of human resources and from dr payne who is in charge of hiring and firing this department so it's very substantially on it runs almost a thousand pages this was a very case on both sides with just frankly reams of testimony that's another reason chief judge that summary judgment should not have been granted on the failure to promote issued were we allege that she engaged or she encountered gender bias because there was so much information in the record that the failure to even give her the opportunity to try out for this job if you look at this evidence and what most favorable to her didn't summary judgment should not have been granted will appoint the district court focused in part perhaps because it was such a large record the district court focused exclusively on an experience requirement in the experience requirement in what they called the j d q the job description questionnaire had a general experience requirement of five years now after ms roy learned that there was the secret promotion because she did not know about it we have a we have information in the record in form of a memo from human resources that said you need to tell everybody you promoted the two men you need to tell everybody that there's a different worked chart now organizational chart because the two men are now above the two women and especially because ms what has been e mailing human resources about gender bias well they're not they're i mean i did they get increases and they did you on but i find that it what happened was that the other lady left and then they divided her responsibilities among the two most senior people your honor what they did when dr suddenly left the medical center what they did then was say we're going to we're going to spread her duties and we're going to make these two new senior position but your honor the key thing here judge jones is that they didn't tell anyone they were going to do this even though there was nearly a six page long job description questionnaire with things like you have to have a master's degree in health services you need to have a certificate in tobacco cessation training they didn't solicit or promoted the fact that they were going to make this brand new position so in the in the brief that we have the frankly excellent brief from the medical center they are words that this is sort of like an adjunct professor moving to tenure track the difference is from that analogy there would have been no tenure track as the first page of the job description questionnaire says they are creating a new position in order to fill the void left from the former dr this was a brand new position and a jury could reasonably infer that failing to promote it or publicize it as they had in the past was pretext to keep ms rouer way out of the promotion process to keep her out of being  the gender discrimination that and yes your honor this are i so the head of the department was a female she was you're going to persuade the jury that even though she left presumably voluntarily they're now trying to keep down a female judge that would be our burden a trial would be a difficult one judge jones it will be but the difference between not all to push that we're going to have to make a trial your honor and here summary judgment is we have to take unlike a jury here the district court should have taken all evidence in the light most favorable to her and there was evidence in this record that dr payne said but for her not having five years worth of experience perhaps she could have been promoted and shot the record shows that dr curry's and dr payne agreed she was a very quote very good employee she had no disciplinary history had a master's degree job experience than her however the job description question questionnaire your honor and even dr paine's affidavit that was not the requirement for this new job it did not say although the district court ruled this way your honor it did not say that you have to have five years of experience in this special honest field in fact judge clement what it said was you have to have five years health services and what's so important about that five years is two things first of all ms roy looking at all of her experience and if this had just been posted up on the bulletin board in the worker room or taped up on the door she had five years of experience she had four years in eleven months just with a medical center honor and she received three years for in neuroscience research it was your honor what does that have to do with tobacco treatment your honor doesn't have anything to do with it but the job description questionnaire didn't require specific pages of the job description questionnaire they could have clearly implied in your honor if they wanted to make it a specific requirement it could have been but looking at the evidence in the light most favorable to her they did not make that specific choice instead left the field a general requirement for experience i made the choice they chose the two men who had specialized treatment and for five years where she had some other general treatment not  even focused on the issue that they were trying to resolve the chief judge i see my thomas allows me to briefly respond to judge him her it your honor they did make that choice but looking at the evidence in the light most favorable to her they never gave her the opportunity to even try out for the job in a reasonable jury to conclude in this was pretext in part because they selected a a general borat experience that would have left her out by one month by the it please the court i'm tommy whitfield i'm here on behalf of university medical center and dr karen cruise i'd like to point out that there's no issues related to dr cruise on appeal all the only three issues are related to the medical center itself and i'd start with there are three issues on appeal the first being that there's a claim of gender discrimination for her not being promoted to the position of senior tobacco treatment specialist of the court as it is acknowledged disposition required five who have been hired as a tobacco treatment specialist who have achieved a number of years of experience which was five and then also there were two subjective qualifications being capability to oversee different clinical aspects and  n there was another one but those are subjective but at the base qualification to the objective qualification was you had to have the five years of experience the human resources department when implementing this looked at the work force including ms rowley and the only two people in the that work tobacco treatment specialist that met this no one criteria five years were the two male specialists and planning to make that transition for two people be the chief deputy and they were both applying for the same position here we have multiple positions available if you met the qualifications you get promoted up and so there wasn't just one position it was multiple positions available if you met the so the district court following oden held that she did not establish a promise facia case because she did not meet the objective qualifications and the court didn't even get into the pretext analysis because the burden davit counsel's argument is in the rue fifty six construed evidence in the light most favorable to the non movement might not be a winning argument down the road but at least on a piece of paper for the for these two per people to move into the new job title the position and affidavit in his breast bill and dr payne say that we looked at the contours its position we created it we examined our workforce we determined that these were the only two people that met the qualification of the five year experience and therefore they got the promotion there's no inference of any type of pretext or discrimination in in  they objectively looked at the requirements and found that she did not if they had promoted other people to the position that did not meet the requirements then there would be eight argument for this was a gender discrimination pretext to see nobody was promoted to the senior position or elevated to sing your position the did not have the minimum requirement stated on dr parikh i find on your show that its name is pain even though it's responsible for helping implement and oversee our policies for human resources and she's the one that examined our workforce and said these are the people that have met the qualifications for than for that to be elevated to see at the back of treatment specialists and these are the people who have not that also goes directly into the next issue which is the reduction in force this breast bill again provides the rules following u m c policy as to how positions are going to be eliminated this was a very substantial cut in funding to the tobacco treatment center is closer to twenty to twenty five percent of our annual budget than that a one point six annual budget this is close to four hundred thousand dollars  n the grant is administered by the department of health who sets the scope of work for what they want to see achieved under the grant and it's undisputed the record that they want us to see less patience and focus mor satellite best more of an educational outreach area we have people who go out in the field deliver materials and there are people on site at these clinics they're not our epic people come to the patients go there but they're not treated by our internal staff  staff goes out and provides support work for these clinics but we don't rightly treat patients outside of the main center they have people at local hospitals and clinics that provide that type of support so based on that with the reduction patient flow we didn't have a need for for treatment specialist at the medical center and to go back to your honor's point earlier the risk plan was submitted on may thirtieth which was five days before miss royce filed her e e o c charge that's when the plan was submitted to human resources for final approval and was finally approved on june the fifth which for the reduction from four tobacco treatment specialist down to two and the policy that was the two thousand and nine policy that was references are global university wod rif policy for reductions in force it's not a specific policy to the tobacco treatment center is a policy in the globe that deals with all reductions in force at the medical center and that policy requires that you know when i single job plastic casing or category  targeted the seniority rule applies and seniority is defined as years of service with the medical center and you get credit for all if you live years of service there's no dispute that the doctor the two treatment specialists had less than that time at the medical center so based on our policy implemented according to the policy the two least senior tobacco treatment specialist were let go when the reduction in force they didn't have the the seniority in accord our policy there the there's two positions you had for how many tobacco treatment specialist did you and there were four total or seeing a fund that we had to account for it reduced patient cost reduced medicine costs and to focus more on our outreach effort is now going to these patients come that i don't know you're on he 's saying that you could have reduced reduce rent in some of your facilities elsewhere we could have done probably a lot of different things but the business justification t business need of our department is analyzed by the people that run it and to compensate for what they thought was the best way to handle this budget cut is for delimitation of the tooth tobacco treatment specialist and the reduction of medical costs and all with the reduced patient load this going to be had at the center as a legitimate nondiscriminatory reason for our actions you know as i read the case law it's not the court's decision to second guess business decisions it's to look for the inference of discrimination and there is no inference in this case because as we pointed out say she would do everything within her power to prevent people from losing their jobs the necessity of the department and the necessity of the cut they would in a different direction  honor that's the third claim that i would get to the next that was miss roy also applied for three positions but she's only appealed one of those issues and that was for when she applied for the patient advocates position at the medical center patient advocate isn't a completely separate division from the tobacco's treatment center has nothing to do with tobacco treatment or anything it's a different division of the hospital they a patients that have complaints concerns they're kind of a liaison between the patient and the hospital to meet with patients if they have issues to explain hospital perceived use related to that tobacco issue completely unrelated to the back of this is in our main hospital helping serve our main patient population kind of a kind of a public relations person for patient care that if a patient has issues there  applications for this position the position was posted she applied she met the minimum qualifications we don't dispute she met the middle qualification when the position went to the hiring manager wants the one so that location goes through our system and you become system qualified or there's you met the minimum qualifications we give the applications to the manager the manager is not provided with any of the racial or gender demographics of the positions they just get the applications with the requirement or with what they put on paper the testimony dana phelps who was the hiring manager for this position as she reviewed all the applications including this royce but she did not employees who had been laid off before yes rather under our roof policy you do get first consideration for positions but first consideration is not a guarantee of a job and as a district court correctly noted she was considered for the position but she was not deemed to be our strongest applicant well she was considered but she was considered without the benefit of that according to year got your testimony without manifested that little nudge that is correct and but she was not provided with the demographic information and this is plaintiff roy's claim of racial discrimination and her application was eliminated long before or before the hiring person didn't know what race she she would even would lose at this point but nevertheless i'll still consider her other arguments and that's when the court went into the lack of knowledge of the risk procedures was not determinative of pretext in this case and by looking at the applications one cannot say that mr lloyd was clearly more qualified than the person ultimately selected and by comparing the applications there was not a reasonable jury could say that this application was so clearly better than the other dates there's an inference of racial discrimination and what they're asking is this courts to look at to reweigh the applications and come up with a different result but that's not the purpose of the discrimination laws that just purposes criminalization laws is to address an inference of discrimination without knowing the racial demographics of either of either candidates that can be no racial discrimination at the selection states they please the court a jury could have failed and did miserably was denied this promotion were really known even to not just the promotion but the opportunity because there is nothing in the six pages of the job description questionnaire that has anything close to what their position on appeal is there is no language in this questionnaire that has anything that you had to have five years of specific employment experience in that department if it had said that frankly we would not have what about the language climate referred to in the letter in the affidavit your honor of the requirement for us under burlington is to show that this was well ok so your but your only evidence of pretexts is the description health specialist in the j d q right for health services right your honor that is the key thing let me ask you a question about that because services normally mean things that you're doing for people and three years of her experience was as a neuro science rist searcher which is not health services and in terms of being a nurse or a patient advocate or somebody who's connected with patient care or even our range here on earth under a very strict view of what experience means that could be that way the cold or standard just at this level is that we're supposed to look at the servants in the light most favorable to ms really well but we're not supposed to let you know contort things beyond what they mean of course not your honor even as counsel for the medical center just agreed she did have multiple years of experience within the medical center and looking at this evidence it says health services five years of experience there's no special barometer i'm here j been a nutritionist for five years opposed he had worked and for three years suppose he worked in the blood lab for three years would all of that meant that she should have been able to  a broad reading in the short order well he said it us to be brought out i mean what i mean this is in whether there can be a draw on an inference of intentional discrimination your honor one of the things that we can look at when we look at the whole of this document honor where i have a mississippi sometimes without asking we do not get to say another word just judge jones what's important here is even on this record excerpt sixteen which is the page that has health services five years of experience where we see that they could have made it to specific requirement is two lines below it says you have to have a certificate for the job c t s certified tobacco treatment specialist looking at this evidence to in the light most favorable to hurt the fact that they use sometimes very specific language or owner when they use broad language we can see that they could have selected a specific tumble or they did not in a reasonable jury to the concluded that this was a protection