to summarize as far as the field goes i think it involves the issue of what's necessary to show pretext for the summary judgment motion to have sufficient to create a question of fact but let me go through the without somebody saying you know i don't want you because you're african american or because whatever it is we don't have it obviously but what you have said is is this process where they took my client and basically took him out of the loop pretty clear given this two step process that these five pound members did not want my client to be referred to the superintendent but why wouldn't a point except that you've met your pretext burden here why wouldn't then every one that doesn't get a job be able to bring a discrimination suit i mean it you know what have you he didn't get the job that's true but then there was also someone else that was ranked higher and didn't get into their wealth for other people didn't get the job  said when you look at the process he was initially ranked number two that he came in number thirty three and then they decided over only going to refer the top two so if i look at all of that what process he was the only one who was bumped out of consideration mean obviously there's a lot of employment practices where you get certain things to you get you get certain people that get to it and then they narrow it further i mean for and on so are all of those anyone that doesn't get into the top two you questions about the  their scores were different and then some for some reason they changed them so them and their reply very well but look i mean if you go through their screening and recommending procedures that were utilized for this particular hiring decision if you read it carefully it does you get a sense that each step of the way they try to reach some quote unquote consensus first the initial screening of the applications they do a telephone interview and then they wait  was high and low in this process to figure out where they got that from and the declaration by the by the by the custodian of records that they used to say that they followed this process in prior probably nothing but if you look at their scores one guy raised his scores from three to five now if you only had to raise your scores to within one point all you would have to do that is to race to the board so why would he even jump to points that th or that doesn't even correspond to what they're claiming which is we trust everything to get to be the one point but again they're not if they have affidavits from every single person on the panel none of them says we use the one point  mayfly to court money still hopping on the general counsel for the clark county school district clark county school district is the fifth largest public school district in the united states also the fastest growing we build about a school a month and have for many years in  hundred seven we needed to have somebody that was going to supervise this process and so we we screened across the country and obtained forty five candidates of the forty five the screening committee selected five one of the five was mr overstreet the screening committee itself the composition i think is important relevant in this case only two of the five on the screening committee work are county school district employees they were principals of the school the reason for that is because they were the consumers or there were the customers of the facilities director the other three one was a construction guy construction company owner who had built schools for the district another one was a member of the bond oversight committee which is a civilian committee a public committee of citizens who oversee the expenditures of the bond funds the clark county had in one thousand nine hundred eighty eight we had a three and a half million dollar bond fund before that there was a similarly large bond funds for the bond oversight committee oversaw that from the citizens point of view so one of the members of an oversight committee was on was one of the five members of the selection committee and then the fifth member of the selection committee was a former director of facilities who had built schools about five or six years before that's important because those individuals were not at all though the two district employees were aware of the selecting process the other three were not because they were normally in the business of of selecting just a complete court has correctly pointed out the screening and recommending procedure called for the responses to be rating according according to the protocol regularly employed by the district for interviews that's in the record at page four fifty eight in order to understand  in the record about the one plan it just meant or is that the only place on the record that that's not only that's the only place that explains that although if you take the fact that that the screening procedures called for that regular protocol to be applied and you understand what the protocol is and then you go and you see how each of the scores were changed you can go through for example look at question one and see what the different ratings were and you can see that they were all adjusted to within one so there's no mystery i don't think that what happened was the the the administrator the supervisor if you will of the selection process explained this to other thing i think that's important is that i think the court below pointed this out is merely because mr overstreet was treated differently the court pointed out that all of the other applicants also had their scores adjusted so there's no indication that the the adjustments were based upon mr overstreet or mr overstreet race as of the suggestion is that it was applied to everyone and the court pointed out that even if you threw out the most that the number one and number two candidates were clearly superior and their affidavit said that those candidates that their candidate that hair and was clearly superior so while it's true it's pivotal evidence if you stand back a bit from the process and look at what this panel said the panel was very clear that it had found a legitimate nondiscriminatory represented a legitimate nondiscriminatory basis for the decision and that is that hearing was a superior candidate well except that everybody proceed beginnings if i mean and this particular case statistically the requirement that you achieve consensus on a score and varying the results widely i mean the numerical results then end up completely off what with what did he have to show for pretext i mean in terms that you've stated what the procedure is that you stated what your reason was for doing it that way and assuming that you met that that burden then it goes pretext what in the record shows that that's either false or that there's any that it was that there was any discrimination but shows that there was no discrimination well what in the record did pretext if that's what you're asking me if the panel wanted to select out mr overstreet for some reason they would have done that in the midst of the group forty five when they did the first screening there are two different screening processes that are going on you said they changed the rules in the middle of the game they didn't they did a very i think a very objective screening in the beginning to go through the application the educational background the experience scoring his prior experiences education and that sort of thing so that's a very objective process but then you start afresh when you go to the actual interviews in the side interviews because now you're talking about how individuals get along with each other how they respond what their experience is on how they would deal with particular problems so we've changed the rules a little bit then it is going to be subjective but the makeup of that committee i think is one of the most important things that this was all the assistant superintendent who worked directly for the district superintendent and you could you might judge for example that there was some sort of a conspiracy if you will were going to select a particular individual who happened to be from north carolina if that was going to happen then the makeup of the panel was particularly relevant in this case the panel was from all over the place you've got a couple of district people you've got if you've got one from across country you've got people one is one is a bond oversight committee one's a contractor construction contractor who build schools for a living it's hard to imagine that you're going to put together a conspiracy with those individuals select out somebody well that that helps you on that charge which is happening in our potential charges that that's in this case they were favoring and house candidate versus actual candidates for those reasons how does that help you in terms of ensuring that states in her declaration she said off by the interviewers needed to arrive at scores that within one point of each other which was protocol regularly employed by the district for  come i think i think you can connect up a couple of facts number one there is such a protocol it was planned to be used based upon the survey there is no declaration doing anything while the screening and recommending procedure says that they're going to use the protocol regularly used in such matters it says that in on page four fifty eight of the record before they start that's one of the description of the on site interview part and then what you have is you have the declaration of how that that works which we put in after we heard from the plaintiff that they thought that that was a basis for discrimination but then the very telling evidence that can actually all the stop is when you actually look at the score sheets when you look at the score sheets of the individual you can see on each question when there was they were not within a point once forty two once florida for you can see that either one went to a two five and went down two or three five or they both were two or three or one were two or three i mean you can see that in the record so that's not mystery each of the five candidates in the finalist had their scores adjusted one way or the other in order to reach this consensus that we're talking about i take it there wasn't much discovery done in this case is that right there was this there are some who are some depositions but i it just seems odd to me that there are so many of these key issues that that came out after the close of discovery and i think it's actually one of the things that the briefing provoked on both sides well the you know that the district felt like we had we had put together our case we didn't think that the protocol and that this this the scoring change was an issue because that's what we use and that's the way it is and the record shows that that's what they did so there was never there was never a reason for us to depose anybody to establish that point it would have been the plaintiff's burden to say why is it that these scores have been changed and had they had asked that question of any of those five members i think the answer would have been well we were told that this is this is the way it had to  be and that's not speculation that's by looking at the records and seeing that actually change there they change their number why did you change your number because we had to come with one point was it based upon racial animus not i was based on the fact that we had to come within a point so if you thought he  gave a great answer and i thought he did not such a great answer let's talk about that answer and let's reach a consensus that's the way the system works and that's the regularly established protocol and the plaintiff never did any of that in his discovery they never did they never asked that have to show pretext so why you know why weren't you deposing people about this as i said in a clearly there's nothing there's no case fly out there that says that i didn't get the job and that gives you a lawsuit for discrimination you have to show more i mean well just hypothetically if we deposed all five family members how would it have been different i said that looking at that on the surface i suppose  mccourt who was the person in charge of the fraud you ask them why they made the adjustment and that if you're looking for knowing that you have to show that they're they're legitimate business reason and that it's either that it's false and it's that it was actually the one point and then you could you could get further into whether that's really how they did it or you know go with each person well again i i didn't i tried to pose the guy who was in charge of the process he never mentioned the protocol program i had no idea that this one point thing obviously they had just of the things internally but i mean to ask them why they did that i do that they're going to say which is what they're after they would say which is we didn't do it because it was racist but the fact is when using that two step process and of both the protocol the one point protocol is not in the record anywhere and in the changes don't actually comport with that in some cases and secondly the decision to limit it to the top two that is the word there's no rule that says you limit you past the top say here's our explanation for that we always do that and they followed we followed the procedure even though it wasn't part of our written protocol and we always have done it that way and this is the way this course came out so so then it then it's your burden big issue but but again even if you assume that one time what protocol is in place that doesn't explain what happened here i mean there is an error is a consensus but the consensus is obviously was that mr overstreet would not be referred to the superintendent and that's our point is that well the consensus meaning if you look at the sheet you know it has different articulation seeing how they are you know why somebody thought when individual differently than the other person did i don't disagree i mean there's clearly there could be a legitimate explanation for what happened but in these cases  and i don't i push it the difficulty of the issue but i think if you're going to let pretext be one of those things where you don't have to show that have somebody made a racial comment you just look at how the things happen and if the these two decisions not just one there's the first one which is we're going to balance it out and if you look at how they balance them they didn't balance them out according to protocol in some cases and secondly when you're limited to two and he goes from second to third and then bam by the way he's dropped out  racial discrimination what other factors led to you to that conclusion apart from the number's an adjustment all we knew was we had a professional engineer who had come in second for the same job somebody was previously he had been excluded he wrote his sleep couple years previously and then this process he goes through this process and on paper looks he's a professional engineer the guy who got the job was a doctor of education or something in charge of construction of the largest school district in the  country you know we thought we had we want to know what happened recommendations you don't know until you get in there and then we get in there and you look at the stuff it's like sausage i mean like legislation it may not be just it's not really process and maybe it was a legitimate it's just that it's an ugly