that say they're not a lot of people wait to hear this argument everybody is left only the most important three i hope yeah exactly may please the court raymond is only half of appellate mr signature i word he participated in racial comments and the testimony is that he did not like to admit it but there was a hefty amount of racial slurs and they were going to sensitivity training as a work environment  what does that go to well i think it goes to the discriminatory atmosphere and we've cited to the case law indicating down a hostile work environment claim or it is a hostile work environment i don't believe this hostile work environment claim it's that the allegation there's a retaliation an stated that because of the delays of the defendants in this case they pushed these we noticed up to depositions in two thousand and fourteen they didn't allow us depositions until two thousand and fifteen in april break to the book end of the close of discover chief then we filed to amend the complaint because didn't have the evidence of race discrimination as an attorney i felt to proceed prior to i thought you alleged race discrimination in two thousand  race discrimination going on in the fire department and somehow they claimed later that he didn't know about it that's not correct it wasn't that it was going on in the fire department he claimed that he believed that he was discriminate against based upon his race well that's kind of what he would have to do if we have amended is allowed his complaint to be amended he won't recover because of general race discrimination going on in the fire hall he would have to show that he himself was discriminated based on his race right correct in that the alleged in two thousand we didn't have this evidence he didn't have this extra evidence but obviously he had some evidence i don't think he would make a false statement thousand and i you know i think what the delineation is is his belief just because somebody believes something to be true doesn't make it true and doesn't give us enough evidence to always proceed in court if if i'm correct if i can file and beliefs i'll file lawsuits all day long as you see complaint had no substantive basis in two thousand and ten that's not even close to what i said i said that was his belief i was involved in the twenty ten i don't i don't you're going over facts that were true we're talking about prejudice to your client not or not to you and whether he goes through two attorneys three attorneys for terri's or were adjudicated his rights  k everybody was entitled to an interview my client was not given this job interview in twenty twelve he filed a letter with the township stating that he believed it bordered on racial issues were you caught is there a or regulation that everybody is entitled to interview or is that just customer practive no that was specific testimony by mr whitaker which we settle in general got i mean was there anything that required them to give everybody an interview i don't know how to answer them that was his testimony he said everyone is entitled to an interview in the township well ok every sounds like a legal conclusion by a lay witness and i don't think he's got a foundation for state but that's ok we believe that everybody is entitled to an interview but what's the basis for your opinion he didn't say it was his belief he stated it as a fact well and it's not a says i mean ok he was  supervisor of the township the basis of this fact was him working as the supervisor of the township and his testimony illustrates that all of these other people who came through were entitled to an interview as my client was but he did not give immunity application was incomplete contest that was missing page three there are well we do contest that because the fact that mr belin just said that the roll types of errors within the process so whether as to whether your client application was incomplete do you contested or not i can't answer any better than i just did i thought you didn't answer my question that's right you have to admit you want to do a confession avoidance answer here the confession is that was completely the avoidance is that there were other people hiding completely applications you have to acknowledge was incomplete are we going to fight about that as i understand the testimony my client testified as i understand it he believed he put in a complete application but it's page three came up missing now whether they ended up messing it up and not putting it in there i don't know the answer to that question but i do know that they are getting complete and the record evidence that your client testified by affidavit or deposition that he filed a complete application if so where can i find it in the record but that's my record recollection i've gotten you know you don't know what the record says as to that it seems like a rather important point i don't think that it is because of the fact important point or you don't think it's on the record no i don't think it's a it's a relevant important point because you know no word is on the record or if it's on the record if i can finish please you could just answer my question i trying to it's because of what what you've argued here today which is that there were both incomplete their argument is his was incomplete there was another one was asleep as well but i mean just government asked a fair question here it's been briefed it was part of the district court decision and if you're going to say it's wrong it does seem fair to ask you to show us in the record where your position supported so let's just start with the first point was the application incomplete missing is there a page and so if your answer is well actually that's a disputed fact here's what my client said just tell us where that is because that's that's a pretty fair question to expect to be able to answer right now so can you answer that question not any better than i just did tommy would do you know where it is on the record where it says that he your position is he said he submitted a complete application that's my recollection that's my recollection you don't know where on the record i would have to siphon through the three hundred pages of testimony transcript look it up again all right it always helps if you're an interview and the other side's response was no we only interview people that submit qualified complete applications and we rejected it because it was incomplete and now you don't know if that defense is true or not those aren't what did the backs of this looks like what the district court to the district court assume that your client's application was incomplete well the district court the sooner the lot of things in opposition of the actual facts in this case that specific fact i don't recall and work spending a lot of time on this point but i can only explain to you that the reasoning is is that because they're claiming my client's was incomplete and there was another application that was incomplete then the testimony is they would have to disqualify both but there was no policy in the fact to disqualifying applications which was a false fact relied upon by the trial court the after discovery was called i think the summary judgment motion was filed the right in that context and you say that reason you didn't move before was because you didn't feel you had enough to do  the township discriminated against ages and so they go through like three or four or five things and you are just to summarize your your arias but you just didn't think you had and there was claims in deposition by your pla that he had been discriminated against there were other indications that he said he has been separated again but he your argument is he you had to have more before you felt that you could file that and you didn't have that until the late date that you thought about the motion that you that your argument absolutely correct i've seen a million cases dismiss i just i just want to know ok and then we then we'll go to the and then the judge also said that even if you had filed it would have been futile and that that's so then the second one goes to the issues that you did have a guard to retaliation and i guess the question is whether your time is almost up with what is the fatal error there by the court what's your best argument where you know if we listen to it we're going to realize yeah the district really made a mistake on this well there's the trial court relied upon the false fact of defendants at page five of their brief all testify there was a policy to eliminate incomplete applications hile testified there was nothing in that only one time the township eliminated an incomplete application regarding commercial bids at page one twenty five of  transcript his testimony was there was no policy in determining employment applications at the township in terms of whether they're complete or not that is a page one twenty six and one twenty seven of his testimony would basically be your argument they were tally aiding the explanation they gave as pretext because there was no policy and that allowed other people to apply absolute and complete applications with the other person that applied for this job their answer was well we've been working with him so we already knew the information we needed i got to make recommendations whereas with your client the missing page had the driver's license information which i guess they would have needed to check to make sure you could qualify they had all that information too because he worked there for fifteen years and they had his driver's license and i guess that was all the testimony was all in there that they had all that information just like they had of the other employee who worked there for fifteen years certainly but the fact that defendant rockwell was told days before the board meeting voted to give him the position illustrates pretext in the fix was how else would rockwell have known that information he was told and he told other firefighters i'm going to be the fire chief two days before maybe a due process violation someone pointed out what does that mean since there are other applicants as well is there any sense that your client was so right above me on the others that they really was doing they really were doing that to preclude him from getting a job i don't think issue a qualification is the key factor the key factor is he's entitled to an interview when he doesn't get the interview that's the adverse employment action period that's it i mean you have to show he would have had a chance to get the job right i mean otherwise it's a harmless error well mr bell and you're testified in my client testified that he had more experience and he worked there longer than rockwell so he did show that he had more experience and more time on the job absolutely we make of the fact that his you know quite how to put it you might characterize this application is a little sanctimonious or maybe not very respectful well he was saying you know why are you do applying because well i'm going to straighten things out and justice will be done i mean i read people that use you react very kindly to that of rick imagine the judge getting application from a law clerk why don't i want to work for you i can straighten things out you're so bad most people don't respond well to that i don't i don't disagree with that my client was very that he wasn't given the time to be interviewed but the bottom line is all the township had to do was say you know what ok we're going to give you the interview and then give him the interview but the fact that the interview process was fixed throws this into a whole another tailspin because the interview process wasn't on the up and up anyway it was whitaker who told heil convinced and said mr heil i want you to hire rockwell and so two days prior the evidence is there rockwell goes around and says the fuck up the firefighters i've got the job i'm going to be the fire chief pretext all the way around you'll get your full four minutes rebuttal you from this ray court good morning my name is elizabeth and i am representing salem township and the trustees in this matter and i thank you for this opportunity that my thing would be on behalf of my client no one ever sad that the plaintiff wasn't a good firefighter they didn't interview the plaintiff because his application was not complete mr high notes might be that they would have had his driver's license information and excuse me it does seem likely that they would have had the information that was stent simply on the missing page in other words his driver's license information why how could you not have that if bad that could be when you're when you're an applicant and you're trying to put your best foot forward usually you do fill out the entire application and if you haven't got the interview and have an incomplete up that your honor i think you his job performance and and really if you look at the two applications qualitatively mr gore half included his certifications his background his prior experience his training that was all missing from the plaintiffs application and as the court indicated earlier it was a sort of sanctimonious or almost a political expression that he wanted to see justice prevail and he didn't include his qualifications and his skills to show that he was a leader and that's what that's what the but am i right that the explanation by the defendants for the no interview was the incomplete application or is it a is it several yes but it it would be that i agree with you that about the signature to there was something about the signature i personally i find that last less of a compelling argument in this case i really think that the compelling part of the argument was it wasn't a complete application and it didn't have this qualification going back to the argument other side that he was the new township supervisor ok so he wasn't even involved he was not involved in the interview process at all and in the process but he was involved before the process us but him him stating his opinion as to who is has a legal right to an interview using titled by a law or rule or whatever it is but he had no formal position to say that right i but that that was again the subsequent administration that came in and he couldn't speak on behalf of the practices and policies some of the prior the highland ministration which was in office from two thousand and eight to two t  and twelve so your position i mean so this one claim is they retaliated by denying him an interview in that context is the denial of an interview not an adverse employment action or do you concede it is an adverse employment action i do not concede that because i don't believe i mean in a case where you're never going to get a job without an interview so for put to the side whether everyone gets interviews put all that other stuff to the side just but hypothetically no one gets a job without interview and assume a set of facts which is not this case where it's clear retaliation for protected conduct may deny you the interview pretty struck by the idea that's not an adverse employment action well i'm not it if the court where it's you can see where it says the test would the action the employer took potentially lead other employees to hold back would if affect the conduct of other employees reasonable ploy with it seems self evident to me if you do something you'll never be able to interview you never have a chance certain promotion well ok but not affect other employees well if i can i can't  but if i were going to then you have to get to the next task under mcdonnell douglas and there's certainly there's no cause no connection that's been established in this case that the the c complaint that the plaintiff found in two thousand and ten really had anything to do with the fact that he didn't turn in a complete application and that is one of the arguments correct that's the the two thousand and ten complaint was it was two years prior to the application for the fire chief in this particular case that we have going on so there was there was collective bargaining agreement and there was an agreement worked out where the twenty percent requirement was not in effect required and there was no discipline and no demotion the pla that the board did not consider him because of that letter and that was really it this is the first time on the a bream that that argument has been flushed out and it wasn't really dealt with in the lower court where was it made in the lower court it was referenced very not not in terms of argument no i don't believe it bowling counsel said that could be i mean i'm not saying it's wins here could be a good argument that you don't just proceed on claims because you feel like you have them you perce discriminated against on the basis of his race and again we didn't have the amendment request until after the summary judgment motion had been filed and we cite the leary case and the doc in this case for the proposition that  it's prejudicial to our clients we would have to take on a whole other defensive mouth and prepare for a race discrimination case with the whole our whole construct of this case was defending  before that would occur as a bias against african americans but the point of asia and once the credit for that there is some state statement by somebody maybe it was ballenger that they think ages agents are too smart and so anyway they would discriminate them because they're there too highly intelligent or something or other but connecting we need to amend the complaint from whittaker for african americans to asians that are too me and their opinion i'm sorry and talked about the fact that mr bouncer testified that eason's are smarter than the average white man but about gave racist comments and he joined in i think that was part of the record that there is no time and context mr i'm not trying to say you were your case but i just want to be clear for the record that isn't the record that there is plenty there to suggest that the the what he had in the garage whatever the whipping post in the rest of that was tied to also the fact that the fire station that people were pretty free about least in regard to african americans using racial epithets and so forth i think the record supports that is that true well there's again there's no time place to go and they don't care what places mr mr b under couldn't pinpoint anything constantly for that they are prejudiced against every every everybody i guess except when it comes along and are caucasian which i don't even know what that is the planet council trying to group every minority to counter and there is no negative comments about asians in the record let me ask you this last question and again i'm not guessing that this is on the cut your case but i was interested to see cares are there cases if one had good evidence and you were looking at this carnation against one race can you ever extrapolate from discrimination against one race to another about whether there's case law out there that says you know when the comments are specific to one racial group you cannot that allows the inference that those people would be discriminate against people of another racial i don't know that there was anything that specific but the facts in this case go beyond that that that issue because the testimony of mr bell and her was that i'm not saying let's see remarks are derogatory against african american black whatever are just part and parcel of common conversation and gays lesbians in front of people that i believe are gay on the department no reservation he participates in as much as anyone else and there's a hefty amount of racial slurs at the apartment and they don't deny it and they're going to sensitivity training he testified he's a racist he didn't testify he's only racist against african americans he didn't testify only racist against against gays or lesbians or any other specific race but because the trial court said well because chinese are asian these are a's and lesbians of the rays no i said there's nothing else in there as to any other races or or i didn't say that and i said that he didn't specifically mention any other race except african american looks like they're stereotypes or asian is that they're more intelligent than the caucasian so they're stereotypes actually should work to there you would think that there were there was also a statement by mr whitaker as to a minority applicant for a firefighter where he said we don't need any of more of your kind and that was mr bell and his deposition of page forty four lines four sixteen and page one twenty two nine through fourteen know has happened he did not know that mr whitaker was a racist how about these general comments we're talking about i mean you know in the fire hall there is no testimony that he did not know very well you must not have occurred that often if they didn't occur when he was there i guess they didn't occur when around him it would do it this way this possible way of thinking about the case that the maybe it is an adverse employment action not to interview somebody  but what if just hypothetically i think there was no chance he was getting this job and that there were nondiscriminatory reasons for him not to get this job whether where he lives the way he applied in complete application you know just whatever it is what do you do with that case because it seems very funny to have a damages claim for not getting an interview when the conclusion is there's no causation connecting the retaliation to not getting the job because of course the promotion is what creates damages and all that other stuff so what do i do with that in other words i i hypothetically agree with you the denial of an interview is an adverse employment action someone coming on buying that but hypothetically i say but i don't see it on this record that there was any chance he was getting the job this is not a funny what do i do with that why i think that's additional evidence to show pretext and retaliation in particular given the testimony of mr  additional evidence of pretext as to not getting the job is that what you're trying to say because of discrimination retaliation because mr beilin just testimony was at page one ninety three to one ninety four question this e mail seems to correspond with your testimony here today that discrimination and retaliation has gone on in salem township for some time correct and his answer was i can easily say they would never have hired ed signal as chief no matter what he wrote down it's a fact so the trial court didn't link those to get i get the response that's helpful so one way of thinking about it is they going to gather it does show causation as to the denial of the job but if i reach the opposite conclusion that now that there's pretextual grounds for denying the job i take it the case is over in other words you can still say it was an adverse employment action but i don't that's not your claim your claim was not to seek relief from the dial of an interview your claim was to seek relief for on i guess i'm saying though doesn't your claim go away if all you have is the dial the interview but the court reaches the conclusion there's just no way he could have gotten the job on non pretextual grounds and i may be wrong i'm just trying to isolate this point but that's a question of fact for the jury to decide and the facts go against go in the court can't say well we believe because of mr rockwell's after resume that he was better suited for the job the court can't do that because there's no testimony in there that anybody weighed the fact that mr signature on their side wasn't as qualified as rockwell was but my client testified that he was more qualified than rockwell and mr belin testified the mr rockwell should have been fired because of what he did and a horrible job in it but i am right it is about the jobs i mean that's where the damages are there's no certainly be the case will be submitted in the