the honorable the united states court of appeals for the st circuit is now in session all persons having any business before there's an honorable court may give their attendance and they shall be heard god save the united states of america and this honorable court  descendants of helli cited several cases in fact for which they are alleging that the failure to score highly on it is of promoting african americans and for courage ing african americans the foka to apply for positions that factor is not at all involved and been solid the record shows that  did not have the requisite computer skills for the position that she was applying for and she admitted in a deposition that it is not the case in this situation in martin history of problems in the workplace which she had been sanction against those factors anywhere present in this particular case and we had a situation in which the person who was home for the position and ten years more experience than the other candidates and more supervisory experience in the other candidates and had more administrative experience than the other  is that you had the candidate who was ultimately hired malecon who has a minimal amount of computer experience whereas mr you your honor i think there are reasons to question the process by which this came about as we have said in  in the job posting itself and in order to secure an interview you were supposed to have met those minimum requirements now that the defendant appellee is saying hey they don't all apply but if you look at the there is a section there that list your computer languages skills that are relevant to this position that that section is left blank and interesting if you go to the end that application which is our a seven hundred and seventy five there is a section that says i fully understand and agree that any section left in some sleep on this application and then there are other factors application that same procedure was used for all candidates so that's the st question the next question i about what i think is your mischaracterization of the qualifications of the candidate who got the job he was asked at the interview about his computer skills and he said he wasn't using them much at this time he also said i have used computer skills in scheduling and other construction related activity and he said i use my home computer so could you explain to me why a statement like that made to the interviewing people  stablished to them that he did not meet the murderers what evidence is there that that evaluation on their part was graciously motivated other than the fact that the guy who got the job was white that is not sufficient thank you if the only thing that the screening committee had when it was a value the applications for ready the applications the issue being raised they have to do with how the selection committee shows the candidates to be interviewed and in his case our position is that there was no way they could have determined that he met them in the and what was said during the interview and you have no evidence that differentially applied the standard that they would consider all that have that that they treated candidates differently as to looking at both the application and at the what was revealed during the interview you  determination based on those applications as to who reads the minimal requirements in order to secure an interview no that is a false statement that is not what this of them are requirements set forth on the application form when the t s a says that was not the purpose of it all exactly that i would agree with however i'm not a matter of what you agree with and don't agree with it's a matter of differential treatment requirements were met he did testify that there was no communication with the internal candidates that certain of them are or were not necessary not necessary in order to apply for the position there is there is a differential between n turn know what evidence do you have that that's racially motivated your honor that on it's on it's own independent of the history of problems and the b the hiring of promotion of racial minorities by itself i agree with you that is not enough but there is a history that includes problems have questions of thank you but i wanted to start with one point about the record to my right that your client was a supervisor a temporary change supervisor for a number of years five years you and is it the case that the person who was hired had never had that supervisory position at the t that is correct ok then with respect to this question of difference of treatment i'm understanding your argument to be at least in part focused on the blank leaving the application blank with respect to one of is significant and it's a plan that was not evident on the application of the white candidate who was hired but was evidence on the black candidate with not hired that a jury could at least think that there was something suspicious about the one of the oddities that the individual who left that section and who testified that he had some computer experience but not a great score higher on the question his computer skills than our candidate who was had a number of certificates from the n b t relative to his computer training and in addition the record i think is is clear that our mr henderson in fact had to assist in training the person who is ultimately high on the computer skills necessary to do the job t my understanding is that the on the computer question of the candidate who had not filled out anything about the computer skills on the entrance requirement received almost doubling of the score that your client score was on computer skills now one possibility is that that's a function of the answers that were given at the interview itself which was after all that's what's being evaluated i f we were to look at the record and conclude that to the district court concluded there was nothing from the notes of the interview that indicated that no condy is answer on computer skills was twice as good as your one scoring of one question which is a non trivial question about computer skills as i read the district court she finds inexplicable the decision to give malecon the such a significantly higher score on that answer than henderson received what is the significance of that to your case i understand why it might be significant to the prime official case is it also relevant to the pretext issue i don't think it is is a bias that is present relative to minority candidates in their application even when they are trained and certified by the m b t a itself the answers to the questions relative to those show up as approximately half of what another can provide the terms of a just who has not produced any certificates or training i read the opinion agrees with you affectively with respect to the significance of that scoring of that question and what it shows about how much credit we can give to the scoring purpose of determining the suitcase and who's qualified for the job with them and we qualified with respect to pretext the district court doesn't seem to return back to that scoring problem that she had earlier identified in her opinion and s then says but there's no evidence of race discrimination it may just be cronyism could you just respond to that what what what should we do with the fact that the district court thought that since cronyism would be an alternative of hiring not just of the m b t but throughout our society as a whole it means that minority candidates are not going to have access to the same kinds of upper level management people that many white candidates do cronyism by itself may in fact be nothing more than a smokescreen for race discrimination if cronyism is applied so that more white male are hired for positions within the m b t a or anyplace else that has a racial component which affects negative minority candidate at the district court correctly granted summary judgment for the n b t a and we asked this court to affirm i can focus today on two essential point of the district court's decision st mr henderson's failure to produce evidence of pretext in connection with his race discrimination claim and nd his failure to produce evidence of causation in connection with his retaliation claim turning st to the race discrimination and the lack of pretext it is s practice to select for hire the candidate to score highest on the interview in to that end that he sets up a structured interview process where human resources and a department develop job related interview questions and answers the same selection committee members ask the same twelve questions in the same order those interviews are scored independently tallied in the highest scoring candidates are selected for the job here those highest scoring candidates were mistaken in mr melchiondo and this court has long recognized that interview performance is a legitimate basis for hiring decision and here mr henderson cannot show pretax mr melchiondo met the requirements for an interview and he met the requirements for the job turning to the retaliation claim the timing on that claim is fatal the alleged protected activity the complaint to such an patel occurred five months after the adverse employment action further there is no evidence to the record that the alleged decision maker even knew about the alleged protected cond and for that reason this both claims both the race discrimination claim and the retaliation claim should be of the dismiss those questions like the questions here talked about work experience background and the candidate's interest in the position and following that interview five candidates were  asked to take an exam and ultimately the candidate who was not selected the plaintiff in that case the court identify the fact that she had scores that were much lower than the successful candidates and on that basis in that case the court found that both the plaintiff was not only not qualified but not surprisingly not similarly qualified and likewise with respect to the martinez case in that case the record suggests that that interview scores were the only determining factor two to support the hiring decision and similarly that case had a panel asked the same questions job related questions just like here and in that case the five highest scoring interviews were considered  and the others were not and likewise the court found that the plaintiff in that case was not qualified and not similarly qualified so yes your honor we believe those cases  supervisor ok that was certainly relevant work history that made him qualified for the job and i think qualified for the job in terms of the nd prong of the prime a fashion case so yes he was qualified for the job in that was a relevant consideration for him getting an interview but after the interview happened it's the interview scores that control report the record there is very little in the record frankly about his performance and i think your honor that ultimately not relevant to the  decision about who to select for this position because as i say once the interviews occur it's the interview score that controls and there isn't a process of how well he interviews i understand your honor and that really goes to a question about this process and frankly the m b t a business judgment law as i understood the record see white male who was hired actually had a lot of construction supervision experience  issue the training which mr henderson had was and certificates were on word processing program and as i understood it the winning candi e was not so limited in his computer usage he actually used their programs or some of which were listed in the job posting in fact correct skills more highly than mr henderson skill the district court was skeptical as judge karen has pointed out but give me a nondiscriminatory reason for that and then the follow up point of course is that computer skills were just one of a number of things being evaluated and the committee could well have decided that the others skills not being attacked in this occasion outweighed the computer skills but let's go back to the computer skills why didn't they  about his operation will experience working with computers including creating logs printing out purchase orders requesting forms maintenance logs and explaining how he used computers in the past in his job see also said that he uses a computer at his home every day mr henderson's despite what he certificates he may have had  d background he had he spoke about some of his background but there's no suggestion that in that interview that he necessarily had certain  qualifications or training he spoke about his interest amid alternately we're talking about two people explaining their their their experience and in the selection committees view apparently mr milky and it did that that's also it's also correct mistake and that seems to have dropped out of the case and terms of the challenge from the plaintiffs but it seems to me certainly relevant to the was there and any evidence put on by the plaintiffs said he somehow was a crony of someone making the decision there was no evidence of that your honor and we were surprised  and disappointed to see that reference because that was not part of the case and there was no evidence to that effect the closeness that the plaintiff could come is to say that mr melchiondo had mentioned in his references someone he knew at the t bill press but there was no evidence that mr prez involved himself in any way the members of the selection committee both said that they had not had any contact with m and so there was no evidence of it and it should not frankly have been mentioned ok i have no other questions thank you your honor you thanks i just want to focus in on the scoring so i take it your not challenging the idea that there was reason to doubt the legitimacy of the scores that would support supply if there were a reason to question the legitimacy of the schooling with that suffice to show pretax not alone your honor because what is missing in our view is any suggestion that the problem with the scoring was in any way connected with race well then i don't quite understand how is the mcdonnell douglas saying we're exposed to work we only do it when there's no direct evidence of discrimination so i have thought if the employer dealing with similarly qualified people one black one white two has the white person and is stoned to have given a legitimate nondiscriminatory reason that could not have been the reason that that could be enough to show race discrimination  think that's not right well that that might be doing depending on the evidence there could be a showing a pretext but let's keep in mind too that this needs to be a showing that the decision was motivated by discriminatory animus yeah but then we at that in the absence of direct evidence of discrimination was through the bird thing here if you have a candidate who is qualified similarly to a white can and the only reason employer is given for not hiring the black candidate hiding the white one is a reason that is shown to be pretextual why could not a jury infer that the reason had to do with race i don't know why a clue wouldn't be required to but but but there is that that actually not read the district court she says in her opinion that with respect to the objective question she says some of the questions the committee interview involved objective criteria and she says for example please tell us about your experience managing large maintenance or construction projects and here makhanya got an eight anderson got a four and she says that made sense because henderson provided fewer specifics after she reviewed the notes but then the district court goes on to for another question dealing with computer the reflected henderson had more experience than the conda yet henderson received three points lower and then she says this is still talking about objective criteria questions still talking about other questions she says many questions of all open ended increase requiring the committee to subjectively evaluate the kids answers for example the st question is why did you apply for this position and she says a review of the answers this question does not reveal an objective basis for why malecon you've got an eight and henderson five and so what i take her to be saying is well in some of the objective criteria one cannot explain the much higher score from the con the compared to henderson and in consequence of that there is reason to doubt that the subjective scoring that occurred was on the up and up and i don't see why a jury couldn't infer exactly that they wouldn't be required to do it but i'm summary judgment why couldn't the fact that there is an inexplicable higher scoring on that's true in the abstract but if you have evidence that some of the objective score and does not make sense why couldn't you infer that that would cast doubt on the legitimacy  objective scoring with which it meant i could see why you wouldn't and nd guess subjective scores but if the object of scoring is illegitimate wouldn't that cast doubt on whether you should trust the subjective scoring why wouldn't that be  can also recognise you know as it is said in the past that it is not a super personnel department and it's just on the just your question if i agree with the just your court that the because at this point you're just asking the jury to speculate and guess without more evidence that race was coming out from at play here without evidence that the questions were discriminatory that it is not enough in our view and what would be your best precedent to support the view that when there is reason on the record to doubt objective scoring that cannot that would cast doubt on the who didn't have the objective score you had i think you got in which there had then evidence that cast doubt on an object to score and yet the court has concluded that's not enough to show pret recessed until the next session of the court god save the united states of america and this honorable court counsel you may disconnect from the meeting