in the chapel she worked there for several years what happened is that she was a term and ploy and there was a time when she had to read new for permanent employment she made a request to the administrators at the academy but for some reason she was so she alleges that she was turned over she was denied that opportunity based on the fact that she's a woman and that she is over the age of forty the case went to trial and the court below clearly relied on late testimony they are relied on late has the money as to ultimate enough to be able to do with both it was disclosed to us and the fact is that one of the witnesses was there soley to testify about what the lawyer gets in his decision judge find it in any case law judges simply don't do that they don't rely on a person to tell them what the law isn't the issue rather what the decision makers thought the law was in other words if they did not give her the job because they believed that they could not consistent with the various regulations why isn't that evidentiary that is appropriately testified to and then relied on by the court on the question of whether this was based on age and sex or on something else these witnesses were not fact witnesses they were not at the academy they did not witness what happened they case they were brought in to testify soley on what the law is and what they thought the facts of the case he testified as to what he thought the regulation was and this is what the decision should have been it by the way is are you contending that that evidence was incorrect the regulations were being used as a pretext as an excuse to discriminate against miss and she lady based on her age and gender it had nothing to do with the regulations themselves as a matter of fact almost but there was testimony question of prejudice your position is that the judge should not have relied on this account of what the regulations say it would seem to me that even if that were correct as a proposition of evidence law it would only be prejudicial to your case if in fact the evidence that the judge relied on was incorrect if the judge should have looked himself at the regulations and had he looked at the regulations he would have found exactly what these witnesses said then i'm not sure i understand how there was prejudice from any error in relying on this testimony well perhaps it would have been different if the judge at actually said that he he looked at the applied facts to the law which the normal court would do but in this case he said he relied on the air but but yes but the question is are you maintaining have you said to us  anything that suggests that in fact what these witnesses said the regulations were was incorrect one of the witnesses one of the testimony from one of the witnesses was that there is room for discretion and that the ultimate decision maker had some discretion and what he can do instead what we have is the witnesses all testif that the ultimate decision maker had absolutely no discretion what the law was this is a very straightforward case there's not much argument here is about what judge what the judge below did he simply took these witnesses testimony of what the law is at face value and meet is the solution based on their testimony and that's not something that the rules of evidence or any case law would allow court my name is diane leonardo and i'm an assistant united states attorney for the eastern district of new york just two quick points i need to correct that counsel mentioned he described the plaintiff's employment as a temporary employee that needed to be renewed for public employment that's not the record is pretty clear that's not what occurred the plaintiffs was given a term appointment and it's on the record with regard to what happened with a  then no because of a change in the way the job was structured frex she never she never was a federal competitive service employee and any time an agency uses congressionally appropriated funds they have to comply with competitive service and the issue himself and i think that's the order i believe so your honor i believe the of the three witnesses who testified most of their testimony was based in fact they were not non fact witnesses fact mr banker sammy who was at the academy at the time knew the plaintiff was acquainted with her and spoken to her about about her job prospects about applying the other two witnesses one was within the department marriage which is oversees the academy and she was fully highways department and she was within that department and actually developed the list the certificate of eligible list for this position they were fact witnesses to is that what you're saying is how this happened is out of the the process actually back for that for the appointment of these of these new federal employees if they were in fact witnesses your honor and i believe as the court indicated earlier there was no objection to that they did testify about how it works because it's hard to figure out it's very hard to figure out your honor i will note that during the course of the trial counsel introduced into evidence one of the departmental merit system protection merit system hiring handbooks we also introduced into evidence the department of transportation he testified at trial that he has discretion only with regard to who is on the list he cannot and it was a many much much testimony about he cannot go off the list and because of the veterans preference the plaintiffs did not make the list and were all the people on the list veterans they're all veterans your honor and in fact most of them i believe were did disabled veterans and the individual who got the job was a disabled female veteran and on that even on that list there were seven males and three females in which there was a right to a jury trial that's correct but there was actually and as of course where the court granted the government's rule fifty motion because there is absolutely zero evidence of any kind of gender discrimination  even in oral argument on the rule fifty motion counsel is hard pressed to come up with any examples of gender discrimination and i did just want to point out that during the course of the trial counsel has asked each of these weapon witnesses  questions with regard to the rules and regulations there were questions to mr banker sammy about well what where what will is at work and i find that will where is that law has many many questions and hypothetical questions to ms norris with regard to well if they can't if this plaintiff can't be hired under these circumstances how can she be hired there are many many questions with regard to how the process works asking to be reinstated the testimony was he had all kinds of excuses as to why her around the five years as to why she could not be life and ultimately none of these other were actually fact witnesses is there any place in the record that we will find any evidence that what these witnesses said that is to say that the list had to be composed according to a principle that gave preference to veterans is there any evidence in the record that that is inaccurate yes there is tell me where that is that would be in the policy manual of the maritime academy there was a section where the decision maker has discretion has discretion from the list was that has it was they are going to the government is there evidence that that is inaccurate that there's discretion with respect to the makeup of the list or discretion to go off the list there is discretion to go off the list is it with the it's within their same tell me where i will find that in the policy manual i don't know the exact page but it's in the policy manual that was introduced in evidence and was it called was that specifically is the someplace i can find in your briefing below or in anything that was said to the judge what page it's on that you're relying on i'm no i'm not sure that it saw it somewhere five hundred if i read the whole manual i might find something it is it is in the appendix ok and it also tells you that the ultimate decision maker can make a decision based on the mission and what they decide the mission is they can go walk to listen they could