[00:00:00] Speaker 00:
For our final case of the day, 24-7010, Malden versus Warmouth.

[00:00:33] Speaker 00:
Ms.

[00:00:33] Speaker 00:
Hurst?

[00:00:33] Speaker 00:
Yes.

[00:00:36] Speaker 04:
Thank you, Your Honors.

[00:00:37] Speaker 04:
May it please the court?

[00:00:38] Speaker 04:
My name is Amber Hurst.

[00:00:39] Speaker 04:
I represent Loretta Malden, the appellant in this case.

[00:00:42] Speaker 04:
Since 1991, Ms.

[00:00:45] Speaker 04:
Malden was employed at the McAllister Army Immunization Plant.

[00:00:50] Speaker 04:
Since 2003, she held a position of explosives operator supervisor, grade six.

[00:00:56] Speaker 04:
It is the 2008 decision by her supervisor, Tommy Buckner,

[00:01:00] Speaker 04:
not to promote her to the position of grade nine that is at issue in this case.

[00:01:06] Speaker 04:
Ms.

[00:01:06] Speaker 04:
Muldin claims that the decision was based on her gender and or age and retaliation for participating in a co-worker's age discrimination complaint for the EEO office at MCAP.

[00:01:23] Speaker 04:
The district court granted summary judgment on all claims.

[00:01:26] Speaker 04:
The errors apply

[00:01:30] Speaker 04:
to both of the claims.

[00:01:31] Speaker 04:
So if I may, I'll go through the errors in order.

[00:01:36] Speaker 04:
Probably the most obvious error is the court's mis-summarizing the testimony given in Ms.

[00:01:47] Speaker 04:
Maldon's case to facially show a lack of discriminatory intent.

[00:01:54] Speaker 04:
For instance, the court noted in its order

[00:01:58] Speaker 04:
At appendix 437, the court said, quote, Planted further claims to have witnessed Buckner tell Cloud that it's time for you to go home because we need new blood in here, a statement that doesn't facially say anything about age.

[00:02:15] Speaker 04:
But the testimony that Ms.

[00:02:16] Speaker 04:
Maldon cited, the full statement was that Mr. Buckner said to Mr. Cloud, who is older and had the EEO age discrimination complaint,

[00:02:28] Speaker 04:
look here, you're an old man.

[00:02:31] Speaker 04:
It's time for you to go home.

[00:02:33] Speaker 04:
You're old.

[00:02:34] Speaker 04:
We need new blood in here."

[00:02:36] Speaker 04:
That statement facially shows Butner's age discrimination and reason for telling Mr. Cloud to go home.

[00:02:45] Speaker 04:
The district court omitted the references to age and then held that that statement

[00:02:52] Speaker 04:
was not overtly discriminatory.

[00:02:55] Speaker 03:
Sorry, counsel, I'm just maybe confused, but how does Mr. Buckner's statements towards Mr. Cloud travel towards your client?

[00:03:03] Speaker 04:
Well, several reasons.

[00:03:05] Speaker 04:
One, they were both in the explosive operator position.

[00:03:08] Speaker 04:
Mr. Cloud was performing the job duties of the explosive operator supervisor grade nine that Ms.

[00:03:19] Speaker 04:
Malden applied for and was

[00:03:22] Speaker 04:
was denied.

[00:03:23] Speaker 04:
Those comments were made contemporaneously with the time period that Mr. Cloud made the age claim and Ms.

[00:03:32] Speaker 04:
Muldin participated by writing a statement saying, I've heard Mr. Buckner make these ageist comments.

[00:03:37] Speaker 04:
Same decision maker, same position that Ms.

[00:03:40] Speaker 04:
Muldin was applying for and was denied.

[00:03:43] Speaker 03:
Sure, but couldn't Mr. Buckner be an ageist and discriminate against Mr. Cloud but not against Ms.

[00:03:49] Speaker 03:
Muldin?

[00:03:49] Speaker 04:
Absolutely, but that's a jury question.

[00:03:52] Speaker 04:
The statement was made with respect to a position that the older employee was acting in at the time, that once that position became vacated by that older employee retiring and Ms.

[00:04:04] Speaker 04:
Moldin applied for, and that she was denied in favor of a younger employee.

[00:04:09] Speaker 04:
So yes, absolutely.

[00:04:11] Speaker 04:
But that's a jury issue.

[00:04:13] Speaker 04:
The question respectfully here is,

[00:04:16] Speaker 04:
whether or not that can be circumstantial evidence in Ms.

[00:04:19] Speaker 04:
Moldon's case.

[00:04:20] Speaker 04:
And the answer under the Tenth Circuit precedent is that, yes, it can.

[00:04:24] Speaker 04:
It is a facially discriminatory statement indicating an age bias, why an older employee needs to get out of a position that the plaintiff in this case then applies for and is denied in favor of a younger employee.

[00:04:39] Speaker 04:
So it can go

[00:04:40] Speaker 04:
to circumstantial evidence of discrimination.

[00:04:43] Speaker 04:
And this circuit does not have the age discrimination or any comment of bias, doesn't need to go toward the plaintiff at issue.

[00:04:54] Speaker 04:
It can be considered strong circumstantial evidence of motive and intent of a decision maker, so long as it, for instance, goes toward the

[00:05:06] Speaker 04:
general policy, even an unwritten policy of hiring.

[00:05:10] Speaker 04:
And in this case, there is significant evidence that Mr. Buckner had and made discriminatory comments about calling older employees not spring chickens.

[00:05:25] Speaker 04:
They need to make way for the younger employees.

[00:05:28] Speaker 04:
You can't teach an old dog new tricks.

[00:05:30] Speaker 04:
As another example of what the court did,

[00:05:33] Speaker 04:
At Appendix 438, for instance, the court said, well, Butler denies making the above remarks.

[00:05:40] Speaker 04:
He admittedly told MCAT personnel, the Army should take younger employees under consideration when selecting candidates for high-level permanent positions.

[00:05:48] Speaker 04:
And then credited the defendant's statement that, oh, he really didn't mean age discrimination.

[00:05:55] Speaker 04:
He didn't mean by targeting the younger, by saying to promote younger employees, you have to exclude the old employees.

[00:06:03] Speaker 04:
The court said that in his footnote.

[00:06:05] Speaker 04:
But what Butler actually testified to is, I said, and this is Butler's quote, I said we need to take into consideration that these younger folks will eventually be future leaders.

[00:06:18] Speaker 04:
Those are the ones that need to be promoted.

[00:06:21] Speaker 04:
The court omitted that testimony, even though it was very clear in the record on the plaintiff's summary judgment response.

[00:06:31] Speaker 03:
Council, can I ask you another question about the record?

[00:06:35] Speaker 03:
What is the employment relationship between the three interview panel members and Buckner?

[00:06:39] Speaker 04:
They are all supervisors of the Army.

[00:06:42] Speaker 03:
Do they report to Buckner?

[00:06:44] Speaker 04:
They do not report to Buckner, but they are considered agents of the employer in terms of whether or not they're considered to be interested parties.

[00:06:53] Speaker 03:
But Buckner was the selection official for this position?

[00:06:56] Speaker 03:
So did he have the final say in who was hired?

[00:07:00] Speaker 04:
He did.

[00:07:01] Speaker 04:
And that's another issue that the district court aired.

[00:07:03] Speaker 04:
And the court said that Butner, who admitted he was the final selecting official, who created the criteria that the interviewers relied on to ask the questions, the district court said that simply by virtue of getting a panel

[00:07:24] Speaker 04:
The defendant broke the causal chain and made an independent decision.

[00:07:29] Speaker 04:
What happened was, Butler created the questions to be asked during the interview.

[00:07:35] Speaker 04:
He instructed the three panelists, who were supervisors at the Army, to ask those questions verbatim, without deviation.

[00:07:43] Speaker 04:
Butler created the scoring criteria, which was developed in his deposition, he admitted,

[00:07:53] Speaker 04:
that at least half of the score, if I may, Your Honor.

[00:08:09] Speaker 04:
He created the scoring, which he admitted in deposition, at least half of the questions, although the questions were general, he gave specific scores and greater scores for

[00:08:22] Speaker 04:
different types of experience that was not required of the grade nine position.

[00:08:28] Speaker 04:
By the way, a position which Ms.

[00:08:29] Speaker 04:
Moldin had significant experience in, because when the older employee left, through the year, she was a substitute in that position, but specifically targeted the experience of the younger employee that was not required for that grade nine position.

[00:08:47] Speaker 00:
So if I'm understanding you correctly,

[00:08:51] Speaker 00:
You're rebutting the argument that Buckner was not the cause of her not getting the promotion because this panel of independent people decided it.

[00:09:04] Speaker 00:
And you're saying that's not a good argument because he created the questions and created the scoring.

[00:09:11] Speaker 00:
Is that right?

[00:09:12] Speaker 00:
Is there more to it than that?

[00:09:14] Speaker 04:
Well, I want to make sure I didn't misunderstand your question.

[00:09:17] Speaker 04:
My argument is that Buckner

[00:09:20] Speaker 04:
was the decision-maker and influenced the decision significantly enough that his discriminatory bias affected the decision-making process.

[00:09:30] Speaker 00:
And he ultimately was the decision-maker, but in terms of how he affected the interview process, it was by the only things you mentioned, and maybe they're enough, but the only things you mentioned were that he created the questions and he created the scoring.

[00:09:49] Speaker 00:
Is that right?

[00:09:49] Speaker 04:
he created the questions and the scores and admitted in depositions that at least half of the criteria was geared and did not apply to the position advertised but to the experience of the younger employee.

[00:10:04] Speaker 04:
There's also evidence that, go ahead.

[00:10:08] Speaker 04:
There's also evidence that the district courts ignored and did not put in the order that

[00:10:15] Speaker 04:
Mr. Butler said, well, I created it based on the vacancy announcements, the criteria, the specifics I used on the grading score.

[00:10:24] Speaker 04:
Those are requirements for the position as shown in the vacancy announcement.

[00:10:28] Speaker 04:
Presented him during his deposition with the vacancy announcement, did not support his testimony.

[00:10:32] Speaker 04:
Then he said, well, I changed, I updated the vacancy announcement to include this.

[00:10:37] Speaker 04:
Defendants didn't produce a vacancy announcement that supported his position in the discovery period.

[00:10:41] Speaker 04:
So then he later said,

[00:10:43] Speaker 04:
Well, it wasn't the vacancy announcement.

[00:10:45] Speaker 04:
It was the actual job description.

[00:10:46] Speaker 04:
It isn't in the job description.

[00:10:48] Speaker 04:
I apologize.

[00:10:51] Speaker 00:
But the district.

[00:10:52] Speaker 00:
But I'm going to interrupt you at this point.

[00:10:54] Speaker 00:
Please.

[00:10:55] Speaker 00:
I think I'm familiar with that part of your argument.

[00:10:59] Speaker 00:
What is not clear to me is how the things he did affected her performance at the interview.

[00:11:07] Speaker 00:
Because it sounded like it was

[00:11:09] Speaker 00:
more like her general personality.

[00:11:11] Speaker 00:
She didn't seem interested in the job, things like that, rather than answers to specific questions.

[00:11:17] Speaker 00:
And so can you connect his questions and his scoring to how the interviewers rated the opportunity?

[00:11:26] Speaker 04:
Absolutely.

[00:11:26] Speaker 04:
And one of the errors the court made is crediting.

[00:11:29] Speaker 04:
The first time there was ever an articulated reason for why she didn't score as high was in the panelists

[00:11:38] Speaker 04:
declarations given in response to her EEO complaint of age and gender discrimination.

[00:11:43] Speaker 04:
There's no contemporaneous record supporting their testimony, but they didn't just say it was a personality issue.

[00:11:49] Speaker 04:
They said that she didn't answer the questions as thoroughly.

[00:11:53] Speaker 04:
Well, if the questions are targeting experience that is not required for the grade nine position that she has subbed for multiple times throughout the year,

[00:12:05] Speaker 04:
but instead targets a position held by the younger employee.

[00:12:09] Speaker 04:
Of course, her questions aren't going to be as thorough.

[00:12:12] Speaker 04:
And in the reply brief, I gave an example.

[00:12:15] Speaker 04:
What the court generally said is, oh, well, you know, he's asking questions about technology.

[00:12:20] Speaker 04:
It's not that.

[00:12:21] Speaker 04:
For instance, there's a difference between being familiar with Excel spreadsheets and chat GP, GPT, GP3.

[00:12:30] Speaker 04:
You can tell which one I'm more experienced with.

[00:12:32] Speaker 04:
But there's a difference.

[00:12:34] Speaker 04:
Simply to ask a question about terminology is one thing, but in this case, the butlers rating system, his scoring criteria was very specific and he admitted in his depositions that those scoring, at least half of his scoring criteria targeted and gave higher points for answers that discussed experience that was not required of the grade nine position

[00:13:02] Speaker 04:
but was held and had by the younger male employee.

[00:13:07] Speaker 02:
Was there evidence along that line that older employees did more poorly on the evaluation?

[00:13:14] Speaker 02:
She came in last.

[00:13:15] Speaker 02:
I know that.

[00:13:17] Speaker 04:
There's not statistical evidence.

[00:13:20] Speaker 04:
We don't know why.

[00:13:22] Speaker 04:
We don't have any data on the other two employees.

[00:13:25] Speaker 02:
Doesn't that undermine what you're saying?

[00:13:27] Speaker 04:
It doesn't because we don't know what the answers were.

[00:13:32] Speaker 04:
because we don't know if the answers by the younger employee targeted, if he, well, presumably he got more points because he had the experience and mentioned his experience for the particular criteria that were given higher points, which Mr. Buckner admitted was not necessary or required for the other position.

[00:13:55] Speaker 04:
It doesn't because the issue isn't whether she would have come in first

[00:14:00] Speaker 04:
The issue is whether his discriminatory animus caused the end result of her getting less.

[00:14:11] Speaker 04:
What the district court has done and what the defendants advocate for is a per se rule that any time you have a panel, no matter how much you influence that decision, you create the questions, you create the scoring, you infect your bias just by having the panel

[00:14:26] Speaker 04:
you've broken the chain of causation, that's never been the rule.

[00:14:29] Speaker 04:
It's contrary to stop.

[00:14:30] Speaker 03:
Would you develop this argument in your brief about the specific scoring matrix with examples from the scoring matrix, how Mr. Buckner had influenced the outcome to favor younger applicants?

[00:14:43] Speaker 04:
Yes, it's well developed both in the brief and on the reply brief and in the summary judgment record.

[00:14:49] Speaker 04:
And we pointed out the different criteria where it's just not, it doesn't matter on

[00:14:56] Speaker 04:
on the position.

[00:14:57] Speaker 04:
The court discounted all of that by finding, well, the panelists independently scored the applicants.

[00:15:07] Speaker 04:
The panelists never even testified they independently scored the applicants.

[00:15:12] Speaker 04:
The panelists said they relied solely to ask the questions and the grading criteria that Mr. Butler did.

[00:15:18] Speaker 04:
The court said that must have been an independent scoring of the applicants.

[00:15:23] Speaker 04:
And Your Honor,

[00:15:24] Speaker 04:
I apparently waived my rebuttal time, so thank you unless the court has questions.

[00:15:33] Speaker 01:
Thank you, counsel.

[00:15:34] Speaker 01:
Mr. Lewin.

[00:15:35] Speaker 01:
Thank you.

[00:15:35] Speaker 01:
I'm Randy Lewin.

[00:15:36] Speaker 01:
I'm the representative for the United States Army, the appellant, the appellee, and the employer in this case.

[00:15:46] Speaker 01:
So you just heard a lot about Tommy Butler.

[00:15:48] Speaker 01:
It seems like that's where we ought to start.

[00:15:50] Speaker 01:
I'm not going to try to justify

[00:15:52] Speaker 01:
whatever comments he made, the court called them indirect and isolated.

[00:15:57] Speaker 01:
The important thing is the trial court didn't justify those comments either.

[00:16:02] Speaker 01:
The trial court did look to your point and said, well, they weren't directed toward her, which is a factor you all take in consideration.

[00:16:09] Speaker 01:
They were isolated.

[00:16:10] Speaker 01:
But the court did say, OK, those comments are probative of something I have to look at.

[00:16:17] Speaker 01:
And that's what the court did to try to resolve this case.

[00:16:21] Speaker 01:
In effect, you talked earlier in your other civil case about de novo.

[00:16:29] Speaker 01:
So if you can look at this case fresh, de novo, and put yourself in the shoes of the trial court in this case, what you've got is you had a plaintiff, the appellant, who said, your honor, I'm going to read you four questions that employees who want a promotion were each asked.

[00:16:48] Speaker 01:
They were all asked the same questions.

[00:16:50] Speaker 01:
all the same, and you tell me if you think these questions show any prejudice against older people or women.

[00:16:59] Speaker 00:
One.

[00:16:59] Speaker 00:
Well, I'm going to concede that.

[00:17:01] Speaker 00:
On its face, they don't.

[00:17:05] Speaker 00:
The question is whether, in light of Mr. Buckner's knowledge of the applicants, and particularly the plaintiff, those questions prejudiced the old lady.

[00:17:21] Speaker 01:
The question would be, how would they have prejudiced her?

[00:17:24] Speaker 01:
Are you going to find that because she's older she doesn't know, she has to call her daughter like I do to find out how to use my phone?

[00:17:32] Speaker 01:
There's nothing in the record about that at all.

[00:17:35] Speaker 00:
Well, what counsel was saying is that there are elements in her experience that she didn't have and didn't need to perform her job.

[00:17:47] Speaker 00:
But that younger applicants, particularly the younger applicants,

[00:17:51] Speaker 00:
in this case, would have had that experience, and Mr. Buckner would have known that.

[00:17:59] Speaker 00:
I'm trying to piece together how I understand her, and I hope I've been reasonably accurate, but that would be a way to discriminate against the older applicant without saying anything specifically about age, but just, oh, this younger applicant, he's a good tennis player.

[00:18:19] Speaker 00:
So, what are your physical activities?

[00:18:22] Speaker 00:
What do you do?

[00:18:23] Speaker 00:
Which is not relevant to the job, but Buckner knows that this would hurt the plaintiff.

[00:18:31] Speaker 01:
There's nothing in the record that indicates the scoring matrix or anything prejudiced anybody on this.

[00:18:39] Speaker 01:
They were independent, and if you want to get into that, I talk about technology.

[00:18:44] Speaker 01:
I'm a little off your question, so I'll try to answer.

[00:18:46] Speaker 01:
But if you want to get into the technology, when they asked her about that, she said, well, I rarely check my emails.

[00:18:52] Speaker 01:
If you have somebody who rarely checks your emails, you're probably not going to get the job.

[00:18:57] Speaker 01:
And you've alluded to what else might have been here where the questions are asked.

[00:19:02] Speaker 01:
Some of the questions are kind of general.

[00:19:07] Speaker 01:
But those questions got answers like,

[00:19:10] Speaker 01:
Well, she didn't seem to care about the job, which is a very important factor.

[00:19:19] Speaker 00:
And that statement and the fact that she said, I don't check my emails, those are in the, they're not in a contemporaneous record.

[00:19:26] Speaker 00:
They are.

[00:19:27] Speaker 00:
That statement is on 117 in the appendix.

[00:19:30] Speaker 00:
And that was something written down

[00:19:34] Speaker 00:
At the interview stage?

[00:19:35] Speaker 01:
That was what one of the panelists said she said, and it was never disputed.

[00:19:41] Speaker 01:
There's never anything in the record that says she didn't say it.

[00:19:45] Speaker 00:
But the panelists said that, when did the panelists say that?

[00:19:49] Speaker 01:
When the panelists were asked to fill, I think there were affidavits when they filled out.

[00:19:55] Speaker 01:
Okay, this was months after the interview?

[00:19:56] Speaker 01:
This was after, correct.

[00:19:59] Speaker 01:
Okay, to try to get to your point directly, could you ask a question about tennis?

[00:20:05] Speaker 01:
Does the court wanna be in the business of trying to police every question that's asked of everyone when an employer might say, well, I might wanna know about tennis because I wanna know, for example, if this person plays doubles, plays well with others, is gonna be a team player.

[00:20:28] Speaker 01:
Not that that's necessarily relevant, but you wanna be in the business of going,

[00:20:33] Speaker 01:
We're going to look at every time you ask a question that may go a little bit beyond what actually is part of the job.

[00:20:40] Speaker 01:
Because I don't think the courts want to do that.

[00:20:42] Speaker 01:
And I don't think the courts really say that.

[00:20:45] Speaker 01:
It's a terrible precedent.

[00:20:47] Speaker 01:
And you're taking away businesses' right to make these decisions on what they think is right.

[00:20:52] Speaker 00:
That's good as a general rule.

[00:20:54] Speaker 00:
But if that question is asked because

[00:20:58] Speaker 00:
the person creating the questions knows that they'll get a more favorable answer from this young person than from this older person, I think that would be an appropriate thing to look at.

[00:21:09] Speaker 01:
You'd have to tie it to age or gender, which wouldn't necessarily happen.

[00:21:15] Speaker 01:
You mean like older people wouldn't play tennis?

[00:21:18] Speaker 00:
I don't think the questions have to be tied to age or gender.

[00:21:22] Speaker 00:
If this person is prejudiced against older people and women,

[00:21:28] Speaker 00:
and manages to accomplish that by asking questions that aren't tied to age or gender, but the person knows would harm this particular older woman, then why is that not discrimination?

[00:21:53] Speaker 01:
The premise of your question is this person is prejudiced against a woman.

[00:21:58] Speaker 01:
There's nothing in the record that indicates that.

[00:22:01] Speaker 00:
The comments that were made... You don't think that his statement about that could be interpreted by a jury as being prejudicial?

[00:22:08] Speaker 01:
The statements that were made do not rise to the level that the court has said consistently are enough.

[00:22:17] Speaker 01:
There are lots of cases where people say things that aren't appropriate.

[00:22:22] Speaker 01:
There are cases where people yell and scream at employees.

[00:22:25] Speaker 01:
And the courts have said, you haven't met the standard to get above the summary judgment standard to do it.

[00:22:31] Speaker 01:
Not justifying those statements, but that's a really big if that the plaintiff wants to put in here.

[00:22:37] Speaker 01:
He must have somehow been the, what's the phrase I'm looking for?

[00:22:45] Speaker 01:
He somehow knew what these people were going to do, so he was going to be there.

[00:22:51] Speaker 01:
their controller and decide what happened when, in fact, they all said, we did this independently.

[00:22:58] Speaker 01:
Two of them were over 40.

[00:23:01] Speaker 01:
Two of them were women.

[00:23:03] Speaker 01:
There's a lot of evidence that we've discussed where they said, she didn't get the job because of her answers.

[00:23:11] Speaker 01:
Because of her answers, she was not as prepared.

[00:23:15] Speaker 01:
She didn't seem to fully want the job, which, again, I think is a very important factor.

[00:23:20] Speaker 01:
Especially when someone admits she doesn't check emails.

[00:23:24] Speaker 01:
That's really going to give you a problem no matter what gender or how old you are.

[00:23:29] Speaker 03:
Council, can I ask you about the sham declaration claim made by the plaintiff here?

[00:23:37] Speaker 03:
Do you think there was really a concrete sort of difference between the 2018 and I think the 2021 statement?

[00:23:44] Speaker 03:
If so, what was it?

[00:23:45] Speaker 03:
How did she change that was so significant material that then the court goes into the analysis as to whether or not it's a sham?

[00:23:51] Speaker 01:
The longer answer is that there is a difference because she said he didn't talk to me and then she said he did.

[00:23:59] Speaker 01:
But the short answer really is it's kind of a red herring because it doesn't matter whenever the statement was made.

[00:24:06] Speaker 01:
The key date in the case is June 11, 2018 where she got

[00:24:12] Speaker 01:
And I think she said 2008.

[00:24:14] Speaker 01:
It's 2018 where she got news that she wasn't getting the job.

[00:24:18] Speaker 01:
There wasn't anything before that in the last hundred days or farther than that that indicated that he knew of anything.

[00:24:27] Speaker 01:
And the court, that's the temporal proximity, which is kind of a fancy phrase that the court uses that says if you want to try to show that, if you want to try to make that claim, you're going to have to show that something happened reasonably.

[00:24:40] Speaker 01:
Now, she has made kind of a variation of the argument that, you know, revenge is a dish best served cold, but that is not something the court follows.

[00:24:58] Speaker 01:
There's no direct evidence that Buckner said to Ms.

[00:25:02] Speaker 01:
Malden, well, you spoke in favor of another employee at some point, so I'm going to make sure you don't get the job.

[00:25:09] Speaker 01:
So the trial court acknowledged you can infer something like that.

[00:25:14] Speaker 01:
But in this case, there was way too much time.

[00:25:19] Speaker 01:
And her point about maybe it wasn't in the advertisement, I think the point about that is nothing in anything in the record you have indicates in the least that there was any question or part of the job that dealt with the question of gender or the question of

[00:25:45] Speaker 01:
I think we've already talked about her point that the Army asked questions that weren't relevant to the job.

[00:25:51] Speaker 01:
It is important to remember that in deciding these cases, the plaintiff typically has to show she was substantially more qualified than the person picked.

[00:26:04] Speaker 01:
And the standard is requiring her to show an overwhelming disparity in qualifications, which she doesn't have.

[00:26:12] Speaker 01:
I hope you will consider that.

[00:26:15] Speaker 01:
the very first oral argument you did today, you asked the very first person, what is a case that, what is the major case?

[00:26:24] Speaker 01:
And as I recall, he kind of flubbed it because that was a question that I hadn't really thought of either.

[00:26:29] Speaker 01:
But I would ask you to look at the Santana case, which is at the end of our brief, which is kind of like our case.

[00:26:36] Speaker 01:
There were questions that were asked, there were answers given, and one

[00:26:40] Speaker 01:
one employee clearly didn't do a good job and didn't get the job because of that.

[00:26:46] Speaker 01:
And I think that reflects the court's general rule.

[00:26:48] Speaker 01:
Yes, of course you're concerned about people being treated fairly, but you're also concerned about what you have to do to get past the summary judgment standard.

[00:27:00] Speaker 01:
So we're asking you to affirm.

[00:27:08] Speaker 00:
You used up all your time.

[00:27:10] Speaker 00:
If you want to make a correction or explanation, very briefly.

[00:27:13] Speaker 04:
No?

[00:27:14] Speaker 04:
I have no corrections.

[00:27:16] Speaker 00:
OK.

[00:27:16] Speaker 00:
Thank you.

[00:27:18] Speaker 00:
Great.

[00:27:20] Speaker 00:
Case is submitted.

[00:27:21] Speaker 00:
Counselor excused.

[00:27:23] Speaker 00:
Court will be in recess until 9 AM tomorrow morning.