[00:00:00] Speaker 03:
Thank you.

[00:00:01] Speaker 03:
All right, let's call our first case 25-3090 cross versus City of Topeka, Kansas.

[00:00:17] Speaker 03:
Counsel.

[00:00:24] Speaker 02:
May it please the court.

[00:00:27] Speaker 02:
I am Mark Allen Jess, and I am here arguing on behalf of the appellant, Jennifer Cross.

[00:00:36] Speaker 02:
This case is on all fours with the Waggoner versus Frito-Lay decision.

[00:00:45] Speaker 02:
I realize that was...

[00:00:47] Speaker 02:
submitted on the briefs, so it's not presidential, but it is, I think, very persuasive authority because what happened here, the initial trial judge found that two of the three plaintiffs that we represented did show the third prong of the McDonnell Douglas standard pretext, but that somehow Jennifer Cross did not, even though her promotional

[00:01:16] Speaker 02:
experience that occurred in 2022 when she was passed over for a captain in the Topeka Police Department, occurred just one month later, and it was the same decision maker.

[00:01:32] Speaker 02:
And all of the evidence that supported the other two plaintiffs, who, by the way, at trial, earned a unanimous jury verdict finding that the then chief, Brian Wheelis,

[00:01:46] Speaker 02:
intentionally discriminated against them because of their gender.

[00:01:52] Speaker 02:
He was the same decision maker that passed over Jennifer Cross.

[00:01:57] Speaker 00:
And so... Counsel, is it your position, or I want to better understand your argument or make sure I understand your argument.

[00:02:04] Speaker 00:
Is it your argument that the district court forced you to use a specific type of pretext evidence?

[00:02:10] Speaker 00:
Or is it your argument, or perhaps you're making two arguments,

[00:02:13] Speaker 00:
that the district court ignored evidence of pretext that it should have considered?

[00:02:19] Speaker 02:
Both.

[00:02:20] Speaker 02:
Both, Judge, because obviously we have problems with the Ford decision, and I would argue that in many ways it was overruled sub silencio by the Ames decision by the U.S.

[00:02:32] Speaker 02:
Supreme Court, because there the court and the district court, Judge Brooms, argued and found that

[00:02:42] Speaker 02:
In order to show pretext, Jennifer Cross had to show that her qualifications were vastly superior to the other two candidates.

[00:02:53] Speaker 01:
Do you think that's what the district court required?

[00:02:55] Speaker 01:
The way that I read it when I was looking at the transcript was the district court was just saying that there was no presentation of overwhelming evidence that she was overwhelmingly qualified or more qualified than the others.

[00:03:08] Speaker 01:
That was just language that was used based on what the claim was.

[00:03:11] Speaker 01:
I mean, the claim was that she was claiming, at least, that she was more qualified, even though the other ones obviously had some very similar qualifications.

[00:03:19] Speaker 01:
So why was it erroneous for the district court to use that language?

[00:03:22] Speaker 01:
I didn't see it, I'll just tell you, I didn't see it as the district court requiring that they present that kind of evidence.

[00:03:28] Speaker 01:
I think the district court was just commenting on what the claim had been.

[00:03:32] Speaker 02:
Excellent question.

[00:03:33] Speaker 02:
Thank you, Judge.

[00:03:35] Speaker 02:
First of all, I'm the one who did the summary judgment briefing.

[00:03:40] Speaker 02:
And to the extent, and obviously Judge Brunes found that it was woefully lacking, the person that's responsible for that is standing before you.

[00:03:53] Speaker 02:
However, all of the evidence that supported both Jana Harden and supported Colleen Stewart

[00:04:00] Speaker 02:
was the same evidence that was presented on behalf of Jennifer Cross.

[00:04:05] Speaker 03:
And so... Well, it wasn't the same because there was evidence that related to the other plaintiffs that wouldn't necessarily... They were competing against someone who was marked to not qualified by at least one person, right?

[00:04:23] Speaker 02:
That is true, Michael Cross.

[00:04:24] Speaker 03:
Not the same with your client or this particular plaintiff.

[00:04:31] Speaker 02:
Well, Judge, I would respectfully disagree.

[00:04:34] Speaker 02:
Jennifer Cross was far more qualified.

[00:04:38] Speaker 03:
That wasn't what I said.

[00:04:39] Speaker 03:
I'm sorry.

[00:04:42] Speaker 03:
I said that the evidence showed that one of the reviewers had marked the prevailing applicant in the other two claimant with respect to the other two claimants as not qualified.

[00:04:55] Speaker 03:
And that wasn't the case with respect to Cross.

[00:04:59] Speaker 02:
There was in the Michael Cross promotion, which we prevailed at Court on, on behalf of Jana Harden and Colleen Stewart, one of the interviewers, Major Klump, marked him both as promotable and non-promotable, much to

[00:05:21] Speaker 02:
Irk Chief Wheelers.

[00:05:23] Speaker 02:
But no, you're correct, Judge, that there wasn't a non-promotable mark on a box in the interview for the two males, Jerry Montesmith and Aaron Jones, who were promoted over our client.

[00:05:43] Speaker 02:
But it's not just

[00:05:47] Speaker 02:
As, as I think the trial court argued, it was not just Jennifer Cross saying that she was far more qualified.

[00:05:56] Speaker 02:
Um, in our brief, we set out, um, evidence from Kim Hanukkah, who served under both Jennifer Cross and Jerry Montesmith, that she was far more qualified, that he should not have ever been promoted to captain.

[00:06:14] Speaker 03:
And so what makes her subjective opinion?

[00:06:17] Speaker 03:
enough to meet your burden.

[00:06:21] Speaker 02:
It's not just subjective judge.

[00:06:22] Speaker 02:
I would argue, I would argue judge that in fact, she had a master's degree at the time.

[00:06:28] Speaker 02:
Jerry Montesmith did not.

[00:06:30] Speaker 03:
No, no, I'm talking about the, the, um, the, the Hanukkah witness who said your client was better.

[00:06:37] Speaker 03:
That's what you were saying.

[00:06:38] Speaker 03:
Well, it was, it was her.

[00:06:40] Speaker 03:
I mean, that's her subjective opinion that cross was better.

[00:06:44] Speaker 02:
I think having served under both of them.

[00:06:47] Speaker 02:
It's a reasonable, subjective opinion if you want to label it as subjective.

[00:06:51] Speaker 03:
Let me ask you a different question because we could debate the evidence forever.

[00:06:56] Speaker 03:
But in your summary judgment brief, there's no legal argument.

[00:07:01] Speaker 03:
There is, after you state basically the standard of review for summary judgment, the summary judgment standard, there's a paragraph and two sentences worth of discussion that

[00:07:15] Speaker 03:
They don't talk about McDonnell Douglas.

[00:07:17] Speaker 03:
They don't suggest it's an invalid method.

[00:07:21] Speaker 03:
They don't talk about the Ford case.

[00:07:25] Speaker 03:
They don't mention 1983.

[00:07:29] Speaker 03:
They don't talk about Monell.

[00:07:32] Speaker 03:
What are we supposed to do?

[00:07:34] Speaker 03:
Does that mean that all of your claims are on plain air?

[00:07:38] Speaker 02:
No.

[00:07:38] Speaker 02:
I don't believe so, Judge.

[00:07:40] Speaker 02:
I think that the trial judges, the initial trial judge's opinion

[00:07:45] Speaker 02:
was arbitrary and capricious in this sense.

[00:07:48] Speaker 02:
It was the same lack of argument that was presented on behalf of Janet Hardin and Colleen Stewart.

[00:07:56] Speaker 02:
Why were they entitled to go before a jury who unanimously found that, yes, the city of Topeka's police department intentionally discriminated against them because of their gender?

[00:08:09] Speaker 02:
It was the same evidence, the same argument.

[00:08:12] Speaker 02:
So why in Jennifer's case was that fatal?

[00:08:16] Speaker 02:
And not for the other two, whom a jury found were intentionally discriminated against.

[00:08:22] Speaker 03:
Well, you, you agree, don't you, that he had to go comb through the facts himself and determine how it might apply to the claims in the case because there was no argument.

[00:08:36] Speaker 03:
I mean, generally, what we see is someone has presented these legal arguments in addition to the facts.

[00:08:45] Speaker 03:
And so it puts the district court and everybody else at a difficult position when that doesn't happen, because now we're reviewing his case based on arguments like the McDonnell Douglas test shouldn't even apply.

[00:09:02] Speaker 03:
But he was never allowed to consider, he could never consider that.

[00:09:05] Speaker 03:
He didn't know it was an issue.

[00:09:08] Speaker 02:
Judge, you're right.

[00:09:09] Speaker 02:
And the person to blame is standing before you.

[00:09:13] Speaker 02:
I'm asking that you don't hold it against our client, Jennifer Cross.

[00:09:17] Speaker 02:
But I cannot argue with you on that.

[00:09:20] Speaker 02:
But why did he choose for the other two plaintiffs

[00:09:25] Speaker 01:
to comb through the facts.

[00:09:27] Speaker 02:
I think they were fortunate.

[00:09:28] Speaker 01:
They were fortunate they got through that themselves.

[00:09:30] Speaker 01:
I don't know, for whatever reason, that's the first question I had.

[00:09:33] Speaker 01:
But it's hard to say that a district court errs when there's no argument.

[00:09:38] Speaker 01:
I mean, that's the thing that I'm looking at.

[00:09:39] Speaker 01:
Regardless of what the standard of review is, if there's no argument made that links up all of the undisputed facts that you put into the record, how is it that a court could possibly err under any standard of review

[00:09:54] Speaker 01:
and saying that that claim's not going to apply.

[00:09:56] Speaker 01:
Now, I agree with you.

[00:09:57] Speaker 01:
I don't know why the other two got through.

[00:09:58] Speaker 01:
I don't understand it, actually.

[00:09:59] Speaker 01:
And I'm glad they did, because obviously they had viable claims and ended up at trial.

[00:10:04] Speaker 01:
But it could have easily been the case that their claims had been dismissed the very same way that Ms.

[00:10:09] Speaker 01:
Cross was.

[00:10:10] Speaker 01:
But I have another question for you.

[00:10:11] Speaker 01:
You could mention McDonnell Douglas.

[00:10:13] Speaker 01:
You would agree that, as of today, and especially during the time that this case was being litigated before the district court, McDonnell Douglas had not been abrogated by the Supreme Court

[00:10:23] Speaker 01:
or the 10th Circuit for its use in summary judgment motions.

[00:10:28] Speaker 01:
I know you criticize it, but it's not like it's been overruled or abrogated in any way, correct?

[00:10:33] Speaker 02:
Absolutely.

[00:10:35] Speaker 02:
When we mention in our briefs the whole issue of the McDonnell Douglas standard maybe not being applicable or right, that's simply based off the concurring opinion by Justice Thomas and I think Justice Gorsuch.

[00:10:51] Speaker 00:
So you're preserving it perhaps for further review, but it is not that case is binding on us.

[00:10:57] Speaker 02:
Absolutely not.

[00:10:58] Speaker 02:
Yes.

[00:10:58] Speaker 02:
Yes, you're exactly right.

[00:11:00] Speaker 02:
Judge Rossman.

[00:11:02] Speaker 00:
I was wondering if you could help me with this.

[00:11:06] Speaker 00:
We're talking today about the district court's duty, really, to consider your summary judgment motion.

[00:11:16] Speaker 00:
How is it supposed to consider your summary judgment motion in the absence of argument?

[00:11:20] Speaker 00:
And the court says,

[00:11:21] Speaker 00:
that it declined to comb through over 30 pages of facts and search for potential evidence of pretext.

[00:11:27] Speaker 00:
That's what the court said in its order, and certainly that resulted maybe differently for the other plaintiffs.

[00:11:33] Speaker 00:
But my question is, based on the standards of review that apply on appeal, what is your best argument for why we, this panel, should

[00:11:44] Speaker 00:
set aside the fact that the district court said that and review the record ourselves.

[00:11:50] Speaker 00:
What is your best argument under the legal standards that apply to our review?

[00:11:54] Speaker 02:
Yes, Judge.

[00:11:55] Speaker 02:
As you know, you review the grant of summary judgment de novo.

[00:12:00] Speaker 02:
And if you look at the facts, and unfortunately, I've tried most of my cases over 35 years in state court.

[00:12:09] Speaker 02:
So I don't pretend to be a federal practitioner, and certainly I'm messed up.

[00:12:14] Speaker 02:
in the briefing on summary judgment, but we presented voluminous, voluminous facts showing that there was a material issue of fact regarding the intent of Brian Willis when he chose two less qualified males to become captain instead of Jennifer Cross.

[00:12:36] Speaker 02:
So our argument is simply that when a jury found that

[00:12:43] Speaker 02:
our other two clients had been intentionally discriminated against.

[00:12:47] Speaker 02:
Jennifer Cross was one of the key witnesses.

[00:12:49] Speaker 02:
And so there's MeToo evidence involved.

[00:12:53] Speaker 02:
There's the issue of the shifting decision of whether you have to have a master's degree or not.

[00:13:00] Speaker 02:
It was common knowledge that Jerry Montesmith had been investigated and substantiated to be a very bad police officer.

[00:13:09] Speaker 02:
So everything that supported the judgment

[00:13:13] Speaker 02:
for Jana and Colleen, supported Jennifer as well.

[00:13:20] Speaker 03:
That sounds to me like you want us to consider what happened at the trial in deciding whether Judge Broom's appropriately granted summary judgment or not.

[00:13:30] Speaker 02:
Well, I think it's evidence.

[00:13:33] Speaker 02:
And certainly, if we're talking about the Section 1983 claims that Jennifer presented, it's clear that

[00:13:46] Speaker 02:
that the jury anyway found that he intentionally discriminated.

[00:13:49] Speaker 02:
And Chief Wheelis admitted in his deposition, and I think at court, that he knew it was illegal to promote someone or not promote someone because of their gender.

[00:14:04] Speaker 02:
So that definitely shows that his qualified immunity should not have been granted

[00:14:10] Speaker 03:
And I see that I'm almost out of time, Judge.

[00:14:14] Speaker 03:
That burden is on you, though, qualified immunity, right?

[00:14:19] Speaker 03:
Well... I mean, don't you have the burden to prove to... Once qualified immunity is raised, that burden switches to you, and you didn't say anything about it in your brief.

[00:14:32] Speaker 02:
We did not say anything about it in our brief.

[00:14:34] Speaker 02:
That is true, Judge.

[00:14:36] Speaker 02:
I'm I've only got 30 seconds left.

[00:14:38] Speaker 02:
I'd like to have some time for a bottle.

[00:14:40] Speaker 02:
Okay.

[00:14:40] Speaker 03:
If I may we'll let you let's make sure any more questions.

[00:14:43] Speaker 03:
No, thank you.

[00:14:44] Speaker 03:
Okay Okay, we'll let you reserve the remainder.

[00:14:47] Speaker 03:
Thank you.

[00:14:47] Speaker 03:
We'll probably give you a little extra We only have a few cases this morning.

[00:14:50] Speaker 02:
Thank you.

[00:14:56] Speaker 04:
Yeah Good morning your honors that pleases the court My name is James Philip Gragson, and I represent the appellee the city of Topeka in this matter

[00:15:05] Speaker 04:
Try not to be repetitive here.

[00:15:07] Speaker 04:
I've already heard basically my arguments in exchange with counsel.

[00:15:12] Speaker 04:
I'll address three issues, the first of which is the McDonnell Douglas burden shifting framework.

[00:15:19] Speaker 04:
Again, number one, as the panel has pointed out, that argument was never made before the district court judge.

[00:15:25] Speaker 04:
He didn't have an opportunity to address it.

[00:15:28] Speaker 04:
We believe it's waived.

[00:15:30] Speaker 04:
However, even if you apply plein air, I've read Ames, I've read Heidel, Hiddle.

[00:15:37] Speaker 04:
There's nothing overruling McDonald Douglas.

[00:15:42] Speaker 01:
But it certainly has been criticized both by Justice Thomas and Judge Eyde.

[00:15:46] Speaker 01:
And to be honest, it's probably a fair criticism that it requires a plaintiff, using the McDonald Douglas test, requires a plaintiff to prove something at summary judgment stage.

[00:15:57] Speaker 01:
rather than just showing that there are genuine issues of disputed fact.

[00:16:01] Speaker 01:
So why shouldn't that argument hold weight here when we consider whether it was appropriate to use that test?

[00:16:07] Speaker 04:
Well, number one, I don't think it's sufficient to overturn McDonnell Douglas or Ford.

[00:16:18] Speaker 04:
I agree there's criticism, and I think it's kind of tricky.

[00:16:22] Speaker 04:
I'll admit that.

[00:16:23] Speaker 04:
When you get to the pretext prong,

[00:16:26] Speaker 04:
I believe what Judge Bruins was saying.

[00:16:29] Speaker 04:
You didn't make any connections for me as to why this is pretext.

[00:16:36] Speaker 00:
Can we talk about that for a second?

[00:16:37] Speaker 00:
Sure.

[00:16:40] Speaker 00:
The district court made clear that it wasn't going to comb through the 30 pages of facts without argument and try to connect the dots itself, right?

[00:16:48] Speaker 00:
But we have the discretion to overlook any waiver.

[00:16:51] Speaker 00:
You would agree with that?

[00:16:52] Speaker 04:
Yes.

[00:16:53] Speaker 00:
And we're on de novo review, right?

[00:16:55] Speaker 04:
Yes.

[00:16:55] Speaker 00:
OK.

[00:16:56] Speaker 00:
So you agree that if we look at the full summary judgment record in this case, that there's evidence of pretext in the record that had Ms.

[00:17:05] Speaker 00:
Cross affirmatively marshaled that evidence, maybe she'd be in a different place.

[00:17:10] Speaker 00:
And why can't we do that now on appeal?

[00:17:13] Speaker 04:
Well, Your Honor, respectfully, you could.

[00:17:15] Speaker 04:
I just don't believe that there's evidence of pretext there.

[00:17:18] Speaker 04:
The differences between, and I hate to bring it up,

[00:17:25] Speaker 04:
The case that went to trial had to do with the promotion of major.

[00:17:30] Speaker 04:
Now, interestingly, Jennifer Cross, who is on this appeal, provided testimony about her husband that the district court also considered.

[00:17:40] Speaker 04:
Jennifer Cross didn't have similar testimony, having people pointed out, or pointing out Montesmith and why she didn't get promoted, to the extent that Mrs. Cross talked about her husband.

[00:17:55] Speaker 04:
not wanting to come to work, being confused about some things, what have you.

[00:18:03] Speaker 04:
And she testified at trial that way.

[00:18:05] Speaker 04:
There was no similar type of pretext that was presented with regard to Jennifer Cross.

[00:18:14] Speaker 04:
We agreed there's a prima facie showing.

[00:18:19] Speaker 04:
We can all throw up a bunch of facts, but if you don't connect the dots to say, here's pretext and here's why.

[00:18:27] Speaker 04:
All we kept hearing was, she's way more qualified.

[00:18:31] Speaker 04:
Jerry Monismith is a combat veteran that has served in Iraq two different times, commanding troops, including females.

[00:18:41] Speaker 04:
He's eminently qualified for that position.

[00:18:45] Speaker 04:
I think what the judge was looking for was

[00:18:48] Speaker 04:
Tell me why your assertion that she was significantly more qualified, how does that constitute pretext here?

[00:18:56] Speaker 04:
And they weren't able to do it.

[00:18:59] Speaker 04:
Similarly on the 1983 claims, my favorite quote out of Judge Broom's decision had to do with the Monell liability issue, where quoting the judge,

[00:19:15] Speaker 04:
Plaintiffs have wholly failed to respond to defendants' arguments, which are extensive on manel liability."

[00:19:22] Speaker 04:
And he goes on to say, the evidence in this case clearly shows that women, including plaintiffs, have been consistently promoted, contrary to what the position they're taking.

[00:19:36] Speaker 04:
And he determined that by the evidence that's in the record.

[00:19:39] Speaker 04:
Ms.

[00:19:41] Speaker 04:
Cross is arguing apparently that, well,

[00:19:44] Speaker 04:
Anytime I applied for a position and didn't get it, it must necessarily be because of gender.

[00:19:50] Speaker 00:
What about Stuart and Harden's experience with being passed over for the major position?

[00:19:55] Speaker 00:
I mean, that seems to satisfy our standard for anecdotal evidence, MeToo evidence.

[00:20:02] Speaker 00:
And the time frame is consistent, right?

[00:20:07] Speaker 00:
It matches Ms.

[00:20:09] Speaker 00:
Cross's non-promotion.

[00:20:11] Speaker 00:
I understand the threshold problem, which is the dots were not connected.

[00:20:14] Speaker 00:
But my question proceeds from the premise that, given our standard of review, we can look at the record.

[00:20:20] Speaker 00:
And the record seems to include this evidence.

[00:20:22] Speaker 00:
It seems to be consistent with what our legal standard requires for this sort of anecdotal evidence.

[00:20:29] Speaker 00:
And it wasn't considered by the district court.

[00:20:30] Speaker 00:
Why wouldn't that make a difference here?

[00:20:32] Speaker 04:
Well, I didn't read the district court.

[00:20:36] Speaker 04:
as saying they didn't read all the facts.

[00:20:39] Speaker 04:
I read the district court as saying, I read the facts, but you didn't attach the argument.

[00:20:46] Speaker 04:
Respectfully, I think if you reach the conclusion that he should be overturned because there was pretext, you're going to have to add some argument that's not present in the briefs, frankly.

[00:20:58] Speaker 04:
It's my response, Your Honor.

[00:21:00] Speaker 00:
I understand.

[00:21:01] Speaker 00:
So my question is, let's just assume for argument's sake that we were willing to do that because as an appellate court, we have the discretion to overlook waiver.

[00:21:11] Speaker 00:
Do you agree that if we did that, there is evidence in this record that satisfies the standards for showing pretext?

[00:21:18] Speaker 04:
With regard to Jennifer Cross's case?

[00:21:19] Speaker 04:
Correct, yes.

[00:21:20] Speaker 04:
I don't agree with that, Your Honor.

[00:21:22] Speaker 04:
I don't agree with that.

[00:21:23] Speaker 00:
And is it because if I want to make sure I understand your argument, I think that your argument is that, and that's because not so much that the dots weren't connected, but that she put all her eggs in one basket, which is showing that she was more qualified.

[00:21:35] Speaker 00:
Is that a correct understanding of your argument?

[00:21:37] Speaker 04:
That's part of it, Your Honor.

[00:21:40] Speaker 04:
Part of it is, and it's hard not to compare the Stuart Harden issue.

[00:21:46] Speaker 04:
Jennifer Cross didn't have on the interview sheet to look at on Montesmith and say, oh, you're not promotable as to X, Y, and Z type of position.

[00:21:58] Speaker 03:
Counsel, sorry to interrupt you, but stay in front of the mic if you don't mind.

[00:22:01] Speaker 04:
I'm a wanderer.

[00:22:02] Speaker 04:
I apologize.

[00:22:04] Speaker 04:
Jennifer Cross didn't have any similar type pretext evidence to present to the court.

[00:22:10] Speaker 04:
Again, that

[00:22:13] Speaker 04:
That's the main thing.

[00:22:14] Speaker 04:
The evidences was presented, well, she was qualified.

[00:22:20] Speaker 04:
Interestingly to note is Ms.

[00:22:24] Speaker 04:
Harden was on the interview panel that promoted, that promoted Montesmith.

[00:22:31] Speaker 04:
She said he was promotable.

[00:22:34] Speaker 04:
Again, is that directly relevant to your question?

[00:22:38] Speaker 04:
I don't know that it is, your honor, but yes.

[00:22:41] Speaker 04:
I believe the court can obviously do what you're suggesting.

[00:22:47] Speaker 04:
I just don't think there's sufficient pretext in there to overturn the district court's decision.

[00:22:54] Speaker 03:
Let me ask you if you have a response to the idea that our Ford case has been overruled sub silencio by the Supreme Court.

[00:23:10] Speaker 04:
I disagree.

[00:23:11] Speaker 04:
Um, if we're talking about Ames, Ames simply had to do with, hey, should there, or should there not be a heightened burden when you get to the pretext stage?

[00:23:21] Speaker 04:
It didn't say let's kick McDonald Douglas.

[00:23:24] Speaker 04:
It addressed that, that part of the pretext where the court found, hey, you're elevating the burden of proof here that you don't need to do and you shouldn't do.

[00:23:35] Speaker 03:
Well, I think the complaint was that Ames said something to the effect that

[00:23:40] Speaker 03:
If your position is there was pretext because I'm more qualified, you have to show more than just arguably qualified.

[00:23:50] Speaker 03:
And I wrote it down someplace, but I don't have it right.

[00:23:56] Speaker 03:
In fact, I do have it in front of me.

[00:24:01] Speaker 03:
That Ford said,

[00:24:04] Speaker 03:
We will infer pretext based on a comparison between a plaintiff's qualifications and those successful applicants only when the plaintiff demonstrates an overwhelming merit disparity.

[00:24:16] Speaker 04:
For it to be pretext, I agree with that statement.

[00:24:20] Speaker 04:
And here's an example.

[00:24:21] Speaker 03:
And so the argument, though, is, I mean, that's what it says.

[00:24:25] Speaker 03:
I mean, you can agree with it.

[00:24:27] Speaker 03:
But the argument is that that's been overruled.

[00:24:29] Speaker 03:
I understand.

[00:24:30] Speaker 03:
And I disagree.

[00:24:34] Speaker 04:
Here's the scenario where it matters.

[00:24:37] Speaker 04:
And when you compare qualifications, when you get to the pre-tech stage, right?

[00:24:43] Speaker 04:
Let's assume that Ms.

[00:24:46] Speaker 04:
Cross, her competition was a one-year police officer who otherwise was eligible to be interviewed, but didn't have any kind of real evidence or background of experience.

[00:25:04] Speaker 04:
Um, and Jennifer cross could have shown by the court in that scenario, look at all my experience.

[00:25:10] Speaker 04:
This guy has this.

[00:25:12] Speaker 04:
Okay.

[00:25:14] Speaker 04:
It's not that I believe one person more and I, they talk about these credibility determinations.

[00:25:20] Speaker 04:
That would be a key, but when they're, they're like this equally capable.

[00:25:26] Speaker 04:
Yeah.

[00:25:27] Speaker 04:
I think you have to, if you're going to use that as a reason to show pretext.

[00:25:31] Speaker 04:
I do think you have to show, hey, here's the disparity in qualifications.

[00:25:40] Speaker 04:
That's how I think it should be handled.

[00:25:41] Speaker 03:
And so your position would be that Judge Brooms looked at the evidence and said, I don't see a disparity in qualifications here.

[00:25:50] Speaker 03:
They may be different qualifications, but they're not disparate qualifications.

[00:25:55] Speaker 03:
And so she hasn't met her burden.

[00:25:56] Speaker 04:
Yes.

[00:25:57] Speaker 03:
OK.

[00:25:58] Speaker 03:
I agree with that.

[00:26:00] Speaker 03:
I'm not saying I agree with it.

[00:26:02] Speaker 03:
I'm just asking if that's what you're saying.

[00:26:04] Speaker 04:
Yes, that is what I'm saying, Your Honor.

[00:26:09] Speaker 04:
With regard to Wagner, I believe council indicated he thought that impacted Ford as well.

[00:26:19] Speaker 04:
Wagner applied the McDonnell Douglas test, correct?

[00:26:25] Speaker 04:
But Wagner, they found that during the interview,

[00:26:28] Speaker 04:
statements were made about age repeatedly.

[00:26:32] Speaker 04:
There is no such evidence in this case.

[00:26:36] Speaker 04:
Brian Willis, everybody said he's never said anything remotely discriminatory from a gender standpoint.

[00:26:45] Speaker 04:
There was no similar evidence such as that, that would have warranted the preclusion of summary judgment.

[00:26:53] Speaker 04:
So unless you have more questions, that's what I have to present, Your Honors.

[00:27:02] Speaker 03:
Thank you.

[00:27:02] Speaker 03:
Thank you, counsel.

[00:27:04] Speaker 03:
All right.

[00:27:05] Speaker 03:
Let's give, I promised counsel we'd give him a little extra time.

[00:27:08] Speaker 03:
So let's give him an extra minute.

[00:27:10] Speaker 03:
So he has a minute and a half.

[00:27:12] Speaker 02:
I so appreciate that, Judge Carson.

[00:27:15] Speaker 02:
The bottom line is,

[00:27:18] Speaker 02:
Jennifer Cross's qualifications were not the only factual evidence that we presented showing pretext.

[00:27:27] Speaker 02:
Keep in mind that the Topeka Police Department has never had a female chief of police, has never had a female deputy chief.

[00:27:37] Speaker 02:
The only major before they were forced to promote Jane Harden to major that was female, there was only one before that.

[00:27:47] Speaker 02:
There had been a history of discrimination based on gender, and we presented all of those facts.

[00:27:55] Speaker 01:
Is that evidence of pretext?

[00:27:57] Speaker 02:
Yes, as evidence of pretext, Judge.

[00:27:59] Speaker 01:
That's evidence of pretext with regard to Ms.

[00:28:02] Speaker 01:
Cross specifically?

[00:28:03] Speaker 01:
Yes, yes.

[00:28:04] Speaker 01:
What else do you have?

[00:28:05] Speaker 01:
What else, if we were to go and comb through the facts as you laid them out, what else are we going to find that you believe

[00:28:12] Speaker 02:
She had her master's degree in public administration.

[00:28:16] Speaker 02:
She had served in every single department across the Topeka Police Department, unlike the two male candidates.

[00:28:24] Speaker 02:
Those are the two that come to mind immediately.

[00:28:26] Speaker 02:
But Judge, what I'd like to say in my 16 seconds is, defended in the Ken Panion case, I think, is going to argue that the summary judgment opinion, which is attachment one to our opening brief, is the law of the case.

[00:28:42] Speaker 02:
Well, if that's the fact, then look at pages 27 and 28 of the opinion where he finds there was pretext.

[00:28:52] Speaker 02:
And he found it because he found that the defendant's decision-making explanation was unworthy of credence.

[00:29:04] Speaker 02:
One month later, same decision-maker promoted two mails over Jennifer Cross.

[00:29:10] Speaker 02:
That's pretext.

[00:29:12] Speaker 02:
I appreciate y'all's time.

[00:29:13] Speaker 03:
Thank you, counsel.

[00:29:15] Speaker 03:
The case will be submitted.

[00:29:16] Speaker 03:
We will not excuse counsel because we have another case, I think, with the same group or close to it.