johnson randall prater oust a clinton shelby thompson in may lead walker age discrimination case cases against lockheed martin as a result of their being laid off in conjunction with a sort of hybrid term nation of a subcontract slash reduction in force i take care to name each of my clients individually because i do think that it's important that we remember that these each of these five clients have their own individual cases and i think for that reason we have to look at each individual client's case to determine whether or not any or all of those cases should have survived summary judgment and i feel that the district court sort of lumped all of these cases together to conclude the generally sorry no age discrimination all of you guys are gone we're not going to look any farther in granting the defendant's motion for s judgment the district court concluded the plaintiffs could not establish a prime aphasia case of age discrimination because lockheed martin hired some individuals that were older or not substantially younger than the plaintiffs mr court went the next step and also ruled that you did not stablish pretext as to their legitimate nondiscriminatory reason for their actions right i don't believe that they went into pretext they simply stopped it i that as an alternative argument for fermat's below so it's prisoner and they've raised the peel right that is correct that is correct and i think again it's primarily i think the first issue that we have to get past or i think i'm forced to address is that the judge decision that simply the hiring of one or a few individuals from within the protected class negates any inference of discrimination and assuming the judge erred there i think you district court relied on and in doing so i think the sort of the devil is in the details of that case i'm not so concerned about the decision holdsclaw because holdsclaw it in the end they're hiring process they had multiple stages with very objective criteria and then when they you went to the subjective stage of the interview stage they had six panelists so there was every opportunity for you know we could sort of eliminate any individual panelist bias because when you look at the total of the six panelists you're going to like a diving competition where you throw out the high score almost exactly and i think that that is that in that respect the the approach that the the employer took in holdsclaw was commendable because they took strains or took effort it's to weed out any of that subjective biases and in this case when you look at again looking at the details that each hiring manager sort of put into practice what becomes blatantly obvious is that one or very one or two people hiring managers had control over this process from start to finish they got to do these they did these skills assessments which that hiring manager determines what skills we're going to look at and then they also get determine how we're going to score each individual on those skills this leaves every opportunity for that hiring manager to incorporate biases at any level they want to i think the evidence that they did is primarily the fact that these positions while they want to represent that these positions are skilled labor with all due respect to my clients for the most part it's not deja johnson is a great example dieter johnson they concluded the d johnson who had worked for the for laci herb on this contract for twenty five years i was not as qualified for an entry level maintenance trades helper position as an individual that had been there three years and had never progressed progressed beyond that entry level position my client and progressed various levels and had reached an exhibit specialist to which was i think there would need a significantly more prestigious in a promoted position and in doing so in saying that this individual this farmer individual was more qualified they said well we scored in the foreign bag and tag bagging tag is putting a finished product in a box and slapping a label on it with all due respect that is not skilled labor that does not require us to say well he's much better putting this putting bubble wrap on a product or putting in a box that and it at that position at that point i think you sort of have to question whether or not skills are really the determining factor in whether or not if it's really just we like the guy we'll say these are the skills that are important we'll scoring high even if they say well we like the  argue that these things are subjective nature but you don't really go to the other step to connect that well subjective nature somehow leads to age discrimination you're saying it could but we don't have any connection there and i understand the concern there in for i guess in addressing that are dealing with that issue i went back and looked at it some of the the documents that were submitted with the record in response to summary judgment i think one one that's very telling was in this was in our exhibit exhibit eleven and i don't know if the docket number on it but it was basically a list of everybody that was hired on september fifth of two thousand and eleven there were essentially for hiring managers on that hired all two hundred eighteen earth three hundred fifty eight employees on september fifth two thousand and eleven and when you compare their statistics or when you look at them there was a hiring manager by the name of damon evans who did hire the majority was the hiring manager for the majority of the individuals he hired two hundred twelve individuals twenty eight of them were over fifty for a total of thirteen point two percent ok you compare that with richard perkins was the pool applicants will applicants more the age of fifty more than thirteen percent of it well i think when you look at richard perkins who was another hiring manager who's hiring was thirty six point four percent of individuals over fifty unfortunately my clients were not in the pool of applicants from richard perkins they were in the pool two of them were in the pool for dominic and or damon evans and i think that when you look at his overall numbers you have to raise an eyebrow raises a question like my question is  s that one supervisor ired thirteen percent over fifty the other guy thirty percent or whatever whatever whatever was what were the the breakdown of the total applicants that in that make that may make a difference if there are a pool of one supervisor has more older people than the other one does not i mean i necessarily point that to it and i do the issue i have the big concern that deny him is again is when you have something that is and i and i understand there are put opportunities for subjective tests that are not will not raise a red flag for  discrimination but i think again when you look at when you look at the individual facts of these cases it does raise a red flag again with with al stay clean and randall print that they were machinists in a certain area under  they were n c two machine and she didn't hire a single and c two machinists that were above the age of fifty and the record will reflect the individuals that were n operators before this transition were individuals over fifty were well represented among that group and then with this transition those number those numbers are completely eliminated and because like the obviously the with with an age clip with an age claim it's not as significant you know if apologize but if the sort of factor is whether or not they are significantly younger so it's that seventy or seventy six seven years and in my client's range in age from fifty three to sixty and that's and i understand forty seven would be the demarcation line sort of for those individuals that are fifty and it fluctuates but i think for ease of argument and because of limited time you know i point to the fifty as sort of a smart idea and i think again in a guess  interviewers seemed disinterested but it seems to me pretty telling that they have a list an interview list and that's part of the record that says all the individuals that are being interviewed for an aircraft mechanic three are interviewed on august seventeenth two thousand we've got twenty of them back to back to back back all day running all day nobody else is marked as an interview for an aircraft mechanic three they'll say that other people applied were considered because they they applied for twos and threes but in the interview schedule they were listed as to my client was in interviewed until work five days later and when my clock he's the only one only aircraft mechanic three that was interviewed on that on august twenty second two thousand and eleven and when they interviewed him i say sixteen they'll say thirteen offer letters had already been sent out and the reason i say sixteen as opposed to thirteen we've got thirteen offer letters that are dated august eighteenth two thousand and eleven four days before my client sat down for his interview think it's safe to say he wasn't considered for those thirteen positions we have three more offer letters that were sent out on august twenty second two thousand eleven my client was interviewed on august twenty second two thousand and eleven at approximately seven ten pm therefore i think it's pretty safe to say that those offer letters were prepared before seven thirty at night and so there we have sixteen positions that mine the shelby thompson was obviously never given consideration for they were filled before and shall we thompson is a particularly concerning case because he was one of only eight individuals that were aircraft mechanic three apologize but we have been answering questions that's a question that's no problem at all like  you please the court i'm mormon i represent lockheed martin since i have a hostile audience on the promise fisher case issue but i would like to address that least briefly it's pretty clear that the law it's definitely clear is in a failure to hire case the plaintiff passed to show that the person who was hired was from outside the protected class now the issue is what if it's a multiple hour case and that's where i can sense you have some issues but the question is if one is not enough then how many would be enough and in this case the plaintiffs have never said they complained that one shouldn't be but they haven't said how many should be and you have the case of maybe walker and she there were thirty two elect techs hired sixteen of them were substantially were not substantially younger so you had fifty percent in that situation now my sense is the plaintiffs would have a rule as a standard that if anybody outside the protected class is hard then they have a problem fix your case so i mean their position be the total opposite if they hire one side of the protected class than they would have it from case it doesn't seem reasonable either that doesn't seem circumstantial but i mean judge hood really did look at one i mean it is rationale it's kind of hard then doesn't it well it's interesting judge that you would think this issue would have come up before the only case we had was the whole small case which was pretty much on point i know the appellant's take some issue with it but it's about it's on point as you can get a dynamic fact situation and so he followed that case but i  think he didn't have any reason to follow any other rule there's no other rule that's been established by this or any other court at least in the failure to hire case and one of the factors again that i think is relevant here when you have a reduction in force case the employer knows the ages of the people they are laid off but in a failure to hire case at least here lockheed martin did not know the ages of the people that it was interviewing and ultimately  hiring and that is does make this difference from a reduction in force case because most employers if they do in a mass layoff they would run their own statistical analysis to see are we outside the factors here are we play enough too many minorities we lay off too many older people but then the failure hardcase the mass failure to hire there's no way the employer could even test whether it was running afoul of the law so i think to impose a standard in a pretext standard that require something more than one is is difficult to know what that should be but if you went with the reduction and for standards which this court recognized in barns and many other cases the court there said that we just one person outside the class was hard but in that case and all reduction in force cases the player still has to show something more they have to have statistics they have to have direct evidence perhaps they argue that the process itself was biased but desperate impact it seems to me that's the argument the point of making here well they flirt with that argument your honor i'm not sure they come out and make it and one of the problems with their cases there are a lot of the numbers that are thrown around but as judge griffin know there's no statistical analysis they want to say only one person was hired that was older than fifty but they beg the question will how many a plot i can tell you from the record it's clear in the record damon evans said he mention was in charge a part of the operation called aviation hill aviation hill is a place where they're actually crawling around and through the aircraft to assemble the air and so he may have had a different number of older workers performing that job than people who were in sick in charge of a shop where they were working at the bench but we don't have those numbers and so this court is not able to say that they've met this something extra standard which says we can draw absolutely no reliable in friends from thirteen percent thirty seven percent ninety percent two percent it's not in terms of the plaintiff making a promise facia case not in terms of them having presented enough's the testicle evidence to make you think something happened here that's out of line with what would happen if they weren't biased biased on which they also didn't present any direct evidence and there's circumstantial evidence is is very thin which gets into the pretext but you know this is not a case where there were numerous statements of just comments like an echo for each case where the statements the court said were numerous and where the court found that there were statements that this company has too many white haired old men and we've got to change that those the records show and if so does it matter and if not then obviously those in the age of the decision makers knows he was pointing to various people as having kind of if you peel back the layers and look at it there's really only one person making the  t that is in the record again there's not a chart and you're not going to make our case for us but that is in the record they did ask the managers for their ages and the managers were people who tended to be in their late forty's and fifty's i don't have a list of their ages but the decision makers the hiring managers tended to be older workers themselves and in this case it was interesting i took the depositions and i asked each of the plaintiffs did you ever hear anybody say anything did you ever see anybody do anything to make you think that they were biased against older workers and to a person they all said no they never did which when you think about a company as large as lockheed martin and their hiring three hundred ninety five people for five plaintiffs did not come up with a single time where they saw any evidence that lockheed martin was against older workers is pretty impressive and as i believe you know that judge carr the there's no there was no benefit here to lockheed martin in hiring a gun for work force there was no ability to save money whether you were if you were an aircraft mc two and you were thirty you got paid the same as if you were an aircraft too and you were fifty or sixty now what the plaintiffs really are valid in this case is that they believed the decision should have been made based on single to a person again in their depositions that's what they said and the reason for that is they had been on this contract for a long time and previous employers had made decisions based on seniority and i think the rumor was lockheed martin was going to base it on seniority and then it didn't happen that way and that's what caused the plaintiffs to be upset obviously that and not getting a job but that's really their evidence of a pretext is that as you are no the judge griffin that well th could have been some kind of discrimination we don't have any evidence of it but there could have been and we must have been the better workers because we had so much seniority but as this court and others have recognized many times the subjective beliefs of the plaintiffs into their own qualifications is not relevant and the plaintiffs beliefs and feeling that a different selection method is not relevant to bottom line is the plaintiffs can't just take pot shots at the process they can't just come in and say you should have done this and you could have done that they have to establish that there was age discrimination behind these decisions and they simply haven't done it they haven't even made  pretext showing the hiring of three hundred and eighty five people in just a matter of three weeks there may have been a mistake or two made in the process i think you would expect that  there is no evidence in the record that any mistakes were because of age there's no evidence in the record that lockheed was biased against older workers the plaintiffs have not shown that anybody who got a  job was less qualified than them i asked them that in their depositions who who got a job that you think's less qualified and they answered well i can't say anybody when somebody was not going to get a job it was not a situation where everybody could be happy but they've not shown that their failure to get a job was caused by any age discrimination or bias from lockheed martin got time left but i don't see any questions they're not all right thank  posing hausa raised several issues that i guess i'd like to address and i guess i'll start off with one of the last points is he talked about how the subjective beliefs of the plaintiff that they weren't that they made some poor decisions or that they were hard to not hire because of their age or irrelevant but when we look at the process as a whole i think you have to go back and look at it ok lockheed martin when you when you consider the way they did their work these hourly employees they they received work orders clocked in on a work order completed the work order and then and then when they were finished they clocked out on the work order and it moved along based on that card system that they used they hit hard data they could have went to we could look at hard data we can say who are the most efficient people who are the people with the least amount of scrap who's getting the most done it and they chose not to do that they instead they said you make your decision we don't care what you do just go ahead and give us some reason for justifying to put it on paper that they get a four on this this skill and will go in and that and that's good with us but i think that it's pretty telling that we don't when we have hard data available we don't rely on it in one particular anecdotal story that one of my clients raised is i think very very interesting a gentleman by the name of brian comic right was a machinist to lockheed martin and he was hired on when they when they made this transition my client speaks of a contest mr  himself where he would see how long a day he could go without doing anything he clock in presumably clock in on his job and sit there and stared his machine for as long as he could brag of having records of five six hours there is data that lockheed martin could have referred to to support that but we don't look at those things we just say well he can operate that machine will give him a floor on it and brian conkwright memory serves a thirty something buddy of the thirty something lower level lead gets hired and i think again when you i understand the concern of simply looking at us in saying subjective is just saying that it's subjective is not quite enough to establish age discrimination but you have to look behind those subjective decisions to see how those decisions were made and see the impact of those decisions  mainly walker another way he said that they heard thirty two electric once they hired sixty something electic one's partner two different managers what this mr evans that we for two mainly walker was a candidate for damon evans position as well as the other manager then nevins hired people who'd been with the company for less than six months in he retained them at this transition they had been on that contract now to suggest to me that this person was somehow more