as you know the record of this case that his his career his successful career was ended precipitously by the corporation on april eighteenth two thousand when he was age sixty  the reason for our appeals that we strongly believe that the district court the honorable edward lodge erred when he found that there was insufficient evidence of pretax or insufficient evidence of discrimination to allow my clients claim to go to trial the as the court knows the district court has a certain framework with which to review a motion for summary judgment and pot filed their motion but i sincerely believe the judge committed several errors in reviewing the evidence that was in the record before him he did the things that this court in the us supreme court tells the district judges that they are not to do through any piece of evidence or arguable evidence that we submitted and disregard it he did not look at the cumulative effect and he disregarded both direct and indirect evidence of pretext the main issue cases strong enough plan it might not even need anymore we have more and i'm going to go through that and how judge lodge disregarded it but what i want to do is repeat the prime a face to case my client was clearly in the protected class under the age discrimination implying that he was sixty years of age at the time that they came in and told him they had a package for him there was nothing more that he was expected to or permitted to do for that corporation after thirty two years of loyal service there's no dispute that he was performing satisfactorily in fact one of the pieces of pretext that i'm going to point out is a performance review that was conducted for the preceding year was conducted on the end of february two thousand within six weeks of him precipitously being asked to leave his office the adverse action was the adverse action well one can say was discharged but in my view he was forced to retire he had no option he was approved forced to relieve the workplace immediately it was not his election he was forced to retire and that is counter to all the underlying principles of a da and finally he was immediately replaced by someone who was substantially younger age forty three and who had inferior qualifications for the job the person that replaced my client had no experience and no prior responsibilities over the idaho pulp and paper board division which is the division that mr partner was the group vice president for the time i think that's an extremely strong prime facie case and when you add to it the evidence that we produced as a pretext to the art allegedly articulated legitimate business reason the public came forward with i think it's ready readily really obvious t there so what was our evidence of pretexts like yes we have to start with what's hot left his articulated reason wise for what they did and in our brief you may note lee we point out there were some shifting reasons but let's take the reason that the court looked at and what potlatch continues to come back to and they say that the reason my client was asked to leave after thirty two years of loyal service was that the president had lost confidence in him and his ability to turn the corporation around as they were going through some reorganizations and other things my client heard mr parmenter i do not believe you have the commitment to do what's necessary to make potlatch successful well i'll tell you why i think that that articulated reason was retake was pretextual and there's there's a lot that goes into this first of all the manner in which it was announced progress didn't announce the next day that my client had lost the commitment to do what was necessary they published to the entire organization without his consent without his permission a lie they published that mr patten juror had elected to take early retirement and that's a like sexual harassment and both the president and c e o testified to that fact that they had never before immediately replaced somebody for a reason that wasn't similar to malfeasance or misconduct and then the next  misconduct by a very highest reaches of corporations where mr cruncher served you know with with doing important work for the company and i'll hit the death defamatory aspect of tax there's more evidence towards that but the other thing is they've got testified that they assumed when they gave this package to mr paget that he would accept it best that which to me is stereotypical you to take it because he's sixty years of age the same thing that's why you can announce the way you do fifty sixty years of age they couldn't announced it or probably wouldn't have announced it if he was fifty or even fifty five on their own they're not going to say out of the blue by the way everybody in the organization he in fact has elected early retirement they couldn't do that so much needs some of the stereotypical comment and the story of stereotypical conclusion that they made that obviously he was going to accept that he was going to go  him what's the economic value of the enhanced package about three quarters of a million dollars so i mean it could be the reason i don't put much weight in the amount spent that's false because he doesn't allowing my client to be a participant in that decision so that it could have been announced included so that's a face then i think that is an issue and i think they did it that way too because of his age and because they knew because of his age and part you were let go by the company and we're having difficulties that there was in the record in the depositions discussion about different things some individuals were transitioning out even with the management team you have an old business model and mr paulson said that not only to my client but to three other individuals who were also in the protected class age fifty six forty six and forty eight now potlatch tries to put their own little spin on that and the rights commission proceeding potlatch described the word all to be entrenched that he meant it as entrenched and then later they changed it oh this is some theory that we learned at the university of michigan well they can explain all that to a jury just like i should we should be able to explain all that old and that this was paulson's problem with my client much earlier than on april i think he had a problem with the family was old and a chart that has all done in one sense and new on the other and attempts to diagram the various risks of that but again the fact that mr paulson interpreted a certain way and applied it to in force and we followed the older workers benefit protection act requirements that we had to to buy a try to buy now basically have him sign a release and not say this for age discrimination there's no dispute that at the time my client was terminated the reduction in  underway and in fact again at times they say well of one reason we terminated him is we wanted somebody new making decisions about who was going to be included in the reduction in force just like fact that they had not seen my clients plan didn't know what he was proposing and didn't know what was necessary and they didn't even ask him what he was plan so yes there was no written plan ever given to him but again that to me that's his assumption the speculation that this man isn't going to be able to do it yet and this if that isn't evidence that there is a pretext to this he lacks a commitment they lack the confidence i don't know what what is because it's it's right within the same period of time it's directly contrary to then there a understand it is that the evidence a pretext is showing that two people coordinated a pretext now i believe it was the president who just kind of got to wait in a ten minute discussion in a hallway on april twelfth yeah go ahead with it the same day that the human resource director for the corporation was explaining how they could do it and try to buy him out so i think that's also evidence of pretext now with regard to the reduction in force and i know you asked this and i kind went around it a little bit reduction in force did occur in june and we presented statistics that if you were an age group the sixteen over your chance of being losing your job was fifty percent or more if you were in a chat category under forty your chances were approximately ten percent and those numbers don't even include my client and one of the other older managers who was asked to leave before the rift as well so i'm only the statistics are probably they were death and they were valuable and the judge just dismissed them and the reason he dismissed them was because he accepted potlatch as claimed that they were flawed because there wasn't a sufficient analysis of other factors that may have given rise to the statistics however potlatch never came forward with their own statistics or an explication of what these factors were that would have correlated differently and the correlation with age listen they blocked you in discovery from getting other factors to your essays and then yeah i took the position that the performance evaluations were not part of the reduction in force process that was alternative to their argument that the reduction in  force that my client is not included in the reduction of force so they chose to to do try to discredit our statistics which they have every right to do but that's makes it a question of fact and again judge lodge went through the record in just just remove the ability for us to rely on any of us so there are many other aspects of our what i believe are evidence of pretax or evidence of the discriminatory mo in the group that was told on june fifth or whatever that they were part of the rest but they explained it several times that he has the reason for his terminations was because of the ref and leading to the draft there was no consistent criteria my client and probably nobody else apart latch was subjected to the criteria consistent among all others as the ref so i believe it's reasonable to say he was in fact part of the rift because of the connection in time and regardless of distant statistics are probably have other things their statistics that they are they are probably did what the company meant when they used that word let's eliminate the dead weight this is what they did this is i guess what they want to my client to do was eliminate all these people who were in a protected class i don't know but i do think that we were deprived of the benefit of arguing to a jury that my client was part of the reduction of force he was given the disclosure under the older workers benefit protection act like all the others he was given after similar severance benefits so again i believe we were illegitimately deprived of the opportunity to argue there was a relationship there and there was probably the value to the statistics  old at that time to senior officials of the company the c e o and the president where respectively fifty seven years old and fifty eight years old age was not a factor but what are they what is their age well we would submit they act if there is truly no evidence of pretext of the with respect to the reason given by the company for mr pyne used termination potent paperboard were to gloat to glowing for an operation which everybody in the company recognised was a drain on the operations of pottage so this was one of the factors that was taken into consideration it was one of the factors that support the conclusion of mr paulson the president and mr siegel the chairman of the board that mr pinder was not prepared to do the hard things to thing about a change in the operations are not performing so there was no equation with the you could be not performing at any age furthermore there is no common meaning or dictionary meaning that describes the age to get work in terms of the old esta carry the burden here and showing pretext and the ninth circuit is recognized for instance that the words old boy network do not relate to age or biological age of the individual they have another meaning it's a colloquial you know so big that that fits in with the idea of an old management team or and all this miss muffet the program in michigan has focused on change method and then you pick it apart because you are these other factors the other factors that were not taken into consideration and information which was produced to the plaintiff and therefore accessible t their statistician involved the location of the employees the job classification of employees the salary grade medium of the employees and all of those factors are normally factors that are taken account before you can make a pronouncement about raw data only coming up with the conclusion that there was an impact on age that you got to statistics for other factors factors which may have been driving factors well i think you're right or wrong is probably your best argument is based on a case i mean i having an opposing statistician or by attacking the shortcomings of the statistics themselves in a more recent case in the case of coleman which is also a case that  admissible with respect to that plaintiff both of those are nice that the statistics were not probative was the fact that the expert himself who had been provided factors that the corporation was saying explain the outcome explain the inference that he he didn't include those he basically said well no i'm i'm not going to accept that correlation i'm just going to accept the correlation with age here potlatch never put forth another correlation they never said well if you look at the statistics made an error by saying well the plaintiffs expert said well i'll just we're just going to rely on this correlation we're not going to rely we're not we're not going to acknowledge this other correlation that they in fact had many in the statistical now say done here in our case we were never again then there was never an explanation proffered that would have basically disputed the inference that we have from the statistics that we had and so how i've analyzed the statistical evidence in this case is similar to what you do with the other evidence when you have a disparate treatment case and other words are these statistics say that age was a factor in who was who was selected for the re incumbent then on the defendant to articulate another explanation for those statistics and they didn't do that so i don't think i had to do anything else i think those were sufficient enough  now again if we were talking to me go to trial they may be able to poke more holes in it maybe we'll have more information but we were deprived of the opportunity to go to him and ask the court to innocent and now admit them now and judge la his ruling he didn't say they weren't nothing in writing by this corporation of the reasons that they took this decision and made this decision ten minutes in a hallway and i know that this is a it had to do with his age but i think it suggests that there was a motor that's different than just but the one last piece is that mr sze from the half a potlatch london mentioned that mr nelson received a better performance rating than my client for the year end of ninety nine he didn't mention that mr nelson who was the replacement for my client received a much lesser meets minimum which was on the verge of being fired in one thousand nine hundred seventy and was regarded the performance ratings and as this is in our briefing there were others that received an in r and r minus and i believe one  man at the top at the end of ninety nine and a senior management level because this these ratings had applied to bonuses for senior managers none of those none of them were asked to disappear or to leave organization thank