believe we proved against bolton for age discrimination against mr merrick was this and here's why i believe that it should have gone to trial and should not have been han it's really this he said that they put together a nice clean fair plan to do this reduction in force that wasn't going to be discriminatory and they had a nice plan for and they said they carried it out and they said boy we had nothing against mr merrick because of his age and it was all financial and we did it the right way but i think is part of the opposing papers that we presented we chipped away at that idea that it was all fair and it was all legitimate so it wasn't the failure to follow the policies that you're lying on that's your well i think it is and i think here is why i'll start with the first thing in this was a very specific part of the hilton policy and that was we're going to have two persons involved in this decision and it's going to  you have  well it's in the i can't think of the exhibit your honor but it's in the first a directive for the reduction in force where it's a share of guidelines that one general guidelines where it states that the general manager and the local h r director for that hotel will be the ones that will participate in the initial decision to decide where the reduction in force is going to be what's wrong with having the director of finance mr moller also is part of that since the riff was designed to examine cost reduction where's the harm i think the harm is this ok with ms miller very simply is her job was on the line to and the fact that they included her in the decision making process and could be ten could tend to show that her position was not considered because she was one of the people that was making the decision and i think that's the importance of the policy for the reduction in force why they said why hilton said we're only going to have a general manager and human resources director because those were the two positions that could not be eliminated every other position was supposedly up for elimination and i think by inserting ms mahler into it that's what you do and the point is this is they didn't necessarily need her from a financial standpoint to do that all that information about what each management employee was making and what each employee at the hotel was making to raise their release and that hilton proffered in this record as to why the finance manager needed to be a part of that process they never gave her reason is there any record of this is the jihad the negative impact on the decision making process that would tend to support your claim of discrimination well i think there is what is a well and where as a first of all her position was never discussed well because she was there and i don't think her position was discussed in the same standpoint that mr merrick spitzer's was discuss so it seems to me that by keeping her as part of this decision looking for it and not finding it at the moment so maybe the language in the guideline was is that the general manager all right it's fair game make ref to terminations i mean with corporate function discipline is that what you're talking about now is  the sense before that that says that the general manager and human resources director will make a great military need make the rift determination that it's very specific to just have two people in the next part of it is then they'll go to the corporate level of the area where that person who works to make sure that it meets with the corporate aspect of it and i think that's the next part of what i see is the problem here is the other part of the guideline in that is did they in good faith meet with the the corporate people that had to do with the property management and the capital improvements of this hotel and the point there is is that one of the issues that all of these folks discussed as part of the reduction in force was well mr merrick isn't doing the capital improvement project management anymore so therefore we don't have to worry about that part of his position at the hotel this is a big part of their discussions and what the three people said is is that the new this new owner remington is the one who is handling the project management duties well there was conflicting evidence from mr merrick that he was continuing to virtually do the same thing on these capital improvements at the hotel that he had done before remington had come into the picture and the next part of it was is that he said and i asked management that was being handled by remington and he had complaints about it and merrick said the same thing and the other important part about that is the assistant prop property manager cole when he took over the job he took over the same duties that mr merrick was doing as far as this capital project management now what's important about that is the corp both of the corporate people especially mr gaines and i can't think of the other man's name they questioned whether the reduction in force by unlimited ing mr america at that time was the right thing to do because we've got these capital improvement projects coming up and that was met by mr duffy telling each of them mr gains in the other man that wait a second remington is handling that now not merik well there was conflicting evidence that it reality merrick was handling it so i think what a jury could infer from that is that duffy is actually misrepresenting what merrick's job duties are at the hotel visa vi capital improvements to justify the reduction in force of mr merrick and not somebody else now let me take it one step further and i think this is a very important point the idea was we've and it was undisputed it was one hundred thirty one thousand dollars of the management salaries plus the bonus and and what actually happened due to the reduction in force is merri was taken over by michael cole his assistant he got about a six thousand dollar raise and then they had to hire an additional mechanic at thirty three thousand dollars a year to come in meet or exceed it and that if you don't that somehow leads to an inference of discrimination well i think it could all right why couldn't a jury look at that and say hey you had a directive to reduce one hundred thirty one thousand dollars and the important point there your honour's is that the reason why they picked mr merrick is they said we can achieve that one hundred thirty one thousand dollars by eliminating one position and we can't do that with anybody else we'd have to eliminate two positions and i think that's the important point there it's not so much that they didn't meet the target it's the fact that the whole basis for their decision was we merrick because he's the guy making the most money well the district court i thought did a nice job explaining the five reasons that the committee went through and then the three arguments that you raise and why those did not create a disputed issue a material fact and on that point they indicated they wanted to minimize the reductions because of earlier reductions morale and other reasons so we're going to try and find one person that might fit the bill so to speak what's wrong with that well there's nothing well without it all i think there's nothing wrong with it what's wrong with it is the fact that merrick was singled out because of his salary and the fact is is that they singled him out and said we're going to pick you is the one guy which i have no i don't have a problem with the fact that the only one if you reduce one job i agree with that it was than it was the result of what occurred that relates to the inference that it could be possibly discriminatory because he said he we we can only do him because we need to hit one hundred thirty one thousand dollars and yet when all was said and done they know let me make one other point being that real quick it's the idea that we didn't present her perfume a fashion case because his job marriage job duties were not taken over by a substantial person i think there was plenty of evidence that cole stepped in into his shoes in every way except for his title thank you  good morning may it please the court my name is sherry sweet and i'm here on behalf of the respondents mr mitchell raised three points that he believes shows pretexts here and that is the issue i think oh so now there is you're agreeing that there wasn't that information case we don't but i think it doesn't matter because he hasn't mr america has not produced substantial responsive evidence of pretext so if you agree with me on that point then it doesn't matter whether or not he met a private let's get to that last step of whether there's sufficient evidence viewed in his favor to demonstrate pretext and he said his best tribal issue factus the fact that hilton failed to hear to a long reduction work full force guidelines and how do you respond to those points he called out three different points and i think in the grand scheme of things minor and if you in the light most favorable to mr america if you agree that these are in fact deviations from a policy they're minor and they do not lead to an inference of age discrimination for instance he says there was a m representation of his job duties but that the record shows that that mr cole when he did take over some of mr merrick's job duties did not work on the capital projects yes but he says elsewhere that he didn't do the capital projects not intended then he said in terms of what he did to he said i hope wait a minute i thought he said to directly the opposite  that's what he said yes in their absence and mr merrick said after all your students but let's take a step back well how does that show age i don't think anyone says but i think they didn't want to lay off anyone and i think the record is perfectly clear that if if the executive team had their way no one would have been laid off and in fact mr duffy the general manager had testified that they had already been cut to the bone and it's not that mr merrick wasn't needed or that the position wasn't needed is that they had no choice in which was the one that they could work around the best and mr cole even if he took all of mr merrick studio he still had his own so he was doing two jobs and so i still don't see the m friend of age discrimination there what about the argument your opponent led off with today and that is he thought his best argument was there were only supposed to be two people there was a director of finance therefore there's some inference of age discrimination that i don't understand either because the policy doesn't say it had to be only those two people and as your honor pretty pointed out earlier this morning it makes sense to have the director of finance participate in that since it was a reduction in force due to financial reasons now why would that lead to age discrimination i think what mr merrick says is that this means that ms mailer's position wasn't on the table the evidence doesn't support that but i think evidence supports the fact that her job was also on the table all the three decision makers testify that all positions were considered and there was nothing to dispute that now one of the things that they did testify as well in addition to mr america's position they discussed the executive chef because that person had been recently hired and that person was thirty six so to me i just don't see of this to eliminate the position that the second most highest paid and there are other capable people to take that on i'm not saying that i'm saying that they represent it that they consider it as a main factor maybe factor the impact on customer and service and they say that they did and the way that they viewed it or they explained it all three decision makers that mr merrick did not interact one on one face to face with the customers and many of these other management positions did not all of them but many of them and of course whenever somebody goes there will they have a problem or want some attention and service is important and if you have enough people there to service the clientele you're more likely to have a happy client or customer talk about the money issue the second argument your opponent raised today was they missed the mark and that therefore reflects some something nefarious i guess right and that i don't see there's no explanation to to what happened if if in fact called did get the raise that was recommended that there's no evidence showing that he in fact got the raise the met the mechanic was hired thoughts in the record so they didn't achieve one hundred thirty one thousand dollars cost savings but what that leads to is and maybe these this executive team needs to lay off someone else if that's what's determined in order to make that savings and doesn't the record all show whether or not that happened if you have another main excuse me it doesn't really matter whether he got the raise the management team which is trying to run this asked for him to get a raise so they therefore in their calculation about what they were accomplishing couldn't have meant to come to actually meet the target right i understand your point it's caving up the proffered reasons and seeing whether there's evidence indicating that would lead to an inference that those reasons right while my answer to that is with mr eliminating mr merrick's position there were able to get closest to that target with whatever measures they had they felt they had to fill in to make up for his absence such as hiring the mechanic and giving cole a bunch of other duties they still reach were closer to their goal it's undisputed that they would have had to have laid off two people if they went to anyone else other than mr america and that hasn't been discussed so far in the argument the reduction in workforce guidelines indicates that the length of service has to be considered in determining which employees get laid off is there any evidence on the record that length of service was considered it's song on the sheets that they were looking at when they made their decision no one could recall whether or not it was discussed thought he was the longest of all in that at that physical location yes but i don't think it's unreasonable or discriminatory for helton to want to look to its own legacy employees and  deciding what constitutes tenure or not i don't think that's unreasonable or discriminatory and i would say you know if we were were nit picking their business decision and whether they actually hit the target that they were they said they're with that we're trying to make sure that they said they were making but if they wanted to if they don't know debated though if they are to kill a that guidelines as to how these decisions are going to be made and if there's evidence that those things weren't followed the inference has to be drawn from that i guess the question for me is whether those in francis rice is a level where plaintiffs should get a trial on these issues and i say i would say the answer is no because i don't think those are and to show age discrimination and this is why if if to achieve that seven to ten percent savings which is one of the things that mr merrick points out they could have eliminated two other people who are sixty and fifty seven mr merrick was not the only person in you know in his sixty's at that hotel and in fact you know on that point when you look at the statistics overall of this workforce sixty one percent of the entire workforce are over the age of forty this is not a place that shows discriminatory intent against people because of their age thirty over thirty percent are in their fifty's and sixty's on the on the list that was considered mr merrick wasn't the only one who was sixty there and there were two others and there was one who was close he was fifty seven so if the idea is so what mr merrick has to show is those three people they were all they weren't really considering business judgments and what made the best sense for the hotel guests what they're really doing is well let's just get rid of the older people that's what that's what he has to banquet the banquet manager was fifty seven i would say that the only i mean that the only final comment i would make is that i understand the point they're trying to look at it all what he said is you didn't follow your policy to the tee they substantially followed it but does that constitute substantial response of evidence of pretext pretext meaning that these three people are all lying and that they were really thinking about age and not business decisions that's what he has to show and to send this case to a trial on this record i think is really a waste of judicial resources on that thank you  talk about one point that we made and that is she said they had no choice the best person to achieve the cost savings and to work around w merrick here's where the problem with that is it's this they didn't achieve the total cost savings with mr much by reducing it because they had to hire somebody else and they had to give mr cole raise they actually saved about ninety three thousand dollars and what's interesting here is ms mailer was making ninety nine thousand dollars she was the director of finance all right but really you know whatever if they have fired her they still would have had to hire him for so presumably the director of finance does something that's the problem with these reps right these people at lest they're there dan what they're doing well you could put the the assistant in charge of that and what's important about the director of finance is one of the reasons that they made a big deal about it in their discussions was we were looking for people who interfaced with the customer and it is under speeded that the director of finance wasn't one of the people that interface directly with customers mr merrick might not have either but i think that he interfaced because his department was the face of the hotel i think we've got enough here to get to a trial on this thing and i'll leave it with this and that is the length of service issue there all three of these people said we didn't discuss the length of service we just had a list of the length of service for what judge burns said is you know that's true that they didn't discuss the link the service but they had the list with a number of years these people had been there so therefore it could have been considered well there's two competing inferences there are one you didn't discuss it means you didn't consider it and the other is we've got a list of the dates of the late the service and you did consider it which inference to appear i think it's summary judgment you pick the one in favor the point where they asked in deposition the list in front of you has a factor of ten year was that something that you considered