the question that zero fact as to his claim is discrimination under michigan's larson's civil rights act and indirect evidence now it's the direct evidence probably properly considered combined with other factors position or yes your honor there were multiple plant managers before him and there there is evidence in that i don't have that deposition testimony before me but there were multiple players before him and he ca oversee take a new job and that person then evaluate how the staff is doing but you're saying as a kid there's always a lot of your kind always had a boss the boss just changed over time and your clarity good evaluations previously you know issues and performance without again you know putting anything in writing without providing training without suggesting a transfer or anything like that so basically then there's direct evidence of aids from an action because what i asked that it was your client was hotter or you primarily going on indirect evidence i think that our direct evidence argument is very strong here there were a number over a dozen not judging that outcome i just want to make sure that's that sort of fit the rule of law you want us to adopt and i don't think it's anything that any of you have got to think that's the standard to review for a series of motions that you  this is what her you know obviously they have you have a very real interest you to say oh no i didn't and and again there is an approximately twelve different difference remarks that were made over the is actually replace just actually performing their job and in this case just it sounds like no one really was forming this position as close differences if it is removed from different positions no one it was really filling those in a sort of one t just wanted to address a couple of the questions that were asked by judge reed lawyer to answer your question judge there there was always a a plant manager position at this particular facility however at the time davidson was hired there'd been a void for a period of time it's not entirely clear from the record how long there was the plant was running without manager but he he replaced the position but not st with with regard to the performance they they were for whatever reason they were not being done routinely regularly so it's not as if davidson dropped the ball and stop performing formal evaluations or just were not things that were were done on really the only evidence in this case if you will of any alleged age discrimination are the comments that mr lowell has attributed to tom davis and judge realer you you you noted earlier and   given the fact that the statements are the only potential evidence of age discrimination in the record the fact that there are there are there not corroborated and in fact highly suspicious in nature of the as you may have seen the testimony about what happened during the today the issue is do those alleged comments as essential to result in a question of fact for the jury to decide as to whether or not plaintiff was terminated based on his age and the overwhelming evidence in the record says no it doesn't mr davidson has a track record undisputed track record of employing hiring not and working with quote unquote older employees and the track record there is there was a reduction in force in two thousand and sixteen that mr lowe could have been selected for he was not he was fifty eight years old at the time mr davidson hired numerous employees who are in their fifty's including debbie manager who's seven and when mr lowest jobless eliminated mr his his job duties were provided to employees d in their fifty's and the average age of employees in their or the percentage i'm sorry of employees in the fifty's and sixty's actually increased under davidson's ship so there's there's no evidence of any general animus against older employees or what i think really both to the standard for direct evidence and on it a circumstantial indirect evidence and that is that even if with direct evidence in play there has to be some evidence of a causal link between the alleged adverse employment action and of course when you're talking about indirect evidence you're looking at pretax and whether the articulated reason for the decision was in fact the al it and really the standard is whether it was true or not the defendant provided false reason so when you look at mr davidson track record you're looking at whether this is an individual who really has an animist against older employees such that we're even talking about direct evidence and then of course whether or not that alleged animus influenced the decision in this case and a question for do you are you familiar with the michigan supreme court case of dobro the century twenty one great row i would say there are two primary distinguishing factors one of which is factual one of which is legal factually speaking there is no evidence in that case that anyone other than the person who made the statement was the decision maker with regard to the decision to terminate plaintiff in this particular case and as i was alluding to earlier was going to allude to earlier what really moved the district court there were multiple individuals or to be exact who were involved in the decision to eliminate mr lowe's position mr low does not attribute any discriminatory animist any of those folks in fact he said that he trusts debbie rod implicitly the abbey road shortly after she was hired did her own independent analysis there is no fact in the record that she was directed by mr davidson to do this analysis there is no fact in the record that mr davidson somehow suggested the conclusion she should reach but she came to her own conclusion  the area manager position was no longer needed she had discussions with her supervisors william gone and adam are callous to that fact and then also spoke to mr davidson and at the end of the day  individuals other than mr davidson who were involved in the decision to eliminate this position all agreed that it should be eliminated so in that part of that group  proven that there was an m s and that it was a motivating factor in the decision the defendant can still prevail at summary judgment if it shows that if it can show that it would have made the same decision even if the impermissible consideration had not played a role in that position in this case largely for the reasons that i just discussed which i don't believe were present in the dobro case we have presented evidence showing that if you take davidson out of the picture the same conclusion is reached because individuals other than him came to that conclusion without any influence or suggestion from davidson that the position should be eliminated and again those individuals it's undisputed that those individuals according to plaintiff do not harbor any discriminatory animus so if you remove  so think of this debbie rod is hired in as an h r manager and she has employees undisputedly coming to her raising complaints i would think it would be more suspicious for a new h r person to be getting complaints about an employee not documenting those complaints and it would be to say oh you know i can't believe she started documenting that there were complaints that were being made about this guy and they were behavioral in nature as it turns out other than the fact that the the final straw is me as as it was testified to as we've noted in our brief other than the fact that there his behavior his behavior being plaintiff's behavior motivated the tiny of the position elimi nation it's very clear in the record from davidson and m r coulson debbie rowe ard that the behavioral issues they at rar independently in on her own started to record were not the he wasn't up to snuff or limited because they just did the job it is it turns out from the record so it's a little bit of both in the sense that davidson comes in and during the few st six months of his employment he's going to plaintiff and asking about the status of blow molding machines what's going on in the machine down what's happening and he's consistently getting the answers i don't know let me check and there's no dispute the record about them that way i know there's been a focus on the removal of these duties but lo himself never objected to losing now or skin in this job so davidson upon time after time after time of going to low and not getting the answers is going to host her back and and windsor who's in charge of the robotics and he's getting the answers you need so i think you're an allegation that those employees are trained on this new technology or wasn't well lho was not after responsible for running a blow molding that was not his job and in fact davidson testified i didn't need a load to run a blow molding machine i just needed him to know what was going on in the blow all the inside of the operations and making sure it was getting gone and he kept going to low and low would not have the answer so he would go directly to the source and so that's when he decided after six months which is not six days or six weeks it's a sufficient amount of time to judge an employee's performance he says ok this is not working i'm going to i'm going to handle these duties the rest of your job remains the same you're going to handle the north and where the carburetors are being made you're going to have the janitors continue to report d you you're going to continue to deal with building maintenance and facility maintenance and you're going to be our vendors and so he task davidson testified at the time he made the decision to remove the low molding responsibilities from pla purview it was gone with a the belief that it would help plaintiffs succeed because it would eliminate an area that he either didn't care about or wasn't equipped to handle and he had no intention whatsoever of terminating low at that point in time this was actually done to help him perform well in the ensuing months that follow from there it's a it's largely the same story as almost the davidsons getting complaints about things not getting gone davidson's going directly to the employees instead of low and as is and the corresponding track record is looking at the whole employee roster if you will and saying look we don't really need this position i don't think and davidson says yeah you know what you're right we really don't need this position because where i thought low would perform these duties successfully he's not doing that either and in fact it's the other employees who are doing the job so we can very easily get rid of position it's ninety five thousand dollars a year and we can disperse his duties to others in the plant which is exactly as it makes some sense to me but i think you've said that this was also justified and part based upon his performance but his performance issues and there i just bothered a little bit by the fact that he was never given about a valuation ever i don't think as your part of the ashes well he didn't get evaluations but you know there's there's not a single bad duties was not really what he was doing or responsible for at the time the position was eliminated and i think davidson's position is that wayne it was not doing what i wanted him to do but alternately carrying the medo is gabby rars and in her talking or cowles and william gone and c e o mike coyle in conjunction with davidson and they come to the collective conclusion that this position just is not needed and in fact it was never reinstituted and there was never a replacement so the area manager position doesn't not exist anymore so i see i'm at my time if there are any other questions i'm certainly happy to answer them but if not i thank you for your then argue that the performance evaluations were not regular and he also indicated there was a brief void in the plan manager position before davidson was brought in exhibit fifteen to a response brief and in the  hardly the kind of indication to say you know your job responsibilities or risk you're ever going to completely restructure your job and then return and run you out of the company to fill that offering any training transfer or most improvement plan improvement plans