good morning there please the court the primary issue in this case is whether robert mcmichael was entire to a trial on the merits when he was terminated given that he was  nine years of age he was replaced by a man who was ten years younger than the company's own production force plan he had a seventy one percent of men who replaced him the younger man had a fifty nine percent the the issue the nd issue in this case is whether the explanation given by the employer holds water is consistent with the evidence or is in conflict with both the testimony of the human relations representative in the rig manager the general proposition and these cases where there's another itself it's like it doesn't solve the issue it's not the fact that there was a reduction in force alone does not justify terminations to mcmichael because like the court said entire vs lazy boy they have to have a neutral criterion for the actual selection they did than a formula and so here i thought they had a formula conduct conferences with the supervises and that sort of thing they have a form of the high grading process and that's where the issue that's under that formula all the written documents show that mr macmichael had a seventy one percent and his replace we had a fifty nine percent they try and explain that by saying that after the fact the slope as is that mr kennedy told her that he was terminated because he spent too much time in the two pushing room mr kennedy says that he has a litany of things including weak leadership and weak computer skills and also he says he was told by the am mr planted by the senior two for sure that mr macmichael was a mediocre to push or both those scenarios are in conflict with m make a bad business decision or a business decision founded on incorrect assumptions and even if these were incorrect how do you show that there pretext for agent age discrimination i re release that because our position is that they did not articulate a legitimate discriminated nondiscriminatory reason for this to make michael's terminations in i conflicts the conflicts with between mrs lopez and mr kennedy and then with the two thousand and fourteen a valuation once you strip all of that what you're left with is a fifty nine year old man replaced by a forty nine year old man with a lower with a lower score on their own so that's that's how we get to that plus there are the statements of mister oh in the earlier oh i am that mr macmichael had nothing to worry about because he was of an age where he could withdraw his money without any kind of ayers powder so that would be our position and then that that  mr that it once it's shown that all whence a stripped of these explanations because of the conflict or all nature their lawyer left with is a classic paradigmatic case of age discrimination o hit the ten year period it's considered within that framework so and this is clearly within a one thousand and ten year frame where there are cases that go a lot less and i realize that can be an issue i don't really think killed at the decision to hire the replacement was made by a person who was he aware of the age differential and and the time frame between the time that selection occurred awards how do you make that connection that's what he said during his deposition but he also said other things that are not verified in his in his deposition and his declaration position that the fact that it was not immediately took took some time there was no reason there's no reason that's ever given why would they like this to make my go off as a clear lea population and went through as a universal group in and rank them and then decide to keep the top people out questioning how you could necessarily stay with a one for one did this person specifically replace mr macmichael when they were just picking out of a whole group i don't we never had that evidence and that's how they did it if they if they had done that if that's the way they did it then and they had their right in there in in their exhibits to mr kennedy's deposition they put out there's all the ratings and mr macmichael has a seventy one percent mistake it has a fifty nine percent so if they no evidence that they put together all the two pushes and then went down and then read them put them in different places it appears to me it was much more subjective than that because mr kennedy says they were exactly supervisory they head more responsibility because they had to deal with chevron who they were the rig was working for and they had to communicate and do these reports every night so seventeen times in two thousand and fourteen as less than one percent of the working time he could not answer any specific question about what went on in there and then really so our position is that they f he wasn't responsible for hiring mcmichael or new or questions i reserve the rest of my time thank you very much lopez explained to facilitate conversation with the rig manager the terminations decisions were made by a trick manager but as a result of the cold stacking of these rigs friends ocean was aware that it had a very large pool of employees a pool of good employees that it did not have jobs for so when mr kennedy was consulting with ms lopez he was looking at the four to pushers employed on the discover clear  never a company wide comparison of we are going to say compare mr macmichael to mr eckert instead mr kennedy looked only at the two pushers who were employed on the discover clearly or when seeing the manager in just the d c l or some others my understanding is just the manager of the discovery clearly that one and so that's where we think mr macmichael st goes astray in comparing himself to mr record there's a factual answer to that which is we don't think it's evidence shows that he was clearly more qualified but legally at the pretext stage facts and a comparison of qualifications can only show that employers explanation is pretextual if that comparison of qualifications is relevant to the employer's explanation so here trans ocean has consistently said we never compared mr macmichael to mr eckert we have only compared mr macmichael to the other two pushers on the discover clearly or so as a result in a comparison of the qualifications of macmichael in this record couldn't show pretext in that argument if mr macmichael one did to show that that was pretextual he would have needed to compare himself to one of the other two pushers on the discover clear leader and argue that he was clearly more qualified than one of those two bushes that's not an argument that he's made that's not evidence that he's ever developed and it's a bit surprising because he knew the other two pushers on the discover clearly if you were familiar with anyone's performance you think it would have been his fellow coworkers he had never met mr ecker he had no personal knowledge about mr eckert's offense in fact there was no witness who offered any testimony in this case about mr eckert's qualifications or abilities as a pleasure who's focus decision maker as such i got several affidavits or declarations about his performance and mr kennedy and others and so forth so who's the decision maker per se of the knowing or not knowing about is to make michael's asian the replacement is a one person single the i know is a company wide river because there is one person who we have to look at to see what they know or didn't know yes or no it was mr kennedy he made the decision in consultation with ms lopez but both mr kennedy and ms lopez made clear that the decision was mr kennedy's so let me understand this they made the decision on to  pushers rick by rick but then they chose replacements from people who had been laid off on other breaks yes you are you might think of it i suppose in baseball terms almost as a trade for a player to be named later he knew there was a pool of to push who would be available to with six to pushers to senior to pushers and then under each of those senior to pushers one day to push or and one night to push or no there is a dispute a fact about this miss mcmichael has stated in his declaration that there were truly so we are taking some of our rigs that are online being used we have to take them we still have a one thousand employees that's slightly high but it's roughly that number who are employed on these rigs these are good employees who we don't want to terminate but nonetheless because their rigs are no longer being used we don't have a job for them so with that knowledge can we go through the rest of our workforce look for again not bad employees but the weakest employees who are on existing in context you'll see it addressed on the record page for fourteen that's mcmichaels declaration this was not a comment made by mr owen with respect to terminations it was not actually a comment made by mr owen out of the blue what mr macmichael says is that it was in response to an email the trans ocean sent about pensions being frozen this was in july two thousand and fourteen not going to be one pensions being frozen and in response to that his supervisor mr owen apparently provided him with some truthful information macmichael mr owen was not the offshore installation manager at the time of mr mcmichaels terminations and there's been no suggestion that he had any influence over mr kennedy at the time as to kennedy was making  the terms of the consistency of the explanation that mr kennedy has given for mr mcmichaels discharge i think my friend and i disagree a bit about the record what he was citing there was paragraph nine of mr kennedy's declaration you'll see paragraph nine is record page three hundred and forty two and the st sentence of that is i signed mcmichael to promote a schooner of zero for promotion potential call there are three components that go into the high grading process there's performance that's the last performance review there's the ranking which is how the employee currently compares to the other employees in the same position and there's a promotion potential the promotion potential is what's in declarations the ranking is what's in paragraphs five through eight of mr kennedy's declaration and there's no conflict in the test reason that mr kennedy has given for the reason that he  mclachlan with respect to the comparison of mr eckert and mr macmichael even if it were relevant to show the pretext of the decision as i mentioned there are three components that go into the high grading process the performance which is calculated from the last performance review the ranking and the promotions go up these are then average together to come up with a percentage ranking as ms lopez explained given how quickly train's ocean was moving different rig managers provided michaels revenger mr kennedy did not he never sent in the ranking scores and never sent and promotions course so that they could be added to the spreadsheet so what you see from his mcmichael in the spreadsheet is only his performance score and i think that's undisputed we can calculate his performance score from his last performance review he received sixty one percent of the available points on that last performance review and prince ocean rated him as a three out of five it's the fully successful category which trans ocean equated with eighty percent when you average the sixty one percent and the eighty percent you get seventy five percent which equates to seventy one percent which is the number that you see on the spreadsheet we can do the same thing for m sixty seven percent with the one hundred percent you get eighty three five percent of which was the performance component of mr eckert's now again there are many things that could be critiqued about the process the trans ocean  the court to campbell versus a whole group it's not published case but it's a nice illustration of these principles and that was a case we had job positions being consolidated and the employer following the reduction in force policy simply retained whoever the most senior employee was were going to sue qualifications the plaintiff attempted to show pretext by comparing his qualifications to the qualifications of the younger employee whose who think this court held that come that comparison was irrelevant because it didn't bear on the translation stated reason for discharge was unworthy of credence summary judgment is so appropriate because quote there is simply not enough evidence in this case for a jury to reasonably infer the man michael respect to pretext and nonetheless insufficient evidence for a plaintiff reached the jury i will tell you i've looked i could not find any cases that the court found fit within that theoretical window that the supreme court opened up well i think to get his court has been reluctant to go through such a theoretical window i certainly wouldn't only find mine i agree you are certainly wouldn't urge you to affirm on that basis i think it's more qualified or clearly more qualified than his replacement he takes issue with the system to say you know was an evenly applied or it had an error in it or whatever if you look at one set of scores  seventy two dollars and then you look at something else i have fifty two in if you do the chart so i know it's he is honest dane it seeks to make his argument that he's quote better qualified or more well qualified based on shown a faith in the ranking system itself to which to get to a fact issue about him so what's your response to that i mean in other words he's saying  in other words that i was better and better qualified than the neck or think that's a bit of an attack on strong because trans ocean has never said that on a company wide basis things ocean calculated  full composite score for every employee and then had some type of cut off school where we would retain those employees of other and terminate those employees below it if trains ocean had said that is what we did then i'd agree perhaps a failure to follow that process on the same rake and that mr kennedy never provided these written ranking or performance or potential scores that could have been incorporated into the spreadsheet seven transition is simply never made the representations that michael seeking to  employee you know other three to purser's were also you know fully successful we're not saying that we're better always but we're in the middle of laying off thousands of people we had to make some difficult decisions transition had to make some difficult decisions whether it made those again it just doesn't hold up to scrutiny and this and i agree that mr kennedy was the one who made the decision but mr kennedy made the decision either on statements that are in conflict with the two thousand and fourteen a valuation or based on his true lack of knowledge as to what went on in that regard i know he made he was he was there less and one percent of the time his office was in his than a desk and he claims he relied on this to glance and this to mostly through these statements but why would they give statements that are totally in contradiction to the two thousand and fourteen evaluation the other issue in answer to your honor's question about defending the decisional lower court the lower court really never took issue with the the way that mr macmichael  his terminations they the lower court set up a standard where mr macmichael was supposed to show that there was no real reason that the economic downturn in laos that there was no reason for his determination but that's inconsistent with tyler vs laser they there was never in this case as it applies to robert mcmichael a neutral objective criterion for his election it was based and it was based on the most objective concepts and weak leadership how can someone ha weak leader when it is evaluation it's said that he has a natural ability to rally the crews it did i submit that we here are looking at summary judgment and i submit that in this case it princes in two minutes to make one of the lower court weigh the evidence weigh the credibility and country to that iron decision the lower court relied on statements which i don't believe are admissible even assuming they say they had an imperfect system but that alone doesn't seem to under law get you where you need to be so i was trying to leave in point to say what the fact this is the same most probative of the burden you have to make the age animists connection that's what i was asking not sort of the other do you understand what i mean is that the fact is that i says that if these factors are not correct merely you agree you just you can't just show that somebody who was hired later was younger than alone doesn't get you to prevail right correct there we have resumed in the strip if you strip the company of that explanation if the explanation is so conflicts with with the existing evidence and you remove that you know you're left with is the older man very place by a less qualified younger man i just see that as it is i rely on reads to shape thank you sir all right thank you counsel both sides for the briefing or even the case of the submitted