fact that a statement was made three times during the process of informing the plaintiff employee why he was being discharged from the school district district court held that the following was not direct evidence of age discrimination we have a superintendent a care in coming to a performance evaluation of the plaintiff and saying the board leading off with the board wants you to retire some other discussion ensues the plaintiff is asking the superintendent superintendent is responding the plan of says well what do you want and karen says if it were up to me i would have you stay and perform work and then the plaintiff says but the board would not like that something and that order and the suit and says yes they could force me to fire you and they could make your life hell now the next day the superintendent or think the superintendent mccarran says it's possible that we could offer you the same b that's being offered to some teachers the next day karen comes back to the plaintiff and says i think i can get you that buyout and the plate of says well i pla working at least two more years as the principal here at least the economy permitting and the mccarran says finally they just want someone younger that's isn't important verbatim statement they just want someone younger the district court ruled that following the evidence he by the district that the term day was ambiguous somehow when in fact there was no other day there was no other pronoun that was mentioned between mr mclaren and mr shek in either conversation the day before or on this day the day is referring to the board who is the employ which is the employee and yes the board is the employee entity mccarran the superintendent is the only employee of the board and he has plenary power to hire and fire now there's an issue here as to who is the actual decision maker we can testify that he is the sole decision maker however his testimony also included the fact that there was a consensus amongst the board who he reports to that they should terminat discontinued and mccarran goes on to repeat again in the second meeting between the two they just want someone younger now not only is they not ambiguous in the normal english grammar in this circumstance but the term just is a very important word in the sentence also curiously or tellingly the lisa school district has been quoting mr mccarran statement as they want someone younger but the state was they just want someone younger and in common english usage when somebody uses that term just it means a summary or a sum mation of getting to the point of the discussion when someone says i just don't want that or i just might it i just don't want to do that i'm just saying this the word just means that is that the main point of the phrase so the meeting between the karen and shipped was about we're letting you go and so the statement made by cameron they just want someone younger is made at the time of the firing decision it is made by either mccarran as the decision maker himself war agent of the decision making body the board now the argues that there is no proof that mclaren had ill intent or discriminatory intent based on age based on mr bass because the board want someone younger it was mccarran implementing the decision based on the illegal criterion of age which is against the law and your hon proving age is criminal action has been established as a but for causation standard when the decision maker or the decision makers agent says they just want someone younger the word just means no matter what else is being considered here the summation of our intent is that we just want someone younger doesn't matter what else is going on now a submit your honour's that if the eighty eight does not protect the employee under these circumstances the a b a is a shell of the law i am trying i have tried to imagine a more direct statement so mr scheck was performing well he had a very good performance review even while the current was telling him we're letting you go and he would have and he was eligible and able to continu transition to under the aegis of this cut the staffing company p e s g to come back to the district you know as a sort of a formal matter from p s g rather than see if i could i'd like to quickly address two points came up plaintiff's presentation regarding the decision maker question the evidence there was regarding mccarran being a decision maker versus the influence of the school board i just want to know two of the pieces of evidence that are in the record one being that macquarie testified that he listened to the board regarding its making his decision making you listen to their opinions and he said again his play if place counsel said he would have kept mr shek if it was up to him  if i could also quickly your honor judge guy addressed your question about the question of whether or what with what's the role of the inevitable perhaps or possible expiration of the contract with he would submit as it did its brief that the question of what may have happened ultimately regarding his contract doesn't have bearing on what happened specifically regarding the age discrimination in this case the law settled in the circuit and with the supreme court that the actual time discrimination was when it was the decision that was just going to was communicated to him that was in february twenty fifth one before the contract which expired the main point i guess i'd like to add from the commission's perspective for this case  is to reinforce that i believe this court has taken the proper approach in the geiger decision in more recently in the sharpest vision that there is not a role for mcdonnell douglas type burden shifting or mixed motive been shifting the summary judgment stage in a direct evidence case this court stated clearly in both of those prior six are decisions that if there is evidence that direct evidence that but for the discriminatory motive you wouldn't have had the adverse action then that's enough right there to defeat summary judge what is your definition of standard with what or it's kind of conclusory i mean we have got a question of what's direct evidence what circumstantial evidence which are normally it's my understanding direct evidence doesn't is evidence that would prove the truth of the the causation standard with it i think is a little different what's direct what's sufficient direct evidence to establish a primacy from a facial case is a different issue of what the definition of direct evidence is it may be the direct evidence but improper motivation the motivation and cause say this route for causation it's it would be direct evidence of both if it is in fact direct evidence versus circumstantial evidence how this all plays a gathered i think the way this is sorting out at this point is consistent with the historically had direct evidence is treated in the circuit that is if you've got direct evidence you've basically created a jury from the get direct evidence to this  goes to causation you've created your question as to causation so the question of whether or not there was another factor that was involved or not is a jury question because you have to you've got to have both and you know i guess i'd be hesitant to ever say as a matter of law particular kind of evidence creates a jury question i mean these cases for all that the supreme court has created along the way and not just cases but employment cases in general although there's been this huge defendant has to establish a nondescript torrie reason it goes goes back and forth the direct evidence ends the analysis right if that's direct evidence and it also establishes enough for the causation you do go to the douglas as her circumstantial evidence and because it's circumstantial it pings back and forth because the ultimate decision is whether the improper discriminatory motive was what but for the reason for the employment decision that's right that's right but but the even in cases in which mcdonnell douglas is applicable and a defendant has a burden of production the burden in both know this is one of the most direct statements i've ever mr mr macare and then the second i believe the second the records are one hundred percent clear but i believe the second time they said they want someone younger in his deposition he was asked whether or not he had said that the school board when someone or not begged the school board wanted someone you're going to try to get that second read to you specifically and the response was yes so now that we have the karens own testimony that he was talking about the school board knowing that in that conversation he said that he was talking about the school board said that they wanted someone younger for his position mr shek offers competing testimony that in that conversation check asked him specifically are you saying that about yourself or me or both of us and we care responded both of us so there was even murkier and it evidence on the record that he was talking about the school board but i agree i think it really defies logic to say any more than it does to suggest that the term younger here was used to discuss something other than money was going chappie i'm appearing on behalf of the company public schools i'll be using ten minutes and i'll reserve five minutes for mark smith who's representing p s g yours we believe that the district court's decision granting summary judgment should be affirmed because when you look at the overall circumstances of the case they just do not suggest age discrimination despite the statement that the plaintiffs are allies and i think that viewing it as plaintiffs do it takes too myopic a view of the case you know it really statement could not be more direct evidence and that gives you a real problem in terms of of summary judgement even if you don't accept the e e o c argument that direct evidence about a number of topics during these conversations it was about the principal position the superintendent position in the future of the school district that much is undisputed because the plaintiffs said said that mccarran asked about his intentions going to the future and that the school board would want someone in the position long term now mccarran when testifying about the statement categorically denied that he made the statement they want and wanted someone younger for the high school principal position what he said on page ninety three of his deposition which is page id three forty nine that the conversation was six about succession from his position he was sixty six years old at the time of the statement really i mean a jury would not have to accept mr may care and characterization of the the kamiya understood your honor but the distinction is this when you're talking about a direct evidence standard you're talking about a statement that requires no inference that's from the geiger opinion and if you have a statement that is at least ambiguous at the end and there is a very reasonable plausible explanation that's alternative put to what the plaintiff is saying that it couldn't be directed i don't know here you're confusing whether it's an issue of fact whether the jury could rule one way or another then from inferred to infer something from something else i mean you know inference is classic cases be interpreted two different ways i mean that's a factual issue rather than i infer this from something else i agree i mean i think if you know i know i i agree that it that is a factual issue and i think because the standard for because there's a that means you go to the jury that means that doesn't mean you're you're entitled to summary judgment because there's a disputed material issue of fact and that's kind of what you're arguing you know what i'm saying is about the statement itself if you're determining not just the narrow issue of whether this is direct evidence in the standard for determining direct evidence you can't take any inferences at all not even in the favor of the plaintiffs you know the thing about it is the argument that this requires the sort of in here's what you say ed then he becomes indirect evidence even if the what was said is direct evidence because you say it requires an inference well you know when you've got a situation she and the only possible thing to which the pronoun refers is clear from the record i don't see how that gets to be the candid inference that is being discussed i just doubt there are enough your honour's i'm not going to but i guess when you're looking at an aegis commission case assuming this is direct evidence of discrimination i don't think that it has the same importance in an a communication case we're talking about a but for standard as it would in say a title seven case under a motivating factor stand and the reason is because the but for standard is a more demanding standard was recognized by the supreme court last june in the university of texas and growth saying it's about four standard doesn't change at the end of the day burdens of proof i mean all these cases carry preponderance of the evidence standard motivating factor it's analytical crime or we know we don't use that anymore says cheerier so while we talk about it i mean it's not a difference in the burden of proof it's an explanation as to how one goes about proving causation runner in in this nasser case university of texas versus nasser case they brought the supreme court was brought up the issue of whether direct evidence satisfies the causation standard because that's what stated in the u s c is compliance manual and in the context of the but for standard the court rejected that argument said that this is a more difficult burden of proof to establish than just a motivating factor standard which is what they called a lesser the direct evidence and circumstantial evidence you don't there's no the employment discrimination cases have created a dichotomy between the two for analytical purposes but at the end of the day the zero rule the direct and circumstantial evidence are both equally valid methods of proving something and one is considered the same in the other it's all about the way that implies that applies to employment cases just as it does to any other kind of litigation which i am for the rod yes your honor yes  judgment well if you have a case where a supreme a school district is meeting with somebody on an aged case or onic terminations meeting and says to the person who's being terminated they're forty years old say we're getting rid of you we want someone younger the person who made the decision is sixty five years old the people that are going to the person that's been replaced the forty year old is seventy years old and then the person who's being terminated the forty year old had been committing crimes the crimes like molesting students in a school building when you look at those circumstances in just have that statement you can't look at those circumstances and say that it's a better case no i'm not seeing what while we're talking about that it's not too far off actually i'm not saying he's molesting students i'm seeing though that we have a case here were the plaintiff is fifty six years old he's replaced by someone who's sixty six years old many of the board members are plaintiffs age and older the school district continued well if we're in a plus his pension which basically gave him a fifty percent raise to do the same type of work so they could have just let it expire he was an employee of p s g at that time they were responsible with the contract to he could have gotten a new assignment from p s g under the contract once his contract with the company public schools expired there was no guarantee in the contract that it had to be renewed again so that was a definite possibility as to why it didn't just happen that way and i don't know the be done under a but for standard that you can't say that this is age discrimination or reasonable juror would say that when you replace a fifty six year old with someone who's sixty six years old that that's age discrimination when the board members that there are attributing the decision to was the most desirable for this position so that some more evidence while not to wreck but it's other evidence in the record that could go to support the plaintiffs kline sure your honor but there was a fact that you replace somebody older person with a younger person you can infer from that action at that age may have been a factor that's what circumstantial evidence is based upon it inference of this action from this action you can infer something else as opposed to we're firing you because we want somebody younger that you don't need a name for it's there that is real direct why are you firing somebody because we want somebody younger i mean that there's no way for there's no intrinsic there you don't have to go from one fact to another fact that anyway that's i did me that's the difference between direct and circumstantial evidence i agree run or put it nearly identical statement was made in two thousand and thirteen decision i think judge givens you may have been on the panel where it was the statement was made i don't want to it was marsh versus associate real tea i think you're getting too old for your job i think you're getting a little too old for a job made up the time between during the terminations hearing and that was determined not to be direct evidence of discrimination and why are you firing me they just want someone younger a little different than i think you're getting a little old for your job we want somebody younger and in these cases you have to look at the korea just want somebody that really does sound like that is the but for reasons well judge givens you make a good point you have to do your do have to take a look at the speaker and the rule  is statements by non decision makers are not direct evidence of discrimination and statements by decision makers not related to the adverse employment is there an issue of fact whether the board is the decision maker or whether the superintendent as well if you take their the plaintiff is i understand your position is that the board is the decision maker in mccarran is just acting out their decision another way to look at it might be that there are about that there could be but i don't think needed to retire were too old to continue working or not found to be direct evidence of age discrimination in scott bush was part of the statement why don't you retire make everybody happy was not direct evidence of discrimination in this case the plaintiffs want to condense a long discussion regarding their performance review where the school had not met adequate yearly progress parents were complaining teachers were complaining that this individual was coasting it was phoning in his job and was going to be removed of his job because of those reasons they want to make that all say why are you fired because they just want someone older it didn't happen that way it didn't happen in a question and answer sequence during the course of a warm ranging discussion plaintiff alleges that mr mclaren said they want someone younger as mr chappie said the it's statements plain that decision makers are not believe he claims that he also said this on march fifteenth two weeks later when mr mclaren is now the appointed principal of this school he sees ten years older than mr shek it makes no sense that he would say they want someone younger when i sixty six year old mr mckern and not the principal and have taken your position it's real critical that you address in this analysis that in the context they were talking about mccarren about to retire couple years later the school board wanted someone to fill this principle position for two years and then assume the superintendent position and mr mclaren said that he responded they if you're retiring in two years they want someone younger because they want someone to take my spot two years from now mr shit didn't take him up on the opportunity saying i want to work more than two years so these these conversations are kind of conflated with one another they're almost in the front of straight comments because it wasn't why are you finding me they want someone younger it's almost as if it happened in the course of the conversation but not a direct question and answer so what's your a credible evidence i'm saying that i'm not saying it's incredible but what i'm saying is you can't just take it in isolation you have to put it in the context of every station take the version of the evidence in the light most favorable to the nonmoving party which here is the point right we have to you concede we have to do them some do it right yes well that while why isn't that sufficient but then you have to take the whole statement you can't just take the piece that he pulls out of it and says this is favorable to me in the context that he puts that no i think i think you have to look at the whole context we i mean it was favorable to him but it doesn't mean you ignore the context public schools which in turn sued p s g under an indemnity provision in the contract our position was that ok that your contract with tecumseh public schools has come to an end what do you want to do next we have more assignments for you and he never took us up on being put into another school system where an employment agency in essence that places these principals in different schools his assignment at tecumseh ended we said would you want to go next by mr mclaren is i made this decision he's not contradicted but what he says they want this that that's even if it's his call doesn't that show that he's being influenced by the board well whatever i mean if the statement is true they just want somebody younger he works for the board even though it's his call he's being influenced by the board's illegal age discrimination because why why why isn't that enough i mean because he denies this what happened well that's issue affect it isn't it isn't an issue of fact but it is an issue of fact if you take the statement completely out of context i think you have to read to hold true dialogue between the two is quoted in the briefs to determine whether it rises to the level of direct evidence thank you you're enters the all of the arguments about all of the reasons why mr shikha may not have continued as the principal are irrelevant because the violation of the  statute occurred at the time mr shit was told directly they just want someone younger and that's why we're letting you go he was told that three times mr mccarron testify clearly that at the time he made the decision the the reason that he was using was the performance of mr scheck and he also testified that he deliberately used the performance evaluation setting to set up the termination of mr scheck which further establishes that there was a reason behind the performance the idea of the performance evaluation which was what mr mclaren directly said mr here is testimony is at pa seventy which is it's page id's seven eight six he says i guess the question is were you doing this evaluation set up the termination of the relationship with mr schick answer yes question ok but the idea about you feeling mr shikse position as i just understood your testimony didn't really have until march answered it didn't happen until after this so whatever machinations went on after the whole decision was made to release very issue as follows further the existence or no acre also argues this is in short case aker also argues that it would have made the same decision to discharge sharper absent and impermissible motive because sharpe was an inferior performer compared to kilpatrick perhaps but the jury should decide that question if your honour's have any concerns about any other issues