of the district court's decision favored plaintiff's charges first of all there was the continuing violation of doctrine which was applied in the court found that the reclassification of pla he was attacking did not achieve a during a degree of permanence at least until shortly before the layoff the classification he requests vacation we call an misclassification shifting framework mcdonnell douglas burden shifting framework the that first you must make out the prime official case yes and that the judge found that you had fact made out the prime of fishy case and then the burden shifted to boeing yes after the strain remark doctrine was taken care of and the remark was engineer and that the layoff itself was part of a reduction in force and then the burden shifted back to you and the judge took as true as the the judge must on mr jefferson's testimony that ninety percent of his time was spent as a systems engineer and ten percent of his time as relation of mr a cheek a statement that boeing wanted younger employees with fresh ideas i guess my question to you is even if both of those things are true do they tend to demonstrate that boeing's reasons were pretextual and why well first of all on the question of misclassification which started this whole thing the nine hundred ninety eight to ten ratio was there all the time except for a brief time but it was totally temporary and from that time on from two thousand and nine all the way through the layoff in two thousand and eleven the ninety to ten ratio now there was he was still doing engineering work ninety percent of the time you know an office in an engineering we're going to accept this this is true and the trial judge accepted this is true so that's one bit of evidence a question about the ninety to ten ratio and whether he was misclassified there was a whole slew of they say say we primarily engaged in property administration but there's not primarily a primarily is not ten percent even when i'm trying to figure out how this bit of evidence cuts toward the notion that the that the reasons given by the way were protection well because  with statements to say that there was a several documents that were obtained in discovery the judge held under nine zero one that they were not authentic  refused to accept the documents that would do her were show that he was misclassified but even if i'm i don't make myself clear even if it was true that it was miss class and even if it was true that they misclassified him in order to put him at risk for being fired how would that cut toward age discrimination well because there were other things that we had evidence that there were there was a revolving door going to where look older people were being laid loud younger people were coming in was a misconception about his job and the fact that he was put in this classification he was sixty one years old it seems to me that would be enough proof that there's an age motive but all of a lot of the the the fact that they wouldn't let the all this evidence come in about the people manning the managers just seemingly contradict themselves means that they're there they were the reason they have him over the next two with two and a half years there were there was plenty of complaint they made they made about think about the assignment and he said it was his talking about age being at the bottom of it there was denied but there was it there was plenty of evidence that he was claiming that this was age one of a good what evidence is that well march twenty seventh e just because he believes this is that really evidence that i think it can be evidence and the fact that it is never the never never went away from the from the remarks back in two thousand and eight if they were made by responsible manager mr evans my ask you question as there was a reduction in force and it's to the property specialist classification and that's when your client was terminated yes question was a reduction in force as to the persons who retained the engineering classifications he was rated although there were seven people and they were all all these people were various ages they were a couple of older people and they were raided by the supervisors of the property government property administration department needed to make myself clear i'm not interested in this question as to who was in the category of properties specialist and who was terminated in that category i'm not interested in a fair one i'm interested in probing if you can tell me maybe you can maybe you can had he not been reclassified as a property it's my first question was were there are layoffs contemporaneously to the layoffs of the property specialists in the engineering category yes or no i think there was probably some layoffs going on  for his classification as a property specialist he wouldn't have been laid off if he remained as an engineering classification he would not have been laid off can you make that proof well not  refused basing it on his government property drunk driving the classification was what i think controlled try to focus on my question had he remained in the engineering classification can you tell me whether there were reductions in force there which would have affected him we can you say he would have not lost his job well if that had happened i can't be specific on that well don't you have to speak specific that don't you have to show that but for the ejb based discrimination he would not have lost his job well he was it's hard to say when he was replaced they that you're supposed to you know release show that he was replaced by someone who is younger and in a job but he can't do that because he's he's in a dual functional job which it was never given to anyone else so you have to rely on i think we have enough nuff to show in the hirings and firings that go on at people where it was a very valving door of young men coming in and old old people going out seems like that is another that would be some engineering job that he could handle but his experience of twenty years evidence from ms walker shelley walker and her declaration establish that during the same period of time your honor two thousand and eight two thousand and eleven there was a reduction of three hundred sixty six systems engineers and during that same period of time there was only a reduction of sixteen property specialist positions how many were there these numbers all mean and they were not the relation of how that were also reclassified because they were viewed as having been individuals who were not performing the duties of the particular job classifications so the appellant in this case during the same relevant period of time was not the only person there were two other individuals both of whom were reclassified in addition and that meant that means that those  into another silo if you will and there is no evidence in this record and i'm not aware of any where the appellant in his former position as a level four systems engineer was replaced nor was he replaced when the two thousand and eleven layoff occurred in which he was ranked seven of seven and his position was eliminated at that time due to budgetary constraints and the loss of government funding do you claim would not have been terminated though i think it the actual test your honor goes even further because the case law with respect to the reclassification both federal and state case law indicate that a neutral the plaintiff have to show only that he was reclassified because of each discrimination or does he have to go further and show had that not been had not happened i would still have a job yes he would have to go that additional step so even if he were able to is there any evidence in this record shows that but for reclassification to property specialist  specifically her whole goal and objective in addition to clarifying the proper title for the appellant she given the reductions in force the massive reductions in force that were occurring with respect to systems engineers she was concerned about losing an employee or losing the appellant and others because there were many layoffs that were occurring with respect to the systems engineers but we don't know precisely remained as a system engine near if the layoffs when it actually reached him we don't know that only on out on an individualized micro level one will never know because he did not remain there we know he was not replaced there and thus there was no need for that position especially given his position where it was this hybrid role where he was performing property management and according to him performing the systems engineer work but it would be impossible to turn back the clock we know that there were many layoffs they would have gone through the exact same boeing process that they have to analyze and rank and rate individuals there's also in the declaration from this or a check and said that because the appellant here did have this hybrid role whether it's ninety ten or whether it's fifty five forty five as the company found through two audit's given that he would have been gravely disadvantaged in being a value weighted against systems engineers level for because he was according to boeing and its assessment not performing all of the job duties of that so given that mass cutbacks in systems engineers and him not performing those functions and miss our chiggers desire to save him which happened for another two years he worked for another two years in the other position all indication suggest that he would not have survived in that other role to leave his partner last question on the subject upon whom this step back if showing that ultimately it is the plaintiff's burden of proof of establishing that but for he would have kept his job and it's certainly in the middle of the damages doesn't it it certainly does as well and but in the mcdonnell douglas shifting burden analysis once the company does articulate and in this case provide evidence of the legitimate nondiscriminatory reasons for both his reclassification as well as his ultimate layoff then it is the appellant's version burden to prove with specific substantial evidence not just fieri or argument not just statements that appellant made to the effect of it's unusual not speculation or conjecture but the case law is very clear and it cited in our brief the ninth circuit said it in the via rommel case who is versus bechtel california supreme court case that once there has been that articulation of the legitimate nondiscriminatory reason then the appellant bears that burden of establishing with specific substantial evidence that that reason is  s claim that he was misclassified and credit the claim that the misclassification was for the purpose of setting him up so that  he would be in a category more likely to be fired then his previous get angry and you add this eric chicas first statement which we also have to credit is tru what you just articulated your honor his claim that he was set up must have some foundational evidentiary basis there's not any evidence in this record that anybody was attempting to set him up in fact the evidence is to the contrary the two thousand and nine reclassification that occurred in march of two thousand and nine that's two plus years prior to the layoff that affected the government property specialist position that's not announced and that wasn't even an aura chaika decision that was made it was a different group that made that decision and so on les mis or itch a guy has a crystal ball and can make a determination the two years down the road another classification is going to have a layoff and that gee if he had stayed in the systems engineer position he wouldn't be laid off when they're undergoing their own significant layoffs unless that could be proven with some evidence there's no basis to essentially show that the layoff was result of a discriminatory motive so the  understand that the plaintiff or the appellant in this case now has made these claims but it's not been based upon evidence and all of the evidence is to the contrary moreover the appellant in this case that in two thousand and eleven when they went through the boeing process multiple managers coming together analyzing the positions and the competencies and scores and the personnel multiple individuals agreed human resources involved that the appellant in this case would be subject to layoff someone had to be laid off and in this case it happened to be him and unfortunately a boeing when a government program shut down and there's funding there are layoffs it's put into the record that during this period of time there were over four or five thousand layoffs of individuals and in order to to have a case that goes to the jury your honor one must establish that there was specific substantial evidence that the reason for that person being selected for the layoff is because of intentional discrimination with respect to the way the appellant has approach they haven't really attacked saying they haven't really said there was a discriminatory motive in the two thousand and eleven layoff instead they've gone back two years and said in two thousand and nine that is where the alleged discriminatory motive was but there was absolutely no evidence showing that any of the decision makers reclassified the plaintiff appellant in two thousand and nine because of a discriminatory motive rather there's overwhelming evidence if there were three positions reclassified there were two managers miss or chick it was just one of them there was a human resources person there was an audit that was conducted and then sharon mcgettigan of itto investigated it and if you look at her declaration and her findings there was no evidence whatsoever suggesting that there was anything other than a desire to make his position his title distant most consistent with what he was doing  appellant in this case said that he thought his title should be logistics engineer which would have according to the evidence we submitted guaranteed his layoff because there wasn't an authorized position in southern california  view of what position he should have occupied and the company's view that's a neutral business type decision that isn't cloaked with any discrimination and that's where the courts have said a compan decision whether it's wise in correct mistaken is not discrimination unless you can show with specific substantial evidence that it was does was done specifically that mistaken or erroneous type of decision was made for the purpose of intentionally discriminating against here at most there's a difference of opinion the fact that that the appellant thinks he should have been a logistical engineer and four people including auditors and human resources personnel think he should have been in the government projects specialist position and there's no evidence whatsoever that they had a discriminatory motive rather they they have a department that essentially audits positions because we're talking about a company has many many employees and over the years sometimes people may morph into the wrong position so they want to have people in the right position so that when there is a cutback they can compare apples to apples to the maximum extent possible while there may be a disagreement between and what position he thought he should be and that doesn't mean there is an issue of fact that it was discriminatorily decided time seventy was right because this is an appeal from the motion summary judgment which you won below yes now i want you to take a look at these three pieces of evidence and tell me why these three pieces in conjunction with each other don't raise the tribal issue of fact as to whether reclassification was done for purposes of effecting age discrimination number one mister jefferson himself make a declaration that ninety percent of his work was done in engineering and on property management and the trial court disdain that because it wasn't corroborated i know of no rule that declaration on summary judgment has to be corroborated to be believed this is not allow a reasonable juror to find that the reason he was reclassified was indeed he just rumination no one first with respect to the plaintiff's view that ninety percent of his work was in engineering and not in the property specialist position there is case law that says where an individual's personal view their own subjective self serving view is uncorroborated as to conclusions but not as to facts if he says the light was red and wasn't green that's a fact if he says i did ninety percent of engineering work ten percent of property specialist work those are facts not conclusions they don't have to be corroborated fair enough statement although i would suggest your honor that that is a kin to a conclusion because he is giving an assessment he's giving an approximation he's providing ninety percent he's not given any specifics as to whether what he was specifically doing instead he is giving his approximation but having said that one point well taken but that fact alone i think we would all agree that there if there is a difference if if for instance the appellant said i was doing sixty percent engineering and the company said no you were doing forty percent that just means there is a difference of opinion regarding that and that doesn't suggest age discrimination race national order in gender discrimination or any form of discrimination it's just a business judgment that has the company has to make and it's a disagreement between the parties with respect to the third point zero pack  was not so pick was just another person who opined and that is not is just another opinion on the subject just like if another engineer weighed in with respect to this and said oh i appellant is engaged in eighty five percent engineering it's another opinion it's not a binding opinion on the company it is just one other person's opinion but again his opinion doesn't suggest that the ultimate decision made by human resources with two audits and two other managers means it was somehow affected by discrimination or discriminatory intent so then the last point is ms or achieved a statement and there's a few things there so that's the only thing that they're the so really seem to be tying it to first it's a statement in two thousand and eight that occurred so there's no temporal proximity to a layoff that's occurring in two thousand and eleven and not even so much temporal proximity to a two thousand and nine reclassification decision that is that three other people are involved in there's an audit done and there's an ego decision so there's there's not a time proximity secondly the context of it if you look at that statement which  there is somewhat of a dispute over it's because certainly this arch a good has no recollection of that statement ever being made the plaintiff appellant states it was made but even the context was when there was a question asked she allegedly said something to the effect when there's a question asked about layoffs and or some hiring going on regarding some positions she allegedly made this comment about boeing hiring younger individuals with with a bright ideas words to that effect now that's a hiring point that is being made it did not she there's not nothing in the record your honor that suggested that was her opinion her motivation or anything like that instead it was a first level manager saying what she or opining perhaps what she thought boeing which is a company made up of hundred over one hundred thousand people what boeing was doing whatever that meant and so even if you credit that statement it doesn't suggest that she had any motivation whatsoever or that she was hiring anyone or that she was hiring anyone young or that she hired anyone for the appellants position much less a completely different decision a year later regarding reclassification where the appellant was reclassified and the only evidence suggests that she was trying to save people and reclassified to others you far exceed your time could you wrap up yes so my my point there your honour's even taking those facts if accepted as true once the employer and mcdonnell douglas your honour's i'd like to close by showing it was the architect of the assignment that the ninety to ten ratio double assignment and  know if it was high risk i don't know whether there was any greater possibility of reduction in force and application to the property specialists in two thousand  than there was the people in the engineering department in two thousand and nine that's the evidence that i haven't heard you cite i don't have anything on that your honor i just like to read a couple of passage from  his statement and when i need for the record lines nine through thirteen however as far as i can tell and this was back when she was before she made the change far as i could tell jefferson and little had no i had little to no systems engineering responsibilities instead it appeared the definition was primarily primarily performing tasks related to property management including paperwork relating to the disposition of government property and going property associated with the wind down of the us program at seal beach now i'd like to read from a document which was excluded by the judge he was in though it was came from their files this is  denise i really need your help on this one this is regarding lewis jefferson i believe peggy holton told you about all the trouble we had to reclassify and louis he is in the is an engine systems engineering but he was not doing systems not doing systems engineering i know he was going to do some property management but we could not find a code that fit his other did activities looking at all these thing links below it seems these folks are all out of florida i just don't know what to do i know he does not both belong to my group but i don't know where he belongs we haven't touched on the retaliation at this point but it's fully covered in the briefs and so i'll leave you with that that he was mister mr jefferson was placed in a know whether or not he would have been terminated or laid off if he had remained in engineer perhaps thank you but all years of experience he had in engineering he would certainly be a prime candidate to be kept rather then monied up and put into to have the classifications and calling him a property manager property assistant which is just a clerical job and not an engineering job