axler i'd like to reserve three minutes for rebuttal so are you going to do all the argument i notice you have going to air and are you going to do is one person going to do all the argument ok thanks i just want to make sure we want to put in time ok go ahead so the district court in this case improperly weighed the evidence in favor of the defendants and granted summary judgment the district court the district court's job on summary judgment is to just see if there's enough evidence that creates a triable issue of material facts and i believe that the evidence that we submitted on summary judgment created tribal issues less evidence create tribal issues there's key evidence i would like to point out to the court and one of them  performance improvement plan but what's significant about the performance of the two thousand and thirteen performance improvement plan is that he notes what's slower met his job standards for his sales results and then he goes on to say up to this and this is a direct quote from the review that mr wexler has had a difficult time movie no way from the traditional do you now decide do you contest that mr wagner's performance was down during the second half of two thousand and thirteen and twenty fourteen and how was this just the drop in performance related to j p i's alleged discrimination based on age what i saw here it was the company went you know they went to a different fifteen and he is terminated two to three weeks after this but this shows that mr wexler out of his entire team he's ranked number second and sales and his projected sales quota for this they've submitted that actually shows these numbers all it is is plainly seen in these write ups that his numbers are down your sales are lower there so there's a sense of anything supporting what they're actually saying about the actual sales numbers and in fact in the two thousand and thirteen performance review again plumlee acknowledges that he did meet these jobs standard you measure out standards to sales results and then in two thousand and thirteen that's when he received the president's circle or that's or exhibit twenty two this was after the value based selling approach was put into effect another thing that plainly is an arche in our client on and if this were the case then why is he receiving a president circle award for become his district manager advised that asking questions that are open ended and generate serious dialogue with customers can help you better understand their needs and told and told that this is will be part of a work session coaching moving elements planning value based selling instead of show and tell and build in your knowledge and skill level with diabetes and with our assets and reprints you've got a huge opportunity to boost your results in these remaining two quarters of this year do not lose sight of administrative duties these are key job functions that need to be executed accurately so then he also chastised mr wexler for not meeting standards for reporting expenses this contributed to a low year and leadership rating in two thousand and twelve an off track off track mid year rating this year not having an active american express card will certainly and have it your job in the field and as an acceptable the next step will be a pep additionally your performance with and enfant khana is below standards and we have had multiple discussions about the need for improvement in the area of product knowledge market knowledge value based selling and set june third funny fourteen as the date by which performance would be reviewed for further action to and including term a nation they had a let's say they conducted field coaching ri substance of those write ups and the performance of them is a lot of those are very subjective and those are subjective evaluations are usually a convenient way for employers to cover up a bias and those aren't actually wasn't meeting his quota and again exhibit fifteen actually shows that he was projected to go above and beat his sales quota if he was last in sales if you're showing that it was protection what you would have evidence that he was not last in sales but evidence was a record was there evidence in the record that he wasn't last in sales again i would have to point to exhibit fifteen which shows he was projected to be the second awards for being in the top five to ten percent and then let's just say for the sake of the argument the defendants prove their legitimate termination reason that doesn't stop the inquiry and that's not dispositive the fact that they have  comments one thing i want to point out is that the district court in this case didn't even mention or acknowledge any of our witness declarations that we have we submitted three witness declarations percipient witness testimony corroborate what our client saying about being treated  negatively quantitative age comments and it also shows that when we had discriminatory animus towards older sales rep course of his quota at the time he was terminated defendants didn't even allow him to finish out that third quarter or even the year to see what his sales results were and also again defendants did not provide any sort of documentation either a large company they should have spreadsheets or something showing his ranking compared to other team members or district members or company wide and how he's performing correct name of the company and also one other defendant that i believe has been abandoned at least that is not disputed that johnson and johnson services inc was not a proper defendant you'll find that in the record it yar seven ninety six of the conclusion of law number three so i'm going to focus on janssen pharmaceutical which was the actual employer of  things i'd like to start with and i'd like to start where misconduct began which was that she mentioned the two thousand and thirteen year end review and she said that the world view shows that he met job standards that is not what the review says the review itself is that e r two fifty six to two sixty and what the review says that overall paul that's mr wexler performance sometimes met jump standards but in key leadership in operational areas he was below standards that then goes on to document  poor performance with respect to the drugs that he was charged with selling it goes on to forecast the next step in the process would be a performance improvement plan if his performance did not improve and of course says judge callahan pointed out that a review was preceded by an off track a mid year two thousand and thirteen review which is a two fifty nine of the record and also a below standards performance memorandum that was issued in late july of two thousand and thirteen as of his levering he's a salesman right yes ok and the salesman's gold standard is are you meeting quota or not and if you meet quota the next year your employer generally raises the quota until you reach a certain point where you can't reach your quota and it has to do with how well you get along with management as to whether you could get up i see nothing in the record that says  berat and looking at that evidence pointed out the fact that there was no dispute from mr wexler concerning the data that is imbedded in any of those reviews obviously that was open to him to do below yes i believe so in terms of in the in the reviews themselves there is now there was mention of exhibit fifteen exhibit fifteen is this so called invoke radin report rule on the objections that we may add he didn't specifically rule on the objections but what is pointed out this is the document where they make reference to that mr watch that was one hundred percent of projected quota if you look at that document you'll see that the document shows what the sales goals from were for everyone who is listed on that document you will see in the long beach district which is the district in which mr wexler worked that he was the lowest he had the lowest quota of anyone who was active in the district the only exception to that was one person who had been on maternity leave from the previous september of two thousand and thirteen and was not back to work by the time that this so called braddon report was  the factual point if you look at one hundred percent of projective quota that is based on what you expect or or hope for in the future that's a trending document under the system that is used it's uniform for everyone it takes a while takes about three months for there to be actual sales results that are scrubbed by something called sales analytics where you get actual sales results so that is raw data that hasn't been tested but what that roy data shows is that he is assigned the lowest quota and the document that actually was proffered by i guess both both of us  but it is that e r six sixteen it's a broadcast memo from mr plumlee who was a district manager to all of the long beach team members and it shows the ranking based on the last available rankings from the company that he is dead last and mr wexler didn't push back on that in his deposition he admitted that he was dead last night about hi a couple of things random things in the record and one is that he gets terminated what a few months before his stocks would fast or something like that that was never develops in the record but is it i but was promoted up the staff supplemental the declaration shows that she was number one on the team that's based on hard numbers so we're dealing with a contrast between a disembodied statement from someone who is not a janssen pharmaceutical employee she's a contract worker ms steers declaration shows that she was a contract worker she's not supervised by j p l in marriage meant she acknowledges that she supervised by a clinton tiles which is her employer supervisor and that particular declaration as i say in its entirety was objected to with respect to any statement that someone purports to make in a declaration they have to show that you know they're co the record shows that that standard practice that you get a final written warning you get a final written warning there's a series of different steps and it is not a terminations just it's not a termination it's basically saying  well and you've got a few it basically says you're below standard cyril khana sales are are or you're not meeting your quota again the record shows that in the last fifty two weeks of mr measured from september two thousand and thirteen which was a a date that that had been mentioned earlier it was the the predecessor to the year end review their record shows and this is in controverted that the fifty two weeks before that there wasn't any sales of the roll to certain accounts and there hadn't been sales of invoke khana to accounts that cause there to be a shift which is an approved process within j p i a shift certain accounts and the methodology that was used was to only reassigned the accounts in which there had been no impact no sales for fifty two weeks on both products fifty two weeks phones are also no sales prior to september two thousand and thirteen when those fact the declarations show that i believe the articulation is that he was one of the there is no age information that is proffered by or in the record from the plaintiffs there is the evidence from fourth of two thousand and fourteen so yes he was but you're dealing in this particular instance it looks as if the direct evidence which had been argued before that somehow or other you escape mcdonnell douglas it looks like that's off the table the the mc under the mcdonnell douglas one thing i do want to say because it was brought up earlier the it was brought up by that there had been a statement that mr plumlee had said that without context and without dates that mr plumlee had said had made a comment about mr wexler that he was slower and outdated than other wraps that is not what the chuang affidavit of the declaration says and again this is something that we objected to below the declaration reads i heard that  comments about work slower stating that he is slower than other reps and outdated we objected to that on the obvious basis of hearsay and there's no anchor for the statement to begin with and our objections are in the record at nine o four and nine o five it was objection number sixty six and i would also point out that mr chang stark liberation makes no mention of age and doesn't  even if it were relevant and i suggest it isn't it doesn't even express a personal opinion or personal belief that mr plumlee had any age bias the most that mr  is that he thought that mr wexler could have been treated but was treated quote unfairly and obviously that's not the test of what we're working with here there were two things that the framework for purposes of the mcdonnell douglas analysis and in afia case there were two impediments to moving forward on the prima facia case one element of the fo that you have to prove is that he was performing competently at the time he was terminated and judge callaghan went through the litany ending with that he was ranks last and i performed as against the pip based on objective information with he would say would make a tribal issue as to that that he was terminated prior to the completion of this pap and despite his projections made a hundred seven percent of his quota and that plainly admitted that every one of the team was up in sales and the entire prior to the pip the pip itself has a date on it i believe it is march the sixth of two thousand and fourteen he was terminated on august the fourth of two thousand and fourteen another that i think that all of the evidence that went into the substantiation and we didn't have a burden to do it but we obviously substantiated our reason that he was terminated because  he did not successfully complete the so that we get into and also and we get into the burden shifting well we're in the i'm moving forward to that because i think the evidence is is is fungible on that in terms of its transportable case because it goes to the question of whether he was performing competently it also moves if you will to the articulation of the reasons which is that he did not successfully complete the pep and the earlier efforts to enhance all the defendants are doing is urging the courts have basically weigh the evidence in their favor i think our evidence shows that there's a triable issue as to whether there are terminations or reason was illegitimate and i also a long standing history with the company of consistently excel in not his job he has twelve years of receiving presidents or present circles awards  salary increases trips that he's won we have direct evidence of a discriminatory intent which is through the age comments both the ones made to works for me that our client is alleging and also the one made by plumlee himself in the two thousand and thirteen performance review that older raps are harder to train mr wexler is a difficult time moving away from the traditional detail rob we also have the absence of from the defendants actually showing that he was actually not performing as well as they are saying that he did we have the subjective criticisms in the write ups what do you dispute the fact that a everything but then they say you have to use a computer in the person refuses to use the computer but that be a lie and i mean i agree that that's the case however i think that in two thousand and we've also showed a disputed issue that he was adopting because in two thousand and one that's when they adopted the value based system or model method and then in two thousand and twelve the following year he was presented with the president circle award which was during the time where he unfairly treated and we also have evidence that he was replaced by someone younger which i believe defendants admitted when they were up here so i have ten ten seconds and basically were