veera it's john woodley from the dell firm that's here with me today is co counsel your honour's i'd like to highlight two quick points before i go into my argument the legal issue at stake here is one of  first impression in this circuit and that that issue is in a terminations case whether an employer can rebut the inference of discrimination that's created by the prime  a cases by merely stating that the plaintive was terminated because of a reduction in force without explaining at all why the plaintiff was the one selected to be included in that reduction in force and i would like to come back to that in a moment but the summary judgment the second point i'd like to raise initially is that the summary judgment order contains at least two major dispositive factual errors which we believe caused the district court to reach the conclusion that it did on page five of the order the court finds that crow eliminated mr vierra as position all together it was undisputed that mr vierra was replaced the day after his term a nation by as required a thirty four year old man who'd never used  f m l a leave never requested it and did not have any serious health condition it was undisputed that mr vierra trained mr clarke and the boss of both of those men mr tracy odom testified that mr karr was doing quote the same job close quote that mr vierra had been doing i thought that they i thought that crowley eliminated the position so they didn't need a manager in a supervisor is that correct they said no they did not claim that they eliminated a position they mr clark was a manager on what's called the dry side mr vierra was a supervisor on the reverse side which is the refrigerated containers they moved mr clark over to replace mr viera and someone else came in behind mr clark to replace him and the job that mr clark was doing as tracy bowden the director said was the same job that mr avira had been doing crowley did not argue that the position had been eliminated mr clarke himself said i replaced bill veera and bill veera trained mr clarke for three weeks after mr vierra was notified of his determination and he was told as it says in the record we want you to train your replacement the other big error in the order is the district court's conclusion also on page finding i should say it's a finding that mr vierra was one of fifty employees laid off in jacksonville proudly has two hundred total employees didn't vote him stripped of his responsibilities for powerpack maintenance and assigned the job to clark after it refused to respond to an equipment failure half of that is correct judge mr vierra did have the power packs taken away from him on august fifteenth at clark was assigned to clark but the record actually incorrectly states that mr vere refused to go out to that c eight he felt like all the maintenance needed to be done had been right no sir he didn't want to go out to sea because it was night time and he was afraid of being out on the water he doesn't swim and when he told tracey odom that mr odom's testimony is i was a little bit i forget the word he used but it was a little bit bothered by that but i told him don't worry i'll take care of it and seven days later on august seventh two thousand and fourteen mr odum wrote a very glowing review of mr virus performance and that review is in the record august seventh two thousand and fourteen and it clearly contemplates that mr vierra is going to continue in the employ of crowley through the end of the year because it starts out saying these are some issues i'd like to work with you on through the end of the year and one of those issues was maintaining the power packs yet eight days later the power packs were taken away from mr vere crowley represented to the court below that mr vere asked that they be taken away the record does not say  that there is no support in the record for where either the court says that or crowley says that mr beers testimony was i was surprised that the power packs were taken away from me and on august fifteenth when they were taken away tracy o om issued a memorandum which is in the record which says worm moving the powerpack from bill veera to as rick lark and bill has done a great job with the power packs but he has we wanted to focus on other issues so there's no evidence in the record other than argument of counsel that mr vierra had ever done a poor job or had the power packs taken away from him and if there was any such evidence we would argue his pretextual based on the aug seven performance review in the aug fifteenth notice you won't listen to isn't the issue for reduction of force a little bit different it's not that mr barrett was just terminated he was selected not to stay and someone else was selected in his place and that a little differently yes you're there mazzeo vs color resolutions case which is from this court said that when a replacement takes over part of the job duties of the person who's been terminated it's a jury question whether there has been redux a job a limitation and there's a jury question whether the plaintiff has been replaced and that matters because in the eleventh circuit we have a modified crim case for a reduction in force cases but but as i think you explained crowley is an arguing that it's not a replacement case it's a reduction in force so they're not saying we're going to eliminate certain positions they're saying we need to get rid of fifty people your honor i mean that's a slightly different analysis and your honor i want to make sure i'm understanding in fact what happened was there were two hundred people in the maintenance terminal mr virile was the only one selected for termination out of those two hundred we cited the record for that in footnote seven of our motion for summary judgment he was the oldest among the supervisors and managers out of those two hundred and he had just returned two weeks earlier from  in was a state of mind testimony and therefore not exclude put it under the hearsay rule then the rationale that you say we would need required rationale would be present so isn't seems to me that the on the decision tree the fulcrum the deciding issue in this case is whether or not the motion to and women and women he should have financial goes as far as mr clarke being dynamic the defendant argued that he had it introduced all these cost saving initiatives and the record mr clarke himself said none of them succeeded but mr is not what actually happened the issue is what the person who made the decision believed right it whether there's an honest belief to that effect and if there's overwhelming evidence that what those reasons given are incorrect it's we're going to argue that that's hard to have an honest belief when mrs cunningham knew that mr vierra had implemented cost saving measures which were saving crowley thousands of dollars a week in justifying you know paying his entire salary which is in our motion our response to the motion for the three circuits that have addressed the issue of whether the state the reason of a reduction in force is a legitimate sufficient reason have all said it's not this court has never said it is and i wanted to present to you very quickly when we create the inference of discrimination with our promise facie cases the defendants argument that he was terminated as the result of a reduction in force does nothing to rebut the inference that's created without explaining why bill veera was the one out the teamsters except the management people there are seventy managers so if constant want to show pretext there are seven people and a deposition mr v was asked what about this region should this person laid off a study this person said i don't know i don't know that was a management decision to be made so i think just the are there to kill ation that there was a lot of and this is is an unusual case in this respect on september thirtieth all probably employees and the it's none of the record how many employees they have and mrs king said there's fifteen hundred under my jurisdiction for whom i provide h r services at least fifteen hundred employees were notified in september thirty we have to right size the organization are going to layoffs  the next day october one they met with mr vere and he's told you're going to be laid off so the reason for the layoff was well set forth in a five page memo to all employees in two languages and if there's going to be showing a pretext by the it was an easy job because there are only seven management people and that means terminal but even if the court should decide we need to be more specific we have a conversation between them and more ink on him now and i really wish we had the testimony more in cunningham which in fortunately died or sole decision makers deceased but we do have the conversation with mr odum where she articulated her rationale in this court is often held i'm not wrong took place after calling him had made the decision that varro would be a person that would lose their job that is not true you are i can tell you why can you show me in the testimony that understands them only yes your honor he was on clear about when it happened it wasn't clear when he was asked what day it was a conversation with marine cunningham he started by saying i don't know the that's right and you know a leading question counsel said well mr vere was out august and september and he said well it must have been october that's how we came up with the october and that stock of fifteen for  fifty two lines one through seven thought at the meeting at which we don't learn from counting him about that as she had already made the decision and there i was the one that would be our yes she had it is and the question is is it contemporaneous it's not contemporaneous because it's type stated her stay in line that's being expressed after she made the decision so don't you have to fall under the law in this circuit that deals the continuity and then existing state of mind dr yes and its belt richards versus wells real estate very close the the manager interviewed a candidate and afterwards told other employees why didn't hire the candidate it wasn't simultaneous after he made the decision but there was no intervening event which would lead one to believe that she would have changed her mind and in fact most of the time the cases cited by forward looking desire to act in a backward looking desire to act in the cases cited by the appellant their criminal cases where a defendant is caught makes a confession after the fact and  response would be contempt would be that would lend to the notion that it's contemporaneous it would you want to thank you now i'm just yes ok i mean you say you haven't answered my question my question is what do we know about you know when odom's challenging us oh it's it's because there's some kind of expectation that it's not necessarily a final decision when  make seventy financial decision and then she went to the rationale why mr vere instead mr clark now so at least it appeared that odom thought that this was this was a decision question that's been posed to us and want to first impression and the surgeon and he said do we have to and you said you didn't think so and can you elaborate on why you think we can decide the case without reaching that issue well because even if the court were to say you need a the test is math yes your honor i don't think and that's not really avoiding the question is it watch my back apartment go on i think that the court could say that the economic reasons that's in the memo to all the employees and if you want to show this or protect the reason rationally and some your point you're saying is you can always make a pretext argument regardless of what's been in the record but the law if you read how it develops has developed pretext in response to a rationale this being explained so you have the two it's a scale and you have these two things on the scale you have both the employers rationale that is peculiar wrong word particular to the employee has been removed and then you have the employees pretextual or he must yes and i don't really see how you can have an effect the pretext argument in the absence of having first had a rationale explained other than the fact that we just need to save some money by having a roof and i think that is enough your honor if i said the reason i'm willing you off is because we're part of this rift that we've already announced yesterday to all the employees you're selected and then if he says well it's because of my age whether he has to prove an age discrimination case and that brings us to the whole gross argument can he show ages that but for recent kensho that can he show well he started out throwing everything it's the last ten causes of action we're down to three now there's absolutely no evidence of age in this interference retaliation but i mean he has a chance to prove these things and he hasn't hasn't prevented them no way to rebut our clear rationale there was economically based layoffs is th parties typically ask the judge to decide the case that motion your honor we were right at the pretrial conference when the order came and i can explain why the judge didn't deal with that but i think the judge basis of the rich rationale and therefore didn't need to decide the motion and women and the absence of any evidence of a just criminalization but the district court did rely on this right that it can't really we can't really go in the bird's case i used interesting analogy said that in a baseball game of the the lead off batter hits a home run and there's no more scoring that was the but for caused there may have been a lot of other things in play  great pitching great fielding but he said anybody competent in english language would agree that in that game that solo home run caused the victory and there is there there is no a a nation to show that that was the but for reason well if we decide that there's no genuine issue of material fact that's been created by the play bass to pretext it's really the case if you if if we conclude that you had a legitimate nondiscriminatory reason that has not been where you were repeated with evidence of pretax then that takes care of all the claims doesn't it it was one way or another yes ok you know the only think showing a pretext were to even come close would be to the breach of company policy and i think that's where mrs king testified about the policy the policy itself did not require writing the district court said there was no evidence of writing in the other case she testified as to the policy when asked in cross examination another case he honour's i'm assuming that i'm going to address pretext here if we assume that maureen cunningham's reasons are going to come in and the fifth circuit in the deafened by our versus wal mart case which we cited held that when an immediate supervisor at mets that the person terminated that he had no problem working with that person but the second level manager decides they want to get rid of them for poor performance that and he mentioned the financial reason i questioned him and said well are you aware that mr clark made more money than mr vierra mr odum immediately backpedaled and said well it was and by the way it was after i said was or any other reason besides the financial reason that she gave you and he said no that was it and i pointed out the clark made more than vera he backpedaled and said it was really more about wanting a manager rather than a supervisor it's like a was not enough money right which would be a financial reason but but there's nothing to suggest that odom ever suggested to kind of him well what about somebody somebody else who has a higher salary right i don't know how much that really helps i think it helps your honor in that what it implies if that's admissible evidence is that ms cunningham wanted to reduce costs by cutting salaries and that the clerk salary wasn't enough since mr here had a twelve it i mean but it can't be that that means that employers are obliged to fire the highest paid employee it might be the reason that the employer picks one employee versus another which you said is something that the employer has to show as part of and so that we're not trying to deal with a moving target like the defendant answer in iraq or tori's with all these different reasons why my client was fired yeah we went along with the case on those turns out those aren't the reasons it's the reasons now that maureen cunningham s is the kind of like when the plaintiff asserts lots of theories of recovery right now well not exactly when the windows and then they get whittled down and we are only dealing with a few at the correct your honor and the court found that there was a problem facie case on all of those claims that we had dropped before the court ever entered its order on summary judgment but when odom wants to keep mr viera odom backs off on the financial justification reason when he finds out that makes more they deviated from their corporate policy and i will lay the this in the balance i'll put all of our eggs in one basket if you read if any kings deposition testimony in the vs crowley case or tiffany king is the rule thirty six witness for crowley maritime she unequivocal e says that it is our policy to document in writing whenever anyone is terminated as  result of a reduction in force the court below conflated what happened in the case with what the overall procedure is because the court said miss king didn't really know what the factors were that led to mr various termination but that doesn't change the fact that they had a policy that wasn't followed and this court can say and often will best not enough you know the fact that they deviated but where they've deviated odom wants to keep or the financial reason is shaky it's inconsistent with what's being stated there's a lot there they didn't follow their policy that there is evidence of pretexts and while your honor's are correct the way you say will quickly interpret the evidence this way yes but it's a jury question because a jury could interpret it differently a jury could say well if maureen cunningham's evidence is coming in doesn't make sense to me that she was trying to cut costs by reducing salary which she could have eliminated mr clarke and kept  mr vierra with a twelve year history of excellent performance right on up until the day he was terminated they could say that and that would not be the subject of a judgment notwithstanding the verdict that would be supported by the evidence and all we're asking here honors is understand the issue we face as plaintiffs when the defendants all over the board with the reasons and we're trying to knock them all down and we did the best that we could here and i think we do have evidence from which a reasonable jury could conclude that this is thank you very much