our fourth case for this morning is j schmidt against central processing corporation and cetera may please the court my name is dan price and i represent the plaintiff in this case j schmidt we would ask this court to reverse the grant of summary judgment entered by the district court it's an  long time and had done these things before so he was doing the work that mr everett was hired to do but looking at it from the other end of the telescope mr schmidt is at a much higher end of the pay scale to begin with from mr everett so yes there's a hiatus during which the more you know low end duties fact and call them that are picked up by a couple of other people but that's not what they stick with a they're not going to triple the pay or whatever it would be out of somebody that end so it's hard to see how they hired mr everett to substitute for mr schmidt  schmidt was doing a number of things that's part of the complication is the case does present he was doing sales and estimating it at that plant they call that being a project manager and he was is and he's able to perform it mr schmidt is immediately laid off in october of thirteen never to be rehired and in that same time after mr moore leaves mr board today is promote he was the production coordinator before that promotion and so when you look at the totality of this evidence which is what i think the test is when we look at the evidence as a whole under or he has enough to do the same thing happens in two thousand and twelve he's the only one the same thing again happens in thirteen but that that well may be the case i mean i realize this history actually suggests that the reporting to the same supervisor same division of the company and so on and there are so many differences between the responsibility level that mr everett had as compared to mr schmidt that i'm concerned about whether that meets our test for a seventy five percent i don't know of a case of ours that has supported that is a comparative well when you look at more to doing and everett together i think they have to be viewed in a continuum but those are what schmidt duties were and so as to that component of mr schmidt duties at the time that ever it was hired it would strike me as it would be a fair position to submit to a jury no jury may not accept that they may not think it's correct but to rule that that's just as a matter of law inappropriate when they're doing the exact same thing now they have different they are don't mean you know ever it isn't doing a lot of what schmidt's doing well may be doing everything that ever it's showing that it doesn't run the other direction that's true that's true and that's where we have to bring in board shooting to establish that there are substantially younger people doing exactly would fulfill the fourth element and allow us to bill and analyze the pretext question and of course the question of the defendant has been hired another salesperson in the chicago land area who is fifty seven years of age but there is no evidence that that man was going to do the same job that mr schmidt was doing until after mr schmidt has been fired an accused mr of age discrimination and he has requested his personnel file this is this is keenan you're talking about yes yes me and he keenan and he is fifty seven and this is a sophisticated company and you know one of the things that can rebut or establish pretext implausibilities inconsistency and with a company that uses e mail and has these plans  strategies there's nothing the record is silent as to any documentation that would suggest to mr keenan was going to do any of mr smith's work until june of two thousand and fourteen after these events of transpired and they know that they are going to be are you taking mr smith's position should raise discrimination and with that in mind this could be viewed by a reasonable and that's the position that we're asserting as to that when all of that evidence is considered in the light most favorable to mr schmidt it would seem reasonable to reverse the grant of summary judgment case county has proffered a nondiscriminatory reason for its decision to terminate mr smith's employment and that reason was that the position was terminated due to a lack of work it is therefore mr smith's burden to come forward with some evidence from wh conjunction with what i was talking about with mr price of how much of mr schmitz time was spent during that interim period doing the kinds of things that ever it did and how much was doing the more demanding jobs of i guess selling these right right i don't think to be frank that there's anything in the record that pins that period down to a specific time i think what's important is that that was a three month window where that position was vacant and that both mr porter doing who had held that position previously and mr schmidt were both working to make sure that those tasks were done i think as mr schmidt said prior to that time in his tenure as he testified in his deposition his primary focus was the sales and estimating thing that's what he did before mr borscht being was promoted once mr bush or gang is promoted in the position is vacant mr spin and mr portioning share those responsibilities and both can well also we're just doing the sales an estimate in at that time but then you know in mr smith's own words when mr ever comes on board he returns back to the sales and estimating the role and how and how long does that last before that final furlough and  eventual terminations i think that mr everett comes on in july so that's nine months before it's about three or four months before the furlough and nine months before the terminations and then you know as  mr price suggested there is some difference in the testimony about who trained mr iraq but for our purposes we accept mr smith's testimony that he participated in that training along with mr bore shooting but that was not a you know that's not a smith's duties but it was a smaller portion in the unrefuted testimony in the record from mr bowman is that eighty three percent of the jobs that eighty three percent of the the bidding work that would have been done by mr schmidt after he left the company was done by mr keenan and approximately seventeen percent by mr borsch or there's a suggestion that this was some sort of cover up but frankly there's no evidence at all to support that and there actually is evidence in the record specifically mr bones testimony both of his deposition and his declaration that mr keenan began performing focus and his strength naturally were would be the southern which was a distinction with mr keenan but you know to the extent they were bidding on work in the northern part of the state that that would have also been done by mr s so on that point and mr ebert i think what and his age complaint was filed lyon all these terminations or before the the complaint what they you know see right all that was that was not filed i believe until i want to say the fall but that was quite quite a bit later but the reason i'm asking is because i'm trying to probe the theory that if they don't give mr schmitz work to mr keenan until they realize that there's an age discrimination problem looming right twenty fourteen so i think the key point here is that there's really no evidence to support this conspiracy theory there was no evidence that bowman was aware of the request for the personnel file at that point in time and the fact that some of these missouri duties were transferred a little later just is is too thin over reed to support that conspiracy theory turning quickly to pre his deposition mr schmidt admitted that he had no evidence that mr bowman was lying about the reason he gave he may not agree with the reason he may have thought that he should have shifted some of mr evarts work or mr were to him and kept him on board but alternately that was county materials and central processing its judgment about the best way to run their company in light of the lack of work and i think this failure of proof really highlights the evidence that remains which is that after mr smith's terminations and his duties were largely absorbed by a fifty seven year old three the four individuals who were left in those positions were over the age of fifty and also the fact that mr bowman had hired mr schmidt at age fifty five just a few years earlier so all of these facts when you put them in the single pile mandated by ortiz the only reasonable there's no reasonable jury could come to the conclusion that mr smith has carried it does burden of concluding that like to clarify one point about the claim of age discrimination that your honor brought up that derives a student that derives from a conversation that was had between mr boma and mr schmidt on the telephone at the time he told him he was going to be terminated i want to say this was in march of two thousand and fourteen and because it is an undisputed fact that in that phone conversation mr schmidt said sounds to me like you firing the old guy and keeping the young guy and so i bring that up because that's where i landed on the fact that there is a an assertion of age discrimination here and then there was this request for this personnel file all of which transpired before there was a single shred of evidence that mr keenan was going to work in the southern illinois area where this plant is located or in missouri that all occurs in june and i don't think a jury should have to accept mr bowman as assertion on that fact without cross examination these things all came up in the summary judgment process after discovery was closed and it would seem fair and right to be able to test that testimony with a trier of fact and everything that mr nagorski says could be