like wells fargo too refused to sponsor any waivers section nineteen does not force banks like wells fargo to refuse to give employees prescreening notice of how they can go and get their own waivers without sponsorship and section nineteen but what they've done here in the error that wells fargo convinced the lower court to buy into was glossing over the two specific practices that eggers identified and instead implementing a str practice wells fargo wants this court to believe convinced lower court that the practice being analyzed here is the practice of the broad overgeneralize practice of just section one thousand compliance we are not challenging section thousand compliance here we understand that banks are subject to possible penalties and fines if they don't comply with section nineteen but we also know that the f b i see in section one thousand permits banks like wells fargo to sponsor waivers in order to avoid those fines and penalties to give employees notice of how they can go and get their own waivers in order to avoid fines and penalties in essence the overbr generalization would be analogous to this consider if in for example in greg's there was an argument that instead of the practice being not hiring people with high school diplomas that instead the practice identified was hiring skilled employees summary judgment wasn't granted in griggs because the practice wasn't hiring skilled employees of course if that was the practice then the employer would say well in hiring skilled employees it was reasonable for us to require everyone to have a high school diploma that's not the specific practicing grades now briggs is a business that's the case this is an  and what we're dealing with here is an analysis of whether or not wells fargo had a reasonable factor other eggers was terminated as a result of of not being sponsored and not being given advance notice had he been sponsored richard eggers would not have there was about a three month period of time between when wells fargo placed richard eggers on leave and it took about that about three months in order to get his waiver he eventually did get one that eventually did which is which makes perfect sense work or wells fargo did offer richard eggers his job back he refused because he he specifically asked wells fargo if you give me my job back please give everyone else that you just fired this year in two thousand and twelve the opportunity to get their jobs back as well wells fargo refused and richard aggers decided that he did not want to work for a company that engaged in practices that were not reasonable that were not business necessities and that resulted in impact against not just older workers but also placed on leave she had a section one thousand crime wells fargo never gave her notice of her opportunity to go and get her own waiver before it ever screened her for section one thousand compliance and prior to wells fargo screening tammy burnham she received a waiver from the f b i see in the record there's four hundred three waivers one of those waivers is a waiver from tammy burnham and she received it that goes to the heart of this case and why reversal needs to be done here there are wells fargo has put forth no reasonable factor for not sponsoring anyone's waivers and wells fargo has not put forth any  reasonable curative burden of both production and persuasion to say why is it reasonable not to give employees advanced prescreening notice so that they have an opportunity to continue working for wells fargo what's the evidence those practices would have milieu rate in effect alleged disparate impact on older workers there's three the right now the evidence is not developed because we were only in the certification collective action sort of occasion stage so we haven't done merits development yet but when that question was asked on wells fargo's motion to dismiss there's three rationales that will result in once merit discovery is done it will show a statistical impact on the older workers who on ired you were required to this case get dismissed on a motion for summary judgment or motion to dismiss on a motion for summary judgment it was dismissed if you look at you weren't required to put any evidence at that point of a disparate impact you were going to do that in the future correct we were not because if you look at wells fargo's motion turn to the record at pages nine through ten wells fargo lists wells fargo identifies the reasons it's moving for s it provides a list of six reasons none of those reasons allege that there's no genuine dispute as to whether or not there's a disproportionality against older workers rather those six reasons in wells fargo's summary judgment briefing all kind of went to the issue of whether or the issue is not before this court as to whether or not statistically this proportionality has been shown as part of a per plainest crime of passion case that is an issue that wells fargo can bring at the appropriate time once richard aggers has access to marriage discovery that time six i mean a motion for summary judgment is a motion for judgment on the merits so if you're saying you didn't have enough discovery to respond to the motion then presumably you could have so responded to the motion and rule fifty six and asked for more  fifty six the year you know the section is i agree your honor and we did that we did ask for fifty sixty information however the fifty sixty information we asked for was not to fully develop the statistical record it was to fully develop the specific issues that wells fargo identified in its rule fifty six motion i think it's telling that as you read the lower court's order there's no talk about statistics the lower court does not dismiss either the williams case or the eggers case because th to sticks or bad for some reason rather the lower court is concerned with the issue that wells fargo reasons briefing is section one thousand in of itself somehow a complete defense that's what our briefing was centered on in eggers we ha  have a crime at some point in their life a section one thousand related offense the second is that older workers are more likely to obtain waivers because the distance between the date of their last conviction on average is longer younger people are more likely to commit crimes that's accepted social science in the last reason is is is telling eggers crime was again he was nineteen in one thousand sixty three he was fooling around with a cardboard dime in a laundromat in carlisle iowa that type of behavior in today's day and age does not result in convictions in there's other types of crimes that we used to handle  different ways bad checks for example were were driven by criminal law mostly but as time has progressed they've been handled in more civil contexts so a lot of the  williams plaintiffs were convicted of bad checks prior in the eighty's and ninety's those type of conventions have gone down over time even though bad checks are still being written they're still not they're not criminal offenses you're you're making a case to go to congress but not  waivers the question is was there are reasonable factor other than age for wells fargo to refuse to sponsor richard aggers waiver or the way reserve anyone else wells fargo has not put forth a reason that they have a burden of both production and persuasion under me that has not been carried in the record and was not addressed at all by the district court or reserve the rest of my time for would you say that was fargo offered eggers a job and he declined our offer to retain him and he decline after he wells because the evidence shows that sponsorship sponsor waivers are processed faster than individual waivers into the evidence shows that if you're given advance notice there's a possibility that you're not fired in the first place  that he wasn't fired you just said he was not fired he was placed on unpaid leave unpaid leave is an adverse employment action on paid leave using his injury was that they gave him an unpaid leave for the so discretionary practice that banks can engage in but rather than that even that sponsorship though the advanced notice that would have resulted in richard aggers potentially not losing not being on leave at all being able to keep his employment just like tammy burnham in the record before the court i'd like to reserve some time f so many different ways that it's hard i think to go forward with this argument without there correcting some of the things first of all richard akers was not placed on leave richard it was a broad ian and when he was advised i think it was around the seventeenth of july of tw twelve that he was ineligible to continue as an employee of wells fargo in a single instance wells fargo offered him the ability to take unpaid leave he declined said he would prefer to get unemployment he was discharged like all three hundred sixty one other team or some three hundred sixty other team members who went through this what rescreen at wells fargo home mortgage rich are going to have the same impact to him he was fired and he thereafter went to the c on his own he received a waiver from the f d i c came back to be his lawyer sent that waiver to wells fargo wells fargo offered to reinstate him and it was at that point that mr excuse me said that he didn't want to come back and if you look at wells fargo appendix page seventy nine you'll see the press release put out by mr eggers lawyer detailing all of the reasons why he was not going to come back and go to work at a place like wells fargo who who would not offer everyone else the ability come back like they'd offered him after he obtained his waiver if you also look at wells fargo appendix page seventy nine there's not a single reference de age discrimination it talks about being a whistleblower it talks about wells fargo unfairly terminating a lower level employees it doesn't talk about age discrimination and this is an age discrimination case it's an it's discrimination case that requires  eggers to continue his case past dispositive motion on summary judgment show that there was a treatment of or that there was an impact on him because of his age i am aware of no empirical studies i'm aware of nothing in the literature that says there are headwinds for older people and headwinds that prevent them from keeping their jobs because of prior criminal convictions judge collett and you asked about whether this was a dispositive motion summary judgment and judge smith you asked whether it was a an individual that was proceeding in a collective action at the point of summary judgment it was a single pla richard akers was the only plaintiff there had been no opt into by anyone else there been no notices by anyone else and there'd been no a preliminary certification of a collective action so single plaintive case number one number two with respect to the  idea that there was no evidence that they needed to come forward with a no discovery the case had been pending for i think it was two thousand and fourteen and the motion was in two thousand and sixteen and then they asked for a fifty six d motion they received extensions they did extensive discovery received information on the merits and still when they resisted the summary judgment they could come forward with no evidence showing a disparate impact generalities about who is more likely to engage in crime between undefined groups of younger and older persons and it goes on to talk about the crime of fifty disparate impact case it needed to survive summary judgment the issue was fully joined and they have no evidence anywhere in the record to indicate that there is a disparate impact on people who are over forty because of criminal convictions even me if you look at the e e o c is guidance on of the seas guidance on the use of criminal convictions talks about individuals who are protected class members or of race it never talks about age it's a title seven declarative not a not a a d e a declarative and it just it defies logic to say because you live longer you're more likely to have committed a crime and it further defies logic to say that you're more likely to commit a crime of breach of trust dishonesty or money laundering and one of the problems that we face in this case and in the earlier case that you considered is that the this circuit's decision in green versus mr missouri pacific is bringing being read extremely broadly and that casey said it was it was a split decision b judge bright wrote that a employer policy of barring anyone from working because of a conviction was too broad and what we would hope this court would do is take a look at that case and say well what  with the eighth circuit ask employers to do we said the court said narrow what you use criminal convictions for make them job related what's the job relation here it is crimes  breach of trust dishonesty and money laundering these are for individuals who are working in federally insured depository institutions so the crime is tied to the job that's one thing the green said green also said will make it a temporal issue look at how close proximity is of the crime the conviction to the job and the time of offer or review wells fargo doesn't have that luxury here section one thousand has no statute of limitations unlike other provisions effect banks there may be a ten year limit or things like that there is nothing in section one thousand it do you have a conviction for breach of trust dishonesty or money laundry if you do ab initio you cannot work for a f d i c insured institution so the second piece of green was honored what isn't clear from green is that  case stretches it in green it said it had to be employer policy and go back to the argument that was presented to you in the williams case this is not an employer policy this is an act of congress an act of congress or said we don't want people with these types of convictions or working in our banks unless the agency that insuring the deposits of americans as first given its consent well again their argument isn't about section nineteen though it is about your policy of how you implement section eight well there is no policy of how they implemented look into a record of a policy that says before we term name body for section  we're going to give them notice there's not that policy you could have that we could but again there if you go to the mail in case judge hansen said that there is no requirement of notice and that the criminal that you might be disqualified the lawyers involved didn't get notice all of the federal government didn't give notice the probation officer didn't give notice and so we're going to come and talk to the end of the chain and say well you know who has to give notice the employer has to give notice there's no lawyers no one is taking the adverse action those other actors didn't terminate the employees no adverse action or these individuals were they were in eligible from the point of conviction forward that's what happened there they had jobs that they mistakenly by wells fargo mistakenly by the mc that they fill out applications for richard akers on his application said have you been convicted of a crime a breach of trust dishonesty or money laundering and he said no so he didn't accurately reflect on his job application what his status was under section one thousand now they didn't say are you section one thousand hell it was simply asked if you had that type of he had the answer that right you go anyway even if they'd all answered truthfully the employer would have taken an adverse action by refusing to hire the right correct if it was done and so the record would show some people were hired because there were mistakes done in the in the  background searches because prior to two thousand and ten fingerprint survey searches weren't available but on an universal basis they became available after federal reforms but again it's the other part about  eight or there's not case law under the eighty eight that says we look at alternatives we simply look at is there a reasonable factor other than age that motivated the employer the employer's action and i'm sorry to repeat an argument you heard within the last sixty minutes but in malan the f d i c sought an injunction judge hansen for the northern district at the time he said the f d i c did not need to show irreparable harm because section one thousand on its face indicated public policy and the need for an injunction if section nineteen provide irrefutable evidence on its face of irreparable harm we likewise think that it is reasonable in fact it is probably we would urge mandatory to conclude that section nineteen provides a reasonable individual's record so that he might not be disqualified from working at a federally insured depository institution and that was reversed at this court the court said that it would not allow the magistrate judge and in fact it found lack of subject matter jurisdiction for the expungement that's not why we cite the case we cite the case for the concept that in there the court said how important it was to have this information and how important it is to a reasonable factor other than age so what we believe is that section one thousand is as a matter of law the reasonable factor other than age there by ending the inquiry there is no alternatives to look at under the so it in some reasonable factor other than age male in case the lack of proof of disparate impact at a primal facie level all show why the district court correctly in summary judgment and you can quarrel with the concise opinion of george woolly but the district court in looking at it would on reflection i went back to read the district court's order he was very precise and he would pinpoint in how he looked at what the claims were and how he rejected them and throughout the case the issue has always been is the fundamental flaw with wells fargo's argument that you just heard came when wells fargo argued and i quote section nineteen in of itself is in our a four way that is not  that is not material and it does that does not carry the burden of production of persuasion that wells fargo has to carry to get summary judgment because the practice identified here in and of itself is refusing to give anyone notice before before their screenings of how they can get their own waivers in the record on page seventy one you will find a key admission that should result in reversal when that admission comes from the executive sponsor of wells fargo's background check effort pete delano right and he states and i quote sponsoring section one thousand applications for its employees was a compliance we did not do so we were much more specific if we apply the standards in smith and meet him and there is an analysis done of the actual practices that the plaintiffs identified then the conclusion will be that the summary judgment must be reversed thank you for your time me thank you mr bates or thanks and thanks both counsel for your argument this morning the briefing you've submitted to us will take the case