there was no crime official case established for race discrimination or age scrim a nation and the evidence clearly establishes that a perfectly permissible flexible  involves being in a protected class being qualified being discharged and being replaced by someone not in a protected class that's clearly what happened here so the prime official case is a stamp wish i don't think there's really a dispute at this point on on the air pelleas part of me however the next step of course is to stablish that the reasons given for the discharge were pretext and in that situation your honor we have abundant evidence of pretext the to start diana jackson was a very qualified individual she was hired at the age of fifty eight after a long career already in a similar position in radiology in another sta are you talking now about age discrimination or race discrimination or both well start race discrimination for the most part yes actually what i'll do right now is let me address age because there's a very urgent that can be made by an employer we hired her when she was older we're not going to fire her because she's older except for one thing i asked a simple question of the one of the decision makers i asked her you thought that this employee had it was a top down dictatorial type manager she said yes i said was that old school and in your mind but you said that they didn't say that that's the that's your problem i think well your and there was a long pause and then somebody said well yes you could could you you don't have to but you could run or i did say it but i asked her if that concept was in her mind and i could have used if this were a disability case a or i could have asked it in the race situation i could have asked is this but is the end a much stronger position if she had volunteered well we figured that kind of old school sort of way of doing it you're the one that came up with that connotation they didn't i fully agree ok and normally these witnesses don't volunteer smoking gun indications of what was in their mind well i don't know that i think that smoking gun i mean what is old school referred to here not the person not necessarily the thinking of the person but just an idea that idea of leadership is sort of old school it isn't the way we do it these days that doesn't have anything with to do with age necessarily not necessarily you're on our right i would agree but i think old school and old fashioned have the flavor of a stereotype view of what somebody is doing and therefore the jury should decide whether they meant it but the old school first with type of leadership i mean that's what i'm i'm struggling with why a style of mean everything about the context of the remark even even to she volunteered it would still wouldn't all of been about a style of leadership and i'm struggling with why favoring one style of leadership top down bottom up necessarily points to age that's not obvious to me in our view your honor when you refer to a cliche or stereotype talking about old fashioned or old school it brings to mind itself i do agree with you it's not a great phrase by itself and just for the sake of argument i'll say she volunteered it but we always take words in context i mean it's just really important thing to do and i don't understand how the context refers to anything other than a management style which one could have at age twenty thirty fifty or seventy a you could you could there are lots of dictatorial thirty year olds i mean you can just have a view that says this is the way it's running so i don't understand why that's an h point i think that that is one way a jury could view that honor i agree it's susceptible to other interpretations such as the one you're saying isn't another problem that the question that plaintiffs counsel said and that was old school in your mind and the attorneys i think that the expression you could call it that does mean colloquially and i might call it that it's like saying one could call it that she wasn't saying me i don't believe but a jury a jury could have said it either way i don't it is there any other point on the age discrimination or is that the key point that's the key point ok a move to the race so pretext here is established because you have a qualified individual at african american person coming in she her first job is to report to another african american female who rates are highly rates or as being a strong leader and rates are fields  from her staff and rates in mr jackson's performance review of her step is very complimentary of her excess ability and leadership of course that review came in right after the guy that everybody despised left i mean by by in context and in relation to his leadership i'm sure they were really glad to see her possibly oh i mean that's what the performance review suggests and then those performance reviews began to be less a lot of tar am i right about that well they're less actually your honor in the objective areas of the performance reviews even by these the subsequent vice president cheney and st nick the objective parts are still good they're still competent in other words mr jackson is performing her job on an object of basis now mr i was born her predecessor left a mess so the numbers the actual objective facts and that's my point by comparison she started out looking really yes but we're talking about two different areas here object of meaning the numbers that are produced in the department and the subjective aspects of a job which  interpersonal relationships and that sort of thing it's the subjective areas of her job where we're saying there is evidence of pretext here because the deck was stacked against her from the beginning and at believe points out and it's true that the her direct supervisor street pick was not overtly discriminatory but what she did and she's a caucasian woman approximately the same age as the caucasian women who are  so there sandwiching the african american at appellant and one specifically especially one of the subordinates page she had a bias towards black people and she jackson because of course it has had nothing to do with any of her thoughts but in in their minds though the issue of race was apparently in the forefront in this employment context so now there's a series of events remarks were by decision makers just remind me ok so our theory is that the subordinate paige who was still a manager under the cat's paw loft can spot theory she was a decision maker because she influenced the decision maker so yes in that sense the comment of you're going to fire us because you're black and we're white was made by a decision maker under the catspaw theory which decision maker did she influence s earlier boss did not support them and i know i thought some of the explanations were objective there were some actual scores and then i thought her prior boss did indorse the assessments came later so i guess i was struggling with that argument on the pretext issue your honor so the prior boss the african american boss rated the plaintiff highly in a subjective areas you know i know when some later issues were brought up she said ok i see that but dorst in a sense indoors but there was no discipline no punishment no friction when when she was the that doesn't matter i mean if the i thought the whole point  pretext was are you making this up to hide this illegitimate explanation and if that person indorse the later bosses position criticisms out that seems to me  and i'm not saying it's dispositive but it does seem to me to show there was this detraction the idea there was this big disparity between your two bosses which i really don't think there was respectfully or i disagree i think that there was no actual indorsement of point by point criticism which the new boss was levying here and the main parts of the of the new bosses criticisms were these events where the african american plaintiff is attempting to levy discipline on her white subordinate is not being allowed to do that by her white superior and so you can see in the in the document which sort of describes the reasons for terminations that the events that i'm talking about the reversal of answers are termed in my brief there the main reasons why the plaintiffs called on the table and it's at one point september one week after page says i think something official has to be done one week after plaintiff has called on the carpet and she has to go on medical leave now for six weeks by then the has already made the replacement morier the white replacement is already touring the workplace while pla may please the court daniel brent's on behalf of the defendant apple tree the health your honor the district court's judgment should be affirmed the district court got it right on the elliot larson civil rights act as to the race claimant of the state law and got it right on the age claim i'll stop there and deal with that claim briefly the sole evidence is the court's correct the sole evidence of any age discrimination is a comment plaintiff's counsel made it the vice president of human resources deposition taken some two and a half years after the plaintiff's terminations were plaintiff's counsel asked is that old school in your mind and she said you might say that that's the sum total of age discrimination evidence you might say that in the court's current that's a you for that's not a euphemism for age it's a description plaintiff's counsel chose of her management style for which she was criticized but it was an objective observation of her management style but lawyers can say you fired her because she was old if the answer is yes you don't say well that was your word right yes you're stuck that would be correct if it was a spot on admission to a direct question like that that would be a very different thing than and her statement was hardly indorsement you might say that i think was a polite answer but it certainly wasn't an endorsement beyond that the district court noted and found that the plaintiff replacement was within six years of the plaintiff's age and understand which law the case that destroys a a prime if he she case of age discrimination the plaintiff was replaced by donna more who was fifty five years old within a believe she was a little over five years younger than the but that's within that six year window under gross jean it's a bright line test with regard to the prime official case under title seven the district court stopped short and did not analyze the pretext factors which we did brief in which we brief again in this court the district court did not analyze the the second prong of the fourth element of the private case it said the fourth prong consists of evidence whether similarly situated not protected people are treated more favorably  we get to pretext summary judgment should be upheld and pretext pretext is analyzed at three different levels by this court in other courts of appeals first whether the reasons given had no basis in fact whether there's any evidence that these aren't the true reasons secondly whether the reasons given didn't actually motivate the decision and thirdly whether the reasons given are insufficient to warrant the action taken but isn't there a real problem when an employer says we don't like your management style and really what they're saying is we don't like you because you're a woman or we don't like you because you're black or we don't like you because you're old but they cover it with this your management style is what we want right that is not the case here yes they used the term we were dissatisfied with your management she was a manager of a very large important apartment everybody who goes to the hospital goes through the radiology department one hundred twenty five employees in her purse supervision in her management style was lacking and that wasn't a empty conclusion that was based on reports the cut across all lines in all sectors of the hospital it cut across racial lines in other words african americans reported her management was lacking it was based upon objective observation of poor turnaround time high radiation levels lack of accreditation and yes it was based on reports from subordinates who said she's targeting us she says she's harassing us there were official reports filed she's not listening to us and she's jumping to conclusion this leadership style was verified by independent investigation by the decision makers they looked into some of her recommendations mr byrd calls it a reversal well yes in fact that was when she came to them and said i want to fire one of my subordinates did you speak to her about it no did you look into the  how long ago did you learn this two and a half weeks ago this involved potential disclosure of private health information to determine if potential private health information was disclosed no so the decision makers investigated that found there was no doubt information disclosed the employee had followed proper protocols had gotten approval to remove these computers in place of had never investigated that was early on and yes that was a reversal because she was one hundred eighty degrees wrong based on an independent investigation an african american employee who investigated told the decision maker she seemed to be more concerned with fire her employee than finding out the facts all of this culminated in september when the plate it was told your job jeopardy you need to improve you need to write a management proven program plaintiff acknowledged all of this occurred you need to get a job coach need to improve your operations plan if didn't do that she didn't turn in her management report should be asked to turn it in when she did it was deficient now plan of points at erica page claiming she somehow conspired with upper level management decisions in only erika page plaintiff's claims betrayed any discriminatory animists and i could talk about the two bases for that a second but mind you by september when she's put in job jeopardy after that reports come in complaints come in not from page not from any of plaintiff subordinates but now from the c f o of the hospital from the director of physician relations and ultimately the tipping point is to physicians come to mistreat it can say we can't work with her an these are not employees of the hospital these are two doctors on staff the radiologists who say we can't work with her just solve our problems quality is poor customers are getting service we don't find her competent page has nothing to do with any of it in fact at the time plaintiff is terminated the very decision makers the plaintiffs complains about had suspended and disciplined page and she was pending termination page wasn't even in the hospital before she'd used inappropriate language at a team meeting and it was a complaint about her investigated history because ms murphy suspended her when she came in for the investigative hearing she said i similar things in the court help well that cohen ploy had been disciplined and suspended and resigned before she could be terminated that is not a comparable ok in this case this page isn't comparable because she's not at the same level as the point of she's a subordinate of boy but even so the same decision makers point of claims made a bad decision in her case disciplined and suspended page and she was facing termination now what is the evidence the page the head of animists two straight comments one this comment that occurred three years before the plaintiff was terminated by plaintiff's predecessor who was a younger white male who'd been terminated for poor performance and poor management allegedly he told page or elite plaintiff didn't know who who told plaintiff was born says we're going to get fired too because we're what i asked plaintiff did you ever hear that from us one no at this time was born a former employee yes did you report that to anyone no of the agency during the term of the relationship of the agency neither satisfied it's double hearsay when repeated by page were really whomever to plaintiff and  it has nothing to do with the ultimate decision page wasn't involved in her in the decision to terminate plaintiff's employment page had been complained about plaintiff in the four to six months leading up to the terminations whereas many others had and you're saying that time was that came long before a letter said they came in the first few weeks of her employment three years before her terminations she was hired in january of two thousand and eight i believe and terminated two thousand and eleven so that's the first allegation and against page the second is plaintive testified page one said i have an african american african american blood in my family i asked p what was the context of that who was around plaintiff didn't know pages depositions taken and her testimony about the context was under budget for purposes of summary judgment she said it was plaintiff who brought up the subject of race pages playing a tape recording of her singing in church in a in a church group and plaintiff said to rip plaintiff or plaintiff said page how does a white girl get such a bluesy voice page said i responded my father says we have african american blood in my family that was the total comment sum total of the conversation non work related discussion plaintiff brought up the subject of race page responded again at most a stray remark in big us an abstract certainly no conclusion of animus can be drawn from that given that the context comment do you have to exclude it because it's hearsay if it's at mit it to show the motive  page that page is afraid for her job and thinks he thinks that the plaintiff has in her own animus against whites well theory that the cat's part theory is not appropriate because paige really was not attempting to your mind was not attempting to motivate decision makers to fire the plaintiff correct to do his bidding in the catbird that's how it works but sorry his theory is that a subordinate somehow is manipulating superiors to levels up for her the facts don't bear that out whatsoever and it's based solely on this hearsay caught it in again pages newman in the hospital in plain it was terminated page isn't even part of the series of events that occur from september to january that led to the terminations and pages it may have been repeated by pager bailey but it was made by somebody who's long since gone is that right at a time when he was already gone after plaintiff had replaced him because his comment was now that she's in there better watch out watch out yes that was the whole comment going to play that page and you deny the comment puppet and i was born had a motive in the sense notwithstanding that he was gone i was born has been fired and he has been replaced by this woman who happens to be our plaintiff here and he's angry and so he wants to foster discontent among the people who are there so that they will make it hard for this new person taking his place well i don't disagree i'm i'm just sending this out for you and i don't disagree i was born a disgruntled former terminated employee that's all very plausible and often people who are replaced by somebody want that person out so that that person has a hard time correct and that would have nothing to do with her or his or anyone's race or if that's the question that you have been trying to focus on is did the decision maker have a racial animus here is there any protection correct and there's no allegation no showing that the decision makers ever knew about this statement was born ever knew about the statement of the leader page there's no showing they ever subscribe to it in fact i can directly ask mr berg conceded there is no evidence of the animists or the alleged comment that's correct on a percent correct in that and you know judge moore you asked about isn't leadership a subjective category with all due respect in the  case vs chase your opinion you ruled that the plaintiff was terminated for poor leadership poor management the defendant came forward with particularized facts to show specific examples of poor leadership and i believe that's what we have done here now the honest belief which this court subscribes to at the pretext level states that so long as the defendant articulate its reasons and shows particularized facts briefly your honour's the pleated is not attempting to get bourne's comment into evidence it's page and eliezer stating what i was born told them it's not offered to prove the truth of what i was when i was saying it's to show their state of mind which is race conscious they're bringing race into their workplace with this comment to david jackson in their current employees and their management employees secondly the the cat's paw theory my understanding of it is when a decision maker is influenced by someone else now there's a law that someone else has to be some sort of person with authority and in this case pages the manager here and page has many subordinate employees under her control she has authority in the in the workplace she is influencing street pick to discharge the plaintiff based on the subjective things subjective reasons about management style the memo the email by page to the h r person on the macneill one week before it comes down on the plaintiff says when you have some time i need to speak with you in regards to another harassment issue with diana i think the time has come to do something official this is a subordinate employee subordinate to the director who is saying i think the time has come to do something official or what has been being done an officially that's our question i think a jury should evaluate this now epperly says well that meant she she thinks she now has to file a formal harassment claim she never did that this is about page talking to superiors and saying all right let's go let's get rid of diana my director now going back to the computer issue which really started the ball started everything going down hill for the plaintiff page is a subordinate to the plaintiff to the director she is letting department equipment go out of the department without telling a director this is not done this is not proper procedure the forms were strange the memos were strange and it turns out that because the plaintiff was going on vacation when she discovered it yes two weeks later she reported it so now she's the one is being criticized in august just before that in this memo about i think somebody official has to be done the plaintiff her boss discovered that page had made mistakes in payroll paying people more money white people it turns out than they should have been paid so the director of this department the plaintiff wanted to punish page and again a reversal street because saying well looks like you want to you're up to get her well in a sense she was because she was her superior in authority and there had been these other incidents where there were these revers s we are the prime aphasia case is the replacement it's not disparate treatment and comparables but we do say paige in this situation although a subordinate in title was a comparable similarly situated employee to the director because all these incidents arose they were treated as though they were of similar authority and so functionally pages a comparable you have any case that says submitted with the clerk of the next case