collectively and construed in the light most favorable as opposed to his employer waste management the evidence is such that a reasonable juror could think lou that was wrongfully terminated your honour's under the mcdonnell douglas test the first step in the framework of the analysis is whether or not there was a prima facie case of age discrimination or retaliation as alleged in this case for age discrimination we know that there are four elements the first that the at the time of the adverse action the plaintiff was over the age of forty here the plaintiff was fifty three years old at the time of his germination second and third is that an adverse employment action happened and that at the time he was satisfactorily performing his or her job here we know that happened he was terminated and after thirty two years of stellar service service which waste management when they tried to get their contract renewed in two thousand and eleven with the city of manhattan beach they actually used santa in as a evidence of their commitment to service and loyalty to the community and it was after they got the contract that he was then a couple months later terminated as of the fourth element is the circumstances giving rise to an inference of age discrimination and it's this element that the district court focused on and and held that plaintiffs could not establish any evidence to support this element as a matter of law but the evidence one way to show a circumstance giving rise to scrim anation is by demonstrating that the employee was replaced by a significantly younger this fifty three right so is it enough to carry the burden of establishing a prima fascia case to say well that information is with the defendant's possession or do you have to come forward during the discovery phase with some indication of the age gap and and then as a follow up to that if we think that there is no evidence or insufficient evidence in the record as to the age gap do you have other evidence that can then meet that fourth element sure let me address those two points so for the first point i think that you have to look at the facts of the case and here when you look at the facts regarding maria diaz his declaration and the amount of specificity she was able to give other claims for say start and end dates for the plaintiff home address we know that the information as to his birthday is likely at her fingertips and i think the omission of exactly how old the replacement employee was gives rise to an inference that there was a significant difference and i think that beyond that we also know from the record that in the depositions of four other employees including a supervisor old employees they were asked how old was the replacement attorney and all of those employees  that they did not know and i think what's telling is when asked ok could you get provide an ass to is he between twenty and forty is he between forty and sixty these employees after being advised by counsel replied uniformally no we can't even provide you an estimate of his age so i think those those circumstances give rise to at least an inference that there is significant difference and i want to highlight that that's a significant difference in age could be as young as five years could be eight years could be nine years the courts have said that you know here we have a thirteen year potential gap between these two employees and so i think that the fact that that the same from asian was asked were not given in those depositions and that in that declaration of maria diaz there's you know a glaring omission of what that actual age is again gives rise to the inference the other evidence to suggest the court's other  santana's own deposition testimony wherein he sated that four or five other drivers who were older than plaintive had similarly been written up for quote unquote accidents and terminated and i think this evidence gives rise to an inference that there's age discrimination going on and i want to highlight is the indication in his position testimony as to the time period during which these other individuals were written only that the only older employees terminated because of incurring four more fractions during a twelve month period i'm not sure about specific question as to timing was asked you know he's just testifying about four or five similar agene employees being terminated and i think what's important to is kind of knowing that management changed you know and that's when all of this came up after thirty two years of service he's never written up and all of a sudden he's written up multiple times and i think that would be the same with these other drivers the inference and one thing i want to kind of highlight is that the standard of review in the lens in which we look at these employment cases is takes into consideration that this fourth element of the mcdonnell douglas test concern somebody is intent somebody is motive that's not easy to prove on paper and the courts have repeatedly said that because of this employer employee context where there is discrimination the the need of the showing that that is required of the plaintiff at this preliminary stage is not onerous minimal proof is necessary very little evidence these are quotes from cases cited in our briefs and i think that we focusing just on the july termination and not the initial terminations because all that was released pursuant to the settlement agreement so i think a couple things on that release i think we can focus on the latter determination the july two thousand and twelve and i think when we do if we are begin with that analysis of just focusing on that and that terminations we can absolutely consider what happened and what occurred for that first terminations i don't think that that release for ported release would absolve or for close i should say not that that's what i wanted to clarify so your argument is that the evidence concerning the the conduct before the settlement agreement was reached is properly considered in  determining what happened with regard to the july termination but the claims themselves the retaliation claim that age discrimination claims really if you're being sent back to go to trial you would go to trial just on the july terminations that with that be fair i know it wasn't clear to me what the position was with regard to the two terminations on the briefing i think for the turn in terms of the retaliation that would only apply to the latter the july because that the retaliatory conduct was the coming forward and appealing the initial determination with regards to age discrimination i would say that it concerns both terminations it was prevalent in the first and i don't think that release could be used as a shield against plaintive because of the circumstances that that occurred in evidence of age discrimination concerning that termination and the release that said i think that even if we're going back to trial just on the july terminations that first  december termination is absolutely evidence of the age discrimination that is the predicate for the july summit no i understand that argument but you know we've got to be specific in sorting it out because if we are not saying we would but if we were to send it back to trial then it would be helpful to district court to know how to craft the jury instructions and whether the age discrimination claim relates to the number the initial december firing as well so explain to me why the release is not sufficient to basically removed age discrimination claim as to the december carbonation ok so so setting aside the argument that it would obviously be admissible for the july than just focusing on age discrimination claim for december terminations i would say that the release does not foreclose those claims because the release of the language well two things one waste management didn't comply with its terms of the release of pursuing t the settlement release if plaintiff conducted or excuse me if plaintiff did the background checks did the physical tests and all of that he would be reinstated there was no time limit for this  i'm in the settlement agreement so if we're looking strictly at the terms of the settlement agreement he was simply required to meet these background checks he was terminated three days into his employment for allegedly not meeting those requirements our position is that timeline that was imposed in that terminations was really pretext not necessary and not a condition of the settlement agreement so i would argue that the breach puts the  he was a employee returning after being wrongfully discharged he by law in the code cited in our brief was not required to complete the form i'm nine process procedure secondly i would say that he was not given enough time notice for what documents he needed to comply with that request and so his when he was first hire books and then rehired pursuant to a wrongful discharge settlement as in this case then you don't need to comply with the four my nine requirements no well that provision which is the code of federal regulations section two seventy four eighty two states that you are not when an employee comes back in his rehired pursuant to that agreement based on a wrongful discharge claim they don't need to comply with that for my nine procedure so specific to this fax there wouldn't need to be that compliance or plaintiff for other situations i'm not sure if it would be different if he was rehired for some other reason or purpose that even if he was required pursuant to the settlement agreement or otherwise that timeline and i think what's really relevant in the timeline is that he's told before he starts back at work five days before hey you need to bring these documents to comply with the verify here's a list of the documents you need he reads the list he brings what he's required to what's asked of him under the list he gets to work on the first day maria dia's the h r employee says these aren't the right documents you fall under this category you need to bring this document which is an authorization card he goes home brings what he believes is the authorization card the next day she says oh you don't have an expiration date for this card go back and find it he goes back home tries to find it cannot find it arrives the next day and they terminate him for not having that expiration date that timeline is is not required and therefore we think that was also a basis for the for the discrimination thank you we've taken you down to thirty four seconds so i'll put a couple of minutes on the clock for rebuttal when you come back  reasons number one mr santelli on release any claims he had regarding his december two thousand and seven terminations including age discrimination which allegation for engaging counsel or any other basis that could support a claim for wrongful termination in requirement there's no avail you know he was he was well he was here illegally and they've been working for how many years thirty two years long long time n and as the trial judge noted there was no substantial or specific evidence indicating that those individuals were treated differently than younger employees in a similarly situat circumstance could i have you focus on the retaliation claim and specifically on the problem of whether your client offered a legitimate reason for the july terminations which is that the problem that the district court rest that immigration reform act and two he violated the terms of the settlement agreement because it was contingent on passing even if i so if i could just take the first one what what law or regulation requires him to go through i the immigration reform control act governs that obligation and would leave which provision because the provision but i'm looking at that was cited below says that he's not or he is deemed to be a continuing employee if he's reinstate a settlement agreement so he seems to fall squarely within the category of individuals who seem to be continuing in employment so therefore he's not subject to either if i was there another provision either regulatory provision that you were lying on that was not cited in this case now rely upon the settlement settlement agreement that he signed with the advice of his lawyers and the union all right well there were two reasons proffered i'm going to separate them one is specifically what what regulation and you were lying on to say that somebody in his situation is required to pass even if i i know there was an opinion rendered by one of the witnesses that he was required by law but that opinion isn't supported by any specific to any regulation or statute that i'm aware of for some trying to pin you down on what regulatory authority relying on to put him in the category of individuals who have to pass you verify well aside from the agreement he agreed to with that was pointed to says he's not required to do so is there something else within the setting aside whether you can pick and choose the regulations that apply to him if he's not required to passkey verify that he's not required by  point to some other provision that we're not aware of that was a specific term that he agreed to all right so the settlement agreement is there any which is the second basis for terminating him because he didn't comport comply with the settlement agreement th there is no he verified without the i nine and mr santiago when he appeared for his first day of employment on july sixteenth indicated in completing section one that he was an alien authorized to work if he makes i he has no choice but to establish that by showing his alien authorization card and its expiration date and he was given multiple chances to do so and failed and that's the reason that he was a waste term employment and that specific term nation decision is expected explicitly provided for in the last chance agreement which was exhibit a to the settlement release and it says that if he fails to comply with any of the terms of his settlement agreement the usa ways can terminate his employment without recourse d s if i recall correctly said that he that though his replacement was over forty eight leading to that omission leading to an inference there must be a substantial h gap when coupled with  it's own testimony that older workers were were targeted for these accident write ups for how we're so respond to that the december term germination is off the table my mind any facts leading up to any claims nonspecific nine detailed testimony about four or five drivers who are older that may have been terminated there's no evidence suggesting that actually happened there's no evidence suggesting what the circumstances were why isn't that for a jury to decide are you saying he can't even if he's trying to make a claim but the second terminations is wrong can he referred the early ones i don't think so because he released all those claims and claims don't exist without facts but they're still facts underlying this is not a vacuum here i mean you know yes i see your argument that there was a setup and the whole phase one settled then i say phase two i was improperly terminated are you saying as a matter of was a jury could not consider what happened in phase one to determine what happened in phase two i think they're off the table because what it really says what case do you cite to say that that evidence is effectively suppressed statutes in california talking about stash reconstruction all the cases that settles the release the claim he didn't release need to talk about the evidence and the facts that would support a subsequent claim that sounds to me like a three determination and maybe a motion limited by your client if it goes back to trial as i said  claims don't exist without facts so again those facts those claims are off the table i think we should all be talking about the july germination and the terminations was done in accordance with my client's rights under th right i think we have your argument additional questions all right thank you very much c standard word of summary judgment in employment discrimination case where the evidence is leads to an inference of age discrimination which is sufficient at this stage second with regards to the pretext for the terminations in july twenty ninth sorry july yes july twenty twelve there as the court highlighted there were those two separate reasons one concerning the plaintiff failure to comply with the verify as a matter of law which we know is not true and to the settlement agreement and i want to focus on the settlement agreement for a minute and just stress that there was no time limit given to pass by and so there is no showing that he failed to meet the condition under the settlement agreement i also want to highlight counsel's argument that there's no evidence a stool his client's intention with regards to that terminations and i want to stress th e mail that was referenced by the court as well where you have a senior waste management employee e mailing with maria diaz saying wow i thought that would never happen he got past if i question mark and i think while you know different people can read that e mail differently that's precisely why this is a jury question unless the court has other questions i go thank you very much to both sides for your argument in this case