may please the court mr moore the good morning rogers my name is dan cannon and i'm here to represent joe stearman the plaintiff in this action was present in the courtroom today i also have two students first year law students from the university of oval law school that are in attendance they cannot wait for their oral arguments there appellate argument next semester so they're getting an early start studying up for that we appreciate you accommodating them and me on this case it's a case that i care about a lot and i think the district court got very wrong mr stearman worked for five years for the defendant without incident without a write up about any adverse employment action or even counseling whatsoever and all within a very short period of time about six months he had a heart attack he had a recurrence of prostate cancer his mother died and his wife nearly died coated of a heart attack two days after his wife's heart attack mr sturman was abruptly terminated by the owner of the company who was the thirty two years old the reason he was back at work that he had come back for at work working at that that he was called into a meeting specifically to be terminated but his wife was in the hospital at that point time so he was only at that i'm sorry was he working was he on the payroll at that he was yes or he was he was on leave for his wife the reason that was given to the kentucky unemployment insurance commission i think this is important because the district court managed to glide right over it but the reason that was given by the employer to the kentucky unemployment insurance commission was that he was in violation of a no travel without permission policy that dated back to two thousand and twelve that was that was disseminated via e mail from the goodwin from the owner of the company to the office manager and he violated that policy by attending a conference that was part of his regular job duties and that he he had attended every single year of his employment it was a conference for which he had notified the employer that he was going to attend and a conference in fact for which he was reimbursed for his expenses prior to his terminations the kentucky unemployment insurance commission a hearing officer heard evidence in the case and rejected the reason that was proffered by the employer because they basically said that the policy did not exist wasn't uniformly enforced it didn't apply to the it was never was never applied occasions did he get from a share just go i think that it was a casual environment the record shows that it was a sort of casual environment both before and after this e mail was sent in two thousand and twelve so they would check it's a small company that they come  check and say hey i'm going to this conference or i'm going to sometimes they would tell the owner about the travel and sometimes they wouldn't that's the evidence that we've uncovered in litigation in this case and that's what the hearing officer he in the unemployment insurance commission hearing once suit was filed in this case you see nearly a year after the unemployment insurance proceedings you see the employer coming up with all these different reasons why they're different in their self serving and they're incredibly transparent reasons why mr stearman was terminated most alien among them and the one that i think that the district court was able to swallow a little bit was that the position was eliminated that they had been thinking about a limit dating the position for years so not only was he terminated for cause at the time that he went to the unemployment insurance commission but also his position was eliminated and we were thinking about doing that for years where's the practice i don't know why they're injured but at some point the case has been fully briefed for over a year your honor i don't know where they are what i do know is that in two thousand and fourteen when joe was terminated they were doing better than they were in two thousand and thirteen when he made the same trip to the same conference there's no record that he obtained permission for that either he wasn't disciplined he wasn't counseled nothing happened so the unemployment insurance commission rightly determined that this wasn't a real policy that this pre approval for travel policy just didn't exist and i think that's important on the issue of pretext in particular but the point here just a preliminary point is that there were many many reasons there have been many reasons that have surfaced that have come from this employer as to why mr steadman was terminated all those reasons are self serving self serving rather they are for the purpose of whatever proceeding we're in at the time and we've managed to debunk just about all of them at the time i'm sorry it's not he was not replaced by a new there that's correct and the district court treated that as a a bright line rule basically how how can you comply with the various cases in terms of showing that the work that was taken over by their existing employees satisfied the prime if they share test it in this is wh was kind of going back through the facts in an extensive way because we have at the beginning the employer saying he was terminated for cause when it suits their purposes and for the employment trends commission later it becomes this position was eliminated it becomes a sort of reduction in case but it has never been applied a rule that says essentially you can't make a prima fascia case if you didn't have a one to one replacement if somebody wasn't hired in that stance the bright line rule that the district court drew is so if you have a employee like mr spearman whose job duties are simply given to someone else who retains their own job even if it's a terminations for costs then that completely precludes liability i think that's a an extremely dangerous rule i think it's a a bright line that has never been drawn in any case and the importance about the reason underlying his termination verstated yes brad i may be i'm my students will tell you i may be prone to hyperbole at times but but i do believe that that is not the way in which this court has applied that rule it's never applied in any meaningful way outside of a reduction in force and when i say reduction force context i mean an undisputed reduction in force case where you have the positions that have been eliminated but then the plaintiff is saying that i was eliminated for some some sort of discriminatory reason that drove my particular position being eliminated versus that yes there's never been a question that this case is a terminations for coughs they've changed the reason for the cause several times and have tried to also work in an elimination meant in at the district court in so what's not what that is allowed them to do is the borrow from this line of cases including gross  that says there's this rule that if it's not a one to one replacement that if the plaintiff can't maintain a prima fascia case for ages cremation if his duties are given to another worker just maintain some of their own  varied lies about the reason for that terminations coming from the employer itself and we have a much younger employee in an email openly assuming all the duties of mr sturman and telling his account contacts that he retired which of course is not true but to go back to your honor's question about the replacement line of cases you know as i said this that the gro genre has only ever been applied applied in undisputed reduction of force cases the  only possible exception to that is gross on itself in which there was no terminations for cause and in that case discusses the replacement standard but ultimately holds that the age disparity between the employee and the replacement was not big enough that that have come out since crow shot one in the court of appeals and one in the supreme court both interpret in the kentucky civil rights act and saying the brochure on really only applies to reduction in force cases and if you look back it's the interesting aspect in force case in which the positions were consolidated so so you have older workers saying they eliminated my position and gave my job duties to a younger worker who was already there and even that wasn't applied in the way that the district court applied that rule here and you have in fact they they still undertake as your honor suggested they still undertake a case by case analysis of plaintiff by plaintiff analysis and say was there discrimination here is there enough to show discrimination but they don't look at it and say simply because somebody else who already is at this company absorbed your job duties simply because of that then we're going to toss your whole case that doesn't make sense and it's not a workable rule  e case specifically says speaking about an employee that replaced another employee miller the employee who was the replacement was retained continuing his in process testing and assuming some of the militias the plaintiffs duties in already at that age groups a little yes absolutely and he remained the oldest person on the payroll he was the only person in his sixty's by far the oldest person on the payroll at the time of his terminations no one discrimination because he was as i said at the beginning he was allowed to do his job unfettered he was allowed to do all the travel he wanted with or without permission he was allowed to travel frequently and that's what the record demonstrates that's what the talk in employment insurance commission found is that he was able to do all these things without adverse employment consequences without him being counseled without any sort of problems whatsoever intel started having problems that come that required him to take leave and those problems were collateral to looks at the trappings of age and i see that my time is up so if there are no further questions i'll yield to mr moore claims pending here that were addressed and dismissed by the district court including an equal opportunity claim in a recess interference claim a kentucky wage and hour act claim and a conspiracy claim those claims also were all properly dismissed by the u s district court for the western kentucky on summary judgment before addressing the problem of fossa case requirements of age discrimination your honor i do think it's important to a yes or no nothing back at all there's a difference there between that and all of the other times and mr chairman ask to go on company approved travel every other time he receives specific pre authorization to go to your opponent has said that first of all he was reimbursed by the company for that trip that correct is that a fact in the record he used the company credit card on the trip and therefore the company had to pay its credit card bill so that bill once was paid your honor and then did the company seek to collect back the money from him no your honor that i know i heard him that's correct or are without telling him you made a mistake you shouldn't have used that company travelcard the last part your honor is not correct when this is the question your honor if the last part there that he was told when mr  and those notes show that when he would best bin it it was having a meeting with him on behalf of the coal company when he was pressed on the reasons said myrtle beach you violated the travel directive he told them that right here has been ever changing the position has been the same from the very beginning from the notes that i just mentioned in mr german's own hand that he violated the travel directive the travel directed was there not only from the two thousand and twelve e mail it was honor i guess to start with the last question first no i don't think we're bound by what happened at the unemployment commission what happened there's a fair coles was not represented by counsel c v bennett the third who is now passed he was the owner of the company wrote a letter to the unemployment commission and said that mr stillman was terminated for violating the policy and he also mentioned that it's documented mr skinner was notified in august of two thousand and twelve that all travel have been suspended until further notice due to current market conditions so no your honor to answer your question i don't think that the unemployment commission's findings in that case were  on represented by counsel are binding on this court in any way to their findings or is it still a fact question that that may preclude summary judgment here your honor i think that there's a that there could be a fact question there but not in the we've got to step back and maybe i should address that here in this case the fact that fact analysis would properly be addressed under the actual motivation standards in the big donald the third part of the mcdonnell douglas analysis for age discrimination here however mr stearman cannot make out a prima fascia case everybody in this case agrees that mr sturman has made out a case on the first three problems mcdonnell douglas the issues problem for the replacement problem in this case mr stearman was not replaced what happened here was mr spearman's job duties were assumed by an existing employee mike canada who was about twenty years younger i might add mr canada was within the protected class at the time he was over age forty but he was significantly younger we don't dispute that mr stearman took on but usually mister handed a took  jobs duties in addition to his other ones it's important here mr canada's jobs before included sales included going to customers he'd been when mr chairman separated from employment mr canada took on those responsibilities in addition to his others even testified that it didn't make picking up the slack didn't make that big a difference to him i think it's important in this case to realize the context that we're talking  stearman was a ploy it in two thousand and nine terminated in two thousand and fourteen during that five years the coal industry in eastern kentucky has seen a market unprecedented decline there's no question thousand seven hundred forty two dollars as opposed to the year before they lost money every single year that mr stillman was employed every year every single year they lost money every single year except for his first year they made money his first year and then during his five year employment they lost money every single year that's because obviously the coal industry in kentucky and nationwide the decline is market built largest coal producers in the united states have declared bankruptcy have ceased operations have shuttered cooperators have switched from coal to natural gas in fact that's what happened to pharaoh coles biggest customer in two thousand and fourteen they switched from coal to natural gas but obviously that was a big problem for pharaoh cole's business and so therefore the need for a sales position like mr dimon became dramatically reduced from two thousand and nine to two thousand and fourteen this is all context however again mr stearman was not nobody was replaced nobody was ever hired in fact not only was or not and by hired to replace m themself there has been no hirings at all period at faro coles since he was let go the only thing that's happening through coles during that period of time is people getting laid off there are now three people your opponent made a major part of his argument the idea that the replacement doctrine of gross gene and other cases was applied only in rip situations and this was not gross jean was at the two thousand and three case out of this court where a dog worker to power plant was demoted that case isn't about reduction of force that case a large part of that case was about what was a substantially younger replacement versus not whether three years was enough for twenty years of nothing but gross gene itself which sided barnes is is  company policy that had to do with the company's funds in the context of the broader context of a market industry decline and in other words mr more likely to believe that they hired someone it started with a case called hot back in one nine hundred eighty and that's where the plaintiff's job in that case was eliminated during a a riff the plaintiff was replaced and his former duties were assumed by another employee there's been allegations in this case that the elimination of the v p of sales position that mr sherman held is something that's been newly cooked up  it's lawyers after litigation evidence in this case and the documents in this case are that there were prospective buyers for coles before the terminations and the prospective buyers did a valuation of the company and did a  profit loss type look at the company that's in evidence in this case the document fifty five a review the documents show that there is no v p of sales position that sales position has been eliminated in the projections by the buyer of the company now the buyer of the company didn't buy the company presumably because the company lost its biggest customer shortly thereafter  but in this case that position was eliminated this is this is a saudi type case by canada assume the responsibilities mr sturman and that in the company went on now bonds came along ten into a new job with a new job description broche gene then came along thirteen years later outside of the rift context and that's where we are today here the position was eliminated stillman wasn't replaced and mr sturman can't meet the replacement problem for age discrimination required by mcdonnell douglas a model also and when it comes to discourage disability discrimination which i've missed on my opening  honor there is a replacement requirement there a prima fascia replacement requirement there and it's the same situation nobody replaced mr stillman now when it comes to disability however would think that sales would be an important role to have been a company especially in an economic downturn right so so why isn't it simply a relabeling of the pla job that's now taken over by this mr canada but say mr candidate was only working a quarter time on whatever he was doing and now it's adding for three quarters of the time what sturman was doing why wouldn't that be a replacement situation hypothetically hypothetically or actually judge here and the reason is because there were no sales opportunities because of the industry decline coles was a broker and the risk there but the people that they were trying to sell their coal to to power their plants to power their schools or the hospitals weren't there anymore there were no sales opportunities and therefore the sales position really lose money there's no new customers all the company is doing is fulfilling its existing contracts and evidence in this case is that the company will wind down after the terminations of their current contracts no new sales thank you thank you your your honors i think you could appreciate the or humans for of counsel just now and throughout this case a whole lot more if this were actually a case in which mr stearman was told his position was going to be eliminated because they just couldn't afford to keep  around anymore that's not what they told him and in the darkest hour that this man is probably had on earth what they chose to do instead was to bring him into the owner's office say sorry about your luck you're fired while your wife is in the hospital and oh by the way here's this pittance of a severance agreement that they tendered to him even though he was terminated for go up because they gave him a severance agreement that he refused to sign and then they decided to fight his own employment based on this violation of a travel that's been our whole point is that this shifting basis for his terminations demonstrates pretext but if if that were not enough i think you can go to the deposition testimony of my candidate in this case where he says and i'm looking at page eighty three eighty four it's ducking for sixteen it's my can of his deposition and i talked to him in there extensively as i talked to the owner of the company extensively in his deposition about who traveled when did they travel what was the pre approval process there was no pre approval process there's no documentation that's just mr canada says i would travel to cincinnati lawrenceburg indiana lobel kentucky kingsport tennessee talks about going to keeneland he says i stayed on the road so you think that there would be extensive documentation or at least some indication somewhere that these employees were asking for permission to travel repeatedly that just doesn't exist and that's what the kentucky unemployment insurance commission found i think that should get us over the pretext wall for purposes of just trying to get this man's case to a jury i think that administrative determination from a hearing officer that says this is pretext should be enough to get us over the  at that he also was there both by his or her but i was there i was i don't i don't remember i don't believe i don't have any reason to doubt what mr moore said i don't believe they're represented by counsel but the owner of the company testified in that hearing and that was the administrative determination if you will indulge me for just one second longer the i'm looking at page eighty four eighteen it's forty six seventy this is an email and you never have this i'm done the plaintiffs and employment work for more than a decade you never have this kind of evidence in an employment case but here it is i want to let you know that joe stearman recently retired from cumberland l can retire i will be taking care of all of joe's duties for the forseeable future if that is not a replacement type situation then the wall is too high for plain applied by this court is only been applied to reduction of force type situation so and i'm glad that my opponent brought up the hot of your stand it's only been done in the force of our situation i'm asking why that wouldn't be a situation how do we tell what's in our if that's if you have an eight people reduced to seven and taken the eight persons job and spreading out among this is not a real what is a really oh i think that that would be a real well then it but i thought you said that would not i defendant has already brought to its broadcast they've said you were terminated for cause that's what they said you're so ok notice from this as a justification difference case in the same sentence that's what i made up you seem to be saying because it's to reduce to one it's categorically different from a reduced is no i don't i don't think it is i don't think you know i think it's categorically different if we're talking about a terminations or cause type situation or reduction of the force of the only thing that keeps this from being a rip is that they explained it by saying you were the one they got rid of as opposed to the other one because you had this weakness in your record that well they've said that it's a because yes i mean that's the that's a position of their own and official position that they've taken in front of an administrative body in kentucky and i would also point out that saadi barnes all these other cases that we're talking about that are reduction in force cases don't look