thank you i think this was a case that was completely inappropriate for summary judgment the factual disputes in this case  were very poignant and in some respects overwhelming we have a man born in one thousand forty four well over sixty has worked for an automobile dealership a managerial sales capacity for almost eight years everyone that he works with is substantially younger than him including the the owner of the de facto owner mr ryan hancock who's in his early thirty's so we're aware of the factual background of this case of maybe you could just turn to the question about what creates a genuine issue material fact that he was discharged under circumstances giving rise to an i age discrimination he was discharged by santa maria who had been there for a month younger people were also fired fired and there was he had no evidence of statements actually made by maria except for some ambiguous thing about i don't know how you get up in the morning or along those lines so help me understand what creates a genuine issue material fact under the specific facts here that that the circumstances gave rise to an inference of age discrimination i'll try out first very important fact is even though some young individuals were laid off with m eagle he was the only one who was laid off in the sales force and that's important judging because in this sales force he was also the highest producer among all board at the dealership there was really no question that mr snow was going to be terminated because they didn't need to general manager of the of the dealership there was the owner ryan hancock he couldn't run the dealership by himself because toyota wouldn't let him they didn't think it was qualified the general manager of the dealership was another young guy he was mr hancock's best friend according to the record and that was mr snow because mr santa maria had been brought in to run the dealership mr hancock couldn't do it there really wasn't anything for mr snow to do but well with my focus back on judge you could question yes he was fired by mr santa maria yes tell me what evidence there is that mr santamaria did it because of his age i know he was the oldest guy but quite you know all i can find in this record even comes close to mr santa maria having an age related reason is the statement this statement where somebody comes else is there with respect to mr santa maria that suggests that he has an ages to agenda something very specific something very substantial and it's all set forth on page one forty three of the excerpts of record let me read a little bit right now that's where they're talking about comments he might have overheard is that what you're saying but i when i actually looked at the comments he overheard the only one that they could ok it's volume two of the excerpts of record on page one forty three the transcript page is one seventy one lines four through leging that he knew about them that's that's what's on page one seventy now so tell me what so tell me what age related comments he knew about i'll tell you this is throughout the day bob there were on page one seventy two where he's keeps pressing can you tell me what one time you remember a statement being made in his presence and that's when the only saving he can remember is we got ego he's the only guy testified that mr santa maria heard those thing no no you didn't he didn't what he said was he might have heard those things he might he could have heard those things they were said when he was in earshot of things or close by but he never sanchez and i'm trying to his testimony is a santa maria himself never made any just comments that's what he says number two there were comments made by other people but when he gets pressed on whether or not santa maria actually heard any of those annamarie ever made and you aids related comments are you i'm not alleging that flat out answer he knew about the ok and then and then we're reading the same pages in the transcript and then they go on to say so let's figure out which ones he knew about and he's unable to identify any well remember when he's being deposed it's it's almost four years after the fact his deposition was on november fourteenth of two thousand and twelve he was terminated on march ninth two thousand and nine almost four years have passed and it's kind of like saying judge  did your law clerk wish you a good morning on friday of last week you'd probably say well she probably did she's she's pretty perky she's probably pretty polite and pretty sure she wished me a good morning maybe you couldn't remember the specifics judge a khuda because it happened so routinely however i think that you could still testify with certitude that if in fact your law clerk didn't see you that morning she would have greeted you good morning  it's hard to remember specifics when something is happening but constantly which is the testimony we're dealing with a summary judgment through here it's your your obligation to to establish a material fact we get you mr we've got mr eagles deposition and we have his declaration and so the others is there any other place in the record whenever they say where i can find corroboration that mr santa maria either heard only witness to testify that mr santa maria heard those are marks and laughed at them and even though they weren't specific he was very specific in saying that it happened four or five times and that he was in the case of chain versus university of california as your honour's are aware and that's reported it to twenty five fed third one fifteen the specific site is at one twenty eight judge reinhardt considered  a faculty member was being or an asian faculty member sued the university of california the faculty committee that allegedly denied the asian faculty member a promotion in another meeting involving another employee of agent to san made that one individual made two racial comments he called the professor a chink twice we already have two chains in the department and the other guy laughed and judge reinhardt wrote in the chain case for purposes of summary judgment dean williams laughing response to this remark establishes adequate evidence of discriminatory intent on his part also but the only laugh i have here is someone something was said we got eagle he's the only guy santa maria looked at me and laughed but but we got eagle he's the only guy is not a ages remark i know but i don't know what's or remark it into other other cases have said that when you have a pattern of discriminatory remarks of bikes by senior management those can consider to put here we consider you don't we don't have the pattern of discriminative we have pattern of remarks by by workers and and yours attributing them to management because you heard them or and disapproves of right management not only my workers judge her wits but also by the owner of it he was gone and so the print the decision maker he and maria came in and he is the one who made the decision about who to fire the owner wasn't gone your honor he wears it imes will dispute regarding that even though his some of his management duties had been taken away once again mr eagle testified that hey ryan hancock was still in the store he was still telling everyone what to do including me so there is a factual dispute guarding any evidence of mr hancock played a role in the firing of mr eagle oh mr eagle said he was around and i'm sure he must've but is there any specific evidence of played a role in firing a mystery no except the fact that he owned the place and he announced that he was just four months before mr eagle was terminated the owner of the place publicly announced that he wanted all young guys in his team and in the same context mr eagle was being called every name in the book and moreover in this this goes to pretext to your honor's the only thing that mr santa maria told mr eagle during this whole period of time was you're doing a good job keep it up keep on doing what you're doing so the one time that mr santa maria had an opportunity to criticise mr eagle's work performance he did not moreover when mr santamaria got his first opportunity to explain why he chose mr eagle for terminations who had an unblemished disciplinary record who had never been criticized by anyone including mr santamaria he didn't say what he told this court hey listen r c s eyes are low this guy's too high pressure he testified i limited his position which in fact was not true when the save the remainder i would like to think you your honor  you thank you and good morning jeffrey miller lewis pre split discarded smith on behalf of defendant and happily bill alexander automotive center incorporated based on the comments here this morning i think i would like to focus predominantly on the on the  what and could you tell us why was mr santa maria fun why was mr eagle fired by mr santa maria what was the reason i guess this goes to prong to your honor this is a wreck tell me what what i was looking through this record trying to find the reason a yes tell me what the record tells me the reason for the firing was that there were actually two reasons the first reason was the lack of expectation of what was expected on the job itself because the real problem and the real reason mr sant maria came on to the situation was because of problems with the servicing we call those the c s i scores this is this was a critical problem because this is a toyota franchise and w franchise they have control over that franchise and this was a this was a facility that was in serious trouble because for the past four straight years they were in the ten percent or below in the very bottom rung of c s i scores that are racially nonracial not age related reason for so i think and now he comes back and says it's just a pretext so can you tell me what the evidence shows in this case about similarly situated people with the same sort of c alexander died that was the time the toyota could bring someone in and find out what was happening with this situation i would have having difficulty figuring out is why why c s r scores relate specifically to mr eagle as opposed to equally to others fair question your honor because when mr santamaria came in again this is a guy from the outside coming in in january of two thousand and nine the first thing he did was to take a look at what was going on in this facility and it became very clear very quickly that there were really two individuals that were running the show you might say and in this particular case they had kind of an old school attitude of unit sales get the sales very aggressive sale tactics and his theory was obviously that was affecting the consumer satisfaction on this site so what he did was look at the conduct of mr snow who was the general sales manager who i think the elephant in the room here he was thirty three years old and then looking at what's happening with the plaintiffs mistreated in the hierarchy of the dealership where did mr snow stand in relation to mr goh mr snow was ahead of it mr snow was the actual general sales manager on the right so he was he was the boss and mr eagle worked for that's correct and mr eagle though was had a lot of experience and ended up being a de facto manager with mr snow because he would run meetings he was in charge of many advertising and promotion details so he was acting as a de facto manager he looked at that conduct and realized that is the problem and that's when he decided to to make the move to terminate plaintive and  the the interesting thing that the record is unequivocal about is when that happened things did change with those c s i scores within that same year this this firing occurred in march of two thousand and nine i'm not sure how the subsequent at the end of the year they  the subsequent evidence deals with with the age related stuff you may have if you fired somebody because of his age and it turned out you've got better employees like i said something that i think they were right in their legitimate reason ok both to what there was evidence that  discriminatory remarks were pretty at that facility and they had evidence as an rebutted and then santa maria comes in and and mr eagles as well by necessity he would have had to hear that as he's walking around the plant why doesn't that create a genuine should material fact because the key you're on and i think you mentioned it in your questioning was the real key is who is the decision maker in the termination point i'm surprised you can get out of bed in the morning it may be explanations for those but we're not the explanation stage of the case we're just at the facial stage of the crisis why is not facially enough to to get well let's stay get past the burden of after step two that that's let's take each individual comment that you just made there the only evidence in the record of any specific statement was exactly that quote i'm surprised you could make it out of bed that's just not a just especially in light of this record it's very clear that l b it plaintiff did work very long hours twelve hour days many many times so that's just not a statement that it has any real influence of any age is what was the context of that statement i'm i'm trying to recall what happened was somebody showed up late to work and said i overslept or something like they were in a meeting and it was relating to something like that but it certainly wasn't in the context of anything having to do it of age related well i mean mr mr eagle said something like i got here on time you should be able to write that's correct on it that's correct so so that just doesn't rise to the level to create a genuine issue of fact and the laughing issue again i think that's a kudos that said you know when you delve into that deposition it's extremely vague to say that that would amount to anything specific and substantial i don't think it's a close call the only when you when you get down to what did he overhear it's quote we've got eagle he's the only guy what does that mean it's hard to say what the context of that was your honor i can't i can't speak for that other than to say that it doesn't definitively say anything a just that the particular case that counts relies upon the laughing it was was that the chung case and we don't have anything close to that i mean that that statement was real and it was something to the effect that we don't need another chain and we need but it was made by a committee who  the decision and that statement was made and they laughed right at that what do we have here we have something that doesn't even sound a just and it was maybe a sticker on something that simply just doesn't equate to that kind of that kind of level i think that's the real key here is that when we're talking about you know specific substantial evidence here there are certain things that aren't going to qualify and we have it all over here you know you can't base it on speculation and general conclusion y items saying well you know i think there was there were bad comments where you got it put your money where your mouth is and if you spend any time reading this deposition it became very clear it was like pulling teeth to get any details in this particular case and at this point where the burden shifted because we did have a showing of legitimate a problem to illegitimate reason for the terminations the adverse action now it was incumbent upon plaintiffs to present real and substantial experience but the service departments lousy an oracle or converse only the buying experience was great but i got great service as i understand it everything was bad at this dealership right yes in fact both the sale site and the service site had bad i so was there anything comparable done on the service side yes yes in fact that you should say that there were terminations done on the service side for this very reason but mr santamaria we had mr rivera the parking manager it was terminated what he or their ages of mr removal and mr garcia all of them were under the age of thirty all of them so to say that that is in any way indicative of age discrimination i think is a far fetched miss mr montoya says you may have fired other people but you didn't fire their people in comparable positions who were who are over forty what is the record  was it was in fact nobody else in this scenario that was involved are we to take into account as we look at this are there are there firings that occurred to same time or roughly the same time but i think i think the most important thing to look at here from the standpoint of was there in fact but for cause age discrimination and i do call it the elephant in the room because the first time i looked at the record it's shocked me and that was that on the very same day mr snow who is thirty garcia october of zero nine i think it was part of the process when mr santamaria came in again he was learning the ropes of that particular facility as he saw things then he made moves and the movie made here was on the sales side looking at how this particular dealership was run mr snow and and mr eagle working in tandem were in his view the cause of the problem associated with the c s i scores things did pick up after mr santa maria took charge but with that what the district court did without was really the opposite of what this courtroom provide and in fact the district court once again construed the facts against mr eagle after mr eagle was gone when the dealership picked up instead of concluding that it was because mr hancock was gone the district court concluded that it was because mr eagle was a relevant in either either respect once he's gone it really doesn't matter if he was fired for an age related reason it doesn't matter how well they did afterwards and if he doesn't buy her a true good reason it does so i'm not sure why the subsequent events have any effect and i don't think it has any i don't think it's important except it does show that the district court was engaged in a pattern of concern and facts an inference as against my guy i will leave you with this when when have you ever considered a case in the car dealership context when the most profitable employee who has no record of discipline no record of treating customers poorly is terminated when his younger are substantially younger ten years twenty years younger his peers remain that is really when he hears age bias comments or not doing anything about them when you consider the facts in their totality summary judgment was inappropriate if the court doesn't have any questions i'll think the court and sit down and thank you judge