so now we have that out of the way we've got mr kerik who is over forty years of age and is claiming age discrimination is responsible for his terminations from employment with the city of reno he worked a s a employee and with the city for many years he suffered from alcoholism and that led to his first and second dui of these well thats pretextual and also showing that that that is really not the reason well it would also seem to you know since he has to have a license to do this job i mean that's basically undisputed and i think that there's a federal regulation as well out there that says that they've got to have like you know people they have to have licensed drivers so they get into all sorts of problems with i think he attempts at some point to be i mean it seems to me he would have to show that there are other people that can do this job without a license and i didn't see that in the evidence in terms of i think there was some mention of other people but i didn't see them as similarly situated they are similar situated with all due respect to your observation your honor in that these people were all people who had a suspended license is just as a result of that one and they did with that what did they have to have a license to for their job to drive they were operators just like the places and they but when you're talking about conduct people don't have to be drunk and drive and have to have a license to do it that you know that's a different situation obviously if you're an alcoholic sitting at a desk job and he said i need time off to go to rehab so that i can actually do my job it's different but when you're an alcoholic and you drunk drive twice and you don't have a license and your job is to drive i how do we get past that well you've moved into the a b a part of the case and i'd like to move you back to the age part of the job that's that's another issue that's before this court is is strict replacement evidence necessary we go into it what evidence is there the evidence that i talked about the comparative evidence of the other people who were substantially younger than him who got duis who got their driver's license suspended and who suffered discipline less than terminations that's the evidence they did give them a chance the first time right they did that was regarding the same course of conduct and that what they terminated him that on that occasion remember and he appealed that to the civil service commission and he got a break they suspended him but that was for the same two duis to get it considered the same conduct at the time what happened was d m v nobody first saw this and the duis weren't his only issues as far as that goes but we'll move on let's go to the age discrimination i still think on a prime effaced a case of age discrimination you've got you know you've got to show that you were replaced by a younger  substantially younger employee with the same or less qualifications he has he is minute in his deposition that exists not know who replaced him the age of his replacement or whether he was replaced at all and what you're you know you're kind of saying on the age case you're saying well younger other people got other sort of breaks but that evidence is really going to whether he's qualified for a job on he still has to the kind of facia case for age discrimination he's still got to show he's got to put some evidence think thank you all keep that in mind as i go through here but we at the moment we're focusing on the ages from a nation and the weather there was something that showed there was any indication of age discrimination as opposed to simpl and in each of those cases there's a there's a real significant difference and that is that there was only one dui involved in those now the business decision to allow one dui came into play because when the department of motor vehicles suspend somebody for ninety days after forty five days they would normally allow them to return to work with a limited license in this case though what happened was mr kemp got two duis within the space of forty thirty days so we already knew there was a second dui going on that was going to prevent him from only having a forty five a limited time for doing this so that's a very significant difference here is that you have the two d people had to deal wise they were in the decision was to terminate except in one case and that was an individual who worked in the maintenance shop and he was different because he's doing a different job he's not out there on the streets with just the two people in the crew he's in a shop with eight people they can all cover for him he also had had specialized training on doing the smog checks and so the city had a very large investment in that particular person and he did not have the same situation at all that mr kim that the city faced with mr kerik so no i think the forty five days is probably the largest difference there was also a hiring freeze back when those people were terminat and that's sort of the same issue if you will that is involved in age there's simply no way evidence that the disability was the reason for the the adverse employment action but not only that and that's the one that the lower court relied on the ground but you're free as a matter of law and in all the way to look at further issues that were raised in the lower court this person was not even disabled to begin with he wasn't substantially limited in a major life activity for instance he testified that he had mere fact that somebody is younger isn't enough you have to stow similarity or in our case we showed just similarity between the treatment of those individuals there were reasons why those people were treated differently the a reason you know they only had one dui and only a forty five day suspension that had been the policy for even before mr vella became they've been the policy there for ten years before mr burrell a who was the director at the time of this incident came along qualify for just that forty five days it's fanchon or there's anything else involved then you're out and here there were two other things involved first he had the prior disciplinary actions second he had a second d right away so we're not talking about forty five days in this particular case we're talking about much substantially longer period of time and that makes a huge difference your honor and it shows that their policies have been consistently handled based on the time involved is not based on age or disability