my name is called ace and i am counsel for to convict and mr congleton appeals the district court's decision granting summary judgment on his claims that he was wrongfully terminated and denied promotion based on age and that he was wrongfully denied severance do as a matter of contract washington law applies to disc a since this case was alleged under washington state law it is in this court because defended p c l removed the case to the federal district court turning to the wrongful termination claim the issue on review is did the district court here in dismissing congo those claims of wrongful termination based on age given evidence to convict and was over fifty five and had fourteen years of experience with p c l on high profile jobs and favorable reviews all thirty two available positions were given to younger persons and the employer's alleged nondiscriminatory reasons for termination and contradicted stated reasons for from a nation and its previous assessment of material factual dispute either over over the pretest issue that they give either one or both sharp let me begin by commenting on responding to your comments regarding the from the fish case and i'll answer directly the question that you have posed yes employers regularly give up on the the presentation case and making motions for summary judgment because they view it as a minimal threshold showing they don't want to argue that they want to argue the ultimate burd recognition that certain facts that were part of the crime of a should case would ultimately defeat their nondiscriminatory reason for that they're going to offer for terminations and those facts were the satisfactory performance  tell us is that if the stated reason for discrimination to be proved to be is proved to be not the actual reason for terminations as a sufficient basis to go to the jury absent an exception that i come to just a couple of minutes so the question is as mr cong met that burden and does the evidence that he proffered in his prime efficient case help him do that and i think the answer to that is yes and turning first to the first grounds for termination that is offered by the defendant and that is lack of work the answer to begin  with is lack of work only justifies this terminations if we if there is a finding that his performance was deficient because p c i has to concede there were available positions around the country and they regularly hold people on overhead to be assigned to  profile what evidence is there in the record that suggests that he was a good performer well i think to start with the work therefore we've been a in the business for thirty years in big business like this he worked there for fourteen he was assigned to some of the biggest projects one hundred million dollars plus projects that tells you something about what piecemeal thought of them ted cook the person who made the judgment about who was going to be take this position on idea x that yes he was qualified to do this job so there's no question p c l believe him a key people project manager on large projects that's the way it stood when he started i v s during i d s he gets the positive profiler right smack in the middle of it that is uniformly positive frankly high praise for a capable long term employee of p c l during i d s he doesn't get any rich in criticism and all notwithstanding peace deals policy that if you're not doing well if you're in trouble you're supposed to get a written the new job opens up they transfer them to other locations mr connell then said i was open to a transfer i told them that twice during the time i was working on the i d s project and so he still has to accept yes there was work available if he's a good performer so really the lack of work objection or criticism collapses into what you could perform or not who were these you know the allegation is that there were younger people that were substituted for him who were these he going to go somewhere else and there are around the country thirty two different positions that open up and we've listed them on our brief and we list that here what about when i don't with skin in seattle itself i don't think there is any project within the region i believe the answer is there are steps but i can't i know that that's in our brief and i can't even the precise projects but what the record shows and i think what the jury ultimately has to weigh is whether one of those thirty two positions around the country should have been mr connell that's because every single one of them went to a younger person and i'm way that we talking about here well once again your honor it's if we raise them on our brief but they range from i'm going to say thirty two two i think there may have been someone in their fifty's but if you look at most of them you'll see most of them are in their thirt and forty's so what we find here is that the stated reason for termination which is lack of work collapses to decision performance because if you qualify perform there is work and so turning to the question of ha and that would be an interesting question for the jury and they can explain why they check that box but the part they don't want to talk about is the much bigger part of that form which allows them to check the box for deficient performance and it's right smack in the middle of the form and they didn't check it and then again they can't now say well it was you should have known it was performance against even though we didn't check the box for performance we didn't design the box in the corner that says that you aren't qualified for we are so we really meant to check the box back matters they didn't check the box but yes but frankly what becomes even more important you you messed up the ideas project in your performance is lousy and this is why perhaps you would use that word but make that point and say no it's not but it doesn't because it wasn't really what he was thinking what instead as is nothing he lets that pass and they stick to carleton has met his burden of stating that demonstrating to the stated reason for termination is not the actual reason for termination and therefore the jury is allowed to can come us be given the opportunity to conclude that the real reason was bias and i was pummeling about the fact that on the one hand the orally and now that piece just as well even though we never said any of that we actually were thinking that he was not a very good employee performer and in fact he's the reason we lost all this money on the i d s project and so they submitted even though we didn't say that said look in all this evidence it just doesn't cut it just doesn't know tribal not no reasonable trier of fact would ever agree with m decisions two things as a matter of law the judge had to apply here and the key question under yellow and ultimate under reeves is when the plaintiff has offered evidence showing that the stated reason was not the actual reason which mr carleton did the question now is is  internal assessment of what he thought not what he said and so there's no way a jury or judge can ever conclude well i think mr all's guard is right about that i think it really was mr condit this fault that they lost this money it really was and he really didn't like what hin you can never have confidence that the whole point of trials is to allow the jury to hear mr explain why he thought that you're mr congleton explain it and judge will do i really think this internal assessment from mr all start yeah he should have written it down  me i don't know why he didn't put in the profilers but i believe the man i believe really telling the truth the jury can make that searching inquiry and judge whether he is telling the truth but only the jury can do that and what judge what the district judge had to do to find for p performance and that's simply wrong there's no basis for the district court judge to make that factual finding the judge the jury if you look at that it's a profile it's thirty nine pages long it is extremely detailed it has judgments from peers this judge and some supervisors it is covers all aspects of this performance and it's pretty uniformly positive you simply can't discard that evidence of what p c l thought and say we're not going to consider that as evidence that in fact this fellow is a very capable employee he made that judgment that he was not permitted to make it just as bad as that he made the judgment that the fatal error comment this been offered the only statement the p c l has ever offered of evidence of what mr all started p c l said that was critical of and he found that that statement occurred when mr carleton swore under oath that it did not and mr congressman pointed to the fact of the profiler which was done at the same time given the four on the surprises question so there was a deeply l those two cases deal with discretionary basically paid to long term employees and they represented a significant portion of those employees income do you have any cases holding that making the severance payment to employees on a federal basis constitutes an implied contract or separate well your honor i think that the contract is a question of fact and we have to look at what happened in this case waste the court's time point through the facts going through the law you know the law let me just jump straight to the issue that you raise your honor that's a key question here is did a plaintiff raise a serial fact his view that the reasons advanced by p c l are pretext and i respectfully submit that he did not and i will deal with this question of whether the judge found facts or not but on this question of whether there are material facts in dispute as to pretexts the answer is no and let me give you three overriding rationale decide who is going to get the work there is nothing inconsistent about that to say that mr o's guarded may not have stood it at the trying to meeting there's this fear factor that will step in mr conyers and allegations for the purposes of this motion to protect our record here the point you raised about the statements made on the exit interview summary i think respond to that as well i think with the evidence in the record shows is that mr ellsberg did fill out these boxes as lack of work answers came back when was that your are all anybody can say is that it was done in the fall of two thousand is that we cannot be more specific than that the face sheet says october ten we know that it was sent to this outside vendor to process all of the peoples and foot and it wasn't returned to p c l until january of zero two but it's simply not possible not just on stage but i don't think either side can get more specific than fall of zero one and we've never seen anything and what's the purpose of the profiler on the record is confusing to me about that that is the purpose of the profile of the undisputed evidence in the record is that p c l does not do performance appraisals per se in the profiler is a developmental tool it does not attempt to create an evaluation of the employee so that we could condit and focus on the areas that he needs to develop it's a developmental tool it is not something that you can compare across the employer employee population but as against the various attributes that each employee is exercising time let me let me just ask you performance they're going to note it down to three responses on the form and that that that that's a reasonable inference that on summary judgment has to be drawn in favor of the nonmoving acknowledged all throughout but there's nothing false about the lack of work to follow up on the question that dr smith placed to council in point of fact the status of the seattle district is understood we went from three senior project managers to one from three construction managers to higher level positions down to two with one of them being ready to be transferred momentarily at the time we made o martinez went further than he perhaps should of and certainly further than he needed to in his comments about the profile in point of fact the profiler whether it is a performance appraisal or not does not get at them does not get to the issue same situation as we sometimes see in the same actor cases the same person who supposedly right then plaintive would have us believe accurately so well in october or fall of one subsequently makes the decision to terminate why is that there's no inference to be drawn of age from that and then you look at the various other factors that plaintiff has cited to say there is disputed facts as to my performance and there's a couple that the council just raised that i really feel the need to to respond first off his comment that we know that mr carleton was a good performer because he was assigned a substantial project such as i d s we know it's undisputed in the record that mr conlon was a sign of the project in because we believe the developer was going to have a personal friend of his accountants working on the project and we thought that that facilitated we also know from the record that the management team placed him there because they believed he was going to be supported by a stronger construction man involved in the bread and yet they don't bother to carry a record about employees that's that's a little hard for me to believe because the profilers used for different purposes is not used to it i could find it's used as a developmental tool and in fact what does that mean using the profiler you know your honor it is not a record i can't tell you the first time you used it let me respond very specifically to the question that he never received any criticism counsel is expanding dramatically on one line in  declaration he did not satisfy his burden under fifty sixty to come forward with specific facts because in point of fact the undisputed testimony is to the contrary in mr conne of this deposition which is in the record your two fifty he was specifically told that mr all's guards would treat him congleton as though he had personally lost the money whenever he was doing forecasting he testified in his deposition again on the record of four to fifty that his conversations with it that's at all scarred from present in the room who led him to believe that he content was going to be the fall guy for this project everyone knew was a disaster and finally respond to something that i think is that was never disputed below it was asserted it was an undisputed fact any indeed if you look at the transcript of oral argument in supplemental excerpt of record at page eight eighty one at their briefing below never deny when we're actually making the record below the undisputed statement was for medals that he told them about the failure so to that agree that judge martinez found something that is plain for now th all of that and finally to say that there's no criticism of him is blind weather briefing itself when you look at page twelve of their reply briefing mr campbell to think concedes that he was criticized for the episode and that the district meeting in which the project is being fifteen minutes before the rose garden his boss goes before their bosses he writes the project down by an extra three hundred thousand dollars he concedes he was criticized for that home when they say an employer would be entitled to judgment as a matter of law summary judgment if the record conclusively revealed some other nondiscriminatory reason for the employer's decision independent evidence that no discrimination and your honor i think would fall under that precisely the undisputed evidence that is in the record is abundant that p c l had a reasonable is not a you're doing great or we need to fire you today there is a range there and p c l had abundant evidence about mr kahn the terms relatively recent unacceptable for poor performance on that product that's not disputed what is the material fact material fact is did the decision maker have an honest belief about the nondiscriminatory reason and there is abundant evidence unco conclude that p c l which had a project that was budgeted to make over a million dollars and in fact on mr congress's watch ended up losing well over two million dollars that p c l had an honest belief that his performance was unacceptable and for of whether the severance pay would be conditioned upon the execution of a release was raised in our opening papers look at excerpt of record page thirty five we put it in evidence from the very opening motion here the fact that mr  thought was not the grounds for any action that they took and lee and we took that position in the trial court and we took that position in this court as well as lou sure i understand you're saying you in the colloquy with the district court you may qualified for to run this very large ideas job in any case the court does know is that it's a big office building down the street fifty some stories and the and mr cook's unqualified testimony and depositions ye