good morning may please the court i'm kelly case right attorney for the true reason was discriminatory there's a variation on this is the same standard in warren where it says the plaintiff can prove pretext in two ways indirectly by showing that the employer discrimination i would like to focus on these two similar standards of of proving a genuine issue with regard to pretext there's no question that there's a real contraction of the orders of business going on here and the reason gibbs for terminating a measure salaried employee is that our sales business is taking a real hit after nine eleven and nine eleven is a red herring in this case the actual i kind of wondered what what it did to the jewelry business but whatever caution it there seems to be very significant contraction and that that offer right there is something that they look back in hindsight and say listen or or even looking ahead saying perhaps there will be a reduction in sales one of the reasons i selected for a layoff or one of the employees i selected for layoff was robert resco i decided to terminate mr riscoe due to his declining sales one and declining sales and revenues caused by the cost of business that this was an unusual jewelry business one that depended on tourism and if the notion was that people weren't going to climb around that may be the case but it's simply that is something again in hindsight or something that they mean to say but it doesn't affect robert we a get in our opposition to summary judgment things changed and those things that change those are the exact in consistencies that are essentially you're saying is that decision makers were making up stories and the fact that the lawyers then realized that forces are still sultan company i mean they are the puppet masters here they're the ones who created these outside forces  you told me a b c and now you're coming up with new reasons this sounds like the consistent reason we were going to have an independent sales force we're taking off  right thing and that's the very beginning right correct and in fact that would be a consistent reason had they have stuck with that throughout that they did not they said his declining sales they change they change from where anticipating something to happen to overcome the obvious inference that they're not discriminating because they they didn't when they hired you they're not doing it when they fired you about what you know i agree and i believe that we have a strong case and then i would additionally say that the person that hire regarding his termination his fall ergo not performance based soltan did do some things open up retail stores that would impact whether j c penney would carry their line and that's in the record that's not the fault of robert  makes a decision based on the information available to him to time cells were down prior to nine eleven obviously they were impacted greatly by nine eleven as the court noted jury cells probably was not a hot ticket item in the weeks following nine eleven secondly where those sales are going to take place in areas such as southern california hawaii and other tourist destinations so mr sultan made that decision the evidence submitted to the district court is consistent with the reasons given mystery  same actor in france does apply any sultan is over forty years old all stay term was forty seven that's in the record at the time in two thousand and one when the decision was made and it's difficult for us now to set  don't have to be bleeding cash they have to think normally they have to think they are and if they overreacted who are we to decide whether they did or they did not if we have to put ourselves back to that day which is difficult to they began to plan after september eleventh of what to do and then they face these things then and with mr riyadh sco they just converted him back to what he was before they he they had given him special treatment he was the evidence is undisputed that mr i live long enough i'm going to be talking about retirement maybe with my partners in solution the district court properly handled that the comment about do you think you want to keep doing this at your age it's undisputed and they continue to miss like this in the  have here is an benign sort of comments about i'm older than you i called you to live in am and you might have had to sleep in the district court said it's just not enough it's not a direct evidence they are just straight comments they pretext even if there was no direct connection between the common sense and the just charge for example i breach that in the any papers below in the district court did not address that but the reality is it's such a sinister presence to talk about race in the workplace it doesn't have that age remarks and comments does not rise to that level of animist that one might find if it's comments based on someone's race or ethnicity or even religion those cases are cited in my moving papers and so even though it can be some agents remarks that might get us over the premise they should hurdle which they did they still have to rise to the level of specific  feelings were hurt and so what that did to his performance is not before the court and i don't know and i do know that the salton impulse they don't like him and they did what they could to soften the blow taking away fifty five he was fifty four when they hired him as an employee in one thousand nine hundred fifty eight and that's estimated for the court is that i want to work ten more years and it's all this that that's great nobody knew unfortunate as to what happened to him in this context and to have been to many others across the country and there's nothing to suggest that their decision to conduct that layoff and also not renew other people was affected thirty people this prete let me first address the reasons why mr riady scott was taken on as a permanent employee as opposed to being on contract prior to this all happening in defending a police evidence  that the reason that he was hired was simply based on numbers it was based on the economic factors that sultan had gone over in other words that hired him for business reasons he was making more money i think contract person then he would making as an employee which of course is the opposite of what they're arguing why he was terminated the as with regard to the comments of a comment after the robbery that at your age should you be carrying this jewelry would have never been made to a younger person and in fact they didn't provide him with jewelry right away anderson and that it wasn't fact made a couple days after that absolutely age was used as a proxy for any person any purpose there is no imply comment suggesting risk i was too old too weak or lack motivation but that's not the case in and rest goes deposition in the submitting papers when asked ok at that time that paul this is policy that was telling you that they were letting you go did you believe it was because of your age i believe it was yes i believe it was because of my age you know i  chord here when paul came back from vacation that year he said i visited monterey northern california he said i think there is more potential up there do you think you have the energy to travel up there and take care of all those people again that's a comment that's specifically that w