he's thirteen dash three three eight two donald snyder versus pierre's french ice cream company or argument not to the fifteen minutes per side mr good for the  the court i'd like to reserve four minutes for rebuttal ok my name is jonathan good and i represent donald snyder in this appeal respectfully request that the court reverse the trial court's decision to grant summary judgment to peers of viewing the facts unlike most favorable reasonable jury could return a verdict in favor of mr snyder this case involves an age discrimination claim mr snyder is claiming that he was subjected to a hostile work environment and that he was treated he was disfavored when younger workers were afraid mr snyder went to work at piers he liked his job in two thousand and seven he worked on the dock and he got a new supervisor job it injure john bid sure was in his twenty's and since two thousand and seven until when mr snyder was laid off in january of two thousand and ten mr bit in germany daily comments to mr snyder hey old man you're too slow by the way if was up to me i would have never hired you and he made these comments to mr snyder four to five times a day every single day and according to mr bridger he made those comments up until the day that snyder left on layoff mr bender also did not appreciate of the p r s was sending him older temporary workers and mr bender when complaining to his supervisor mr cillian hey what i don't appreciate you sending me these older temporary workers they can't handle the freezer the freezer is a harsh environment not that type of employer that has any kind of bias against or that discriminates against older workers but that kind of cut against your your claims i don't think so when mr bit injures making daily comments that he did not appreciate the older temporary workers on the dock and that he's making verbal comments to mr snyder and other older workers on his dock right into the face of these complaints what's the record as to the action actions that mr snyder and others took in terms of reporting this activity of the twenty year old supervisor to upper management mr snyder complained recalled and he was seeing the news being passed over in favor of younger workers mr snyder made went into human resources and complained about you know i think there's age bias going on here and he complained to  n resources and he did file a grievance regarding the use of younger temporary workers the two climbs the disparate treatment climb in the hostile work environment climb really dippin down two discrete sets correct to i think a bit unsure had absolutely nothing to do with who was laid off and who is recall here well he influenced the decision makers as our point well what's the specific evidence of that well he directly went to dave cillian any complained i do not want younger temp workers on when a general way there is some evidence that he might have said that but there's not any evidence i think he played a role in the disparate treatment of the workers assigned to him that he influenced shelley roth gil solvent and dave cillian and the proof you have of that is that some other  tab you think that he there's evidence of mr bit injured said to mr cillian that he didn't like having the two workers assigned to him well and he said the free the freezer is a harsh environment and that line of thinking is also echoed by the president shelley ross saying the freezer is a harsh environment for older workers so so it's some point those things were said to mr  and therefore mister bit into your must have influenced what happened in connection with the disparate treatment plant i don't think you're going to get there i mean i expected i expected you to agree fairly readily that the two are really not related to any great degree i think there is i think they're all in the nexus all from all these comments all these factors all these players are interrelated and they play a role between mr bin german's solving him and shell iraq so based upon all those comments we believe that there was an objective lian subjectively adverse hostile work environment in addition mr snyder was disparate really treated when compared to the similar situated younger workers younger workers were favored while mr snyder disfavor there's two glaring examples of this snyder her peers recalled three union workers for seasonal work in the summer of two thousand and ten those pogo leskie mr crowd a large pallet of product they requested him to take a drug test and he refused and so they gave him the option to resign pierce knew that mr snyder was next in line to be recall for the seasonal part time work which they had previously given to others what what why just a minute i want to i want to ask you about that there is some confusion in the record about the description of these recall as being temporary but for these union workers there's no indication that they are the same kind of temporary employees and as these in other employees who were sent over back some sort of temporary employment service who were paid less and didn't get benefits i mean when when a union worker who'd been employed fool tan was don't see how it could really be otherwise i mean at but if you think there's to be evidence in the record that supports the position that they were somehow called back in to reduce our e and with no benefit i'd like to know about it but it seems to me that although the records a little confusing we have to understand it temporary here is being used in two different senses well position and his rate was reduced by from seven thousand dollars down to sixteen dollars but he still have the benefits but he still got the benefits yes so i mean so the answer is there's not anything to support the idea that the recalled union workers were somehow in the same category as these folks or that the employment agency i don't see i don't have any evidence where the union workers were recall nine ten eleven dollars an hour with it's ok and related to that i know you think sample of the recall  of the workers in two thousand and ten and you've argued this as evidence of disparate treatment but even though piers had on occasion recalled regular employees before the post of these agency temp there was no policy that here had and it was not a part of the collective bargaining agreement that pierce would have to call it through the regular laid off employees capacity that was not a policy correct no it was an apollo k and so the fact that pierre did not have such a policy in forgotten their collective bargaining agreement p could impact news agency attempts if it chose to to reduce the cost of whatever correct they could be it wasn't a policy but it was a business practice of theirs for many years to when there were union employees on layoff that they would call those union employees back first prior to bring in end times and the point of the summer of two thousand and ten incident with pogo is that when snyder is next in line to be recalled all of a sudden pierce changes its business practice him and calls an attempt under the montreaux that we need to save money well if that mantra held true i think you've answered the question  and if you have you'll have your rebuttal time thank you it please the court michael chose me for the apple leap years french ice cream company good morning your honor this case arose after peers which is a small family owned ice cream company in cleveland was forced to undertake these employee offs and these employee layoffs were occasioned by the fact that the company had lost major customers and was facing intense and increasing competition from multinational companies now the layoff of these employees was accomplished in strict seniority order and there is no dispute about the way offs there was done per the union contract the recalls that took place were also done in strict seniority order the only discretion it appears could exercise relative to these recall decisions  was to exercise its business judgment to determine when it had enough work to justify the recall of one of these union employees and this is what mr snyder is challenged in this case was the company's judgments relative to when it could make a financial commitment based upon projections of work levels to bring back one of these union employees and it's important background in this case to understand that prior to the way offs and recalls in this case the company had bargained very hard w union for the right to use these temporary workers and ultimately mr snyder's union had agreed to these contract provisions to give the company the staffing flexibility they needed to survive through these very tough times as as it was pointed out during mr good's argument the recall of a union employee is a very expensive undertaking for the company they have a much higher rate of pay than a temporary worker they have a very very rich benefit package that includes contributions to the teamsters central states pension fund contributions to a dear union workers for a one k fund for health and welfare benefits and these are not paid to temporary workers so based upon all these circumstances based upon the competition the company was facing the right to use temporary workers and the cost of calling back and union employ what the company determined what determined was it would call back union employees when its projections supported that it would be a long term recall in a recall that might evolve into a permanent recall and when the when the company's projections were such that this would be a temporary assignment finally decided that the company exercised its contractual right to utilize temporary workers and one of the points i think your counsel up that makes is that both made a decision apparently that there was a need for i guess the long term recall of three individuals and they he lost his position resigned terminated whatever you want to call it by that point in time the seasonal uptick in work was declining in the company you know had realized that the projections relative to the amount of work that it was going to have going forward would not support a permanent recall there was an individual so friedman a temporary worker who was brought in and in fact that assignment lasted only six weeks to have brought mr snyder back and to reinstitute all those benefits and the higher rate of pay when the company knew at that point three months later that it was going to be temporary the company exercised its right to use temporary workers there what time of year did you say that was the initial recall your honor was injures being involved being involved in the decision making process there was absolutely no evidence offered at the trial court level that he was involved i mean this would essentially involve a theory that this low level night manager in the warehouse was consulting at the highest levels of the company with the president of the company as to recalls in the company submitted on contradicted sworn testimony from ms roth who was the president owner of the company and mr bidder injure him self that he was not a decision maker relative to those recalls  addressing briefly the indirect method of proving his claim for disparate treatment here the district court properly found that he could not prove the fourth element of his claim that is that he was either treated less favorably than substantially younger similarly situated employees or that he was replaced by an employee and relative to the treated less favorably prong of this element there are two very clear reasons why the three union employees above him were not similarly situated they occupied a higher spots on the seniority list so the company was constrained to recall them first and secondly they were recalled in circumstances where the company had these projections that it would have enough work for a long term potentially permanent recall and there is no evidence of any later circumstances for the company had such amounts of work and refused to recall mr snyder turning to the pretext element which was a separate basis for the dismissal the disparate impact clams or the disparate treatment claim the evidence here is even stronger appears financial circumstances at this point in time were undisputed in two thousand and ten the company sold five million fewer cases of ice cream than it had sold in two thousand and nine it's also one disputed that the company had fought very hard and obtain the right to use temporary workers in these circumstances just before these layoffs and recalls and mr snyder was a part of the bargaining team that negotiated that contract and while mr snyder has sought to portray temporary workers as some sort of source of younger workers avi evidence in the case also showed that the company had in no influence over the identities or the ages that the staffing companies would send to them of these employees i think perhaps the most significant piece of evidence relative to the disparate treatment claim is this there were only three union workers in this case who were not recall but appears mr snyder an individual by the name of charles hone in an individual by the name of stephen b up and mr hone and mr bill are both under forty years of age so what you have is his situation where two out of the three workers who were not recalled by the company are outside the protected age group and this doesn't speak in any meaningful way to the company  workers in fact the company also introduced evidence that its workforce became older after the way often recalls after these layoffs and recalls eighty percent of the company's workforce was over forty years of age and forty percent of the i should say nearly eighty percent nearly forty percent of the company's workforce was over fifty years of age which are really extraordinary numbers to briefly address mr snyder's age harassment claim which was based upon the alleged age related comments of mr big injure who was the night supervisor in the warehouse and there are several separate bases to a from the district courts dismissal of this claim as well first of all with respect to the notion of whether the comments and name calling were based upon age animists mr snyder testified in his deposition that mr bin injure actually treated younger workers just as or more harshly he testified that mr can tally so hard that he was forced to quit the company at that from the record the mr snyder thing that looking at the quantum of comment and the environment that  the the comments that with the bit in your created a hostile work environment and so my question to you with even though there may have been this pervasive these pervasive comments so there may hostile environment based on age eight think given the totality of the circumstances in this case your honor we would argue no that they did not and i think there's been some degree of camp combining or conflating testimony of mr snyder and another employee who testify in this case mr ashcroft mr snyder never testified that he was subjected to daily age comments and i won't get into arguing how many times you know that the term old man or a thing like that was used but he didn't he didn't say that it was to that extent it's neither thorough that he reported this to upper management brought it to their attention is there anything in the record that the company ever did anything to them to counsel mr didn't care about his comments were placed i'm sorry when mr snyder finally made a formal complaint and he did so seven months after he'd been placed on way off the company did investigate and the company did counsel mr big injure with respect to his actions but getting back to your question relative to in and of itself is not severe sufficiently severe and it should be particularly clear in a case like this where mr snyder was never once disciplined was never once counseled there was not a single adverse action that mr bit injured took against him and there was evidence in the record that he did discipline and he did counsel younger workers there was no touching there was nothing physical in this case it was just back and forth name calling in we've we've referenced in our brief that mr snyder readily admits that he was a frequent participant in this back and forth name calling and he was never disciplined for this he called his coworkers and even mr bin injure all manner of inappropriate names  policy but he would call him names such as fat chick pillsbury doughboy and beach whale and these are names that he's calling his supervisor and receiving no discipline this was the atmosphere right or wrong that existed on the night shift employees in gauging a lot of shop talk a lot of back and forth name calling i think the fact that it wasn't severe and pervasive was further emphasized by the fact that mr mr snyder was a union officer he was the steward on his shift and he was a prolific grievance filer in his own right now on behalf of other employees in the record showed that over the course of his employment he had filed nine separate grievances on his own behalf which was a record number for the is that is that does that go war to the subjective aspect of the proc or more to the objective aspect of the prom we're talking about hostility i think that that's a good question i think i think it arguably goes to both of them you know depending on how you i had thought about it more is an indication of the extent to which it  effect on his job or his terms and conditions of employment subjectively that you think it has something to do with the development well i think that's it's a great point certainly given the context of who he was in the union office that he held in his failure to pursue this through grievance when he'd shown no shyness in the past for doing it it probably does speak more clearly to the subjective element but i think when you consider the totality of circumstances that's just it want to do that objective shows that it was not a sufficiently severe atmosphere that the one last piece relative that element that i'd point out and this was also very significant he testified as deposition that he was always able to do his job and specifically that mr big insurers allege name calling never impacted his ability to do his job  testified that the the freezer that these employees worked in was a harsh environment and i don't think anybody disputes this but she absolutely never went this to older workers or made any statement to that effect so i would like to clarify that point your honor i'm was there any additional questions i'll conclude by stating that it's our belief that the district court had several separate and proper bases for the dismissal the disparate treatment claim as well as the age harassment claim i think what we're talking about is can pierre's use legitimate business judgment it by using times or is there more to it than that in the cases where they find temper the use of temporary workers they are not similarly situated and you can't compare the two in those cases they didn't have the plethora of daily comments of age they are of age based bias of hostility of severe and pervasive comments on a daily basis from this frontline supervisor all the way up to the director of operations here so in this instance we have the director of operations didn't would what did he do reflects age bias well he was dave cillian i understand that but do you think i mean what about his conduct reflects age bias well that they didn't do anything to correct we submit that a reasonable jury could make inferences of age discrimination here and disregard peers legitimate business reasons that they are proffered here moreover peers legitimate business reasons that they proffered have shifted over time and that seems to shift when mr snyder is next in line in july two thousand and ten when mr snyder was next in line they shifted in the use temporary workers six weeks later when in november when roberta cruz was laid off and rehired for part time temporary work you would think that if things were so dire appears that they would use that opportunity to bring back in a temporary work say from paying all the pension obligations and benefits but they didn't they recalled mr cruz immediately to the that temporary job so here's legitimate reasons shift over time and that's a pretext