all right our second case for this morning is carson against like county indiana and we will hear first from mr rap  a summary judgment those granted in favor away county claims involving the age discrimination in employment act and also in terms of fourteenth amendment the protection clause in this case plaintiffs all of them were age sixty five and old and in with respect to this most of them not all of them but most of them had worked for the county before was there  anybody under the age of sixty five that you are trying to compare these people to are you just comparing the sixty five or older who reached ired and then came back on a part time basis with sixty five and older people who never retired and therefore continued to have like counties health insurance i think in terms of comparison i don't know that there is actually a really let you come back but it's maybe employment at will with an undermining underneath it we we could let you go and to make things simple let's just assume they decide  that the supplemental health they're offering over the medicare is too expensive because they're in this very difficult financial position so they let go all of these returned retirees you have an age discrimination sixty five we don't have to pay any health insurance at all those people are off doing whatever they do but the retirees we said could have this supplemental plan and it's become too expensive so we're just going to let them go financial considerations if it's a matter of making a decision whether to take away that benefit and while those folks be employed or destroy women ate them all together surely there are at will was going to be laid off that meant that they couldn't show is gross requires that there are eight has about four because they're all these other things medicare you can't get the age out of medicare the federal statu number ten percent of the workforce they said so so tell me why if age is even involved in one of the factors you think there's an eighty eight case and tell me why that's consistent with the thirteen there is identifying that individual has to meet all the following provisions that may not be employed receive health insurance benefits has retired from is over the age of sixty five medicare and in fact i think that certainly there is there are cases that recognize that an employer can request an employee to take the medicare to reduce the benefits and my confusion here is that i don't think this plan was a legitimate arrangement before or after the affordable care act where you've got current employees u that you have to be retired to be part of the plan right and they were not in your point when federal law says and not an employee no more than i think it's either no more than want to know more than two current employees in the plant but that right at no was allowing the insurance policy while they're caught they may have been forced from problems with the federal government but if they conclude that their the benefit that they've been offering is illegal under federal law before or after the affordable care act what are they supposed to do well i think that with regard to if if the they can make it so as a tent that here is to make sure that everyone within the plan is retired that's what mr good seeing and that anybody who is retired as a real exactly at least unless you're willing to pay their full health insurance and have the county's insurance primary to medicare i mean you want pay in the county right away in the county  insured and i think we understand why the county didn't want to do that but there was a route available to it but also serves it incredibly valuable employee and the county is willing to really just keep that person on the payroll pay what's gritting is saying in order to comply with federal law you can't be participating in this supplemental plan that is it that has all sorts of other features to it didn't exist because it's for to take is you're not a retiree if you're actively working right that doesn't seem discriminatory to me on the basis of age or anything it's actually kind of a truism the problem was what to do with the folks that are each person is different in terms of what they may why some people may want to have the supplement some people may think it's a great deal some people may not need it some people may need those wages more than anything else  morning tony overall representing lake county indiana the terminations decision in this case was not because of age it was there was off partly because of big though right what do we do when age is one of several factors i think that issue is best dress by kentucky retirement systems and in our brief we went through the six factors that the court looked at to determine how you address it in terms of a pension plan work in this case a benefit plan and as we explained in our brief by going through those six issues we believe we did not discriminate based on age and i could walk through those factors if you wish and your basic point seems to be you know  necessary but not sufficient to be sixty five for sell or more and it's only the things that are that that fill in that gap both necessary and sufficient that would bump a bump into the  on and explain to me how this was never a legitimate arrangement i can't stand here today and address whether or not the underlying arrangement was proper or not i simply know act's requirement in october two thousand and thirteen was going to kick in so what was new about the affordable care act that hadn't been the case before under medicare what i understand is or at least from the county's perspective what i understood was that as of october first two thousand and thirteen the affordable care act was going to require that the county certify there was problem with the underlying plan i don't know and it could be very simple it could be that here's this giant new statutes everybody starts to do a good audit on all of their my hands and i think you know we better get this  compliance too perhaps i i just i don't know the answer to that i just know it came to everett but it came to end at his attention and the county's attention then as they were doing n a c a review or just seems to be bad p  but well intentioned about the legal requirements i don't think they were but i just don't think that it is not new but it's a i'm confused if you can't give us the smores definitive answer about what you're trying to comply with it's not a question of being wrong it's a question of the county and at now we're confronted with information in two thousand and thirteen that told them they had to do something different i don't think the court has to go back to reach the question of whether initially the plant was designed it may been it may not been the parties haven't addressed that they haven't briefed it the district court in the address that issue it's simply a fact that the plan existed in a certain form and a concern was raised why not give the employees a choice between keeping the job or the insurance and i was baffled by that too here's here's why there are two reasons one is again when the county had this problem they didn't know what to do they went to an outside benefits where as mr gradstein runs with expertise in this area and mr griffin sa here's what you can do i want to present you with two options those options are take those part time employees and pay and give them full time insurance that would rest the issue  like your other part time employees and don't give them any insurance i don't supplemental know nothing yet and then they were medicare i presume would be primary you wouldn't have the problem of people participating retiree fund who are not retired the record does not answer that question i don't know why i didn't put that recommendation in except i know from i can answer the question from outside the record based on what i understand what i understand is for these employees they were generally paid a pretty low wage and employees put much more weight on the benefit plan that's what they really needed well that would not be unique to this workplace i'm sure and i think but my what the universal those are there may be some for whom there may be who would have preferred to stay there maybe but i think the assumption that people were making at the time was no one would want to do that but they wouldn't want to give that up now again i can't point to a record citation that says that but that is my understanding and that may be why mr bru and one of the factors that's in kentucky retirement systems is there some other way of dealing with the problem and here is the kind of don't know what else to do well there's no other way of doing it unless you underlying the insurance arrangements that's right certain what you take them off what you fired and what whatever you can't have this set of insurance arrangement correct and these were the options the two options that were presented way it's not really an age discrimination case at all it's it's an insurance old ability well that would be that's your primary argument for why doesn't why what the county did didn't violate the age discrimination law even though age was a fact that was driving something else it was something that was derivative of medicare and how you structured your insurance plans correct and again that's why we were large upon those that's why relied on a kentucky it was asked about kentucky retirement systems and drugs distinction about that i think with regard to kentucky retirement systems there wasn't an individualized decision that dealt with benefits number one but no termination but the court in kentucky retirement systems acknowledge that you were looking factors that were that that had nothing to do with an individualized decision and for that the what do you mean by individual lives decision it seems like this was a group that the county had all of whom had to be treated the same way that is to say that people who took advantage of retirement and came back to work and you know part time etc who had certain external criteria well the respect of the i mean individualized and in this situation there is an actual employment decision for each and every one to vigil here and through no fault of plaintiffs they find themselves out of contact with their immediate supervisors or department has was a power point presentation the power to permanence there's nothing about it that dealt with performance there's not even in terms of all right if we need to cut costs for a supplier a reason involving the county that we would ask department has make a decision where they want to have a job that's why i think that the problem is that they're alternately is a the downfall for the folks that are fired that's an i argument is obviously that yes a reasonable jury could conclude that but for the fact there were sixty five so what will have the job so what was the choice what should the county have done well they could have given the option really they want to have the supplement or not there would still be based on age sixty five right the decision would still be based in a different lawyer could still suit under that theory you might buy it but but but somebody else and say look you're presenting this unpleasant choice to these employees but it would deal with them on their it would be it would deal with the elimination of benefits as opposed to a termination of a position with one of the other you got your name right but i would have to say is that with the someone who's been hired before and then comes back there's no way they could possibly work for the county if they're over the age of sixty five you have clients in this group who would have preferred to lose the insurance and stay on the job yes i mean that i can't say in terms of the number but i know that some of them had certain significant financial issues the need to that kind of thing i would point out that even with the people that had come the early retirement offer and the role i think of all five looking at that and it's and it's in the record when you look at that the obligation to provide the supplement was only for about five years i want to give an example in terms obligation for the count to provide him with a supplement i think ran out at the end of december of two thousand and thirteen anyways so i mean he even if even after losing his position there's no there's no obligation under the rich early retirement plan that offer that he agreed to several years ago that does not legation them to continue that they did continue they did continue with it but there's no obligation to do so ok thank you very much