g the our clients are nine employees four former employees of casinos in blackhawk colorado who were fired within the st ninety days after another company took over the operation of those casinos and were terminated in a way that this proportional and negatively affected older female employees at the casino can we pause there because it's been a little bit frustrating trying to track the numbers  them were not renewed after the ninety day probationary it's ironic some of the six hundred and thirty three females twenty seven males right now break it down into how many males over forty as a percentage how many females over forty as a percentage were not renewed or word it turns out on page twenty eight of our opening brief now that's in terms of the age breakdown in terms of how many were again how many were not we also have statistics  the report and are well well do you agree the numbers have been bouncing around from the time of the complained until the pleading at the briefing and so forth i'm just trying to get my hands around right and what are the numbers the numbers are approximately sixty as you pointed out of those of those sixty roughly thirty were over the age of forty roe you're right why are we roughly where we have thirty one and twenty nine it's on page twenty and twenty eight ok that's a different number than i've seen i've seen thirty three and twenty seven yeah i mean the problem we drafted the rd minute complaint is we did not have full access to the information we got and that's why i'm asking now what is the final tally and the percentage is over forty and so forth need to measure and compare the females over forty in the males over forty and right now it's just kind of a guessing game for me at least you know the percentages are i mean again i the details  six are in the in the record i haven't memorized those statistics the key factor in the case is whether or not or at least one of the key issues is whether the course will recognize a claim under title seven for discrimination against older women that's a straight up legal question i think the facts are in the complaint and we adequately allege them and put them forward there are two ways of looking at that issue one is the way the judge moore did which is to say that what we're trying to do is to cobble together a claim based on two different statutes in a way that was not intended by congress the other way which is the correct way is to view this as really being an extension of already existing law that's been in and in fact recognize for over close to half a century of for prohibiting discrimination because of sex plus another characteristic in philips versus martin marietta it was discrimination against women who had preschool aged children in lambs plus i was six plus another characteristic that wasn't protected by a federal statute i'm sorry that was discrimination sex plus a factor which was right the school age children that wasn't covered by another statutory scheme like me so it's not really comparable well it is comparable because the district court in arnett pointed out whether or not it's covered by a different statute is irrelevant i think it is very relevant that other statute provides  different being different damages different terms of different essentially evidentiary standard there's all kinds of distinctions that limit the relief under the a b a that aren't necessarily present under title seven why isn't that relevant when you're trying to combine now the two under title seven because when you look at apply the title sevens for a number standards for example the thirty nine year old female player we had was jennifer ryan such a plaintiff would be able to bring a sex as a discrimination claim because she's not forty years of of asian not covered by the statute so under the good moore decision that plaintiff would not have any claim for sex but say just  reaches age forty it would mean that because congress has an act that a statute that specifically protects your because of age she cannot bring a claim that you could have brought here before but isn't that congress's duty to fill if there's a loophole but should we legislative history nothing indicating that congress intended to deny protections to older women because when it enact the two different statutes that confides logic that when congress and that's a statute with specific protections that means that person  less protection than than she would have had earlier it means that i mean if you take this logic congress and that these statutes in the late one thousand nine hundred and sixty s in the middle of the great society when they were trying to protect individuals from this criminal nation and again there is nothing in terms of logic or in terms of legislative history to indicate the congress did not intend to cover that particular group of people in a make it unlawful to discriminate against there certainly are all kinds of evidence that congress intended that an age discrimination claim brought under the a da under the standards that apply to be a da not under title seven and the standards that applied to todd has been the reason again you have to go back into the into the history the reason why there are two different statutes as far as we can determine is because none of this is there any indication that congress said well by enacting this we are leaving a loophole were we do not intend to protect older women that the evidence and if anything is strongest that congress intended to protect older women along with younger pivot discrimination because a person reach that age just as a intended to protect women who are single or women who become married or women who have children of a certain age which is of a form of age discrimination in reverse that that same logic applies of the situation it would have been it would have been unlawful to discriminate against older women before the was an act so to say that by enacting a statute to protect children ploys then it and congress intended not to protect them is totally illogical would lead to an absurd result or people who need the protection of the laws shown by academic studies and shown by the cases do not have those protections and that's why we submit that the court sh recognize this type of claim i'd like to reserve the balance of our opening of my opening to my co counsel for discussing the summary judgment honour's i am addressing the summary judgment motion but i'm happy to answer any questions the court may have on any of the issues i want to touch just briefly on summary judgment on the prima facia standard that was applied information that we submitted there was data that provided that the median which showed i'm sorry that the median ages of the individuals who were fired is ten years anywhere from ten years to twenty plus years different than the than the individuals who replace them i notice in the dependants brief they said well you're just pulling people out of thin air you're not talking list initially three currently and the st five individuals who were hired to replace the cage cashiers two thousand two hundred and eighty nine dollars is the casino host there were only two of and they are replaced the st three individuals hired to replace them because this case doesn't involve the one to one replacement but a group terminations followed by hiring in groups it was never posed as a rep for not going to eliminate these positions although there are some testimony to the contrary but that's the consensus by the company in the company's position we can't do the one on one this plaintiff was replaced by this new hire and so you have to use something like averages or median ages and on this issue what i like to point the court to is loose lester hearses bill sack which says it's case the plaintiff had sought to present evidence that seventy five percent of the people who were let go in this layoff process were in were age fifty five or older and the trial court rejected that the th circuit said now a jury could infer from that that there was an age bias and that and because statistics are available at both the prima are available to demonstrate age by us at both the  facia i can't think of the word prima facia stage and at the pretext stage there's no reason to exclude it just because we're offering it on the th when you use the word media in the statistical term what do you mean by that well the median is you let's say you have twenty people the median would be the caesar with eleven have the median would be the middle person it's slightly more accurate in this sense that if we used average as an instead and you had one person who is either significantly younger or significantly older that would pull the average up or down seven year difference was sufficient to make it more likely that age was a factor can you i'm a little bit confused on your q can you distinguish for me on your on your disparate impact case what your argument is on the prime aphasia case person's spirit treatment can you be more specific because i could go so many directions well let's say let's talk about the spirit treatment ok i thought i thought i understood your argument to be that all they really need to show on that th paul is that is that their jobs want eliminated that's the can trick standard when we do argue so as an alternative argument you're making today i mean rather than argue about which standards  statutes here the title title seven and the a d e a a but it could also be any two other federal statutes prohibiting discrimination to your point judgments these are different statutes congress could have amended title seven to include  a as it did when it passed the pregnancy discrimination act in one thousand nine hundred and seventy eight saying pregnancy discrimination is a form of gender discrimination that's protected by title seven instead in one thousand nine hundred and sixty seven congress passed age discrimination in employment act they have different standards and different remedies to the growth of the f b l case went into great depth about this and the fact that forty two u s c section two thousand each to them has a motivating factor standard under title seven that eighty despite the fact that it included some amendments around the same time was not similarly amended and continues to use the language because of such individuals the gross case not you mention that  one that talked about this issue at the prime aphasia case stage on summary judgment as involving merely that the position was not remained open following somebody separation the more recent cases  have moved away from that including some opinions from the th circuit the windstream communications inc two thousand and fifteen case from the th circuit required as part of the prime aphasia case that the challenge action occurred under circumstances giving favorably than others not in the protected class the same prime aphasia case standard was articulated in the twenty five case khaliq the united airlines so the more recent cases have all required something more than a mere presentation that a position remained open which makes although we've never we've never said anything about i think it's to paul and perry where we were pretty clearly said you can you can establish that th element by just showing the positions remain ope otherwise either it is it is a fact that the jurisprudence is not one hundred percent clear on what they are worth stage requires but i think it is appropriate in light of gross b f b l that there require that there should be required something more than a way they did the math with the numbers may not be in the complaint but right well into dismissed i guess i'm quite they haven't had a chance to do the discovery i guess i'm questioning the prime official case standard at the motion to dismiss stage which resulted in the dismissal of the sex impact that was claimed three that was dismissed on the rule twelve motion and the district court analyzed the rd amended complaint again plaintive had plenty of time to get the numbers straight and to your point judge philips that presentation left quite a bit to be desired  plaintiffs now point to a chart that they contend is based on paragraph thirty four dollars to thirty five dollars of the rd amended complaint that those allegations plainly pertain to the sex plus age client and the chart looks chart was nowhere in the complaint the chart was nowhere in response to the motion to dismiss it's not the job of the district court to try to perform some mathematics and gymnastics to back aged a to sticks out of a sex plus of st impression at the circuit court level it's it is it is no circuit court has actually adopted if you're talking about the six plus age issue then it is the case that no certain court has made it in the positive or the negative i don't realize i don't want to play in or game the know is that a case of st impression at circuit court other circuit courts without extensively addressing the issue have found no error with the strict court court has said nothing on this topic there's this contention obviously throughout the briefs of plaintiffs and the of miki that the u s supreme court as condone these types of claims by authorizing sex plus claims couple of questions that i was hoping you could get to do i understand correctly that when you take took over the casino you basically said all these folks you're all new hires you got a ninety day probationary period and we're going to watch you monitor you closely during this period and at the end of that period basically they understand there there's maybe going to be a decision made presumably but did you tell any of these folks that you're going to evaluate them as new hires based on their past performance then surely i don't and my nd part of the question is when you terminated all these folks did you tell them that that standing if you told them all you didn't pass a probationary period which would imply something happened during the probationary period not that they were going to be terminated based on their past performance i don't know that it does imply that your honor i mean what we you know we took over an existing operation the the managers from the prior operation became the managers or affinity and as such they had knowledge of the historical performance of these workers and it would have you know frankly been a disservice for them to say we're going we we must blind ourselves to what we know about whether you're a good employee or not and you've got a fresh start you know what you were on the rd step of a disciplinary action you're not you know if you were tardy one more time you were going to be fired but congratulations your slate is wiped clean it's appropriate or these managers to have relied on what they know about these employees and for them to have relied on past discipline in deciding whether i'm asking did you tell the employees that because that is not not that's not what it sounds like that they were not and they want told that when they were terminated they were terminated because they didn't pass the probationary period what should that are meant to them that somebody reviewed their personnel file some unnamed person reviewed their personnel file they were being terminated based on past performance respectfully or on a this is no different than would occur in any large scale lay off employees are not sat down and you know having you know half hour meetings about what i'm asking what she told them they were they were i'm asking that she told them because that's very important summary judgement stage what the employees were told when they were terminated and here they were told that they didn't pass the probationary period that's right they didn't pass then when you get to be you know see suddenly it's not just that they didn't pass a probationary period you tell the e e o c why here's all this information from their perch mel files we didn't mention this to them but here's the reason that each of these people were fired correct but they didn't pass the introductory period because of the if they want to hold that is my point that doesn't that create a question of fact about what your true motivation i don't believe so your honor there's never been any change in our motivation there's never been any shifting theories about why people were terminated the fact that someone you know again didn't pass the introductory period there are reasons that or on the chart contained in expected the probationary period to mean what they were told when they were fired about the reasons for their terminations and then what your position became later and i'm i'm struggling with that sure and respectfully are out of what they were told  i don't think has a bearing on whether there was a scrimmage nation here because they were told you didn't pass the introductory period we had reasons for concluding that they didn't pass the introductory we have many cases saying that when the employer identifies one reason to the employee at termination right and i drove distinction between new reasons and different reasons again the reasons have never changed here when called on to provide more detail the company was able to do so and the detail that the company provided was entirely consistent with what was told to the employees at the time which is that they didn't pass a ninety day introductory period that's right for various reasons relating to poor professor we're told that though is there any evidence they were specifically told oh by the way this relates to your past performance  they were given a consistent message as any employer does to its employees in a large scale layoff the other reasons for pretexts again there's this allegation of disturbing procedural irregularities which is what you just highlighted the fact that employees weren't express lee informed that we would be looking at the entire body of their work which i've respectfully i don't think establishes pretext there's also a claim of selective enforcement and it's important to bear in mind here that the plaintiffs were provided in discovery with disciplinary records on all of the other employees in their jobs issuance and the best example they could come up with is that cashier georgann with bute who had two incidents of improper use of a cell phone and a negative comment to a customer they tr compare her with a bartender somebody in a different position named rosemary montoya who over served a coworker the fact that that's their argument on selective enforcement that's the best they could do so obviously they took the you know what they view as the least quantum of discipline associated with any plaintiff and the worst thing that any non playing it did and try to compare those two was pretty telling in terms of the fact that there was no selective enforcement here there's also a comment that would be employed subjective criteria that they were to be sure they were objective and subjective criteria but the cases make clear that there's no in subjective criteria in and of themselves are not evil it's only where you can show that subjective criteria were applied in a discriminatory way well the problem that they had here is that the employees were only told one thing which is they didn't pass a probationary period and your various department heads when they testified either couldn't remember or did or said knight you know i didn't i don't know why these individual employees were terminated and they certainly didn't say well i reviewed their prior personnel file and despite nothing during a probationary period i decided that the right to terminate and there's nothing like that here don't know exactly there's no testimony from individual supervisors about what the rationale was i would urge a courtroom the fact really was a group layoff doesn't change the need for that employee's files where is the deposition testimony were were something that back set up that some supervisor actually reviewed that personnel file and despite what they said to the employee terminated them for their prior performance sure i think a lot of that is in the record it if you look in the record again plaintiffs say everybody changed their story nobody knew it was going on to be sure there were some managers a deposition who said i don't remember the specific reasons for this person who i decided to terminate five years ago that was there any manager that testified that he he or she reviewed personnel files and and came up with a list of prior attendance issues or performance issues and then  know combined that was something from the probationary period was there any testimony like that on any employee i don't remember that specific and says that money from anybody but they did generally discuss reviewing the you know reviewing the body of work of these employees and understanding who they were as employees based on what they knew about them just a question sure of was the purchase an asset purchase or was it i think you said it was the purchase of an ongoing business right i believe that what's the legal structure of i think it was a stock sale but that's my recollection there it's important for this reason is you are talking about a probationary period i don't understand that if it's a purchase of an ongoing business you can just for ongoing employees you're all on probation you could definitely say that whether it's an asset purchase or a stock purchase just like i could go you know if i'm a business owner i could say this business is not performing as of today everybody is on a ninety day probationary period we've got to up our game around here and consistent with the nature about will employment there would be nothing wrong with eggs thank you very much if your time has expired coun