supposed to but he was unable to attend due to personal reasons all right thank you and i apologize for any confusion with regards to that point your honor is my firm represents mr michael o'connor in his age discrimination lawsuit against simer l l c and we're here today because the district court for the district of idaho erred in entering summary judgment in favor of simer with regards to mr o'connor's age discrimination claim as a district decision the court's role in summary judgment is not to weigh the evidence and determine the truth of the matter but to determine whether or not there is a genuine issue for trial the court that's appropriately recognized what it was tasked to do in summary judgment and then promptly did not do that well we're at this is a strange case for me we hardly ever see mcdonnell douglas stage one summary judgment as we see them typically after we've gone through the whole  while three stages but i'm trying to figure out in this case what evidence you had of age discrimination the difference in the age from the person replacing your client wasn't sufficient to give rise to a presumption of discrimination so we have to have some other circumstances that that establish that the judge your client said well my boss made a lot of a just common sense but when  he asked what they were couldn't remember them let's assume that's all you had would that would that be enough but your honor i think we're assuming a situation that doesn't exist that's what hypotheticals are fair game so start with that one no your honor i did i believe that that would be enough the courts upheld today that explicitly ages comments have been enough to override them but i agree that explicitly ages comments are enough but as i understand your client's testimony on this point there's some other stuff that may be better for you he said my boss made lots of a just war when i could it's just so long ago my memory is faded i can't remember precisely what they were and the judge said if you can't remember it they are not going to use those to get to get your burden is that a credibility determination or is that a failure of proof that's exactly what that is your honour's the judge weighing evidence  judge impermissibly judging my client's credibility he is saying that horrible comments were made with regards to what he can identify any of them but that goes to his credibility yes it was weight because he is saying that the comments occurred he's saying i can't remember context i can't remember specifics but he's not saying that the comments didn't occur but he but it's the only thing he says is that they were agents is not a legal conclusion rather than a factual i threw the comments i don't believe he used the term a just your honor he said i get a lot of age related comments some are great some are horrible comments some are with age some weren't with age she described them as horrible comments that's not a legal conclusion he went on to say he tells me i've been there too long that basically because of my  specific comments and they made they may well be enough to meet what's the very small burden you have at step one i was trying to focus on you said the judge made a credibility determination when he said if you can't remember any of the comments i can't use them i'm not sure that's a credibility determination as much as that you've got to come up with something specific but your honor i do want to pick slightly and parse out the difference between someone saying i can't remember whether comments were made made or not versus someone saying i can't remember the specifics of comments being made someone saying i remember the comments being made but i don't remember specifics of them i submit your honor is a clear issue of credibility and whether or not the judge or the jury the fact finder is going to assess that this is credible that this these memories are credible but there is a distinct difference between someone saying the comments occurred but i can't remember the specifics of the comment versus someone saying i have no idea if the comments even occurred there is your best case or do you have one to you can cite for us that really clearly shows that this meets the burden i know this is less than a preponderance of the evidence and very low bar at this stage do you have a case that you can cite to that gives you your best case as to why th question if you don't have a case or just your honor it would be the it would be the cases cited in my in our briefing have repeatedly said that the totality of the circumstances much in east must in each case create a reasonable inference that the employer's stated reasons were a pretext or a lawful age discrimination that was a discussion from conall versus bank of boston which is the st circuit case going into a northern district of california case off eel versus holder in which the court engaged in totality of the circumstances analysis and saying for now however it is sufficient to clues conclude that taken as a you have in this case that would give rise to that inference and put aside for a nd the general statement that well my boss made our statements over time but i can't remember any of the tell tell me what specific evidence you have that meets your evidence you have yes your honor the numerous explicit comments that we submit are explicit and the part of this case which numerous explicit comments so you cited where he refers to telling us that there were numerous horrible comment ok you know you might be too old for this job for a field service job ok and i just feel when he tells me i've been there too long that basically because of my age he wants me out so i have three get wearing the record because i was looking for were in a record as a state and you might be too old for this job for your honor and then you have to couple that with the other the other evidence that from which age discrimination can be inferred and we submit that one of the absolute keys in this case is the issue of salary pay and ten hazen paper the supreme court says that issues such as salary and tenure are amicable in a vacuum or analytically distinct from age but your honor there are numerous cases saying that there can be an issue of fact as to whether or not salary and tenure are use it's a proxy for age and i submit your are there is a clear issue of fact in this case as to whether or not simon are you salary and tenure undisputed hundreds comments regarding the mr c connor has been there too long makes too much money as a proxy for age because there is a key fact in the record your honor it is undisputed admitted in the depositions by simer that mr o'connor offered to take a fifty percent pay cut in order to stay with the company and they said no and so the fact that they said no refused him a fifty percent pay cut tells us what we got an issue of fact here that this was really about pay they would have let him take a pay cut and your honor on page twelve dollars of the record the district court's decision the district court again weighed the evidence weighed credibility and made an imprint impermissible inference in favor of the moving party when the district court noted that there could be any number of nondiscriminatory reasons that simer decided to not allow mr o'connor to take a pay cut but none of those reasons are in the record that's theoretical musing that is drawing inferences that work against mr o'connor that is weighing the evidence that's weighing the credibility of the witnesses and that's simply not something the district court is permitted to do at this stage of proceeding i think that's the reason that i said this was unusual normally we see these stage three that got all the gross analysis i assume they have facial you know pretextual reasons for terminating your client they say he was doing a terrible job and then we would get to whether or not you could you could meet your burden of showing that those textural it sounds almost as if the judge jumped ahead to to that stage so let's assume we weren't there would you have enough and their reason was he was doing a terrible job is the evidence you have enough to create a question of fact on the pretext absolutely your honor this alston the determination mr o'connor stem from the head of performance improvement plan that mr o'connor was placed on in august of two thousand and fourteen admittedly the day before he was going on vacation his supervisor told him to read the pip and wheat and so he is placed on this pit three months after he received a performance review that tells him he is meeting expectations and he is given a merit raise a merit based raise and a merit based increase in salary as part of those merit based increases and raise in pay and salary he's commended for the job that he's doing is undisputed that in eighteen years of employment time or get zero issues zero instances of progressive discipline and so to the extent we we jump ahead a little bit and consider whether or not there's a pretax there is clearly an issue of fact as to whether or not they're using this pit as a pretext here given his you know that they told him he had to abide by the tips and and he said i think in response that he didn't believe he was bound by tip because ultimately i think he was terminated for insubordination and so did he receive some sort of confirmation that he was no longer bound by the to your honor this is another issue of disputed fact mr o'connor's testimony that he was told by the human resources specialist that he was no longer bound by the fall examples of bad performance in the pit and there are factual issues with how we interpreted that and how he took it but at an absolute minimum mr o'connor's testimony is clear that he never understood that it was comply with the pip or be fired his testimony on pages sixty dollars sixty eight cents of the record are that i understood that you know at most maybe i'm going to get progressive discipline for the st time in my eighteen year career given my recent merit based increases and increases in pay increases and salary not all of a sudden whoa this is disputing conflicted testimony on this point but it's his testimony that she agreed with him that when he presented documentary evidence that the the basis for the pip was factually false that she told him i'm throwing out all the  all the basis for the pip and then there is admittedly disputed testimony as to what what the implications of that were and what mr o'connor understood the implications of that to be job he told me i'd been there too low he told me times you should find something else to do and he told me that before i don't know if it was that i was too old or something to do with age so he he didn't testify that his boss told him he was too old he testified that he told him we'd been there too long correct thirty seven thousand three hundred and seven what you can say you're going to come back up why don't you take a look at that maybe you can address it when you come back up  you honors may it please the court my name is david barton my partner christine burns and i represent simer the defendant in this case the district court apply the appropriate standards in this case and found that in response to simers well supported motion for summary judgment this court to rely upon comes from lower city monrovia the low opinion was amended by this court because it the court was concerned that it might be construed to p d f summary judgment so after l was issued the issued an amended opinion which said the following the principles described above did not prevent the summary disposition of maryla suits but simply ensure that one genuine issue of material fact exists a civil rights litigant will not be contests that he was fired for which it emit reasons so the question is and we can't use the replacement so we're looking to see whether there's any evidence in the record that might lead a reasonable finder of fact to find age discrimination and he says put aside the general statements my boss told me all the time lots of times you've been here too long he made remarks about how the younger people were cheaper and smarter  much you know and i must say it's not the strongest evidence i've ever seen but doesn't it get to that low bar that we that we talk about well again the low looking at low as well i think it's important to focus on that because that's where the very little very little language comes from actual evidence very little of such evidence is required so really low in the actual language from what we find that what the court is saying is when the plaintiff has got actual evidence substantial evidence significant evidence evidence that gets you passed or could get you past summary judgment then very little of that kind of evidence is required in order to pass the test so we shouldn't misconstrue love so we're talking about not i'm not sure we're talking about very little of admissible evidence and so why isn't it in this civil evidence that his boss said to you've been here too long you're costing me a lot of money and these new young guys are cheaper and smarter ok good questions that's hasan paper of course the  that supreme court decision made it clear that decisions that can be analytically distinct from age do not create an inference of age discrimination unless the context suggest that somehow the employer was trying to get rid of for example more expensive workers and that's the point of this case here there's absolutely no evidence that simon was trying to eliminate more expensive workers or older workers for that matter in fact the individual who replaced mr o'connor was exactly his age just three weeks younger that individual still works for simer today i thought i thought he was eight years younger there were two individuals the individual who st replace mr o'connor was three weeks younger than him the nd individual four months later that was replaced was eight weeks younger that's correct eight years younger  if you're ten years or more there's a presumption if you're ten years or less there's not what if you were nine years eleven months would would that be something of a presumption the case that established the ten year presumption  was also another reference i thought in the record and maybe the one that was being discussed earlier where mr robinson told mister o'connor that he needed to find something else to do because apparently now the palin attempt it it's because he might be too old for his job for a field service job and then it appears i think in june of two thousand and fourteen around that time i'm not and you don't think all of that meets the very low bar that we have established here especially when we have to look at this in the light most favorable to the plaintiffs given the reasonable inferences to the pla don't charge for these reasons st of all you have to simply three comments ok it's not as if we have comments with something else that would suggest an inference of age discrimination well and you have him saying he said so many comments over the two and a half years that were you know age discriminatory comments and i know he doesn't identify him but then that's never that's just dismissed out of hand it's not dismissed out of him but it's the kind of conclusory statement that this course is the court has repeatedly said will not be  inference of discrimination because it's a measurable how do you know what those comments were some of them were good some of them were not good some of them about it some of them not so it is impossible to give that any weight because it simply concludes more and that's that's why i was asking your friend about specific statements and he may not have identified his best one but there are so you're are a lot of statements that along the lines of you've been here too long you're making too much money the younger people are smarter and  is that they're badly misconstrued as the core pointed out in reading the deposition testimony and that's why i think you just can't rely on that one but there's there's some other unequivocal times when he says my boss told me i've been here too long my boss told me i was making too much money my boss told me the younger people were smart and made and and cost less in that enough to give rise to at least an inference of discrimination it's not let's take the comment you making too much money for starters if i were to talk about a google employee was fresh out of college twenty years old is making one hundred thousand dollars a year you might say he's making too much money and that's why he's in paper says that when a comment is not directly related to age or doesn't have some direct age related problem it's not it can't be evidence to create an inference of a just going to what about the you've been here to you've been here too long suggest that one of the reasons you're making so much money as you've gotten older examine the context of the you've been here too long comment i don't believe was ever actually attributed to mr robertson he was told that you've you've been with the company you've been in the company too long to be seen in boise doing nothing and that was the idea is that he there had he was in boise in it that's it you are seventy five dollars in mr robertson's no it's just confirmed and you are one hundred and forty five dollars where he reported to h r he was concerned that he wasn't if being effective in his job that he'd been here long enough that he needed to find something to do because he wasn't doing enough to justify salary you seem to be taking all these comments in isolation when you take them cumulatively they give another impression well th district court took them cumulatively district court looked at all of the comments in context and said in context they don't rise to the level to create an inference of discrimination they don't meet that th prong of mcdonnell douglas test we review that conclusion  do review that to know if you know for sure so this court is in touch should look at all the evidence and i would suggest that when the court looks at all of the evidence and compares the cases that are similar to this case where there have been these kinds of comments that have been made this case just simply doesn't measure up so for example in the net is that case the court said you know we don't necessarily like all the grey hair around here the course this court said that wasn't enough in the pot in her case there was evidence that the employer had said we were tired of the old management team and were referred the older workers as deadwood to this court again said that wasn't enough or perhaps in the one of my favorite cases actually is howard versus writer trucks and that's a good example of what we're talking about here it's not enough to throw out a couple of comments and suggest that that's going to get you past summary judgment in howard versus ryder truck the district court entered summary judgment when the plaintiff it produced two comments that one of the plans have been referred to as an old goat and  other employees been told you're settled you should start exercising so those were comments cases that the court looked at comparatively but in addition howard produced there were three playing this all whom were older all of one of them been with the company for thirty six years had all been there more than twenty years they were fired for a policy that was not been consistently enforced and there was evidence that the company had been trying to save money its profits were down and so the company been trying to save money by reducing expenses by letting older workers go and hire younger ones who cost less it it's not so how in howard on all of that evidence it survives stage one didn't it it did so well it survived stage one because the planets replaced by younger employees we don't have that back here and in fact that suggests that there's the co property rule that the planners had must be sufficient evidence to overcome that presumption so are there some is there just assuming my framework is right which it may not be do you have a phase one case where where you think the we'll do that i can look it up really quickly though i've got it here the employee i don't have a kid i don't have the facts exactly right just yet you are right all right thank you thank you thank you on her toes like a couple of points or very briefly i think your honour's we're understanding what we're trying the argument we're trying to make here you are that it's not just the direct comments it's not just it's not just the salary pay and tenure it's not just the young techs being superman it's not just the circumstances the pep it's all of that together looked at in the totality of those circumstances these cases the night the cases assessing the summary judgment burden consistently say that there isn't a smoking gun in these cases that's why we zealously safeguard an employment discrimination plaintiff's ability to go to trial where we have the chance to weigh the credibility we're not we're not talking about going to trial here we're talking about getting to the next stage of a summary judgment an correct your honor but the court made that statement in assessing whether or not summary judgment was appropriate saying that these cases are right for trial when there's very little and minimal evidence because they're appropriate for fine finders of fact to consider the way credibility and to all of the totality of the circumstances because employers aren't dumb the smoking gun evidence never exists in these cases we've been doing this for a long time and there is never a smoking gun evidence one other point i want to make briefly  piece of evidence that the summary judgment stage soley based on its self serving nature an affidavit that is self serving bears on its credibility which the court can't waive the summary judgment stage not on the cognize ability for purposes of establishing a genuine issue material fact it must be taken as true at the summary judgment stage what mr o'connor testified that there were hundreds of horrible comments so there were so many horrible comments that that's why i can't remember the specifics not that there were so few that were so many those have to be tak