received an award for twenty five years good service from the defendant one of the things i think that's kind of central to the case is a so called tommy thompson system this work measurement system that we keep reading performance evaluation that he ever received that mr snow would have really didn't mean to interrupt you were you were looking for something else in the record but when you are in the rep if you could point me in the record i had some difficulty locating some of your record sounds well i understand that some of the records sites may have gotten garbled in the brief and i'm sorry about that but all the records sites in our brief  and the thing that to me is very very telling us that this is using defendant's own graph this is not our work this is the defendant's work when you track w in my client have the same scores just the same in fact my client may be a tiny bit better than guthrie but in any event my client gets farden and guthrie as far as we know doesn't get warm doesn't get counsel doesn't get reprimanded certainly doesn't get far in the problem with the with this system with the grading system is that it favor it was a system that was not favorable to him and when other drivers were assigned to my client's route their scores were similar to those of my clients so we believe that this was a  the position that the plaintiff had remained open or was filled by some several a qualified individual who was younger than him and that particular element of the case doesn't appear to me to have it really is really a proof case but the fourth element we believe is satisfied in two different respects as we discussed in our brief and also keep in mind that if i want you to tell us what those are yes in on the one hand my client's position that is observing these key customers lowe's home depot others had to have been handled by somebody else after he was dismissed you know what somebody had to be put into that position in order for defendant to serve these key accounts that's clear i don't know who that person was but deposition remained open long enough to i mean is and reasoning and common sense and of course we're told over and over again by the supreme court that the problem the facie case elements are not onerous and also that they're flexible and that when they fall into particular patterns that we repeat and repeat those patterns don't necessarily govern each and every case that comes along and to answer your honor's question further the second way in which we satisfy the orth problem of facing element is to show that there were open positions on the dock that my client could have failed he knew how to do god or he had done doc work he went to the doc every day he knew that there were two or three visitations open at the very time he was like that that was a his position i'm sorry that wasn't his position no but that's a position he could fill that's a position and how does that help either of your problem facing case because the contents of the fourth element are flexible and when you have someone who is eliminated but there are equally available positions that he's fully capable filling those positions had to be felt these customers now had to be served how to eat the quote we can take to dish will notice that a business that we have no idea how it's run we can take additional notice that they had to fill his position not judicial notice but simply what late how he handled their delivery recall that when record yes i know of how do we know that customer didn't say well i'm going to another company completely because you heard that common sense would tell us the answer that i thought you would to give u well it's to me if you please your honor it's very clear that these customers continue to be served and that somebody has signed this serve them and that meant that is position was open for minutes or hours and refilled february twenty fifth twenty two didn't he sign he had a record of negative comments about his performance on february twenty fifth he signed a statement informing him that this is this is a final correction concerning your performance in the future violation of company policy practice safety rules and guidelines will result in additional disciplinary action including terminations correct your honor i'm inclined to believe that you are reading correctly from certain pages of the appendix but i would caution the court that there are a number of pages whole aged disciplinary record yes there are that were not in any way authenticated and not in any way i have to try to overcome every claim of legitimate business reasons that is forwarded by the defendant i've done so and go out of the party coleman an affidavit in each and everything that they have suggested is reason i have been able to demonstrate is not what your honor for referring taught me a little bit we're in agreement that on february twenty fifth mr hill signed that statement your honor what you're looking at a police corps or a series of things that are at appendix seventy four to one o seven these are simply deposition exhibit the deposition transcript that precedes them i have neither admit nor deny that particular thing i have dealt with there are allegations that are probative which of those who said or in the in the coleman affidavit the things that your honor is looking at and i think the district court looked at them too are in no way than a k did by the deposition testimony that proceeds them the only exhibits that are referred to in the deposition testimony are five and six which have my client you know looking at the cases in this circuit we think we fall very clearly on the side of the tree line that's favorable to as well such as the defendant's statements don't worry about these occasional evaluative things they're meant to be constructive they're in no way threatening your job the defendant gives him a twenty five year service award he gets accolades the plaintive one on appeal fall on our side of the case we think when you balance those two lines of cases together this seems to be reversed well thank you very much  they please the court my name's build it up here have apple the southeastern freight lines rather than delve directly into walking through the problem case in the way in which the district court below is correct in its application and its analysis of the facts do want to point to a couple of things that came up and your questioning of mr hill's counsel as to his claim that the february write up that was a final writ was not authenticated offhandedly discarding it as just the deposition exhibit i would point you to appendix page fifty three which is page eighty nine and eggs are for mr hill's deposition which you specifically questioned about the doctor i don't know did he acknowledge his receipt of it on that page he also knowledged that it was different then the other ten write ups he had received at that point going back to two thousand and seven up and through march the third of two thousand and ten he received a grand total of twelve or items on the february one which was a final written he acknowledged in his deposition testimony looked different from the others because it included language suggesting that were there to be further violations of company policy or did you problems with his performance that in fact he would receive he would likely be termed the other warnings came with much more loosely fitting may result kind of language so there's simply no basis to suggest either that was on authenticated or that it didn't hold a particular import for mr hill when it was presented to him by my  to you know its full circuit presses very difficult to meet the challenge of stand you not doing a good job of your employer by saying i'm doing a good job but what we do with this circumstance is he was there twenty five years and he was stellar a lord willing and glory then all of a sudden he gets this rash of as you said twelve rhinos he's sixty years the proprietary system specifically designed for that the plaintiff admits they have a lot on for twenty years that my client testified they were allowed twenty years and quite frankly the law in the circuit is he is in no position to question nor would the court in his position question the rightness of whether or not that's the appropriate system if it were meant to cover up some discrimination and maybe it would be but his performance goes back to nine hundred ninety and this evaluation that he says was beautiful and wonderful on all fronts quite frankly it was affidavit i would point you however to appendix pages eighty and eighty one which are the two pages of that evaluation that he left off both of those pages indicate two things that at the time even in one thousand nine hundred was moving a little slower than they would  particular number one a one point five was not performance that was good enough back then and back then in one thousand i did they work with them worked with them and had similar kind of right of still two thousand and three and this is all in the record from about two thousand and three to two thousand and seven mr hill is clean in terms of his write ups distraction whatnot but these twelve write ups don't come over a terribly compressed timeframe they come over three years six of which dealt with how fast he did as the other six dealt with things like not taking out the proper equipment not making a correct delivery and things of this nature and so they continue to work with him throughout these three years trying to get him quite frankly to bump its performance up you know mr smith claims that this route he was on was why his numbers were lower but quite frankly there's evidence in the record through these formats evaluations these corrective actions that when we sent drivers into his area areas that he would be more familiar with they outperform him on his numbers so that indicates that it's not the route it's the driver secondarily to that during this process in this two thousand and seven to two thousand and ten period we sent out drivers with him in what are called check rides s to see how the drivers are doing to address things that maybe could do better and things of this nature lo and behold on these check rides mr hill was able to hit the kind of numbers we wanted him to during this time frame in question but when left to his own devices and when he was out there without supervision his numbers went back down to the levels that were unacceptable he suggests this is just his millinery let's just milling great i'm suggesting that when there's a cop on the side of the road people tend to speed less and that principle applies here with mr hill when he was under scrutiny he tended to do its job a little better than when he did have scrutiny immediately there sitting with him in the cab but as to the suggestion which is ultimately issue in this case which is is this somehow age biased because this gentleman was sixty years old tops some of these things are coming on i would point you to a few things number one they didn't do anything quick with him they certainly gave him a whole lot of chances told him very clearly and explicitly what they expect that would be number one number two there's another driver at this particular location where mr hill worked who is two years older than he is who's meeting his numbers in the same p n d drive around he continues to work there as far as i know today so to the extent there's any suggestion age was the issue that's not it secondarily when they met with him and said on this may tenth incident which is an incident that again he takes a different position he says he was doing fine my finds testimony is in play if you can speak of this in his deposition the comment my find made his supervisor mark owen made to him on may tenth was all morning you made four stops and you can debate whether or not he should have made four stops where the circumstances were such that he should have made four stops or more but quite frankly my client belief that he was too slow that morning that created a customer issue so that was the straw that broke the camel's back for my client he had been put on a final written warning all these corrective actions and that morning with that customer another complaint came through about how quickly we got something done and they said we're not go continue to do this with you mr hill but they didn't fire it in farm right then they suspended him and thought about what they're going to do with what they turn around to do at that point if they talk to h r it's based up in south carolina and they make a decision let's off from another job a different job didn't legitimacy of what they did is in dictated by the job that they offered the job they offered him specifically would remove from him the t as to that point very quickly one this was also maybe a case when it came through but by the lower court that was not appealed that we had no idea and that's what the record flecks i think there's even actually in some dust deposition testimony that in fact we didn't know he had any condition it was an unknown condition us at the time a quite frankly that's probably why that part of the case when appealed there's no basis we knew when we said let's give him a lot whole job there watching the drive at night that i will get him because we know really he can't do that not only do we not know that it's legitimized by the fact that one year prior to the time they made this decision offer mr hill this job they had done exactly the same thing with another driver who was thirty nine years old he had come and he ended robert pickup and delivery driver like mr hill and his performance was inadequate and they even moved quickly with him if this is going to work out for you we've spent time money invested in you we've got another position that might work how about you take a lot of hotel that work for him you continue to be employed and that would be the best result for everybody so when it came to mr hill we were faced with a very similar circumstance in terms of a driver who in his case even more so had been with us for a long time and we recognize his tenure and i don't even know that we had a particularly for a while driver we were we were willing to put him in that position order to continue to employ him what we were not willing to do at that point was continue to allow his lower performance to continue as a b and b drug and so they offer him that position unbeknown to the fact that he had an eye condition that would limit his ability to drive and i and when he told us that we had no other available positions and that's in mr coleman's affidavit at that point the decision was made to terminate his employment rather than allow him to go back to the p and a driver position in which is the performance was notably thorough and over a long standing time in so when it comes to the basis for the district court's decision in which all these facts are pushed into the law in a trap laid out he wasn't meeting our legitimate expectations that the indeed our position at the time his numbers have been bad have been bad for a while and we have had enough and like the worst case which quite frankly is incredibly analogous factually and legally to what we're discussing here today after a long period of time we're permitted to say we've had enough of substandard performance and we need to make a change that's what we did here he cannot and he's got the burden to prove that use meet our expectations we've provided thorough record evidence suggesting that he was not as the for throwing you off hit the nail on the head it's a point we made our brief there's simply no evidence of either that position being filled or if you even want to give him the deference of saying that that's such great logic that we can assume somebody filled it how old were they that's still an unanswered question and quite frankly doesn't matter if it was just filled if it's just open that matters but if it's philip as he suggests you conclude from watching you have to know the age of the person who fails in order for that  be meaningful at all to you and absent any evidence on that point he necessarily fails the forefront the problem face a case of whether or not it's three or four the results of the same that he fails to meet the promise  exactly two months before the event that led to the discharge and thus we believe was part of the at that time he had become part of the plan to get rid of this employee remember that his performance was just as good as the younger employee guthrie even though guthrie had a better route that you could earn better points on and remember also paragraph seven of plaintiff's affidavit pending one thirty that plaintiff's numbers were the same and as the others assigned to his route so and others got assigned to his route is numbers and their numbers were just as good so this work measurement my client did ask for that and those positions were available he has said that under oath he knows that he was on the docket every day let me if i may just spend a moment or two looking at the events of main ten the so called straw that broke the camel's back and if there was ever a pretext it certainly can be found in the facts of that incident ok my client arrives at work at nine thirty as scheduled he was due when there at nine thirty he got there at nine thirty on her kiddy the customer had called in at eight an hour and a half earlier and said we need two trucks right away to pick up goods  our company my client didn't know about that but the dispatcher and his supervisor did so my client makes his other deliveries three other deliveries which involve a lot of on loading and a lot of  clown about this pick up request and said i haven't gotten the trucks that i called for here you are four and a half hours later so moch on immediately calls the dispatcher and supervisor the dispatcher and supervisor says go ahead deliver your other freight first go to your other customers finish that then come back and load kid stuff so how is that i would ask our is that some fault on the part of my i can't see it that's the straw that broke the camel's back it anything was ever pretextual that certainly is so we believe your honour's and we were very confident that we fall on the right are cases in which the plaintiff failed to deal with warner more material criticisms that had been established in the record by the panel where as we dealt with every single one of them they were in the mar on the affidavit on the other hand in the bass case in the doogan case cases that we were aligned on on bass you had promotion pay increases and told that the work was satisfactory that was enough to get him past all the criticisms and take its case to the jury and doogan the plaintiff offered some evidence of satisfying the defendant's job requirements and that was enough i know that five different places in the brief defendant says the plaintiff it mean did that if he'd made the right figures under the tommy thompson system he would have still been there he just said i probably would've but i think what he was saying is that if i had a been treated right and been fired unjustifiably i'd still be there but in any event is speculation is irrelevant and not material and why defendant should choose to repeat it five times only