proved the plaintiff did not meet the high burden of showing that age her age was the but for cause of her term and the plaintiff was fired because she falsified and do this one on one and coach them to do a better job unfortunately one of the sessions she backdated the document the document was supposed to have been executed session was supposed to have been executed the week before it was actually signed so when they employ her subordinate sign the document and they did it correctly the day she signed it  create an issue of material fact that the jury could decide there was no evidence of discriminatory intent you are i intend to focus on that a lack of evidence as well as the error in the jury charge that allowed the jury indicted the jury encourage the jury this is a super personnel department and not decide whether there's westmoreland would have been fired for her age but to consider whether she should have been fired because she made what she would consider one mistake it's she she asked for a decision as to the level of discipline so she wanted the jury to second guess what the employer decided and that's not what the law permits just to carry the high burden of proving that but for her age she would not have been term you know are the trial courts  questioning of witnesses throughout the trial reinforced the erroneous jury charge we had a trial or you know you are those who you're in the same position i am you you read misunderstood you i thought you were saying and i'm not trying to i'm trying to provide a little clarification discussion but i thought the comments that this tree court  made don't seem to cross a line under any standard that we've had but i thought your point was that those comments tended to focus on the adequacy of the reason given by the employer so this is a long term employee good performing poorly and this is one bad incident which was then represented in the instructions asking the jury to find whether the reason was a legitimate reason and it seems to me of course then the jury is trying whether the employer gave a good reason as opposed to whether the employer did it because of age and  jury could well have concluded it was not a good reason for a long term employee and then been misled into a verdict where the jury really should've focused on whether the reason for terminations was her age and i think that was your point on that but it's not been made totally clear your are not is exactly our point the this the statements in the questioning by the judge are are relevant in that they inform the judges in ten in giving the summary jury charge and they reflect the judge reinforced this erroneous notion that a jury should decide whether terminations was the appropriate discipline or somebody you're sort of you're sort of coming in from the back door it seemed to me you started out by saying there's no evidence and i gather that it's undisputed the decision maker here was  was busk if and and it was approved by newcombe and not and they signed off on it and that was the end of the decision and busk with would have informed the plaintiff but she was out of town or something and so former employer i mean a former supervisor was asked to inform the defendant and that and did inform the defendant and that's where the one statement consider it and make sense and i didn't see it in the record but i may be wrong and that's what we're here for argument yes right that's what i thought you should be hard you and i mean you're coming sort of in the back door trying to attack and structure and so forth and you were about fourteen times in the record where various witnesses said no there's no claim that she was fired for an inadequate performance that is not the focus of our appeal i thought you just said you needed it to judge gregory said what element in you what you're saying is that you came up with a nondiscriminatory reason correct that's right you are now and i think it and you did you thing which is that you did something wrong like changing the date that you supposedly said the reason that we gave for firing you which we have a powers of the says if you misrepresent something we can find that's not the end of the story the question becomes is it true that the person didn't that it was she she admitted that she changed the date on the document did she testify that she didn't do it intentionally and that she had the meeting on the day that she climbs yes she did drink with the jury believe the jury could believe that but it's not pretext then the plaintiff still has the burden to come forward evidence and there was discrimination even after making that finding and your argument is there was no evidence of discrimination based on age by the decision makers from that score is a helpful comparison the question was whether the employ had cast that out on the decision makers perception so in reverse they cast a doubt on whether the supervisor could have believed the misconduct occurred the employee was accused of not reporting subordinates absence from work but the employee put in evidence that he was not at work on the day he was in the hospital that day that employee did report for work now that is in contrast to the holland the employee was far because this decision maker believed he had threatened another employee and the plaintiff's evidence didn't cast any doubt on whether the employer the decision maker believed that the employee threatened another employee and that's the same thing while here the employee earth says he fired this young this woman this woman because she did she whited out something on the form right yes that's what he said and so of course we defer to employers judgment about how they run their company but we can certainly it's certainly within the jury's province to signed that the reason given was not credible and instead it was sex discrimination that is that's the law that's what juries do and apparently that's what they did here they took the fact that she did this they didn't think that this was the reason that the employer fired but instead the reason was that here is a thirty year employee with a virtually impeccable record and then instead of it being the reason that the lawyer gave this one slip up it was in fact that they wanted to get rid of all  your honor there was never any doubt cast that on the decision my perception ms westmoreland did she change that i know that they everybody admits she did she did that the question is why why did the employer fire her after she did that and the question that you see put to it did is because of sex discrimination because of race just of age discrimination so many discrimination but not in that we're just focusing on age discrimination and your people to know we had this legitimate reason but to churi was entitle to look at the truth or not of the reason that the employer gave them not whether it's a good reason or then there was an issue about the judge's fault question the witnesses you know the judge's role this is just so it was interesting to have to go back case law from you know fifty hundred years ago before christmas of seventeen and that was a hung jury and then there were some theories the appeals attorneys as to why but the interesting thing was ever at the time whenever my head but we had a good trial she didn't ask for the forms she asked for her file and she looked through that file and then she must have seen this one on one document but didn't say anything and didn't do anything and then because clinton know why she was looking in this file and then she left at a later time on but notes to glenda somebody went back in her file and stole the want to in one form apparently it was bugs b then she went back and took this form to the new group and then that's when they when they ambushed her they didn't take the form and for that meeting and the question is is there any evidence point to me any evidence in the record we've looked at it and could find none evidence in the record that age was even on the table considered or recognized or acknowledge about some issue with the one on one and that's and that's in the newcomb report that was an incorrect report later on after the defense lawyers got involved in it they reshuffle it around and then newcomb even in the trial said oh that was a mistake and i after well did you correct the mistake don't do anything to correct that everything focused on whether that was legitimate that form and when that when the explanation came out of both miss west or moreland and the sub her subordinate knowledge of that was changed she needed the date in the prior week because she hadn't cleaned out the form and there were two dates mis represented one of the employees was whited out and changed and then she put her own date on which was a wrong date but that's not  that relate to age that relates to whether she misstated that form i'm asking you just that any evidence that you have that those persons who made that decision considered age c younger employee she also signed she also signed the same form and she wasn't even given any written any or i'd rather the answers you don't have anything except that happens to be the real world fact that she happened to be older but not that the decision was made on that basis or even considered that basis we always start with our companies most of these are going to be they're going to be alright i may have an explanation but you have to acknowledge one way or the other with that that was evidence of any kind by those decision makers she said that on the record she could get out of that the second problem has chose not opposed to giving it giving you that statement i'm focusing on something i'm having a hard time and i gather you don't want to acknowledge but i think the truth of the matter is i could not find and i'm wondering whether i overlooked something i could not find any evidence of the decision makers considered age discussed age had a passing comment about age this was an employee who concededly was there for a long time she did a good job but she was dishonest and that's why they fired her at least that's what they said now the jury is entitle to disbelieve that and say that's just a pretext but the law still requires that you have perry the ultimate burden of showing some evidence of age discrimination by that's why i have a whole list i can give a whole list on of all everything that's suspicious about this and how it all in the totality of the situation that's why that's why no jury was going to rule against this incest deal and that's why you know the second jury fou they didn't present this to her she didn't know what they were talking about at the only only time that apparently the only town they were they were examining her the next time was when they showed it to her with caraway fire when they showed her she didn't know what they were really and the jury believed her that she didn't do it  that she put the meeting that nobody questions me that was always seven twenty one fifteen that was the tuesday before and this was on the following monday so we're going to gave it to her cheryl t and back and had the had the previous day i think it was seven twenty seven fifteen and she just glenn it was like well we just need to make this reflect the day that the meeting happened because it's at the top it says seven twenty one fifteen and then cheryl wrote in seven twenty seven fifteen and so they say why did cheryl think it was wrong she thought it was long she reported it and she said she she didn't feel good about changing day that's an issue of issue if i don't whether shot at it i'm asking you what the evidence showed she thought it was dishonest  she says that she didn't recall having the one on one on tuesday and a later date after after they'd already made the decision to fire to fire clinton so but she never got written up she never if she thought she would if she thought she was being dishonest why did ok she testified that she reported it because she thought it was wrong well she thought it was wrong i guess she thought that it was you says the word day i guess she thought that it's supposed to be the date that the day of the day and no other day because the she didn't say that was wrong populace's meaning day seven twenty one two thousand and fifteen if she thought it was wrong and she's the one that really line when it was doing it just to reflect the date that the meeting occurred the reason that she thought it was wrong was because if you said a few minutes ago she thought the meeting had not occurred on the date that was inserted the jury was entitle to believe one of the witnesses over the other on that they are  sea level without that because you know they try to back they try to back in the performance issues in then most of the second trial most of the exhibits were having to do about the one on ones in the previous whole year and i was like you know we didn't have any to do with they they trained that late she only had two years experience it took  position and for a stellar thirty year history she will always be branded as the end terminated from corporate america for fraud and that will never change in her whole life and they replace  care way but the unique thing about the trials is going into the first trial we had seven witnesses but only for one were deposed so the interesting thing about federal trial was that then you had every you had all seven up to what they said a three years ago but there is an order to have you know that kind of you know ninety percent of people can't stay or drop more than two years so it's really special to have somebody who comes in you know h been there thirty thirty twenty years but you know human nature you don't think about how long ago that was you know that was when i ask you didn't miss what westmoreland can see that she didn't have the interview the prior week  her testimony her testimony was quote i freaked out i panicked because you were coming i didn't get my work done so i had jennifer change it because i didn't get to it to do the one on ones last week that's what she was think that's a question worth trying to answer and why don't you try to answer it in other words in testifying there was she testifying that she had not had the conference was she testifying wasn't didn't she three employees that she was supposed to interview where she testifying she hadn't had the conference with the other two over she testifying that she had had the hand had the conference the chief had had the conference with the one but that she had those all those one on ones nobody had ever been written up for not doing their ronald once it was common for them not to do these one on ones yes i don't think all three of them i don't think all three of them have been done but she specifically remember doing this point and that's why she wanted to present at least something to the bugs know one on ones i don't think the other two plead that's what i just said i'm sorry what's completed had not completed the other two one on ones and had but what about this one on one she did this one that's why she was doing this for her own which as washing talked about she typed up the day seven twenty one fifteen which nobody question the defense never questioned it both of them signed it sure wouldn't even nothing happened to her and then they're saying well she was the one that had the men's right on the side of it because she's thinking she's the only one thinks she did anything wrong when i never had any kind of mens rea on that but i mean you get a whole different ball of wax on what's going on here but the whole point was everything you know with a whole thing about you know blaming the judge that kind of just dumbfounded me when i got home apparently got to the the defense brief in the spring of spring of eighteen you know motion notwithstanding the judge and i just told him i told my  paralegals you know they corporate they're going to argue that the sky is not blue they get it they get paid enough to do it it's unbelievable so i just i don't even know what to say that i was just thinking like oh my gosh because it's you know he's he's he's good judges good trial judge and you had solid jury instructions and had every benefit of the opportunity but you know you it's just human nature you can't blame yourself you can't you can't blame the first jury you can't blame the second jury it's got to be doubt to change the date on the dock which is an admission that using wind out to change the date on the document was in fact misconduct and the very misconduct for which she was terminated it's misconduct to correct to make it reflect what the fact is that's not what she testified just what you just said she testified that it was wrong to do your honor which is a reflection i just had to fight she didn't know that using white out was wrong i mean i guess i can find that a reference for you but i'm pretty sure i read yeah i think her testimony suggests she understood it was wrong why not change the date on the document and that was always the consistent didn't own thursday the seventh but i wrote down it was thursday the sixth i can't change six to seven that's that's wrong in the context of the state that it was wrong and i'm just asking you reason to as a matter of law he said for an employer to terminate someone if they believe they have changed and falsified the company record but you're only exactly what the trial judge did is to argue the justification of the reasons for terminations and it seems to me if it was a bad business decision or if it was a mistake if it was unjustified all of those don't make a bit of difference on the jurisprudence there has to be evidence of discrimination based on age and you have not focused on that in one sentence i keep trying to pull it out to you but there was no discussion of age there was no inference of age there was no suggestion that she's too old she can't do or job the idea was did she fall to five and they believe she did according to them she complained that she was behind on those forms and she changed the form while she was a good employee she was not trustworthy because of that that was their reason whether that's right or wrong that's not what's on trial what's on trial is whether the reason actually was because she was in the protect your theory that there has to be to direct evidence of age discrimination you have to have some employers saying i don't like old people i won't get rid of all people no your are and often there isn't  evidence right certainly but there has to be some evidence of advance and if somebody has worked with thirty years with a flawless record and then it's fire is fired for a reason that she believes was just correcting a record would somebody be would a jury be entitled to deduce from that that in fact the real reason they didn't believe the employer reason the real reason was age discrimination no your honor why not the the belief that matter is the decision makers believe it's not them don't so leave the decision makers with the decision maker said it's not that they that they're getting in the middle of the employment to see you keep talking about this being some sort of business judgment in the employer they don't think that they just don't believe that this was the reason they're entitled to believe just like every other witness entitled to believe the testimony or not there so then they're looking for a reason why they let her go and the reason obvious reason seems to be that she's old you know what the district court found was that a superior might stray remark and right there westmoreland had worked there a long time and had a good performance record those all of those facts putting aside the superior state does it for other reasons it doesn't  is that i think counsel was saying in terms of by the jury that but you know i've tried a lot of jury trials i think most people try to be fair and try to understand the law and i think people they find it just difficult to put credibility then when the evidence is c the reasons given is sol far from fairness and that is a sense that people say well maybe it wasn't because he was all the book but here it was just so thin that that she changed a white out so white out something to correct that day and then you fire after thirty years you don't give her a chance to resign to retire it just  believe that that was the reason that the reason was that she was older that she trained the lady the other lady for two years and that's all the circumstances not just direct the search after she trained her and then as evidence about some form that wasn't counsel was tried to talk about that a little bit about it and then said not at fault had nothing to do with it and you put almost circumstances together and this then reasonable why didn't the jurors just say i just can't believe you treat a human being like that the jury has to find it's not just it even if the plaintiff cause the jury to disbelieve the reason that was given but i also have to believe the real reason was age discrimination and there  she had you say there's no way a jury could find that just so you know i just don't like you anymore now because your whole okas you're a woman or cause you a person of color i just don't like  context in that the court said statements about age well may well not carry the same and ices those about race or gender unlike race or gender differences age does not create a tree we  age discrimination cases are different than title seven cases there is a higher burden the plaintiff has to prove and the plaintiff did meet that burden in this case and that was that lack of evidence was compound by the judge and jury instruction which unfortunately i haven't talked about but the jury instruction was erroneous and it allowed the jury to find whether there was a legitimate business reason and if there was no legitimate business reason to find in favor of the plaintive period end of story that is a legal error and the jury could not find for the plaintiff if they found that there was no legitimate business reason only if this believed