against you and the other involves you know the underlying summary judgment on your client and while i want you to take an opportunity to do both i would like to you know probably two thirds on the summary judgment and one third on male who was fifty four years old at the time of his december two thousand and two terminations i think we know the facts that the first one i want to talk about is on the race discrimination what do you have i think the court found you didn't have a prime facie case on that one right what do you have other than the fact that he's white and there were two african americans that were evaluating him what else and sit there on the record about and the person who first took over his job when he was removed from it was a person named palmer who was female vote you argue you and that is two years later and we contend that the person who interviewing kathy palmer who was actually holding two jobs her own prior job plus bohn anonymous job we contend that the company never intended to keep her in that job that the company gave her two jobs at once it is undisputed that she worked ten to twelve hours a day that they gave her an office in the basement they gave her no time off for meals and that also meant lee she quit our contention is that they had a and was not used successfully because he hung in there he stayed he would not leave others they just palmer left so that we say that she was not in good faith his replacement she did not was a person who was some twenty years younger when she competed for the job she was competing against who had a college degree and many years of experience with the power company he did not get the job that was a male in his middle forties i believe his name was slung as far as age goes we have a chart on the record that was prepared by the power company all the people were terminated by the power company during the relevant time frame tracking from that the persons who are relevant to this case who happen to be members writing unit who were treated in a different way we find that on the whole younger people are terminated for cause all the people may be terminated for no cause there was an attempt on the part of town and i don't like to get a that are all sort of transfer after he was removed from during the course of the year two thousand and two he went throughout the company he applied for those two jobs for which he felt himself qualified which were open he was not placed in those jobs that there is a demonstrated unwillingness to laterally transfer him in his affidavit he states that he observed that older persons in the company were not given lateral at the time of the merger of the to power companies the job was given to a distant cousin of has named and rini who had only a high school diploma and who was thirteen years younger f that job unsuccessfully he with a degree in engineering plus many years of experience in the company and many skills due to his engineering background and his related experience in the company that would have directly qualified him for that particular job we also think that discrimination is strong evidence by the fact that the company chose to place an anomaly in the promotion job at the time of the merger for which it people on the administrative professional level as opposed to the union people all of the people on the administrative professional level who reported to angela branch his supervisor except for certainly in march or april of two thousand and two when they evaluated all of the various departments of the company among them support services which was hit and unlike the rather poor grades that they gave to human is certainly objective evidence what could be more objective that he was doing his job right a consulting company comes in from massachusetts and spends a certain number of weeks or months surveying the power company gives a report cards and as indicated in his affidavit saw the report in his department and his department got a fine rating and certainly if the power company had any evidence to the contrary  group of responsibilities purchasing for the entire well let me do let me tell you what i think your possible arguments arm pre text i'm going to ask the other side to evaluate if there's evidence in the record that includes he was seventeen years of service prior with the company that they were he had done well all right there's evidence that branch and or kirkland had thought he was not qualified to be a team leader before you disappointed to be a team leader there's a course of treatment that arguably mirrors the mercer method that you're talking about of disposing of older workers there's evidence that from time to time he was appointed to be a team leader branch kept a file on him arguably in interest a patient hiring him also there's evidence from the record that branch continued to be dissatisfied with bono even after he received a satisfactory i valuation there's evidence that france would want to know most concerning the issue of an anthrax meeting and there's also evidence that even during the last six months at the company he performed useful work ok those are the things that i think you put in the record on pretext i'm going to ask the other side to respond  position and just three years later when he was fifty five years old and he was replaced by cathy palmer she was in that position for two years doing those duties it is completely irrelevant that she was doing other duties at the time the fact that you seem to the fact that she was only five years younger is that dispositive for you under nine circuit law it is because of the douglas opinion where there was substantial evidence of a satisfactory performance we definitely do not have that here we have some argument by brown and want to know what he was doing a doing a good job but that was his subjective opinion the objective evidence is that he was not doing a good job so that douglas opinion doesn't i you know i guess from the standpoint  were it appears that the trial judge did some wane of evidence about whether he was doing a good shop or not there's definitely his side of the story and then there are the evaluations which so i mean did some wayne there we can't do that i mean that you know i agree that that was put in a business reason but then it goes back to pretax i don't think i don't think we can resolve here on a summary judgment or or the trial court should have resolved whether he was doing a good job or not do you did you see that on the record that the trial judge was doing well and i see that the record shows that he wasn't qualified but i also do see that even if affirming of the district court mercer method if we could start on that one that was in one thousand nine hundred ninety three nine years before mr vaughan and almost terminated stray remarks that had nothing whatsoever to do with this terminations that was those remarks were made by an independent consultant not an employee of serapis ific and the decision makers in this case were angela branch and when we come on here and they weren't even aware of those remarks or or any of that they were involved in this committee meetings back then completely unrelated to the process of the storm nation in this case one i realized you know apparently there was some file that branch was keeping now you know whether it was a secret file or not it does appear to be you know there are at there are allegations or the i think the point of his entitled to say that this was something that he wasn't aware of i mean we have to we have to infer you know for purposes of summary judgment so she seven what you know in one word evaluating pretext are we and for that even if we are on that particular issue then we still have all of the other evidence that came forward through angela branch america meyer that he wasn't standpoint that they're keeping the file and even though at some times that he was doing ok or whatever that you're trying to you're trying to make book on firing him even though other evaluations are saying that he's doing ok there was no testimony that raise some sort of in princeton fact the fact that you're not sharing it with someone the fact that you're not getting a person to respond to it and then later when you decide to pull the trigger on a new whip it out and say and furthermore no because th go into the disciplinary notice and those the disciplinary know this is what goes into a file and that's part of that in our six months we were the employees entitled to see the personnel file they're not entitled to see managers notes but that information does go into the evaluation o on you well there was an intermediary issue there where she put him on a performance improvement plan in april two thousand and he was in that job only starting as of november ninety nine so as of april two thousand he knows of the issues going on and then it was there was the two thousand performance evaluation that was standard but there were still two areas within that evaluation that he was lower that he did not meet standards so he still knew of what the problems were  any i mean how does that fit into apparently this is a very long time employee and for seventeen years he was he was doing performing fine right does that factor in any way i mean can cannot fit in anywhere when you're comparing other things some pretext or as you get any worse that something we just throw away i don't think that we throw it away but we do so that shows why the company would promote him and not deem him unqualified is there any evidence in the record that branch and or kirkland thought you just like qualify for that position before you even went in it is there any evidence in the record to that effect from grant now from jacqueline kirkland yes there is but jacqueline kirkland was not his manager so that's irrelevant it's only the testimony of angela branch that would be relevant to that issue and she said that he was she felt that he was qualified and that's why she gave him the first performance evaluation of the year two thousand not mean that someone doesn't should be reversed because that doesn't show pretext that doesn't show that the reason she put him in that position and or i'm sorry that she terminated him was discriminatory she put him in that position she gave him a chance he's the one that promoted him he didn't perform on and off he didn't perform there were times when she said that he was a good performer there were other times when he was not but then he just continued slacking off that's essentially what happened and so she said he's got to be removed from happened and he should not be a supervisor so the fact that she would talk about him having lacking some qualifications for that job as a supervisor doesn't show that she had discriminatory motive when she terminated him and that's the pretext element which the state the statement was that employees were quote shell shocked by their previous supervisor that's where the confusion came in the terms of their previous supervisor because dennis want to know was a previous supervisor  who had made the statement and me in that it's sort of my understanding about that from the standpoint that she was sanctioned because she brought claims that there was absolutely no law that supported the claims one being  malpractise where there was no there has to be an attorney client relationship and there was no relationship and the other had to do the litigation privilege that the statements were made at the e e o c or something put out effect which was clearly covered by the litigation privilege is that what that's exactly it that was the main focus of judge cook's sanctions order and the malpractise claim was so basic you go back to just the elements of a claim attorney client privilege which certainly wasn't that here there was an adverse party relationship where there could be no duty of care there certainly isn't a duty of care between an attorney who's between an attorney and the adverse party and that's what mr paul was attempting to essentially attempting to assert which is the basic law didn't support and even she cited three just isn't and cases and none of that supported that proposition whatsoever even an argument for the reversal of that position and then with respect to the attorney client she had also argued that there was no if there was third party liability in this case but general counsel did not make first i didn't make the statement but assuming that it was on his behalf making the statement reliance whatsoever on the adverse parties attorney's statement for the court saying this full well it's there are some discussion in terms of why didn't you drop the charges and that it went on for a period of time before that that she didn't drop the charges that the court put her on notice there's no legal theory under here was there any or was hit or how did that come about we sent the roll eleven letter we had the motion for sanctions the for an improper purpose because she did not want to deal with gerry mysel general counsel of sierra pacific the statement that she had made that i presented to judge cook was that she wanted to handle negotiations with patrick hicks of my firm and so thereby getting general counsel off of the case by filing the motion for leave to a man with a claim the malpractise claim would have to be a certificate would be asserted against mr my so he certainly could have represented himself all places where in a deposition mr myself representing power company just enters his own testimony into the record and he will say he has said on the record that all the record records surrounding this particular promotion had been destroyed by the company he did not say when they were destroyed he simply said that they were just right and that was seven and now if i might say this i think i had an excellent and very pleasant relationship with mr mike still here i had not so long before settled another case we worked out it's very very satisfactory settlement for the work that's not in the in the record isn't there isn't in the record don't you say something to the fact that you've had a difficult relationship with him on this case and certainly in court i said that when the magistrate asked me what is your relationship with him in this case i said it's difficult there were reasons why it was difficult which i didn't want to elaborate at that time and which i can't speak to now it's interesting how right you are really out of time so i'm going to give you one minute here two from th standpoint why aren't the claims that you were making your guess that it would impair the sort of law school one one that your client did not have a legal or client relationship with and also two it appears the statement about linda perry who didn't even have anything remotely to do with this case and work in a different city i would say it did fall under that category and i just need to say to the court that i was