end waters and rogers which is the name of the company when the to re work there the name of the company as used in the trial court and in the recent peel this appeal races to instructional issues  show that age was what drove this tour raise terminations in other words all the statute requires is that age be even motivating factor here mr a was required to show three or four additional things a second instructional error arises out of the giving of what's called the business judgment instruction going to the first  error first the additional language that we have difficulty with in the in the a t m instruction is there just beyond establishing that it was a motivating factor mr ray was required to establish that he was quote replaced by a substantially younger person with equal or in theory or qualifications this language was drawn from one formulation of the definitely let me see if i can explain that here in the normal discrimination case one can establish discrimination through the instructions here made it impossible for us to do that elements one through four of the instruction are essentially a formulation of the prime aphasia case most jurors reading that instruction are going to say that you have to prove one through four and five independently in other words if you could use one through four to prove five why would they be separate elements so what that leaves you with is proving discrimination solely by showing the falsity of the employer's stated reason but if you look at the so called business judgment instruction instruction thirteen it says that you can't find think it does what it seems to me that what that instruction says you don't get to be the employer you might have liked escape but it doesn't require a pointer to you might let people be late or whatever problems you might think that the employe falsity if you disagree with the reason you know the words if the employer says we hired someone so because he was the most qualified and the jury doesn't think that person was the most qualified the jury is just lying when they even rely on that and i find for the plaintiffs even under these instructions at least that's how i would read the instructions well then i guess i haven't made my point as clearly as it could be may i do think that the combination of those two instructions makes it impossible for us to prevail on circumstantial evidence i also think that what was the evidence that you think the jury would have been persuaded by under your proposed here we had an employee you know everyone agrees was doing a competent job and who was a good employee they brought in somebody new personnel formed describes them as a replacement for my client but the employer said he really wasn't a replacement what they did was they eliminated my client's job and replace substitute that's job with a new job and so it wasn't the replacement and that was a factual issue a trial i'm which the evidence could have gone either way and the fact that we had to prove that it was a replacement prejudiced us the second thing is that we had to show that mr ray was at least as qualified as the new person who came in while the new person who came in and had a degree in engineering which mr ray didn't and that was again something that received a lot of attention at the trial whether an engineering appears that there was this dialogue between his unit and management about his supervisor wanting another engineer right engineer your client's not a licensed engineer but the supervisor like and he's doing his good job for what he does and then there's a question about what he does versus what license engineers do after iraq all add up the push came to shove according to some of the evidence i think that they said we want to hire an engineer management said you can't get any more people so to make room for the engineer stance really they let your client go bring in the engineer sounds like apples and oranges to me sounds like it was a replacement at least that's some of the evidence now how do we deal with that well we had to prove that it was a replacement i think you know that you made my point exactly we had to show to prevail that it was a replacement failed apparently on the evidence now how does that relate to the instruction well the instruction says that we have to show you with a replacement and if it wasn't a replacement we couldn't even if we showed that the terminations was driven by age and other words but what's wrong with that it seems to me if the premise is that your client is not a licensed engineer and if there is evidence that they've won of the license again welcome but since the jury could also have seen if it was properly instructed that that was a ruse to get rid of mr west and let me explain why first of all constructed on a pretext that there was no pretext instruction no right in any of those you know it was just that and that's one of the reasons why the so called business judgment instruction causes so much trouble and argue but to get back to this a jury could have found on the evidence that what happened here was just a ruse to get rid of an older worker first of all the memo that mr green and describes as needed and says that he wanted someone to work on small cryogenics and those are exactly the kinds of projects mr ray was working on they raised a number of engineers two of whom were unlicensed from tunis three by bringing this new person on and then seven months later they laid off one of them for a lack of engineering mystery don't bring and told the new person the new engineer mr pritchett when he hired him essentially that they didn't have a need for a new engineer but he was going to create the needs through internal market by convincing the people throughout the company that they needed an engineer so that's not a true need and the last thing of course is that on this power it is out of business purpose so he said i'm going to drum up business and certainly it didn't work well that may be true  d employers allowed to have a business purpose but a business purpose is just evidence alongside other evidence in the case and the jury can accept it or reject it here we think we have a harder time showing that it should be look at instruction eleven it makes it which is the same defense instruction that makes it very clear that you had to be a motivating factor to any degree but that then you get into the question of how you interpret those terms and whether they're equal and that the law is in the strictest relative interpretation those terms well no i don't what i'm referring to is is this language in eleven a even if the played no role so reading eleven a with eleven suggests that the motoring motivating factor had to be a motivating factor to any degree if you read washington cases on the substantial factor cast the substantial factor test was court case the court there very clearly held that falsity of an employer stated reason is affirmative proof of discriminatory motive and i think that instruction thirteen makes it very difficult for the jury to see that foster the of the employer stated reason is affirmative proof of discriminatory motive i would like to cite one case that was decided after our reply brief was in and i apologize for not submitting it with the supplemental instructions and this is on the use of the pretext instruction a pretext instruction thirty twelve thirty two that it was reversible error not have to give the pretext instruction so in other words not telling a jury that falsity is affirmative proof of discriminatory intent is reversible error and yours if you request a pretext no and we're not complaining about that here but we are complaining about the fact that the instruction that was given basically says just the opposite of what the jury should have been told and we're not complaining about the fact that the jury wasn't told about the pretext but it certainly shouldn't have been told bennett you know since i could not find discrimination from falsity of employers thinking difference or did it make if it did not your honor and the reason i say that is this is sangley which is probably the most recent and more recent in the ninth circuit than cost on the issue of what should or shouldn't be presented  ordinarily the burden shifting analysis should not be presented to the jury and in sangli in making that decision the court noted a majority of our sister circuits concur in this view me a special verdict form that went through the burden shifting analysis it was held in sunday that that was not reversible error and so i think that while you take that as a holding  no i don't take that position the but the standard for what is harmless error is fairly well defined and stated in various ways and that is that the record taken as a whole does it client's position is incorrect with respect to the initial instruction and i would simply note that the instruction that was given is verbatim the ninth circuit model instruction which this week is still  on the ninth circuit website is another in the introductory contest of the website and to indicate that it will be constantly updated so to the extent that this is intended to guide judges within the ninth circuit that model instruction instruction i think we have to say so don't you absolutely your honor and i wouldn't quibble with that in the least i know that i know the problem because when we do see that that model instruction then we go to the cases and as you argue we don't see i don't know what that means but we still have a right i think we still have to look at it you have a right absolutely and judge silly as the trial judge here not only had a right to look at other cases another authority but a duty to do so and i think the colloquy on the jury instructions in this case reflected that he took that responsibility very serious and i think i think counsel made it a good argument that probably and that is the facts in this case lateral i mean they could go either way and if he has a lower burden under the federal claims only to show that motivating factor if you remove all the other stuff it seems pretty tough case because in this case they had to sort out you know was eerie placement that they really need the engineer and absolutely i would object to that but what does that mean th what judge least comment made clear was that although there was a nasty evidence of a prime the facia case to survive the rule fifty motion that there was still a role for a fact finder in this case the jury what what his qualifications and what he did that was the basis of mr ray's case that is to say that he and mr pritchett were interchangeable and that the reason that there was age discrimination here was that what they d had been replaced by someone who was no more qualified than he judge silly was saying in effect i think that's a dispute in fact and there has to be a decision by the trier of fact and that is why i'm going to go with model instruction as opposed to modifying it based on alleged direct evidence or otherwise that given the way this case was presented and on the record as a whole this instruction with the appropriate one now in terms of the cost of decision and i would note that at the supreme court level that decision was addressing in the title seven contest that quantum or the type of proof necessary to get a mixed mode of instruction in thi case that's not debatable we got a mixed mode of instruction at mr r the last urging that was one of the alternative forms within the model instruction and he got the motivating factor rather than the determining factor  give or it was appropriate to give the prime aphasia cases struck it was very appropriate to give it on the facts of this case now not would we in two thousand and three as judge graver pointed out having seen or having seen the variance on various types of ways of proving a discrimination case would we still have that in there while we know that the ninth circuit at least on its model instruction has not yet made a change and so although it demands and requires trial judges to look at instructions and tailor them to the appropriate facts of the case we judges might not go that way now but we do know from stanley and from taken the point that i would want to make that song the is that the ninth circuit observed in ruling on sunday even before i got to the point of whether or not the objection had been preserved when it was surveying the loss of other circuits and deciding that it was going to go consistent with the ninth circuit on bank decision cost with the trend within the circuits of not requiring the burden shifting paradigms the entire mcdonnell douglas analysis that they were going to follow that but again they noted that in no other circuit that they were observing what was happening that none of those other circuits had found the giving of those instructions to be reversible error and so they made that statement before they ever got to the point of making the fact that that it hadn't presumed been served in that particular case i don't i don't argue with the fact that west research here i have a question about comment your opponent made is i got what he said and i think he quoted the state case that the washington law was intended to set a higher standard now assuming that's what he said that's got that i was reading the instructions that sent out the elements of the state law clearly and i can see the way the instructions worded that it really does as presented to the jury present a higher standard then you have a comment on that the standard under state law t i would just note that the ninth circuit in the sank case which mr r t d submitted as supplemental authority that there is the comment that this issue as to whether substantial or motivating are the same  decided and certainly the dang case does not decide it it simply says it's undecided and it's not clear and so i don't think that there has been any determining decision on that i know i'm in my some of stage let me just comment briefly that  i believe the business judgment instruction clearly the model instruction suggest that courts consider giving this in an age discrimination case it is entirely within the discretion of the trial court judge and i think that discretion was exercised properly both sides did have discussions with the i'm not sure if he was the mediator or the person who would have arranged the mediation had weaker students both parties presented their views of the matter in the case and  the ninth circuit's mediation represented and concluded that it would not be worthwhile to pursue it that we've certainly did communicate both sides to that i thank you very much prejudicial than a complete set of shifting burden instructions because a complete set of shifting burden instructions will tell the jury that the prime facie case can be used as evidence of discrimination on the model instructions yes of this instruction was drawn from the model instructions but there are a variety of model instructions in the ninth circuit and disparate treatment and this is the only one that has elements of the crim court goes back to the summary judgment papers i think you'll see that we were resisted that from the outset obviously we had to address that at trial and obviously we had to address that in in detail in closing argument but we from the start said that this formulation that van waters and rogers was promoting for the primus nation case was an inappropriate one on the facts here tha