toast because of her age they failed to hire we hire her into a job that she had performed well for six years the district court of course granted the county's motion for summary judgment and we're here asking this courtroom for second summary judgment we believe that the district court contrary however we offer deposition testimony of three separate individuals anderson pickler and conscious all of whom heard may vary and she's the decision maker in this case make a derogatory remark about to research oath immediately after the four interviewed her i'm sorry i and get back to you so she hears my point the most what the evidence shows and it may be enough but i'm just taking issue with your statement that they said they heard her say it she may have investigator there's no equivocation about that now it's true anderson did come back after she was talked to by an investigator of the defendant by the county and told the importance of the specific word old anderson then also in a deposition said she could no longer be certain that the statement was made but at one point in time and much closer to the actual events then later when she she backpedaled a little bit at one point in time and this anderson did state unequivocally that that statement was made now of course it is true and we know it was this in our briefs she can no longer be certain that the statement was made but what's important to remember is that anderson has never categorically recanted that she told our investigator the statement was made and she's never also said affirmatively that she never used the word old that's absurd in context to suggest that when she was talking about an old tired employee she was referring to advanced age but a former employer a burned out employee like my old friend did write her well again there's some testimony that the words tired worn out and or burnt out may have been using conjunction with the word old but i think if you look at what one of the witnesses said to said which is looks like i've just interviewed an old tired government employee would it really make much sense for her to have made that kind of statement when it was obvious everyone in the room knew that she was a former government employee so i i submit that by using the word old it was an undeniable reference to her age that's hard for you your honor at least as a  reasonable jury could conclude that and it's important for us to remember that here today we are talking about a grant of summary judgment and this court obviously imposes a very high burden for the grants of summary judgment this court has expressed repeatedly its  e referring to an old management team and we said that didn't suffice so how do you square your view with that line of the already sure your honor thank you for the question because that is an important point of distinction here there are several cases in which this court has found that arguably age related comments were not direct evidence the nesbit case the potlatch case the marriage cases but in each of those opinions it's important to look at the court's actual reasoning for finding that there wasn't direct evidence one of those reasons the reasons were either the statement was ambiguous meaning it could have meant something completely unrelated like deadwood in the potlatch case or and or it was completely unrelated to the actual decision  maker was substantially younger and the screen corden o'connor has clearly said that it's very probative of age discrimination if someone is replaced with someone substantially younger but i think it bears emphasizing here that two of the people who heard the  we have unequivocal and unequivocal age based statement and we have to be made right in the context of the decision at issue well that wasn't in the time the context was that it was after the interview when she was supposedly complaining about the salary as she had after after previously complaining or leaving the job because she didn't like the salary that she comes back and has an interview where during the interview she's again complaining about the salary that's the context in which she was referred to arguably is  might be more more plausible or the other inference that age was what was at issue might might be less plausible but here again there's there are two individuals who at one point did say that they thought she may have said old  maricopa county let me start where the panel council has spent most of that time i want to be very careful because i've reviewed the record very closely and i strongly disagree with what counsel just told you about what the statement supposedly were and i suspect that the court has carefully reviewed the record as well there isn't a single witness and i think when you look at the oral argument transcript in the district court this was one of the things the court was struggling with and there was an this is what the case is about and we want to conduct discovery on this and we deposed every single person that was in that room when she was interviewed we deposed every single person they ever claimed made that heard her say old and every single one of them because they didn't keep a clear record of what they did read some statement i think this is what the judge was referring to when he said what is it and said what it said and anderson thought for a day and came back and said she said it it's very clear  deposition that no the term old never came from anderson and what anderson explains she meant was a statement like that was made and then she said oh my gosh if they'd ever told me their question was really did she say old i would have said i can't tell you my gosh this is what we're asking you about i don't want to proceed on a case where i don't have the evidence here's the issue was old said and apparently sent that to her and didn't record it or they didn't say it at all because there's no evidence of it anderson was irate in her deposition when she said oh my gosh i learned what this was about she talked about her father reading an article in the newspaper and saying oh look they're saying they're going to go after mr romney the county attorney for age discrimination she said i can't believe it it had absolutely nothing to do age that is all in the record there's no way to read the anderson deposition and come to a reasonable conclusion that she was impacted by anything the investigator said she was the most strident was witness and she said i did not give them the word old and i didn't even know that was the issue where's the investigator going to take the stand and you may see that the district court was also say ok she gets up there and denies it how are you going to prove it up how are you going to prove it up where is your admissible evidence and that's where c had difficulty they can't prove it out they don't have the evidence there is no direct evidence of the word old they refer to conscious and they made quite an issue out of this in their brief where she said she was asked did anybody said tired burned out government employees so that's the statement we have it's got to be one of the three that's not direct evidence because as you have pointed out the inference under the facts here is that she was saying oh my gosh i've just interviewed somebody who worked for us before who left because they weren't happy they didn't like the pay they didn't like the benefits they want to a better paying county job they didn't like it there they came back to interview with us and we started talking about flex time a benefit that this person doesn't even have then we have i mean that the county attorney's office doesn't have this person won't get and then we have made very saying and in addition she answered a question talking about being a whipping post as evidence we look at the context as your honor has said it's nowhere near what this court requires to say there's direct evidence it's just not there and so then we have to look at the circumstantial evidence they have and we've gone through issue by issue by issue and they just don't have the circumstantial evidence that they need they have to show by circumstantial evidence that the reasons that we proffered are not are true reasons the biggest glaring one that we have what he said in the interview and we've cited two cases where it's very significant what the plaintiff said myths and i sat here this morning going through the record looking at the circumstantial evidence and just started to make the west what toasted met you know she admitted that so many of these considerations were legitimate nondiscriminatory i asked her specifically for this purpose wouldn't you agree that the county would legitimately be concerned if you're paid more where you are now and you're coming back for and asking for less money and she said yes there are no i stopped counting there's no less than fourteen admissions that i put together here in just about ten minutes because four issue after issue after issue toast under oath in her deposition that these were legitimate reasons for the employer to consider also that we had shifting explanations and that somehow they're trying to create an issue of fact of reason for example that you might become disenchanted with your job if you didn't like it before and you're coming back to a lower paying lower level job and the job hasn't changed that's something that may vary says she thought of in the interview so again that's part of the interview reason when she came in and she was dressed who cares whether it was jeans or dance or whatever it was toast admits it was casual day at her workplace and she didn't change her clothes again that's interview related so you're right your honor is that mayberry got information from jennings who said flat out don't hire her and then a mayberry who supposedly discriminates based on age said no i'm going to interview her and i have to correct counsel made very was within the may or may not we've started to go out of circuit cases where that has been taken to be a presumption of no discriminatory intent but i would agree with you that that doesn't necessarily answer the question but i did want to correct what counsel said and so when you  if three of the people thought she did very well one said oh it was terrible and then my time is up got to make comment on that yes ok the fact that non decision makers disagree with the rationale of the decision maker does not impeach the beliefs of the decision maker the question we have to answer is what maybury said her true reason and she didn't just say these reasons and have a softer no more evidence we offered objective evidence that the things she as negative indicators weighing against host rehiring are things that actually occurred so while the other interviewers may not have cared that she didn't dress up and change from casual day mayberry did well the other people  didn't look so good to me but that's a very subjective thing we don't know whether someone's telling the truth when they say i didn't like or whether that's true and that's why this type of problem a very hard t nondiscriminatory reasons and they are borne out by the objective facts so the mere fact that a non decision maker interpret something differently does not raise an inference of discrimination and remember the e e o c has the burden of proof through their circumstantial evidence to raise an inference of discrimination this raises an inference of nothing other than two people looked at the same facts and interpreted them differently but by the way told that minutes we were entitled to interpret them negatively she agreed and her deposition that we were entitled to consider this fact that she didn't dress up with for her interview the fact that she complained before her statements about what the laws here's a particularly relevant whether she thinks  thank you on this i think that's exactly right judge around her it isn't relevant what toast said as to whether or not a reason could be legitimate what's relevant for purposes of resolving this case in deciding whether summary judgment was appropriate is what the decision maker said motivated her decision and what did she say there were two reasons there was the negative reference allegedly from jennings which is completely contradicted by a performance review that jennings herself signed where she specifically said the child had a great professional attitude so that right there calls into question whether or not subjective impression of the interview mayberry is certainly entitled to disagree with all three of the other interviewers who were there at the time she's absolutely entitle to disagree but it's wrong as a matter of law to say that what those other three and her demeanor in the interview that's the crux of what neighbor had a problem with in the interview let's hear what all three of the other people the only other three people there thought of the interview and her big learned contents all praised her interview saying she was pleasant spectrally we don't see how that cannot raise a question of fact as to whether or not neighboring is honestly proffering what she believed to be the real reason here now with respect to the direct evidence point again we think if you carefully read the deposition testimony you will find that anderson ignited telling the e e o c as investigator that she used the word old all that she'd later said is now she can't be certain the word old was used and of course  proffered the word old asked her did she say old government employee otherwise there would have been no reason for maricopa investigator to later go back and educate her that the word old was what was at issue here so you're on as i'd like to remind this court that under th court's decisions in domingo's currie and pop a list where comments such as old and burned out were deemed direct evidence one comment by decision maker is enough to preclude summary judgment for the employer that's clearly this court case law and that's what we have