the issue here is whether or not the district court erred in granting summary judgment in this case we believe that the expression in the united states supreme court specifically the tolling case as well as the precedent of your circuit the francis v johnson case would require this panel to reverse the order of the district court as i'm sure you're aware in tolan the united states supreme court a mere five years ago was concerned about district courts weighing evidence giving disputed factual determinations to the moving party on summary judgment rather than the namu ving party and they in that reversal of what rather simple case they had monstrous or court judges to not do that this court in francis which was decided to year later picked up on the fact that normally a plaintiff opposing a summary judgment motion in a discrimination case does not have a heavy burden because in this circuit you've said that normally discrimination is a matter of intent and there should be a full and complete trial and record here we have both direct and circumstantial evidence in francis you allowed the accumulation of a quarter just record should look at both the direct and the circumstantial evidence and it is a look at the evidence that was in front of the district to get really annoyed and she's finally had enough and says ok you're canned but we also have a motivation that he's too old what do we do with mixed motives so this is where i think to just record erred in looking at gross mick and you can look at your own francis view johnson case where it's you said in that case it's just a matter of producing evidence to rebut the production by the defendant and whether a reasonable jury could find if they believe the plaintiff a verdict so gross comes into play at trial not at this stage and that was a major error by the district court we had here direct comments by the number one person domino in the owner and the number two person in fact we had more than straight comments to just record called it's stray there were more than one hundred dollars comments lots of strays that's a lot of stray comments additionally to jump the douglas test if the company fire somebody and when the plaintiff asked why am i being fired they said we don't have to give your reason they didn't use in sports nation you were a pain to or disrespectful to the number two person then in the paperwork it said not a good fit we know not a good fit is often the code for discrimination the problem is the defendant didn't come up with the five reasons until the litigation stage it would be a different case potentially if at the time of terminations they said you were insubordinate and obviously if you had an insubordinate employee why wouldn't a and you say you're insubordinate so that goes to pretext it also goes t credibility determinations and it shows our point that if a reasonable jury the only standard really is could a reasonable jury if you ignore the defendant's evidence to the plaintiff produced enough evidence to be back summary be reasonable jury on that record rule for the plaintiff that's the standard in the circuit gross is really a red herring because gross comes into play at a time of trial and the judge has to come up with a jury instructions at that point in time and it's never really been a block for absolute because we know there are various motivations in credibility determinations in any trial and the jury has to make those determinations so the fact the judge pulled grows a sensually out of thin air and use that as the basis to grant it meant the judge here unfortunately ignored over one hundred comments there were comments made evidence you have that's in proximity to the terminations of a story remarkably well donna kelley come out with some time before and johnson said no you can't do that will the whole tenure the whole unlike a lot of call him an old man but in training they said i think you're too old to cut please ask him are you too old to cut close deals then a few months later they domino he called johnson said farm he doesn't have the energy they kept calling him old man throughout and in fact called him an old man the day before and this is by the number one and number two people the case you know thing about this case in contrast a lot of age discrimination cases is this isn't a case where someone has been with the company for a long time he was he was hired after he had retired and so you start off with the fact that he is an older employee in this corporation and it's a short relatively short period of employment right but so what do we do person he was one of the top performers so you have an older man sixty four years old as a top performer he's fired and replaced by a thirty two year old woman with absolutely no sales experience at all the reasons given were inconsistent that goes the comments were made throughout it's not a case where you have a comment a year before the cases cited by the district court republik services there were one or two comments not one hundred i think in the notes case in the you had indirect comments general comments not by the decision maker or there was one comment about gray hair those cases are not at all on point to this case where there are hundreds of comments i think the proximity if you read franc johnson we have more evidence in this court had in frances where they reversed the district court we have a lot more comments i think we have at least a reasonable amount of proximity they took it looks like they didn't like from day one that he was old domino when the rokia johnson hired on they then the company got the benefit of his contacts all the sales he made of casinos this is a company that was putting these zing casinos which is a big business in nevada so they came in and put he used all his contacts to sign deals they were supposed to have this new compensation plan he was complaining about that plan but the number one guy mr d muted the number two personal rokia had dropped the ball on that plan and now could refactor the company because of the sales people of whatever age relieved and so after they took his contacts our position is the true feeling of the company and triage bias of domino iraq kicked in and they terminated him you know why is your narrative not consistent with the following that is to say they knew it was old they hired him despite the fact that he was old the reason they wanted him was that he was a good person a good sales person with lots of contacts the got the advantage of all the contacts and then they can do it he will do they hired him to fight the fact that he was old they if they fired him it was old but their reason for hiring and their reason for firing was we want your contacts we now have your contacts thanks very much for gone the reason is steve johnson hired on the people that we fired on was the rocky and on the nelly and they were concerned from day one which is really important that in training and right away they were saying are you too old do you have the energy and can you close the deal is there another response to what i just said that well if that was the reason they should have said so obviously maybe they're embarrassed to say that that's what they did they squeezed a lemon they got the juice and now you're gone maybe they didn't want to say that we cuz that we would be somehow embarrassed that that was what they did why not just say insubordination or why not say he was a trouble maker on the compensation plan and he so dissent among the employees that's what they said in litigation and obviously that would be a legitimate reason but then we came back and said he never said any of that while he worked there you never said or done in the terminations paperwork this is a regular company you're not talking about just some pop they have paperwork the paperwork says not a good fit that goes to preach if you can follow you down to about four and a half minutes if you want i just want to say one last thing if you follow francis and now it's a recent th circuit case we have significantly more evidence than you found enough to reverse  single act or issue and opposing counsel says that mr johnson was the hiring party but the facts in this case point absolutely opposite to that well depend what you mean by hiring party i mean there may be somebody who is the hiring party because he signs off on it too and there may be somebody else who's actually the motivator who's responsible for the hiring that looks like mr johnson mr johnson surely was the recruiter so i brought him to the table of formalistic rule or is it a functional leave it's of one who is really responsible for the hiring but we look at that or do we look at formalistic the top guy has to sign off you know i think it's functional but lorikeet he wouldn't have been hired but for the ricky is ok she had to sign up she had to approve of his hiring i get and of course followed by that was missler ricky is sending mr kaczynski all of the hiring documents signed by her not m johnson and i think that's pretty telling a good also mr johnson of course testified that he reported to mislead and she was his boss so his automatically mean that you get summary judgment if there's other evidence from that could overcome that inference and and why aren't you know the whole series of comments and in particular the owner of the company saying no we ought to fire him because he's too old  isn't that evidence that can allow a jury to conclude that in fact he was fired because they thought he was too old well one we dispute that that that ever occurred however be that as it may that constitutes a frankly a straight remark at the commencement of employment and there is no nexus between that comment and his continued work for more than a year after twenty four hours terminations in his term nation was clearly tied to insubordination and of abuse of his superior what is what is your understanding of the distinction between a straight remark and an on straight direct evidence of discrimination well i think a lot of i think it's fair to say that many of the holdings are kind of all over the place on that issue  but stray remark can be a remark that is not tied to the actual adverse employment action itself so for example far so why isn't that the you want to the company says i think you should fire him because he's too old why it's not enough to establish a genuine issue material fact a pretext because it's not tied it's so remote in time to the termination itself that it bears no nexus to the action and there are plenty of cases out there that say it's when it's too remote in time it constitutes a stray remark and can't be part of the process you know no there's some cases out there however not necessarily for size of this context that say well proximity in time is one factor but there's an old saying about revenge is a dish best enjoyed cold i mean  people take their time sometimes and the fact that it might have been and here we're not talking twenty years earlier the fact that it might have happened early on and assuming of course assuming that is true that the head of the company says he's too old i want him fired that doesn't just disappear that's true i would agree with that in principle but that's really those weren't the facts here mr donnelly who was sixty six at the time that mr kaczynski was hired who was the no we don't believe there's any mixed motive here the motive for determination was plain and simple had nothing to do with discrimination it would only have to do what do you do with the sort of the straw the broke and was back problem is but when you say what caused the camel's back to break do you say well it's only the straw or is it the twenty pound lead weight that was already there obviously was both we contend it was simply his behavior at the believe it's an argument for the jury because again we have the same actor here who also is being alleged the person who was hired mr kaczynski is also the same person who is being alleged to have called him old man not just in proximity to that if he hired her he would have naturally signed the hiring documents i mean that's normally how it would would would work or someone from h r would have done it certainly not rosalynn rickey and again he never would have been hired except for he had to go up the food chain to interview with her she had she had the ultimate authority to whether to approve or not approve that hiring and furthermore with respect to his comments about old man throughout the employment johnson mr kaczynski is a good friend is alleged to have called him old man or grumpy old man between ten thousand two hundred times throughout his employment there's actually a case from well over fifty times throughout the employment in a six month period and those were held to be straight remarks so what i want to do with the stated reason for terminations being not a good fit that that doesn't what does that mean that's a valid question but it doesn't it doesn't really mean anything i mean many most companies don't there's no requirement that companies have to provide a laundry list of reasons to an employee why they were fired in fact most companies give sort of a neutral decision because they don't want to get into a fight with the former employee and it was only obviously because litigation ensued that the company had to give obviously a much more detailed discussion about why it had terminated mr kaczynski but there's certainly no law that requires an employer to provide well mainly in this i'm saying that i will tell you the nothing contradictory here it said not a good fit and the not a good fit could certainly in compass an employee abusing verbal be abusing a boss i mean since when does a company have to keep an employee on racially retarget derogatory remarks against other employees i mean this was it's not a nice employee might have been good at his job and does not dispute that does not have an issue with him conducting his drop in an in a good manner but since when does a company have to keep employees on the payroll when they're abusing the boss furthermore mr kaczynski also testified in mid that he told mr rickey he didn't trust her or mr dominantly so now that he was right he didn't trust them for what for no reason because missler ricky had told him time and time again that the new employment plan was going to be put in place retroactively and it was so his his claim to lack of trust was completely misplaced it was it was a fiction there was course i've been this all fairly fell apart during that period when when he thought he was going to get the new plan implemented and it was an implement it so he gets frustrated he starts sending all the emails right and she says it's going to happen going to happen and he says or at way on you know i mean you could you can see that there are there are both sides for her to bait for sure and look i think it a reasonable response would have been frustrated and i don't dispute that  and i think that's again recent bill but it's not reasonable to be verbal be abusing your boss and to say that you don't trust her or the head of the company you don't believe what they're going to say and then i mean name calling and other things i mean since when does a company have to put up with that sort of behavior and so get your i don't think it's reasonable legitimate nondiscriminatory reason but then we get to you know the central question is is there enough were well over forty at the time that mr kaczynski was hired and then obviously he was hired at the age of sixty three dollars and terminated the age of about sixty dollars if they really had some sort of discriminatory animus based upon age they wouldn't hired him in the st place so a lot of these allegations just simply don't add up in the scheme of things i mean the the reasons that were proffered to the plaintiff do not contradict what's in the record the record is that he wasn't a good fit when explored more fully that good that failure to be a good fit so in discontent among other employees and of course he refused to provide us financial information watch what is a stated term and condition of his employment and he refused to do it and basically push came to shove and after all of this time company had enough and terminated him but again the same actor hired and fired is there evidence in the record and you know if that if there is such evidence i don't ask you to say you agreed that it's probative or even true but is there evidence in the record to when mr donnelly realized the age of mr kaczynski i don't know i don't know the answer to that however i would certainly suspect it would on but it's possible down that domino only as soon as you realizes how old an employee is that's just been hired he says i want to be fired that is to say he didn't hire him in spite of the fact that he was old he didn't know that he was old perceive the argument by counsel is essentially arguing the merits is if we were in a judge trial or his argument of a jury trial if you go to the order by the just record the district court orders reconcile a couple of comments with hundreds of comments so that analysis is flawed then the district court went into the mcdonnell douglas analysis and in the mcdonnell douglas analysis the district court listed the reasons provided by the defense they ignored our argument completely that when a company gives wildly inconsistent reasons meaning they give no reason to terminations or you're not a good fit and then they come up with six other wildly inconsistent reasons this circuit in call in has said that's enough for pretext at least to go to a jury on the mcdonnell douglas case counsel's argument about you don't have to give a reason just kind of belies the reality of economics a company can have a policy that new that other employers only get sort of name rank and serial number that's been going on for a long time but that doesn't mean in their own records or what they tell the employer when they terminate they can certainly give the reason if you're insubordinate you would expect to be told you're insubordinate his argument they don't have to do that because of litigation belies this whole concept if they had a legitimate reason they would given it the time of germination this is really a procedural issue the district court credited every inconsistency every everything any evidence it was contradictory all inferences to the defense when case to overcome a summary judgment motion because intent is clearly the issue so if this court should reverse just analyzing the opinion because it failed to credit direct evidence that we had including the decision maker reasonable proximity to answer your question i believe domino you met kaczynski for the st time after training after he able to work they both jump to the conclusion can you close deals if you have the energy at your age that's clearly age based and in this and the issue for you is always could a jury re conclusion or a verdict in plaintiffs favor on this record and we would submit that it could thank you thank you very much for your thank you both your arguments today the case just argued to be suspended for decision