that there's a good case here that the district court was wrong about whether your client presented a promise they should case my concern is about whether you did their legitimate nondiscriminatory reason with evidence which was also presented although not ruled upon by the district court it was presented to the district court  which is a complicated case that went on for years and a week later she sent him a letter terminations letter that includes i believe two major issues  all of which had to do with him being unable to explain himself in a clear way and also being hostile in areas the letter itself does not mention the changing case and it certainly didn't say anything about him withdrawing from it so  did i mean whether he did or didn't isn't irrelevant but but the ultimate question is did brantley actually believe that or was she using it as a pretext to to to dismiss him based on age well that that would be the question for the jury your honor and when we have the background of remarks that she has made which is also part of the pretext argument when when her terminations justification and latest to see her hiring trends and her remarks about baby lawyers and about needing to fill the nursery and frankly the most provocative one which is her own boss telling her that he was tired of older employees and wanted a younger workforce i mean when you lay that the attorneys with which you deposed in the office uniformly and tell me if i'm incorrect uniformly said they understood the beating lawyer remarked about experience not about aids in other words they wanted people with not less experience so that they was a different staffing model of the office rather than they wanted people who were under the age of forty when that the testimony well that was some of the testimony and there were other bits of testimony that were no you know i'm older and  the evidence i guess that most favors the nonmoving party absolutely yes ma'am that is what we have to do and if the own lawyers in the office who are hearing her make these comments are on different pages about what those comments names would shows that the decision maker here did not believe that he had been hostile and arrogant in the way he had expressed himself about that litigation his coworkers admitted that he was ordinarily a call person but he was very passionate about this litigation and his own testimony confirmed yesterday and there is a difference i would submit i think a jury can see the same a difference between being passionate about  desire to terminate him according to her own testimony and that of her deputy was not about his hostility and his arrogance it was about he wanted to withdraw from the case is it morph into something else until she has put paper and to come up with a justification and then why is the backdrop and your honour's the district court should have done this in live backdrop of the comments of the directive she got from her own c e o and the hiring trends which we see in the office i shudder to think the district court can just ignore that evidence and decide and way to come in decide itself we're going to side with the decision maker here and take it out of the jurors sufficient evidence that he was replaced by someone outside of protected class i will focus my comments on the nd way the plaintiff argued that they could prevail here and that is a convincing mosaic of circumstantial evidence because the evidence that plaintiff pointed to there as part of the convincing mosaic is in fact the same kinds of evidence that this court has looked at when examining whether  if i can respond st to a question i believe was from judge locke asking weren't the remarks by the other attorneys of the deposition testimony from the other attorneys in the office saying that they understood brantley's comments about baby lawyers to be referring to attorney experience not age and there's two things i'd like to point out about that one is she did not just say she wanted to hire baby lawyers and say it over and over again he also said she wanted to fill the nursery with them and she chose at a staff meeting to repeat the contents of the county c e o that he was tired of seeing all these older county attorneys and wanted to cease some young faces young employees in the county so there's a comment there's three different kinds of remarks that she made over and over and not every attorney viewed those comments as simply referring to experience where she cites the depth of the testimony of sam brannan who said that he understood the comments to be talking about bradley's desire to have young lawyers in the office that's oxford i have a question for you  is relying on that kind of theory that convincing the mosaic if the employer proper is a legitimate nondiscriminatory raising for which there's no evidence that  discriminate based are prohibited grounds but instead terminated or make whatever adverse decision is made against the employee for a legitimate a nondiscriminatory reason that that would work equally without regard to whether you're using the mcdonnell douglas framework or the mosaic theory in the convincing mosaic framework the court or the jury would look at all of plaintiff's evidence in relation to the plane the defendant's claim that this was the reason they fired thompson and and decide whether in fact higher body of circumstantial evidence as up to enough to override the claimed legitimate reason so if it amounts to a very similar analysis and i'd like to point out of the one really convincing mosaic and cite six cases none of which mention a high bar standard two of which this court found a convincing mosaic and reversed summary judgment in whole or in part and on the other four simply examined the under the burden shifting framework so the court there was looking at the same body of evidence but they were conducting two different kinds of analysis and so as we explained in our brief clear we believe that thomson has add up to showing discrimination not a legitimate action for that basis for the defendant's actions so i think there's enough case law where this court and looking at the same body of law and i think the primary purpose of the convincing mosaic is that it jumps over whether or not there's a prime aphasia case and it could in fact i suppose be equated with just jumping straight to pretext and looking at all of the evidence for which here thompson had four different categories of evidence that not only included brantley's a just comments but also her hiring pattern of hiring twelve new attorneys in a brief and in that section he almost exclusively argues that thompson was terminated because of his whistleblower activity it's only at the end of that section is there a paragraph or thompson relates the alleged age comments and hiring trends to age discrimination there is no analysis of the convincing mosaic theory age discrimination and it's no wonder the is ample testimony in the record that her purpose was to hire entry level attorneys because when she took over fifteen of the sixteen attorneys that she had working d is at least to create a genuine issue of material fact about whether brantley replace thompson with someone younger well he was hiring assistant county of attorneys thompson was a senior assistant county attorney responsible for complex litigation and the next person she hired was someone you know under thirty under thirty five who was not for the same get all that each is i just don't see how on summary judgment the district court can say that there is not at least a genuine dispute that thompson was replaced by someone younger court and the plaintiffs must address the reasons for terminations head on and plaintiffs is not attempting to do that it's undisputed the thomson had various disagreements his managing attorneys and outside counsel over strategy he was critical of all attorneys who helped on the case he was drew from the case in november of two thousand and fourteen and at that time  that was a very significant thing which brantley felt that thompson was disrespecting her acting like a child and he wanted to terminate her at that terminate him at that point she didn't she kept him on  he withdrew from the case there's no other attorney who engaged in that kind of conduct and then you jump forward to may two thousand and fifteen and he has this meeting with johnson where he accuses her of withholding information they have an argument johnson asked him to leave her office they both reported to brantley and on may t h in a meeting between brantley thompson johnson and outside counsel need to thomas the meeting becomes contentious so much so that brantley asked thomas to leave the room and she says to thompson i've had it with you you need to find another job all of this is on but and all of this is omitted from the analysis made by  thompson the letter was cited earlier by the judge from brantly talks about the hostile an arrogant manner of interacting with grantley and others in the office and how she wanted to develop a team environment and that thompson was destroying that team environment all that to shows that there were ample reasons that any employer  would terminate somebody who is being disrespectful and not following the directives now as thompson says as argued that there is a shifting explanation it's not really a shifting explanation johnson notes from a meeting that she had with brantley and thompson indicate that the withdraw from the case was the reason the terminations and it was a reason that started that was the start of the ball rolling if you will although even before that there was problems with thompson working with other people on the champion  participate in the melvin vs federal express case and in that case there are three things that the court will look for to see if there are you know if there  is a convincing mosaic that includes suspicious timing and big u s statements number two would be systematically better treatment of similarly situated employees outside to protect the category and the rd is the employer's justification of the terminations as pretextual you know our case we don't have those factors although i think even without that what  our strongest argument is the fact that there's been nothing that undermines brantley's explanation which was confirmed by johnson that  thompson was terminated for this course of conduct that was contrary to having a team approach that bradley  to simply say in a vacuum the decision makers estimation of mr thompson as hostile and arrogant insufficient it is not sufficient and it's not  for the ocean that he has expressed himself in a hostile and arrogant manner and that there's really nothing in this record to rebut the notion that that was the reason you throw that sort of moniker on someone and just throw that out terminations reason with the backdrop of all the evidence that we had a jury could look at that other evidence and say you know what frankly just making that up his coworkers don't agree this is the only case in which she ever said anything about that and it just so happens that falls on the heels of her in all of these younger lawyers and hearing from her own thoughts that he wanted to see a trying to protect the county but more to the point here all of the evidence of miss brantley's discriminatory and and point and put that reason that she gave and that's right and when you do that and you don't just