twenty two years if the think of this case is that there were such significant improprieties in his selection for a layoff coupled with evidence of and seventh cause of action the employer initially argues that there is no prima facia case i don't like it well on this for a period of time but the law as set forth in o'connor versus consolidated coin manufacturers is only vax dr lee was in the protected group he was reported performing adequately and people substantially longer were retained the record clear of that there were test engineers in his groove ages thirty nine thirty four thirty eight thirty nine and forty that were retained all significantly younger that one was in the protect the group is not the issue the issue is that he was significantly younger well i really want to get online and regarding the age discrimination there is the evidence of pretext now there is a litany of evidence indicating that the selection process was soul flawed as to create a tribal issue in regard to the age discrimination claim and usually the person who chose that belief or lay off was a john had occasion to observe dr lee's performance on a day to day basis or even a month to month basis during the year of nine hundred ninety nine nonetheless mr mole is in selecting dr lee for a lay off that not even consult dr lee's functional supervisor rather he reevaluated dark and lee and real valued another person ok ample so that dr lee became the lowest rated engineer and mr ok amp time we have no evidence that most was himself and gazed in a jahannam is what there is evidence in the record as a statement by age are mr weaver that was attributed to mr weaver by mr weaver considered age in selecting candidates for lay off the district court dismissed that evidence as i believe musings as to possible proprietor were proprietary asked about the statement in that position he denied ever making it or ever discussing it with mr moles and that's significant for two reasons first it really renders the district court's finding without statement meant was engaging in permissible finding of fact something that a trier of fact when he has his own them he generalize that was the answer and then and then he said he talked about things like seniority  and make a finding potentially that that was an expression of unlawfully janice that he didn't say that he never had a discussion or that they didn't discuss considerations generalizations he said that he never age was not a factor that's what we i think i would submit that mr weaver had testified now of what i was talking about is we consider rage in light of the fact that we don't want to lay off some the on his age in his case yet not in the next situation focus on ages or some something we don't know but are there has been brought forward so i think if you look at all the specs surrounding this layoff and again you know focusing on one pretext you know mole those not knowing about doctors use performance smallest theoretically rigging the ratings for the doctors the becomes the lowest and the fact that there are seven criteria on performance ability to perform work required experience education maintaining a balance workforce service credit and special security requirements and both lawless and not the more exhausted by that they didn't consider education service credit and maintaining a balanced workforce education being the dr rhee was the most educated person in the group he had a legally that would be legal as long as it wasn't based on the gender accept or accept or that's what any one of these factors might be a legitimate reason although you might think that's a crazy reason it might be legitimate as long as it's not age and so i'm wondering why they would go t the oldest employee i think the the process indicates that they wanted to get rid of them because they rate the process in order to get rid of them there's evidence in the record to that and then if you look at the age comm which is not the only evidence of an image that we have in the records om there's a letter i think page five eighty seven in the record that indicates that there was a statement tributed to a larry l during in one thousand ninety six layoff there t r w was considering the older employees and wanted to get the older employees out and then there is one employ in the group any chance who is not significantly younger than dr lee eddie chardon sued t r w for racial discrimination excuse me age discrimination during the course of a prior layoff and when this round of layoffs was coming up he went to them and he said you are going to lay me off again because i'm going to sue you again and he wasn't chosen for a layoff now i'm suggesting to the court that the rigging of the of the selection process or the evidence  supports the rigging of the selection process the evidence in the record which indicates age animas certainly is sufficient enough to create a trial issue that a trier of fact should determine whether or not dr lee was laid off as a result of his age employee as a matter of law i would just ask the court to look at the document he signed it is not an at will agreement in fact it says something to the extent of we reserve the right to terminate for any lawful terminated i think that raises an inference or a potential understanding from the person who signs it that there may need to be cause to terminate somebody i think it creates a question of fact and in fact mr not a murderer who was an the actual average age was older then according to some material they saw here as opposed to younger that's true that is true but i think the focus of inquiry that was for the entire should be the test engineering group and that's where the oldest person was laid off the only person thank you wrestled with the district court level it's been wrestled with in the briefs and here i think is what the record support weaver considered that we were told him he had considered things like agents in the order you go and read the record and the statement is rowing quite different when what  then when you say honestly don't remember the specifics other than the generalized so that's why i'm sorry as i honestly don't remember the specifics of what was said i just remember the generalized correct and but his term  skin therefore i want to get rid of miserably this comment that pops up in the record is attributed to mr weaver so even if the comment was made it doesn't get mr wein where he his opening grief he described as while in direct competition for the same position designed the old original matrix in his arbitration testimony when questioned by the arbitrator so you're saying designing this matrix all the evidence all the argument is that because of tainted or improper or rigged factors need becomes the one that selected there is no evidence in the record to show that mr weaver or anyone else to t r w either instructed mr moore was at the front and on how to do it to make sure we get rid of and there's no evidence of mr weaver or anybody on the tail end having knowledge that this was in fact a a defective selection tool that mix the california supreme court case proves vs fact but back to where i was on this issue of of we were not knowing about it not being as that decision maker there's no evidence that anybody knew this was going on and i hesitated a moment ago because as the court observed it still has to be for an illegal reason it has to be for a reason protected by statute otherwise you can discriminate on any other ground you you suggest even remotely that they are driven by the the argument mounted by mr we as well you should and has selected others and mr we have you and if you follow his is important to use makes the statement that and inference of discrimination cannot be drawn solely from evidence that a company will lie about its reasons drawing inferences in favor of t r w when all those differences should be drawn in favor of the nonmoving party and she makes for example look on this whole business about the judge's order page thirty five of the record when she and it's the right result was richie achieved even though the process by which the district court judge got there it can still and should still be affirmed and what i'm saying still has to be evidence that permits a rational inference that this was done on a prohibited basis and there's nothing in this record that mr wiesel offers other than mr leeson i think was because of my age there's no there's no expert evidence to show that that was a tainted matrix there's no expert evidence to show that if the factors mr wayne wants in there why would it be any reasonable to infer to make the inference judge observes that while mr leach challenges mr readings a valuation on me because he makes no comment whatsoever no criticism whatsoever about mr go could ever conclude that age discrimination was and was involved here you can do that in some instances in summary judgment you know there's a comment in the supreme court's charge i forget which case and i can ever remember analysis where you are in mcdonnell douglas model of proof where you're the shifting burden analysis it has to be substantial evidence it has to be compelling evidence it's not just any possible evidence under any possible are i mean this is why i mentioned before i would agree with the court that the procedural process of how you get there and how the evidence presented to shift the burden back and forth is procedural in your area and therefore  cases it has to be substantial evidence it's not the standard isn't any other line i think it is any and i'm saying that that it's summer at the summary judgment stage you apply these the critical question is whether there is a genuine tribal stands for the proposition that if an employee is given a unilateral proposition and accepts it by remaining on the job and accepting the benefits of the job that is an acceptance very briefly i would commend for the court pages three eighty and five seventy eight of the record where the testimony of melissa and weaver three eighty and and strong points were taken from the matrix even though there is testimony in the record and this is our testing the power testing was going to be something that was going to be needed in the unit in the future in fact wasn't needed in the unit in the future and in regard to falsity not being enough to create a trial issue i would suggest to the court that there's just more than faulty here there's not only this major animists comment the history of perhaps using age and selecting people for lay off the fact that mr