versus mcconnell douglas helicoptered you agree with that yes or i gather both parties agree that the first two prongs have been established so we're really talking about whether the cars will link in a protected activity and the adverse action is that that correct it was brought then in a timely fashion to a four man board four man board consists of two company individuals and two airline employee individuals they deadlocked on the  their decision in the appropriate time frame three on the airline pilots association filed for the five million board we call it the board we have now switched from the section eighteen of the contract to a section there's no charge for the church or the bathrooms are free i chord into section nineteen of the contract the five man board has ninety days to render their decision it was brought reason when i think it's pretty well expressed in the brief for this court by mrs boyle who was my attorney at the time unfortunately i have to represent what corporation he working for she's working at four she's switched it from one to two different her name is miss barbara boyle and i think she's had their cases before the age discrimination because i was on a long term disability and delta airlines at the time did not have flight engineers and i reached i put on a couple of pieces of paper that involved the transfer i put that this was a discriminatory read it was a discriminatory is you complaints about delta and  my name is bill boyce and i represent delta airlines in this case if i might clarify a couple of facts in the sequence of events the case is a retaliation case that's absolutely correct your honor and i think you  and it seems to me that in on a summary judgment basis although i can say i may have little chance of trial hasn't he raised enough issues that need just very minimal threshold to solve that  it you're dealing with those facts you may not want to say well you may want to go during but that's what you are you know if i might and that's what you are so i understand that and see where you go from here are the record as i understand it his net benefit what six hundred dollars approximately want why wouldn't that be a jury question as to whether or not there was a pretext involved here i mean you have to be use the president's words stupidly involved in something to to do that i mean makes absolutely no sense if he would give up that career for six hundred dollars make any sense and when you had these other things about that that that says judge preggers and talked about the in the ambiguousness of things the way different people were treated differently for doing something very similar that gets back to judge n that at the end of the day whatever we think about mr garnish case we're stuck with the fact that under lindahl it seems like mr garner has raised that very little bit of evidence and that maybe all these  very little bit of evidence to take it back to trial you know i think i think you have the burns a little bit mixed here is what's the what's the company has articulated legitimate nondiscriminatory reason the burden is on the discriminatory motives to raise a genuine issue of fact as to pretext i'm quoting a case that reality is yes it's very he has come to me he's raised by my count five different points some of them are weak some of them are stronger that meets that very little very little evidence level and that's all he needs to do in this type of a case to satisfy the very promise that know your honor he has to rai except your answer to and in iraq it's very is that correct there was there is there are was very little evidence about the specifics of all there is no question it's not disputed in the court below that there is no question about it mr posner violated the rigney was investigated for the same the same situation the same violation of policy the investigation however so for mr rigney who was older than mr garner who also had engaged in protect types of things and when he said no mr rigney you are not entitled to that he said well it looked to me like i had this condo i should have been but you say i'm not i'm not i'll give the money back it's a totally different situation factually as to as to whether there's a difference there is a very important it was mr garner offered an opportunity to return the money that it had never came up with mr garner because the facts of his the investigation of mr gardner began not after he not after he filed this but this note on the on the floor and it was it was when the company the moving company called then the question is is there any evidence or pretext here and this is where this case is very different from the run of the mill retaliation case and the reason for that is because this case went to an we're on agreement on that i don't think so you're right reprehensible but there are sanctions sanctions i understand that and integrity is important in a pile and the company and i just yes you get back to the and that does make a lot of difference in this case if i might just just call the court's attention to one case where the same factual situation came up it's a district court case that has come up since the original briefing you probably don't appreciate the fact that in this way we actually do understand the burdens we understand each level and who has responsibility what we get these cases all the time i do and  it seems like the difference is on the level of evidence that needs to be established and there isn't it seems like we may have a different viewpoint but understand that we you know we don't right to pursue as it seems fit its particular policy but the reality is what we're dealing with here is whether mr garner has raised a level of evidence sufficient to satisfy a lead dollar that's  of pretext and that's not enough he looked at all of the evidence and it's all listed there just like the neutral looked at all the evidence and found that there is only one conclusion they can be reached there is simply not any other evidence for your perspective is that the five or six different things that we've collectively talked about here are not reason not response as a pretext or not protection will argument to require someone who either resigns or retires within twelve months of getting realization that a face to return that's not age discrimination is just treating someone who's no longer there that's fine there is no longer a position which under federal law he could he could serve him because of the the federal law requires that pilots and copilots now have to be under sixty five and he's over that a yes but he was he was not eligible after two thousand and three to continue flying in any position so we're talking about a period here between two thousand and one when he engaged in misconduct and two thousand and