next case argument is french you know first time it's cardinal called health care at all this case gender was a motivating factor and here we have a zation standard affects the plausibility standard as well i don't i don't think so iran or but one of the things i did want to point out and i have great concern on this particular case as a plaintiff is attorney is that from the opinion below my worry is that even if i were to prove everything after discovery i still get thrown out of the scott march for summary judgment and i i just it's not it's disheartening to see a district court's whining be focused on more specific it seems as if the comments were that he's replaced by a younger a much younger woman for his job and and there are a number of allegations of a comments made by the people who are making those decisions and surely e e o c is going to want to talk about that it seems as though for the sex claim all you've got is that she was he was replaced by a woman is well there's anything else many other things are going to sex right or could one of them the pretext one of the pretext which is not yet even raises the as defense yet because where the pleading stage but will which i expect will come up is an allegation that my client look down the guy it was hill as a supervisor investigate him that's to get him for that and said he didn't do it right so how is how is that how is that this evidence of sex discrimination when we have the next level down  discovery will show where the defense will raise got another woman to falsely claim the blouse looking down an incident and based upon that if he if my client were a woman there would never be any and haven't even yet offered a legitimate business justification is it so you're saying under littlejohn it's sufficient for a male plaintiff to plead that they were replaced by a female that's sufficient to survive the motion to older replaced by substantially younger but i do agree with the concept of if you're a day or a year younger that's not plausible that's a discrimination claim where it's as alleged here in any case plausible that you're replaced by a bare bones pleading would be that you qualify for the job that you were replaced by somebody who's in a different protected group you know man woman black white older substantially younger  and and the end of the subject as a stop action take out black white and take out older substantially younger and back to judge nathan's question man and woman all you have to do is play dad and you  you're off to the races at least a summary judgment you're off to race to do discovery to fight to determine whether there's more to it because the defendants will have to just how do we articulate that in a well crafted opinion so th employers are well on notice of of that if you replace a man with a woman or vice versa i guess vice versa obviously that's sufficient pleading and you guys are going to engage think it's easier on her if you only replace the man by the woman because he's a man and you're a woman you're subject to potential title something like billet now the employer the answer to a lot of employer that is all you need is a bona adverse job action to a person who's qualified to do the job so you have a number of things so so there's more to it than just replacing them with the right you're going to need an adverse job action of resources time from a bottle so let's hear not what i'm asking this court to do is simply indicate to the district court that in its discretion it should consider if appropriate to revive a claim if we have jurisdiction the facts warrant it do anything over a claim that was voluntarily abandoned i don't know that you have anything other than to express what i think general flow of the which would be if the facts of facts but in looking at the case i'm just saying if if if the facts as they develop indicate retaliation which i think they very easily could i don't know because i don't want to discovery that the district court would be allowed to do discrimination in employment claim and our position is that the complaint satisfied the pleading standard and that the complaint was plausible as to the age claim and the court there for erred in dismissing it of course  action and that age was the but for cause of the adverse action because but for is a standard i'm not sure it matters counsel but is there a clear authority from this court that littlejohn applies just the same in the context or does the heighten causalities requirement effect affect the pleading standard anyway there isn't a heightened cleaner requirement for employment cases we get our friends work away as in your current the littlejohn was not about age but i think it's undisputed that age has a but for standard title seven has a motivating factor in allows for that but the question is really the same it's still whether the well cut backs taken is true possibly allow an inference of discrimination and i don't know of any authority from this court suggested there's a different possibilities standard for age claims versus title seven claims because of the but for versus motivating factor that's what your honor is asking and the district court here how that there wasn't enough the that is going to the question of what is the standard the standard is but for which doesn't mean sole cause but it means a determinant factor and so that's right there from a motivating factor were right but at the complaint stage the question for title seven do you have enough factor age standard i agree is higher is but for but it's just the standard articulation above or versus motivating factor for your ultimate question a motion to dismiss are there enough facts here that plausibly meet standard title seven or age but for cause of this adverse action here the court said no we respectfully disagree there was evidence of replacement by somebody who is younger so the plaintiff alleged i was fired when i was older i was performing satisfactorily i was replaced by a woman who was much younger he gave the name of the person who replaced him christine nation jump but in addition to replacement which i think is enough under littlejohn which is published precedent from this court that the defendant cites of the marcus case i think that that's enough but also here in this case we had pretty fairly detailed allegations about age related comments jokes and cartoons in the workplace and it wasn't just one or two comments i think the defendant or someone misrepresents the amended complaint by suggesting that the complaint actually uses the word frequent twice in paragraph twenty and  paragraph twenty one when talking about the jokes in the comments and it uses the word includes just prior to this joke about hey you're sixty seven and yourself you've got four teenagers and the carry out comment includes so those specific details of the jokes and top just illustrated the frequent comments and jokes that occurred during the workplace and then finally i just have a little bit more time i think the third error that the court made was about the same actor inference i don't think that this is a case where the plaintiff has pled himself out of court just because he was fired at age sixty one and fired at age sixty eight that is a lengthy period of time and this court has said in carlton the same actor inference is probably enough if it's if it's more than six years so eight days yes six months yes maybe two years but here we have quite a lag in time the complaint also does not detail who exactly hired the plaintiff m so it's not clear there really was the same actor so respectfully we do think that there was  health care and storage you're actually kind of thrown off a little bit by some your questions and your responses i guess we'll start with the gender issue  i don't think that's correct there's nothing in the case law that indicates that there is i think we finally got around to there if there was adverse job action and you were replaced by if you're male or female female by a male that's sufficient i disagree with that as well in all in most circumstances actually also that would come first call it comes a bit of surprise for most employers but even if there is a let's critical like as i am being a little critical of the of the pelleas council going to say she discovery is not a simple thing the idea of ok well we'll go to discovery will discovery for an employer is an expensive time consuming very administrative nightmare of a situation i'm not saying it's not appropriate but there is a gatekeeper function that is and that's been in a none seed in all these cases so we sex bias against him especially since bill was a friend of mercado's did the investigation and was instrumental in his discharge is that doesn't add does not add a little more meat to the bone i don't think having a see if there is a complaint in this case it happened to be a female that they were the subject of sexual harassment that employer under all the other lower that's involved in this area has an absolute obligation to investigate if they don't they do it at their peril i don't think the fact there was an investigation means sex discrimination it means it was a complaint they had an obligation to besting there's some allegations made here and it is sort of falls over iran or i don't want to mix the two but the complaint really kind of mixes together for instance the allegation that nationality and ethnicity is one of the reasons  we have and it's based on you know in that particular case it's based only on the fact that one of the supervisors to zahra was hispanic person that reported to him hill was not but was sort of  the age claim there's more to the age claim i agree there is also the difference with the age claim is we have to weigh the age claim in terms of the but for standard counsel for the e e o c discussed and i think we're all in agreement well maybe we're not i would argue i would argue i don't want to say we're all in agreement i would argue when i say all i meant down here is that the but for us a harder stand you know but for her  his age he would not have been terminated and there has to be plausible you have to reach a plausible that that is flaws in this particular case is i think appropriately set out by the district court judge b and in the if we look at the complaining context it's very careful about drafting specifically when mr president oh mr hill would say things and then generalizing on some other things the cartoons the jokes the e mails and for the purposes of this this motion to dismiss we have to assume they've heard there is no allegation that those who are done by mr bizarre or mr hale that they were and that they were any part of that that they made any of the jokes that they did anything it's also alleged in there they were to decision makers there was an allegation that they ordered actually it's ironic is that mr bizarro asked were directed mr frey cino to investigate ms mercado and that's really goes i suppose to the nationality ethnicity there's also no allegations of any temporal proximity between those comments between the comments or between the  cartoons or any or any of those alleged circumstances no timing to when this what would have been adequate in your in your view putting your hand your hat on for the other side well if i was putting my hat on for the other side considering i would be representing the person that was in the room for those comments was on the email for the e mails so  cartoons was in each or person himself i think what i would suggest is the complaint to meet the plausibility standard as to say and hill or the brunt of brunt of embarrassing in hurtful age related jokes made by his superiors or condoned by his superiors including but not limited to hill bizzaro on conference calls company sponsored functions and at business meetings and these generalized allegations from a person who knows specifically what happened or not sufficient you can't just throw their names in there when you're it is especially in a case here where this is the individual that was on the scene was actually involved i understand i think it's difference these age related jokes include making page a paragraph if you include making fun of the fact that age sixty seven and for children who are barely teenagers th directly regularly directed age related jokes in the next paragraph condoned by bill there's a lot there's a lot in those three or four paragraphs that just nathan's directing our attention to those and there's some specificity there's a rate i agree it's not without its i mean i would be fine i would be looking foolish to suggest that but there is i don't believe in the this particular case with the buck for standard with the higher level of i believe a higher level of scrutiny that has to be paid to this particular this particular kind of claim and when i say this particular i mean the age place at the end there needs and i realize i'm repeating myself and just bear with me from the person that's actually involved there can be specifics that would not use over the finish line or nudge the lower court judges such as well that aren't about such a day this specific thing was said to me i'm not so sure and i'm not so sure the comments about a carry out means age mean i but that those are inferences to be drawn excuse me those are inferences to be drawn as to whether that's age related aren't are not yes i agree with that but i think if if if it all comes down to that one comment your honor i don't think that i believe that to me standard especially when combined with the heightened obligation of establishing at least at the pleading stage it's the luck of his age is the but for reason there needs to be more than just that one comment and that's essentially i want to see it not limited to just that but essentially in looking at what was alleged that's what the lower court judge found you think it was a well reasoned opinion and he was correct  and in terms of well i don't think i need to comment on the retaliation claims i mean and that's for another day i think he made that clear but anyway and for any other issues you actually if to the age case i think that's a significant issue i do i think there has to be a heightened i would suggest i don't think i would suggest to the court there should be some sort of heightened test here that makes accommodation or or or folds in that the but for is significantly different than the title seven standing i wish i had a that we know what the standards are in order to ryse actually get there but why don't why isn't why is it wrong or how else should we do it other than apply i will say in a vault overlay to that and determine whether you heighten pleating standard i'm not suggesting it's wrong your honor i'm what i'm suggesting is standing here rick trying to think very quickly i'm not sure maybe it's simply that is to a very specific emphasis on the butt for well whether they plausibly played it enough fast that will get you over the pot for stan or get you to the but force there hasn't been i think from the circuit from this circuit at least a decision harder than i need to i don't want to take on a case that's a bad case but i want a case that i can bring to a jury where the jury can see all the facts i think the judge a jury of american juries better than any of us here and seeing especially a case like this where there's a lot of things a lot of moving parts a lot of factors where jury could say you know what yes we do agree with plaintiff's attorney that it looks like ethnicity and gender motivated the decision because both hispanics or both man and woman in the decision and and as to the age aspect i think it was a proxy cause and i think it's wrong for your standard you drive a car but for being negligent you caused the person injury here but for age it's proximate cause as opposed to merely motivating factors i would suggest that title seven requirements are lower decision says a reading from the decision the fact that a plaintiff was replaced by someone outside the protected class will ordinarily suffice for the required inference of discrimination at the initial prima facia stage of a title seven analysis including at the at the pleading stage it's as i argued before it's right out of the little shock decision and all it does run is get me and my client in the door i don't want to pursue a case i just want to have the discovery that allow me to go go forward with a case that i think is a good case in a case like this where there's a lot of different facts and factors involved one of the factors was as i argued in the briefs did the employer decide you know what mercado who if we fire her she's a woman she's a spanish and she's now making an eighty eight claim if we fire her we have a lawsuit now why don't we just fire the person who's charged with investigating her for abusing her subordinates now i didn't have enough facts at hand because my client didn't know whether the abuse that mercado was doing offers warnings was raised or ethnicity oriented or whether it's  just basically being not a nice boss to everyone equal opportunity jerk i don't know that but it's if my client was investigating if the facts were to show that my client and was investigating a woman who was discriminating unlawfully with regard to herds of mormons and then my client was fired for being tasked with doing that that's also protected activity and his party should have been allowed to do it so in conclusion i think the mosaic of discrimination a jury