the california fair employment and housing act and we've i think in the briefs addressed all the factual and legal issues that quite quite a bit of length but i just want to start off by pointing out that  think is whether the summary of the h our records which were produced by the defendant in the case in response to our request for production are admissible in evidence on this motion for summary judgment they've made a motion to strike before your honor's this court based upon their motion below which was not ruled upon by judge walker and the argument that i'm made then and make now is that was a series of records that they produce title by group by date of hire date of birth and date of terminations so it's from those records we could determine the actual ages of every employee in the office and what department they worked in they say that's not admissible because you didn't lay a foundation for these records and i requested from the court an opportunity to lay the foundation by notice in the deposition of the person who prepared that list which theoretically would have been an h r director was accepted in evidence that had i'm currently had information that that was relevant i'm not complaining i'm just anticipating the motion to strike your honour's haven't asked me questions about that so i'm kind of addressing his motion to strike to say why that's not appropriate i believe that it is in this fall and the importance of it it's not so much from a statistical standpoint i'm not trying to compare statistics here i'm just saying there isn't if you look at those records there is not a single employee in that office that holds a title comparable to the appellant that was over age forty they start at age twenty six and they end at age twenty eight or i'm sorry thirty eight but isn't it isn't it true that in this she was unusual in the sense that she started in the system at an age that was that was older than most people that's correct and normally stark in that and that so it's not necessarily there's no real meaning to the fact that there were other people who were who were who who were working there who were much younger it was in the nature of the position it was in terms of someone's career that one with the younger and that job and she just started out older i someone goes to law school at age fifty and then becomes an associate at a law firm and all the other associates of the law firm of twenty five i mean that's really i don't disagree on it but the point being is that she would stick out if she were in a law firm a new associate she would be totally different than everybody else in her group just based upon her appearance if she were in a room of partners who are signing and i'm using that as an analogy in this case if if i'm going to associate a law firm and i'm looking for case work to work on and we have a whole roomful of associates in there parsing out cases to be assigned to these people and nobody knows based upon the evidence in this record nobody knows where these students went to law school what other firms they may have worked out what other cases they may have worked on whether they've dealt with this issue before or not they're just looking around the room and saying i want you to work on this particular case and the only thing that distinguishes her from everybody else in the room is her age and time and time again they select everybody else but exclude her then from our perspective the only rational conclusion to draw from that is her age was the only factor being considered by the people making the decision because what else are they looking at and as your honor says maybe she started late in her career but that made a difference in terms of where she was in her age versus everybody else but what you're saying she was terminated that's your complaint right she was there's an inference that because of her age she wasn't assigned work and therefore she was fired because of her age i'm trying to understand your point they say we fired her because she didn't have enough work to do and because of her quote lack and skill sets i say the reason why she didn't have enough work to do is because they weren't assigning it to her and the question then is why weren't they assigning there's two ways to get work based upon the record either based upon your personal knowledge of the accounts because you worked on this account before and so they send you more business or in most cases with new business from upper management but seem i'm sorry nancy morrison testified in a deposition they held the new business meetings twice a week where they discussed new business and they put together teams to go out to the accounts and pitch the business that seems not invited except to one meeting so twice a week everybody else is getting together and she's not being invited to attend so the question is why did this occur and for seven pages and nancy more since deposition i kept asking that question what was it that caused you to choose everybody else except for betsy to attend these meetings and the answer was well the other people had better skill sets well what was it about their skills well i can't i never got an answer that question i never got a specific problem that betsy had that caused her to not select or to attend  we were talking about public relations was that she didn't know how to use a computer which if she didn't know how to speak to people in groups we don't know from the records what skill just that all there was a skill that she was lacking because they never we should be looking at this under the standards of the california supreme court you know it used versus back to right but there's also a right and there basically to show that that explanation is a pretext well in terms of her billable hours if you look at her actual chart of hours in august and july her hours were one hundred four percent according to the chart of enough work she's a perfect fit for that account according to the person who's trying to assign it and congress says no i'm not going to assign you that account which is more work because i'm going to fire you instead because you don't have enough work and so it's kind of a contradiction there to say i have an opportunity it's time to work the other people according to the record i have more than sufficient work but we're going to assign it to one of them a younger person rather than you because i want to fire you because you don't have enough work but she's trying to get money that's what one of the problems that is that you know like in a lot of it's like it's like being in one of those fungible pillows or something there's only so much work to go around and sometimes you have too many bodies and that's the way i read that record is that there were just too many bodies here at certain levels to do the kind to match up with the kind of work they had in response to that your honor that she's being told by her coworkers that they're overworked and one of the i think mr hundred admitted that mr miller complained about being overworked yet it was mr miller that got that websense account so we're not talking about a situation where you know there was a there was too many bodies but we also have them advertising if the hot jobs  respond to that because first of all her title of managing supervisor i think is is mischaracterizations she's the same she holds the same responsibilities that was the title that she had of a prior company the i'm sorry i forget the name where she worked before she came to flushing hillard when she comes to fleishman hillard she's doing the same job as miller and divine which in the chart prepared by fleishman hillard have the titles account supervisor so that's that is really the job that she's performing she may have a different title but that's the job she's performing that's the position they advertised for and the other thing this new person the same salary that paid are we i don't know your honor i don't know whether they clear early they hired somebody whether there was any need to fulfill the job functions that she had at the time she was terminated and if you advertise for a person to perform those thing job functions even though you may hire somebody at a different level because you decide gee i can hire this person who doesn't have quite the experience and then train them but if you place an advertisement for the same position aren't you in effect saying i need a person to fill the same job functions you had and by doing that aren't you admitting that in fact i still have need for her if that's if that's the job functions i'm advertising for it's that's a factual issue i think that the jury has to decide here is whether by placing the ad for an account supervisor which is only do approximately thirty percent of what your client was doing well that was her mis perception at her deposition that her coworkers have the same title as her she thought that they were given the title of managing supervisor and believe based upon that that they count supervisor position had a lesser that's what's in the record they had a lesser responsibility when in fact fleishman hillard according to their h r records that they gave us in the document production the only titles that were in the tech department were account supervisor there was no other managing supervisor holding that that title so her misperception was miller and divine were actually managing supervisors when the title they had was accounts of revising so when she said it was thirty percent held the title of account supervisor so if that's the title we're talking about the it's a direct correlation i think sometimes up thank you very much anything other than the novo that was wrong we withdraw that contention and we apologize to the counsel in the court for making it it's clear in council appears to agree that the focus here has to be on the facts and we are dealing with a lot of undisputed facts here a very complete record more than as an employment practitioner mused to seeing this kind of case i want to focus for now on two sets of arm disputed facts one is that they did establish the fourth factor the prima facia case which we started to talk about with respect to either replacing the employee or that there are other circumstances that lead to that conclusion there's been some questions about that and on that as well so why get caught up in in four parts standards at this point your honor i'll take your suggestion and move on in large part because she wasn't replaced one of the things that was asked about here it really is the same test whether there's other circumstances that give rise to an inference of discrimination same evidence given on that as given for the pretext argument so let me let me proceed to that if i will first we have to look at what flies from hillary's reason as in the really appears after argument and briefing to be no dispute at fleishman hillard was experiencing a significant downturn in its tech practice ever since the dot com bust which was sometime in two thousand and one where two years later now there was not enough work for this group and if that's the tub and her twenty eight year old coworker who are terminated at the same time had the same characteristics no dispute they both have focused their time in two thousand and three and one client that's ninety four percent of our time that client was projected to leave or had already left again no dispute with respect to that and that the g judgment was made and distract comments correct the judgment was made th her qualifications she was less this blessed the ploy able to other work based on the fact that they'd observed her all this time working primarily on one client i want to be clear the law is clear there's no requirement th had to be right it's not illegal for the employer to be wrong about those judgments and in fact there's a very heavy standard when it comes to comparing qualifications that this court has recognized that when you're reasonable person could come to the conclusion that that person wasn't a victim of discrimination and the other is a clearly superior test that comes from the burning case we cite and in in preparing for this argument i also found the case of rad r a d three twenty three s third eleven eighty five those standards are the same as the district court pointed out and as mr ackerman just admitted here a minute ago there is no evidence whatsoever of the qualifications of the other workers nothing about their experience nothing about what other jobs they had nothing about their education so what mr ackerman this conceding is that he didn't can gauge and indeed there's nothing in the record your client that she was not terminated because of poor performance but one of the reasons for her for her term a nation was those lack of work and she was less than a ploy to people what does that mean let me try to address the second point first just so it's clear and that is when you have a layoff and you're trying to the side amongst the people that you're going to terminate in this case a twenty eight year old and someone over forty were terminated you are not necessarily  inferring or implying that anyone is not qualified and that their performance is poor or inadequate in any way and the inflation hillard has never so asserted and we're not so certain here so that is not part of our proof and it doesn't need to be less deploy essentially goes to the essence of this she said she was told by mr concord at the time of terminations because the present level of business in the fleischmann pillared san francisco practice could not support the present number of employees so this is all consistent there's not enough work being able to get a new work she was in effect excluded or not invited to those meetings so that it put her in a catch twenty two position in terms of having more work or the opportunity to have my work and again this implicates the notion that a decision was made to exclude her and choose someone over her and that she was just as qualified or more qualified there's no evidence in the record to suggest or question those determination that in any business are made on a case by case basis the only person by the way that she alleges was discriminatory in this respect was nancy morrison who was her supervisor for all of two weeks before she left and kirk kondrat who did not give out  as it was said he was the head of the office of the times exact title escapes me she testified she gave testimony that all of these other people were capable of calling to business and again were moyer's and hardened reliance in a law firm analogy but the person with the relationship may decide who to bring to a pitch meeting or who to bring to a meeting discussing how we're going to get business and so everyone in the office as ms topping knowledged she herself did it for nova dine was eligible for making the decision about who to bring to these meetings mr kondrat the station maker's ultimate conclusion wasn't whether what he was told she's left the point of all was true or accurate he believed it and there's no evidence to show that he dishonest legal leave that or that he had some other reason for terminating her the twenty year old employee at her time was fire your honor i believe so but i don't know i don't know off the top of my head apologize while we're talking about titles i think it's relevant there's this notion of the hot jobs ad first of all and most importantly the ad was placed the position that was filled was for a senior account executive two levels down secondly when this divine who asked for help with work asked for this position and others these circumstances is appropriate and the testimony here undisputed is that it was actually done for the purpose of making sure that discriminatory acts weren't being made this is the role of an h r executive who authored those and in fact on the first occasion she phrased it all but the three who were on the list are over all all of the three are over forty but we think terminations is appropriate and in fact this top was not terminated in april we're not saying it's because of concerns about age discrimination but again the fact of the matter says she wrote that and it didn't lead to her terminations at that point there's just no evidence that it did in that smart h r practice to engage in that sort of page four sixty eight x maker says i did this based upon my review of the personnel file she couldn't have because the age was wrong if she had looked at the file she would have seen her age was fifty seven not over sixty if you read the e mail anybody reading this e mail would conclude based upon the way the e mail was constructed that the information contained in there comes from a conversation with kirk under that's the inference one would draw from reading that it starts off with her