leeds maintained that this was a pretext for discrimination so yes we could we could we narrow things just a little bit you alleged retaliation discrimination on the basis of race gender age and disability as i read are you still maintaining i did not see in your brief that you had pressed the retaliation race and gender claims would seem to focus on the aging disability claims which case the retaliation race and gender crimes would've been waged right we did not intend to waste any of those claims  we win instead more detail on the age claim because at that point in time there was an issue about whether or not there was direct evidence or circumstantial evidence of age which we felt that the court had misapplied the district court and sent the u s supreme court in desert palace versus kosta has unanimously made clear that circumstantial evidence is to be treated on the same level were continuing in nature and under the morgan case the u s supreme court said earlier this year that when there is a continuing acts of the same or similar nature those are part and parcel now these are steps acquit acts of the clearly part of the ca e i just guess i don't understand because if it happens when you're less than forty i just don't see how you or i part of a protected class i don't think that they were part of the protected class until they turned forty but they turned forty during the life of the exhaustion process and so you'll note that they check certain boxes based on what groups they believe that they were  the appropriate boxes to have checked changed over time as certain of them became disabled or certain of them became over forty they were the e e o c looked at this issue very carefully and said that because they  requirements for establishing a disparate impact claim in other words eighty five percent or over eighty percent of the group of special delivery messengers were over forty that they were  aspect even as to dave spector and others under forty that was recognition of the fact that this group was singled out because of the high percentage of older and disabled people in it and that that was a question of fact that i believe that we answered by showing that these individuals were thirty eight at the time and with by the time the investigation was completed they were they reached right and it's johnson who is the supervisor who was in the management the high level management meetings and the court referred to that is there any evidence johnson to back into the people who actually  relaying what was going to happen in the latter part of one nine hundred ninety two the individuals some of whom were active in the union and were told that in their capacity as union representatives so that if it is not considered to be direct evidence and that the decision maker did not actually state it to the appellant it is certainly a pretty good circumstantial evidence that that was the reason the supervisors were told and that they supervisors believed that they were going to make these changes and replaced the employees with the younger employees and that's and exactly what happened the work was given to letter carriers who were not they were in their twenty's and the explanation was told repeatedly in the context of the dinosaur remarks the remarks that you are too old to work here you're lazy and good for nothing and we want to reap based you so whether  fee that that they were dinosaurs but they were that they were too old but they weren't replaced in the sense that in the sense that we would that we often see in a you know in a title seven case in which somebody is fired because they're  and they get to a certain age and then their particular job is taken over by a younger person here we've eliminated the entire unit these employees have been reassigned elsewhere within the postal service and the duties that were handled by the central unit have now been s with younger people they rather dispersed them around and eliminated certain shifts so that many of the people who held those jobs were put in jobs remember when you bit into this the were for a short period of time given those special delivery messenger duties and that is evidence of discrimination because they distinguish between the letter carriers who were over forty in the ones that were younger they were showing the discriminatory animists was based on their their age furthermore the people that were put into the letter carrier duties were they lost their seniority so unless they were assigned specifically to the special delivery unit they had to do whatever they were told to do they had no basing rights on the jobs that were more desirable this caused a lot of problems because not only did they lose their shift they lost their ability to get the shift differential which was more money they lost their ability to get overtime they lost their control over their weekends or days off that had been established through twenty five years of fifteen panoply of the way in which discrimination worked in the workplace in which the work is assigned to other people and that it's done in a pretextual basis they say well we think these people can do it faster that wasn't shown to be true in fact the statistics show that there was a dramatic loss such that all of the major universities in the city of san francisco all the major institutions discontinued their contract with the postal service and other carriers and we know from  hundred one until now how much of that overnight business the postal service has lost they were down to about thirty percent of the market share this is a well known fact and it was caused by this decision to take out the knowledgeable people that had been doing th job competently they were getting awards and you know one of the best run postal services in that country for overnight delivery was san francisco they had ninety seven percent on time right so that you have to allow the c to go to the jury so we can present all the evidence of how it was that they made a decision that not only didn't make sense but it was discriminatory and it was directed at the very people based on their age that should have been allowed to any evidence that they had not presented in fact there is no evidence showing that this was a good decision or that it would satisfy any of the requirements in the disparate impact area that there was a valid business justification  consideration that the e e o c in one nine hundred ninety two when they remained of the case relied on the fact that there were there wasn't sufficient statistical finding it did not need an expert evaluation because it was so clear or the standard deviation is one point eight if you have over point five percent of the workforce that you're looking at that is adversely affected and that in this case is that eighty twenty rule that we're  a statistical sufficient showing to presume that there's discrimination and that's exactly what we have here in the defendant's exhibit number sixty three in which they testified that they were trying to squeeze my hours because i was not full time i was giving demeaning tasks how to labels himself they were given different schedules they lost their wages because they were on a different shift they had a lower salary because they were no longer allowed to work overtime they were stanch home on the pretext that there was no work they were spying and demeaning duties they were ridiculed they were sent to the cafeteria in one case a couple of people were sent to the cafeteria for years to wait for work and meanwhile the special delivery work was heiling up around their ears customers were calling in screaming that this is an abomination did these are important letters and documents which people around the world rely on having overnight expressed the services that have been provided historically and the postal service did not could have made a bad business decision without having made that decision that decision on the basis of her being factors that is that he did not make it on the basis of age race disability and so forth well that is the dispute and that's why this is a mixed motive appellant where some of them heard either directly from mr cac or from in his johnson that the information was conveyed to them by mr kak and certainly the e e o c decision administrative judge player talks about mr paxton involvement in continuing to retaliate against these individuals that continues to this day that case although the the decision was in the record the case is still ongoing in the administrative process in spite of the fact that normally the facts are all to be put into one court room and at one time that's the most efficient way really to handle problems is to have all the information and to make one decision and that's what i would request the court to do in this case and i don't have time to go through because it is factually complex all of the rehabilitation act claims to find to say that they postal service admitted that at least three of the  information in the underlying ego record on the retaliation part part of the case counsel if you are continue maintaining that we have that we're discriminating on the basis of retaliation race gender age and disability among  the national origin and race claims are slightly different because the evidence was events that happened subsequent to the decent realization for example when all of the women were taken out of the unit and treated differently than the men that are part of the special delivery unit they were given worst jobs they were stripped of their rights that is that's part of your seconds to think still present before the  thomas deposition dependent exhibit twenty six and these are just the pages that the government put in the record they are not the entire deposition and they are not all of the evidence on sex discrimination but certainly sufficient they were working out of four locations that were spread out throughout the city in addition to these moves two shifts what were once two shifts were consolidated into one shift and some of the positions were eliminated the remaining positions were put up i believe were it was two ships that was consolidating to one shift with respect over time it is clear that some of the appellant's testified that they had few opportunities for overtime there's no evidence that any of them had a lower salary reassigned to other letter carrier jobs or clerk jobs as with the other group these individuals did not suffer a cut in pay or cutting benefits and they were eventually called back to the unit to the special deliver one of the elements that they didn't fill in for the petition case was an average employment action and vs at best the individual's experience to shift supervisor and that he part of his job was to communicate with more senior management not directly to mr peck who was the postmaster of the city of san francisco who was several levels above  never been fleshed out what he meant by the remark the upper management one of the post office to bring in new blood no one has and mr johnson was no longer change the result in this case the first of the actual for you say this was done for bad reasons the post office comes back and says no it was this is part of the centralization plan it's done in a lot of other places it's being done to make this particular service more efficient that cetera et cetera and the plaintiffs come back with an affidavit that says here's a supervisor with some connection to senior management saying that the purpose of this was to get rid of old folks and inefficient folks and bring in young blood but it's not in the record  johnson had made comments about upper management wanting to bring in young blood i don't believe he was asked that question he was asked what comments did mr johnson make that led you to believe that this decision was based on the comments old boy network which this court found not to be probative of a description in rows against wells fargo or old business model or deadwood which this court found not to be probative of age discrimination case even if this these comments were were do reflect a discriminatory animus there's no evidence in the record and counsel made a lot of statements and state a lot of facts but some of these facts are just not in the record there is no evidence in the record that ties these comments to the decision made by dallas tech in fact mr kek testified through a declaration it's just not in the record those type of counsel says it's well known facts but it's not in the record there's no evidence in the record showing that this was a bad decision and that  centralization caused delays and they destruction of the service even if it did show that however that is not enough we submit to shoot to to to prove pre and to make the ultimate showing that this is the case that this decision was motivated by the age of these individuals counsel also made some references to the disparate impact claim i'd like to address that briefly the disparate impact claim here fails because there is no statistical analysis to support the claim that the decentral these individuals were not replaced anyway they were moved to different locations the majority of them have the same jobs after the centralisation a small group of them had different jobs with respect to the their ministry remedies on those claims of those three individual talents their own testimony which we've saved in our brief they did submit least mr specter and i believe mr thomas did submit these declarations late late in the game to the extent that these declarations contradict their earlier testimony at their depositions that were raised in the reply brief for the first time that we believe require some clarification first of helen star view that rule fifty six allows the filing of declarations up to a day before the hearing ounce also argue that we were responsible somehow for shortening their time to oppose the poster for summary judgment and and that's not the case the local rules provide for thirty five days notice a hundred the case management order that was existing at the time we had a dispositive motion hearing cut off february twelfth two thousand and two we had to get our motion filed thirty five days in advance of that date and that was trial date set for april eighth so we wanted the court to address their motion before the trial date so we made an application to expedite the hearing date back to the original feb twelfth if you can still had thirty five days