position in which mr brown now began twenty two years earlier he would have to report to the very person he trained mr moxon he would have to train that person supposedly the better candidate who is more qualified his benefits were reduced his career with a company that he worked hard for as a dedicated loyal employee for twenty two years was over at his age the idea of finding employment in the town of one thousand clarksdale arizona was that was virtually impossible the impact your honor something of what it is that the idea of trying to find similar employment in a tiny town of a thousand clark killed arizona benefits governed by a formula that is limited as it applies lower down the food chain rather the physician also holds a greater upward mobility in terms of salary and benefits so he was denie them also here so i'm viewing the totality of all of these matters the blow is devastating his his career his working life for the past twenty two years was effectively over it wasn't one little thing for the con he was forced back to worry was twenty two years earlier half the fake his expenses his ability to live with that wage was unrealistic you can't you can't take a hit on fifty percent and expect to live in it and in an did not want him to retire and that's because more wanted him to train the person who was supposedly better than him who he trained earlier when he came into the company on mass and more was in a jam he wanted to have he had to have this person trained to produce and so yes he probably was a genuinely good just did mr brownell accomplishing out for him to get him out of that jam relegate the matter to the trier of fact they used the wrong standard in evaluating the matter and did not even take into account a great deal of fight of sevens that the  after the supposed that employment interview the decision at the time of the decision no reasons were given whatsoever not only do we have the shifting explanation circumstance we have the situation of no explanation followed by years later the supposed reasons being given which were once which had they really existed truthfully could have been given in the straightforward manner half the time of the actual decision itself and process this committee was a farce the the things that are wrong with our red flags are sirens going off in all directions and yet the district court north and treated them as if everything was appropriate we believe that's incorrect look let me go back here per second you told us that they were cut his pay and hath just i'm just having trouble following that surely respond at first he said he realized that i was more qualified than the jim moore said that he told them they were going to take my lead man lee and he said he wanted me to stay on as the lead man and teach maxim what he needed to know about that apart so jim told you that even though you had not been selected that you would that you would not give up they would not take away retirement including articles on the so forth if you add the entire package together that's right goes wrong down to half from what it was you also have to factor in your honor you have moved retirement i started  his retirement and think to mention benefits and and health benefits because of the the loss of the two dollars most are but the the benefits are reduced because they are dependent on their retirement benefits and pension plans and profiteering are dependent upon the basic salary it's tough so by cutting it back you're reducing the amount that goes into the pension bucket if we can call it that for these for it seems to me you've affidavit the whose if your client produced it and also put it i interviewed mr ayres myself he told me what the points were i drafted what he said he reviewed the draft and he said yes this is this is accurate he then signed his deposition was taken for almost a full day to try to deal with the affidavit by the defendant in his deposition he affirmed the greatest majority of the but he did provide the information that went into it he says there's a lot of stuff in it that he couldn't testify to the only part your honor and we did not include that in in our presentation to the court i think there was a disagreement if i can taken precisely from the corrected version his writing that he did do but unfortunately in a scuffle session he did not have that at hand and therefore could not recall some of the things that were said there were only a handful of things and we did not utilize your honor the thing the things that he did not believe in the deposition were part of his memory so we ignored those we did not use them interestingly enough your honor the defendant while the fifty percent to be fifty cent i thought as a fifty cent and that's exactly the thing is that is that mr brownell would have this court believe that it was fifty per cent and that he was reduced all the way down to a labor down his his what he what it wants this court to say is that it was reasonable for him to believe that and so therefore he could make it happen but even if that were the case there's no evidence in this record to support that belief in fact from the beginning of the plant modernisation that the company made it expressed to the employees on a regular basis that no one would ever lose their job or position because of plant modernization and there's no evidence in this record that anyone ever did he got fifty cents an hour for that he lost that fifty cents an hour he knew that that was revokable at any time in fact at any time either the company or mr ayres could have decided that mr ayres needed to fulfill those responsibilities himself and he could have taken over those responsibilities and mr brownell would have lost that fifty cents an hour to suggest that his working conditions would somehow become intolerable simply because he no longer earns that extra fifty cents for forth with any evidence of all at all of age discrimination the only inference that at all that could be drawn from for age discrimination is by the mere fact that he was older than mr maxon who was selected by fifty years yes and primarily he was going to be better able to get along with the two primary people that he was going to have to work with and then there's a whole list of performance allegations and the other side says that those are all from the disputes every one of those and says that's not the case at all where we do with that well the reality is is mr brown now has as has attempted to to raise it just view as to whether or not these these performance issues  brownell and that he believed it to be because of a misunderstanding about the department or about brown over few days but he did not believe it had anything to do with age and in fact that occurred before the selection process so supporters gone he now looking at and trying to get promoted by someone that doesn't like him so so brown and brown now goes to the interviews with three gentlemen who are in his teenage range he doesn't do race discrimination claim against him they they then unanimously determine based on the of the factors that the the interviews the knowledge of the of the performance of the two candidates was doing before it is an a more elevated position and they the committee was certainly in a position to make a determination that that max and rather than brunell was a better specifically those reasons i don't think so your honor because because it's the fact is that while mr brown al takes issue as to the specifics of those issues a whether or not the recycling should have been done or whether or not the sampling should have been done in a certain manner it is undisputed that that mr gore the had those issues with with mr brown now and may may take issue with anything that he did that it is absolutely undisputed that that corby did not like him before this process began and it had nothing to do with age and there's no there's no evidence that in this record at all that anyone mr gore be or anyone else on the committee ever made any age comments and even mr ayres testified that he believed that the reason that he did not like brown now had to were the reasons that i believe that he wasn't performing mr mr brownell comes back and says well yes i was performing all those things and but but the fact is that it doesn't that that there were times when corby asked for things and he was just wrong and he got overrule or or it was decided differently after the fact because he may have wanted something and it was decided that maybe it wasn't the best decision or he perhaps may have been wrong about what he wanted and maybe he wanted something that wasn't so smart for the company but the fact of matter is he wanted it and brownell didn't do it and so he that left a bad taste in his mouth with didn't say that and notwithstanding that the a number of those statements particularly of the far inferior language continues to find its way into mr brownell papers including the opening brief while inferior hands down the most qualified none of that appears in the record at all and the far inferior language was expressly rejected by mr ayres and in fact i think that leads to the number one i would  court to to at a very minimum closely scrutinized anything that mr arafat said or look for for his actual testimony in his deposition because that was on cross examination it was not something that was prepared by mr ayres and shove you know into the record despite mr ayres you know statements to the contrary but beyond that i think one of the main issues in this themself to a shipping supervisor acting shipping supervisor instead of acting form and the you know at one point at one point he's t he states that mr moore said it would be dishonest to use the interview evaluation forms as nothing in the record to support such a statement the reality is that is that in order for this court to supply the genuine issues of material fact i think it needs to weed through all of the the embellishment and argument and find out what the real facts are and when it does that they will find that there are no facts in this case to support either the age discrimination play and for the right concerning the structure of this charge matter once again mr brown all knew because of his experience of the company and because of his thinking along company lines that it was a foregone conclusion that he would lose the lead man position that made no sense whatsoever for there to be a full time true supervisor and a full time lead man the whole idea of having lead meant that i'm sorry the supervisor position held by one but he knew ahead of time that that would have to be the case because nothing else made sense so he was able to go over that does it really drive him out in the words he uses he's sure something's going to happen so he leaves and sure enough it does something that the trier of fact people that's easy to say trier of fact but what you're talking about is that you can never have the summary judgment if somebody could something looks there's an issue of fact that's not the best answer has to be credible opposition has to be opine well they're going to do bad things to me even though they've told me they aren't so i'm leaving that's not constructive discharge that's a choice let me ask you a question about this affidavit your affidavit under grinding and sacking says grinding in second the statements made by the league or v and paragraph three g is untrue there were no problems if there had been i would known about this goes to whether corby and your client had issues before the decision was made in the deposition backs away from the well other than it states quote there were no problems you know i did know of problems between the two but there was no serious problems and didn't not involve grinding and sacking allegations was in a correct that prior to the decision there was a dispute between gore b and your client over grinding and sacking at the very least first of all your honor i believe that the difficulty with mr ayres the definition if he did not have the corrected affidavit in front of them to to look at second later on or if in fact it was a problem when was it never mentioned in mr brownell before the selection process why wasn't it in the personnel records that they didn't even call for why wasn't it in the performance or an evaluation that if there was it was so minor that it did not come to rise to any level so as to cause to the problem and that's part of the problem with this entire matter one pretext they did not achieve they did not obtain the records they they have there is a spoil a shred of evidence they did not call for production records they did not conduct the interview as a nondiscriminatory reasonable management or selection committee would have done in so many ways and great point about this racial thing but what the opposition doesn't mention is that there was another case and the thesis was phoenix the man who was accused of racial discrimination and age discrimination those cases were before this court and this on all provide the case numbers afterwards but in the case that was referenced to which reference was made the mccoy case phoenix men paid a substantial sum of money in settlements and again there was nothing said by mr ayres or by mr garvey beforehand or on all of these things are made up after the fact and they have to be in your honor is quite correct these are factual matters that have to have to go beyond  essentially conceded there are challenges to those proffered reasons were were going place and were were appropriate we believe that you're out of this this together with the with the not the best person for the job rule coming out of