though somewhat similar to the court i got to comb through everything and try to make heads of tails as to what happened in the court below and i came away with two main reasons why i believe s incorrect and in error of law the first most important point is that defendant failed to meet its burden under guus to prove a legitimate business reason it is not enough for an employer to simply say we had a layoff and therefore you have no discrimination claim and don't get to see a jury in davis versus team electric company five twenty f third ten eighty this circuit denied summary judgment specifically explaining that you it is not enough to say downturn in work is enough you have to explain why you choose one employee over another and that is also reiterated i goods as they explained in the coups california supreme court in vocation of the right to downsize does not resolve whether the employer had a discriminatory motive for cutting back its workforce or engage in intentional discrimination when deciding multiple things first of all it is mainly lockheed had administrative aides and administrative assistants and administrative aides served higher level managers and administrative assistant they remain to this day and then immediately after missed do just gets terminated her it's not effective until april an administrative assistant position opens ok let me let me ask you a few questions about that larky claims that the administrative a specialist is a quite different job than administrative assistant is that true it's a disputed issue  so what would see evidence in the record to show that they're in or to change i mean they have different names but what's the evidence in the record to show that that they're not the that they are the same job ok brandy bacon who was significantly younger than the plaintiffs testified that she provided administrative support for the same supervisors as the plaintiff in the same department performing much of the same duties and that is in the of records a two eighty nine to ninety and three thirty two haley matter who was born in one thousand nine hundred ninety and obviously much younger than the plaintiff and her two counterparts was hired in may two thousand and fifteen a administrative aide or sorry administrative assistant and she testified that she answers phones schedule meetings prepares presentations creates agendas and does various things her supervisor asks her to do for lack of a better way of saying it a secretary is a secretary or an assistant is an assistant these are all assistance they may have different titles but they are all assisting a supervisor there's also the two job descriptions anything the any documentary evidence in the record that basically lays out the duties or description that each positions other than the deposition testimony saying well yes i helped out and did some of the same tasks yes at excerpts of records three forty to three forty four are the job descriptions for the administrative paid specialist and the administrative assistant and so mr love him and his declaration says that why he he doesn't even list administrative assistants in his list of people who chose to eliminate but then later in his declaration says well after i of us off i just gave some of her duties to the administrative assistant that was already in my department so i think the first main point is that lockheed has not answered at all why assistance and not sorry why aids and not assistance and it was their burden on summary judgment to prove that the burden is not on plaintiffs to prove their case that was lockheed for it and that they failed and the second main question that lockheed has not answered is when maxine du applies for the open administrative assistant position in february she doesn't even get interviewed and she's worked at lockheed for many many years with large history in administrative assistant work prior to lockheed and they don't even call her in and defend and offers no evidence to explain why she wasn't called in who got the job why that person was more qualified than her with regard to the two administrative assistants that were hired after m was let go because she apply for both of those positions or just one of them i believe she applied for one of them your honor and the one for which she applied that was the one that somebody over forty years old was hired into i could not find evidence for that in the record although that is what it says in the br what's your response to that dugas testified and it's also in her declaration that she was mel well versed in computers and her position had always been automated she had always used a computer she maintained employee attendance records electronically compiled over time electronically prepared paperwork electronically and again that leads us back to the continued advertising for administrative assistants because if this position has truly become automated than the lock it should not still be hiring people to be answering phones and filing paperwork and i have a citation in the record of the declaration of miss melissa drusus on fourteen o three who indicated that miss ducasse apply for one and then the final issue of pretext was that miss ducasse was also a composite fabricator before she was put into the administrative assistant position and she was put on the recall list to be recalled and a position did open ye for the cost issue it's a unique situation of the ninth circuit has not addressed the recent caliph fairly recent california supreme court case of williams versus chino valley in the pennant fire district which held that the christian standard equates fe unreported federal case rodriguez be sitting of coltan in the ninth circuit that six thirty one said appendix four seventy four two thousand and sixteen in which the ninth circuit sort of intimated that williams vicino would be applied want to make sure plaintiffs are able to prosecute most of these plaintiffs are very limited means cost bills could become very significant and there is no reason to separate the question from standard from the costs for a plaintiff in these are there any question thank you thank you very  in this very specific information about why ms do this is position was eliminated and it is not a general downturn in business mr loveman testified that palmdale does a lot of fabrication and build things he oversaw at one point four hundred people who were involved in building things there were specific reasons for the downturn in business upon the loss of certain contracts on certain airplanes and that resulted over the years into his work for shrinking from four hundred to approximately a one hundred very specific about that and because of that he needed to reduce overhead and he didn't say this in general terms he said what overhead he was responsible for his own position the supervisors position and the one admin that reported to him and that was mischievous and that is consistent with what the other evidence that is presented by lockheed martin was that had and the reason why is because a position had been kind of the purpose of it was to be able to support the personnel documentation for the represented workforce as at work for schrank they needed  less support in the end that means mr mr lukman didn't say that he needed to get rid of her altogether because she was completely irrelevant what he said was he needed to reduce his overhead because of the shrinking business and that is the decision that made sense to him the fact that there are other positions out there that she applied for and didn't get even though you're correct that was awarded to a woman over forty and has no bearing here because there's absolutely no evidence that any of those positions reported  to mr lukman in that he was responsible for and most importantly though there's no evidence that any of those positions were bargaining unit positions as such both lockheed and the union felt that they were different how it's really there are really different positions first of all the job description that was offered by plaintiffs isn't properly authenticated if they had actually had the h r people from likely they could have told you that those were  the document that was presented as talks about the general duties that go into that particular position and then what happens is they go to wherever they are particularly needed in that skill set so i don't know what other positions the younger unrepresented workers did they could have been h r people so they might have had some i usually like you're not telling me anything that's on the record you're just speculating now right because i'm my speculation now but that's the problem with with saying that there are these other un represented positions out there i don't know what the positions are but i do know what they were advertised right there were some that were advertisers no evidence whether they were there was no evidence as to what role they were supposed to play and we know that one was filled by a woman over forty ok well we also know that he didn't report to mr lukman you know that's in the record too that's right did mr  if you're talking about as you go up his chain of command there are admins there but no report to him he does he's not responsible he doesn't have the budget for them he does not oversee them i don't recall reading in the record that somebody maybe was someone who came into one of these two positions occasionally they would provide administrative assistance to him even though she didn't technically report to him i missed recalling that from the  record no i believe that what brandy bacon the deposition testimony from her was that they generally did not cover for each other and less one of the absences would result in a stoppage of production so it was kind of a necessity type of thing and i believe that also her testimony was that it didn't happen very often so he didn't he doesn't currently have and initially it was just an aide but occasionally would utilize someone would fill it in if he needed them to the testimony that in the record was that while ms do this was there when she was absent if there was a compelling need to cover for her a non represented admin would help with whatever that work that needed to be done in order to  prevent production from stopping that that's what's in the record is it true that he probably uses an admin to order his office supplies absolutely but that the main function that he testified to in his declaration as to what she performed what the six seven zero seven position perform was to maintain personnel records for the represented workforce in that is the function that overtime records attendance records and training record all  are essentially automated now and can be accessed by the managers and the supervisors but again the the issue here though is whether or not is undisputed that lockheed martin and this do this is union considered those positions to be distinct positions and they had agreements about what they were to do and who they were to report to in that type of thing and nobody has filled this position since i think the irony of saying that at the end you have a seniority system and then at the end when you finally don't have anybody in a position they happen to be older that's because there's a sonority system i know that it doesn't necessarily mean you're go over forty if if you're the most senior person in that position but it's likely that you're going to be older than all of the other people who had held the position before if your seniority in that position allows you have pumping right and left you to stay there  fact because the basically what he's saying is that there's a conspiracy to get rid of the other two people because of their disabilities he's not saying that they were associated with them because of their disabilities they were associated with them because of the their member in in the union and not only that the only evidence that there is that the decision maker mr loveman knew of miss dugas that he knew of her but didn't know that i'm sorry  cooper why and that he knew of her but he didn't know that she knew miss dugas there's no evidence that he had an understanding of anybody sonority there's no evidence that he understood even that ms dubious once her position was eliminated would actually lose her job because the way that the pumping rights work that then you go when you punt to someplace else and it is undisputed that mr loveman didn't know of miscarriage his existence until this lawsuit he was asked about her so i don't know how there could be an association of discrimination claim when the person who's making the decision doesn't associate the other two people with  plaintive and moreover the only association that they seem to have is that their union members that answer your question yes i'm sorry if you felt that there was more i mean because it really is an attempt to allege an conspiracy when you can't allege a conspiracy  corporation can't conspire with its employees it's just not possible so they're trying to get around it this way i suppose it could in ms cooper winds case bring this evidence  but the fact that he believes that lockheed wanted lockheed in general wanted to get rid of ms cooper y and and this keris because of their disabilities there's no evidence that mr l wanted to get rid of them because of their disability but they wanted to lay them up because they were taking so much time up are ready and not performing their jobs that is part of i think that what he says is the conclusion is he believes that the because the disability indefinitely because of their time off and in fact must do this doesn't even believe that anything having to do with ms cooper winds in this care says medical conditions or disabilities are the reason that she was selected for layoff she's not quite sure but she says her only that in diversity cases when you're talking about cost that is procedural it's not substantive law so there's no reason in this particular case to believe that that will change under the hop i understand that there's a difference with attorneys fees but it is been the law for quite a while that diversity cases allowed that concert to be determined under federal statute in federal statute here say that the presumption of cost goes to the prevailing all right thank you if the court has nothing else thank you fifteen testify that she does provide support for mr laufman including scheduling conference rooms in preparing his expense reports and her deposition testimony isn't the excerpts of record two ninety two and i also looked at the declaration regarding the woman that was picked for the position that mr this was not even interviewed for and it just says that she was over forty but we don't know how old at all she is there's no chief explanation of what the basis of that information is california law that sandal versus taylor lustig that was cited in the brief one eighty eight callout fourth to ninety seven such that you could be getting rid of say women over fifty who appear older and more infirm then women who are forty or forty one and in this case they got rid of miss dugas who was in her mid fifty's and then the other two women in their sixty's so there is a at least a thirteen year old age gap conceivably between this someone someone near forty and missed ducasse but the bigger question is what were these woman's qualifications why was miss ducasse not even interviewed after being at the company for all these years why would they not at least bring her in and talk to her and explore her and i think it goes back to the other issue that was raised which is this really all started with them trying to get rid of maxine de cooper way end and judy carries the older women who had the bumping rights but they couldn't get rid of them without getting rid of judy and so were maxine and so they got rid of all three well so the response to that is that mr left and was the one who was supposed to minimize overhead in his department but he wasn't aware that there's there was no evidence introduced that he was aware of this union bumping rights situation or even  two other women until supposedly the time he made the decision is what he said he didn't know until the time he made the decision but the it goes back to the whole can of worms if he's looking at his department i have not seen any evidence in the record why plaintiff over brandy bacon or amber settling you know well all the other administrative assistants in his department counsel was up here speculating and we can all speculate but the burden on summary judgment is not to provide speculation it was the employer's was how do you have to rest the fact that that position in his department remains unfilled to this day while the title of remains on the field but there are administrative assistants who are performing the same duties so we can call it something else but it's not really something else if you fired all you know the black secretaries and tomorrow call them aids and you hire white secretaries aides or have you not is there not an inference that it's possibly racial discrimination even though it changed the job title all that really changed was the job title and why not at least interview mysterious for this position unless the christian burke standard is met and that was save our valley vs sound transit three thirty five f thirty one thirty two and so i don't see any reason to treat a state just permanent torrie claim different than a federal discriminatory claim say that applies well it says it awards cost but the california supreme court has interpreted that to require application of the christian burke standard which is that costs are only awarded if it's shown to be frivolous or in bad faith and do you have any on but did intimate that the california supreme court holding would apply and do you give the cite to that case yes it is six thirty one federal appendix four seventy four ninth circuit two thousand and sixteen