it please the court i'm david rosen here with christopher right out of rose kline and marius on behalf of the plaintiffs and appellants we would like to reserve five minutes of our time for rebuttal the trial court erred in holding as a matter of law in this case that plaintiffs could not prove a disparate impact age discrimination claim because they said we changed theories they said that we change here is too late in the case neither of those things occurred we didn't change our theory and if did back and forth between the underlying theory of disparate impact disparate impact was played from the beginning and still part of our case all the way through but it was that feeling and that holding of the trial court which we believe prevented the trial court from looking at the merits of whether we had raised a crime a face a case of disparate impact the trial court base that holding purely on two cases coleman and nguyen neither of which are political here  in both of those cases the discrete impact itself was never pled much less implied until after summary judgment was filed in coleman and after it was denied and reversed by an appellate court challenging and that's exactly what we're doing in wars cove the basis for the rift we're objective criteria and very specific criteria that's why we believe the court focused on specific  actions as being challenged in other cases including rose pot injure and even in dicta in smith where the rift is not easily or at all allowed to be or able to be subjected to a specific analysis where they're with is based upon subjective criteria which are variable what the selection process is based upon subjective and personal analysis as opposed to object your benefit by your honor that is the decision to use the selection criteria that are subjective but we are also challenging as part of the riff a specific employment practice that that it was embodied in this particular graph where you had multiple middle level and upper middle level management making decisions about who to fire on without any criteria at all or based upon criteria that each individual manager created themselves though  comm argued below and argues in the briefs here that the human resources department qualcomm set some criteria the deposition testimony in the record is clear that most of the managers or many of the managers did not know what those criteria were even if the human resources department had set them and perhaps more important even the managers who knew what the criteria were didn't follow them so again under rosen pot and you're not changed at all by smith we do feel that we can challenge the riff process as a whole on the two bases that i mentioned well you are a little more dismissive of the district court assertion that there was a change in theory here that that might be factually supported that's essentially what you're saying now but i think the district court held was that you focused on what you saw as time written criteria by which in which you found fall the the team in general your honor we don't believe that we should be able to just pick any fact and move from fact to fact to support disparate impact although again the only two cases cited by the dis plaintiffs were indeed challenging the rich as a whole qualcomm understood that and that in fact was the basis of their initial motion for summary judgment they argued to the district court that ward's cove should prevent us from challenging the rif as a whole the district additional documents produced by qualcomm late in the game and that led to a reconsideration being granted now at that point because qualcomm produced documents which were responsive to our request asked to produce the documents which were used in the selection making process and the main group of documents they produced and which both plaintiffs and the district court glom dons who if you will was the so called ranking spreadsheet at that point because of the ruling of the court on reconsideration we did indeed focus on the ranking spread sheet for another i would say twelve to thirteen months not three years as qualcomm tries to argue at the very end of the case after discovery was closed and after law in motion was closed qualcomm was allowed to make a late motion for summary judgment which is now the primary basis of this appeal in that motion they submitted ninety five declarations which said gee none of us use that ranking spreadsheet frankly had qualcomm stopped there our goose would have been cooked but qualcomm did not stop there and ninety five declarations went on to describe in detail the process that the managers did use for making selections and that proved to us and we would have thought the trial court that our original factual theory under the pledge of disparate impact argument was correct that the entire width was said it was not subject to breakdown and therefore we could challenge the ri a whole even under ward's cove and certainly into the other cases right now and in their reading the appellee on page forty five see if you're right if you're right that you can save the whole thing is foul then all that an employer could do in these circumstances is figure out statistically what is acceptable and then lay off or terminate in accordance with what would be statistically ok because any time you find th comm is wrong as the supreme court and smith recently discussed though it is we believe again clearly true that we can challenge the riff process as a whole under certain circumstances the circumstances that we described here and then we can raise the to six to show an adverse impact significantly adverse impact on older workers as we believe we've done here it is not true that the employer therefore has no defense and no ability to make a proper layoff in the first instance the employer has control over the selection process over the criteria they're going to that are going to be used in this case discovery revealed that the employer tried to exercise that kind of control and ask qualcomm has argued the human resources department did issue some criteria the problem for qualcomm is that that control that they tried to issue about the selection process pardon me was not followed by its own people discovery reveal by the way why it was not followed qualcomm was in a rush to complete this rift because as we allege from the beginning the major element of damage for most of the people who were fired those who were selected for terminations was lost a very valuable in general and here because again if the trial court's mistaken view that we couldn't change our theory or that we had changed our theory we believe they never got to whether we made a prime aphasia case and in fact they said so in the opinion or in the ruling granting the motion for summary judgment that they weren't going to even just to decide whether we need a prime aphasia case they were just going to say that we didn't have a case because we change the reasons we concede and we contend that had the more correctly looked at the merits of our prime of there's not evidence in the record now that refutes the the evidence that your honor is fighting to however i think that they're not a problem no because i think your honor is overreading overstating the evidence to which you just referred t ninety i think it's ninety five declarations of the club managers those ninety five decorations are kind of burned in my mind those declarations do not show the business justification or the business necessity of any of the individual layoffs or even the layoffs as a group well why did they offer the declarations simply have the middle manager saying here are here are some of the things that i considered when i decided who to lay off but it's all very generalized and very vague even in the declarations  guess i mean that sounds like you're saying there are reasons but not good reasons that you have to put some evidence on what i'm saying is that they had to put some evidence on not simply of standards that they fought that they would apply or that they say they applied when they made terminations they didn't indicate in those declarations as need to leave they must once the burden shifts they didn't indicate specifically how those criteria applied to individual people and justify the layoff of individual human instead they said gee i don't know if human resources gave me a criteria if they did i didn't use it what i thought about was who was working on which project i thought about who'd been here for a while and so on but they don't say how they attack emperor mation about why what happened in each of the divisions what what what was the basis for the terminations decisions and all of the divisions where the apologists are employed no i don't think they talk i don't think they got the ration to talk about the basis for the terminations instead i think the decorations were carefully crafted to a degree to talk about the criteria that each individual used when making the decisions but the criteria question which which you noted near the outset is whether or not the court can reach the merits issues in this case based on the fact that the district court correctly concluded that   after having presided over this matter for over three years was certainly not clearly erroneous the second issue has to do with the u s supreme court's recent affirmation of its application of the words cove   the fact is the declarations do specify just pulled one quickly here from the declarations and for example twenty eight fourteen of the record in the declaration of paul weddle he notes that i selected right felt for layoff primarily because a recent reorganization had a limited the need for a management position and it's relevant skills were not as broad as the other managers were all of the declarations provide that specific different issues privatization case for disparate treatment i would agree with the concept that it doesn't take much to create the prime the facia case and require the employer to go the next step of identifying a specific reason i would say that that is not the case with regard to case and they must isolate and identify a specific practice to treat that loosely leaves an employer afloat in terms of trying to identify what is the practice we're talking about what is the practice that we are going to defend to show that it is based on reasonable factors other than age that was the the struggle in this case throughout was to try to find understand what was the they were challenging now i understand that you will disagree with this as a hypothetical but what if an employer simply subjectivity no question the court notes throughout that there with subjectivity in the practice but there were specific objective practices here or there with clearly object of decision making that was involved elimination of projects we don't need power engineers anymore power engineers or going away identification of specific skills that are needed elimination of work areas or working groups but we're going to do not do that work anymore those are all objective with mixed with some subjectivity in this case yes that was that's exactly where ward's cove says when you have that mixture of objectivity and subjectivity plaintiff's burden to isolate and identify no effort was even made in this case to isolate or identify just say here of the hero the personnel decisions that were based purely on subjectivity here the ones personnel it has any effort been learned been made to look at the if you will at the merits of each of the cases now we have this whole concept of all these dozens of  davits from various departments or units that may have had nothing to do with any one of the thirty one actually writing the ninety five declarations deal with with all of supposing that you have you have thirty one plaintiffs and among them there are plaintiffs who were herman had for one reason or another totally different from the reasons in another context and here we're talking about a general program it might be that and for all we know or is it the case that in certain  their statistics are specific to any of the individuals and to the extent that the individuals felt that they had an individual claim to challenge why they were selected for layoff and disparate treatment claims were brought by the individual playtest to show that they were subject to age discrimination and plaintiffs dismiss that claim after the close of discovery because we surmised it's because it wasn't the evidence to support those claims so they had the ability to say you said i was trying to get out is is the merits of all thirty one cases i think now and is is is the merits of the case as before us now on all thirty one no i don't believe so your honor because the fact is that that there were different criteria or specific practices that that affected them and so the answer would say that would be no  merits of the first and you're saying no yes i am saying now do we have to look at each other now ok why not because the fact of the matter is that in order to bring disparate impact claimed is the plaine responsibility to isolate and identify with the practices then we can once they've done that then we can say now what plaintiffs well i know you're saying we don't get to the merits in any of them but let's assume that let's assume for the sake of argument that we do get to the mayor i mean you're  all along and said we are testing at the bottom line then the merits of the case the merits of the case would be analyzing what is the specific for disparate impact case which is what they're bringing in the merits of the case would be what is  the specific practice they're challenging does that have statistical significance to it and then if so is that is the employer's decision based on reasonable factors other than age those are the three questions what's the practice does it has to just pull significance is it based on reasonable factors of an age and so my answer to the question is looking at the merits that way you first would have to identify what is the specific practice declarations come into play on the reasonable factors of an age right so if we get to that point and i think i was asking the question of the appellant saying if we got to that point and now we're looking at the ninety five what evidence presented by the plaintiffs or a talent that repeat that appellant's provided absolutely nothing indeed in their argument they say they state this was the reason for four of the decision state that in their brief this was the reason for the decisions now we have these ninety five declarations now we know what the reasons are and there is absolutely no rebuttal that's why it is a you know what you're saying is even if we got to that point t have identified the reasonable factors they haven't shown any other factors and they haven't shown in any way that those are unreasonable just as in some that's it's positive but if you have the affidavit of somebody from laid off somebody but it is not one of these planes why is his declaration relevant i would say that there are certain declarations there that are no longer that are no longer relevant there's no question that there's extra if you will declarations but i don't think that takes away from the fact that there are declarations that deal with the plaintiffs and and and makes it clear that it's based on reasonable factors other than age well the difference is is that a disparate you could have thirty one separate disparate treatment cases you could have thirty one separate disparate impact cases if thirty one separate people identified practices but other than that there's there's not a difference i hear you saying is the practice was was different in different divisions that's part of the defense of this case is that not the there were certain divisions emphasize different parts of the guidelines some of the divisions were losing money they emphasized were getting rid of this business and it's theoretically possible that one or more of them could be good and one or more  practice for which plaintiffs i mean they were challenging and then ok but i think you've answered my question some of these declarations might be totally irrelevant at this stage because of the fact that some of the plaintiffs have dismissed  and so even if one was to get over the hurdle of the fact that they were raising this for the first time and get over the hurdle of wards cove and look at the merits there's just school analysis fails to control for that indeed at the gerrymandered sample look at the pretty one and a half percent of the people terminated in his sample were over the age of forty compared to seven point six percent of the people actually laid off i mean it's prevails for any of the four reasons prevails in this case we believe that strong arguments exist and should prevail for each of the reasons that the court was not clearly erroneous with regard to its original conclusion that it was not raised court's cove which was directly on point argument there was a specific practice identified consistent with the law as we also indicated during the opening part of our argument in the briefs the statistical analysis that dr cloudy provided was not gerrymandered there's no evidence of that  moreover the fact that dr quality was excluded in one case does not mean that his conclusions in this case are not supportive of our prime facie case and in fact dr cloudy statistical analysis like this one and different than this one have been it needed and approved in a plethora of other cases perhaps the most telling here is that in this case qualcomm declined to ever present its own statistical analysis even though it admitted that it had done one in this court's ruling in the rose matter one of the things which controlled the decision that the statistical analysis of the plaintiff in rose was not sufficient was because of the counter analysis provided by the employer and rose we have nothing like that here we simply have qualcomm taking potshots if the court will at some of mr clarke dr qualities methods methods by the way which were limited because of the discovery motions that were denied and that are hamstrung cloudy and the plaintiffs because cloudy could not perform the multiple regression analysis that he testified in his deposition he wanted to perform in essence qualcomm is trying to have it both ways they don't produce the documents which under the case law would have issue clearer and then because the documents aren't produced they tack plaintiff's expert for not doing a deeper analysis i think it's also very important for the court to remember that if we move away for a second from the discovery short is not left to float by a law case law which allows the plaintiff to challenge a process as a whole the employer under smith can control the selection process from the outset if it  standardized rules for tests but where an employer uses none of that whereas here an employer uses a nonspecific very subjective and discipline and discipline system of decision making then the