good morning may please the court and counsel jeffrey jacobson representing john france in this age discrimination case of like to reserve five minutes for rebuttal the court erred in the granting summary judgment in this case because john francis ed vanstone ample direct evidence of conduct and statements by those involved in the selection process of the agency's discriminatory intent without any inference or presumption mr francis also advanced circumstantial evidence within the mcdonnell douglas byrd shifting framework such that a rational fact finder could find the agency's alleged nondiscriminatory rationale for the non selection was so the issue for the court really i believe was whether or not the selectees were substantially younger than the than mr france was who was fifty four at the time the selectees were forty eight years old forty seven years old forty five and forty four so now you focused on exactly the issue of when they ask you about thank you so what do we use the average age of the selectees the youngest age the oldest age the median the mean what do we do it's a fair question judge but this court has consistently a stude an overly strict formulation of the elements of a prime official case including and especially the significant significantly younger prong and the the case law tells us that mcdonnell douglas application is not supposed to be rigid and formulaic there's some there's some number at which you automatically have made your prime aphasia case and our cases suggest it's ten years and and though in the courts in this court especially is has not established a precedent saying ten years as an arbitrary number is substantially younger but if you're nine years old right now i'm  a divergence of numbers i agree what number do you think that is so to follow up and judge there was question well and you know the the sixth circuit in and i apologize i can't think of than the name of the case off the top of my head but there was a six circuit case that analyzed all of these the jades discrimination cases and looked at it and said yeah ten years is a fairly bright line rule in terms of what other circuits have f be settled so focusing solely on this age differential how should we you know analyze you is that a nine point five year differential is it a larger one tell me what it is i think you have to look at each individual selectee in this case because these cases partition cases really are a case by case basis so you can look at for example roy hope's who was forty five and say nine years well that's close enough in the context but maybe richard moody who's only seven years or six years difference from mr france when he was selected maybe if he was just mr moody and not the other three who are older i'm sorry younger and therefore the spread is different i think in that case you might have an argument that mr france was not substantially younger but in this case i foresee like do you think we need to analyze the positions one by one yes one to essentially the same position they were essentially the same position the hiring was done at the same time correct so what if they'd hired one sixty three year old and fourteen year olds you don't say i get to compare myself to the eighteen year old not the sixty three year old i understand i understand the point i do and i think in those cases there is a clear delineation sixty three versus eighteen no i'm saying your clients fifty four they hire one guy who is older mathematical case i understand how we look at other facts and circumstances who have to swim all we have is mathematics how do we do well i think in terms of the mathematics question judge and cornell no one told you math would be involved think correctly that our jurisprudence on this is not definitive let's assume we have a case like yours in which there is no other evidence but the mathematics how should we analyze that case do we use the average age of the hirees do we use the youngest tyree to compare do we use the oldest one we have to write an opinion so tell us what the opinion should say i think if if i were sitting in your chair sir i would look at not just the average age i would look at all of it i would look at the individual selectees i would also look at the spread so i don't think in especially in the needs discrimination case you can point to one element and say we're going to use the media and we're going to use the mean we're going to use the spread i think and i understand what you're looking for is a bright line rule but i'm not sure with the exception of maybe the sixth circuit that bright line rule exists maybe the third circuit i think and counsel could ask you a question yes or do we have preexisting precedent that says in assessing a prime official case we should be looking  the total circumstances yes judge there is there is precedent for that it is not cited in the briefs however sawmill has it in to to raise it but there is precedent within the circuit that says essentially age is a continuum along which distinctions between employees are often subtle and relative and nat's why it is a case by case analysis but i don't think there's anything wrong with you giving us a reference to a case that wasn't in your brief if it's supporting an argument that was in your proof i'm thinking if i have if i can put my hand on  ak i don't think i can put my hand on a right now judge but i can i can just ask you think it's ok let me ask in terms of the questions my colleagues have asked if we were just writing on a blank slate and they had to make up a rule and come up with what we thought was the best rule for the months or circuit for what should that ru i think a fair rule is ten years and in this answers just her with question i think ten years is a fair number but i would not call it a bright line rule i would call it a guideline iraqi leader i don't want to things you have to pick one of them i would say that ten years will be a fair benchmark for iran to face a case yes ok assuming that was or rule what was the gap in this case the gap is between six years and ten years so you have u what you're saying even though you resist coming up with a rule is you want us to look at the youngest tyree yes ok so if i can rephrase for you what you say our rule should be is that ten years would be a reasonable measure of a prime aphasia case and when we look at the gap we ought to look at the youngest tire not the average age of the hirees that's correct thank you for it's ok if that's the rule and that's the rule i would suggest if i were in your position what is the as the as is a case that it's differ slightly different context but it says you should look at the average age of the hirees that is correct that is what the s s is that is a good benchmark but i think considering what you were trying to decide when age discrimination case that the average age is the age we should be looking at actually especially when there is a croup these four positions were heard the same time based on the same case that one of the facts is he has to show that the person hired was substantially younger than he would always shoot someone they could destroy just for a second if he doesn't have the the benefit of the inference he does have somebody a guy who was a gilbert saying we want to have younger we're trying to groom younger people why doesn't that get him by s because if you look at the requirements and that laid out i believe it's most recently in the shelly case of this court the four factors for the prime aphasia case at least forty years old he met that one no question qualified for the position again he met that one no question denied the position again no question but then the promotion was given to a substantially younger person he hasn't met that standard for the professor case for the circumstantial evidence test now to the extent the court is  judgment because you've got to look at the first of all you've got to look at who the ultimate decision maker was in this case and it's the plaintive pretty much says and it's his reply brief the person to look at is national border patrol comment instead of the direct expression of his view because it's a one kind of one off kind of kind of situation we know it's a one off i mean if the boss says this is a judge silber if the boss says let's go hire some younger people and they do y yes and the younger people are only nine point five years on average younger than the and the person who is a and the circumstances i don't but what i'm trying to do here is combine direct and circumstantial evidence and i think that's a good judge judge silverman says is it enough that somebody says let's acquire younger people you say it's probably not enough because it's a straight comment  well now we have let's choir younger people and they do they're not more than ten years younger than the average but they go out and hire younger people put those two facts together those are the only facts in the universe is not enough to make a prim case i would suggest that again if you're talking just that one comment i don't think under this court's case law it is for example this a case of one comment and the fact that they go out and do hire people who are younger even though they're not more than on the average petition if i asked you to assume it was the boss so i think that would be a much tougher case for the defendant in that scenario but i'm not sure in and of itself if those were the only facts we had that would be enough but your cool had a question in a case called cohen first chertoff which suggested following the seventh circuit decision that when the biased person who made statements was not feltham a decision maker that one that we have to look at whether that biased person contributed to or influence the decision and assuming that a rule like that or something like that is a political here i'm having trouble not seeing gilbert as influencing the decision  came up with the g s fifteen positions he recommended a bunch of people they were adopted by you are they were passed on the same exact people case and considering the history that national border for a chief aguilar had with this plate if that's the distinguishing factor here in other words before he became national border patrol chief ch aguilar was the chief of the tucson sector where he supervised the plaintiffs the record indicates that the plaintiff did not have a high opinion of cheap aguil issue for for a jury to assess all of first of all i believe in this case that it be a bench trial but regardless the trier of fact we were looking at if there were genuine material issue excuse me the plaintiffs he had a list of them but let me just focus on a couple of them when chief back you are became the chief of the tucson sector he wanted to the government the secretary offered non pretextual reasons ok i also think you difficult to dispute that the plaintiff in this case offered some evidence from which you finder of fact could find th this comment if chief gilbert was influenced the decision making process and if the process resulted in the hiring of people not more than ten years old but nine point five why doesn't that make a prime  bunch of them and then the and then the plaintiff has to create an issue of fact about whether they are pretextual let's assume that steps two and three are get taken care of i've been focusing on step one prim case so on this set of facts and i'll just give you three factors she feel birch says what he says she points is the decision process these are undisputed facts and the result  of the hiring process is the result of these four people who are hired why don't those facts through looking at all the circumstances make a prime official case this court and i believe all courts have a distinction there are two ways a defendant can write there's direct evidence and there's search and there's circumstantial evidence so you know we have direct evidence that chief gilbert wants to hire younger people we have direct evidence that he influences the process we and then we have a result of the process which is that the four people hired that's the circumstantial side do what's your answer to that what you what your answer i mean direct evidence is defined as evidence which if believed proves the fact discriminatory animists without inference or presumption i don't think what we're talking about reaches that end to give some examples excuse me second this court has found there was one case it was involving pepsi co about a statement about we don't like we don't want gray hairs that's not sufficient direct evidence this comment is about the same is that i would say system remember when what churchill was deciding was describing was this scenario or a plan where there would be several people at the g s fourteen level which is a lower level and then several people of the g s fifteen level ick arguably assuming it was made the younger comic could be directed towards that yes fourteen level well let me just try this again because i think we're missing each and and i don't know the answer to this question so i need your help on  let's assume this comment on it's on it's taken by itself is not enough to make a prime official case under our case but then we also have the hiring of people who under who are on the average nine point five percent younger if you put those two facts together there's it make a prime official case and if not why not i do the direct evidence on its own doesn't make crime official case the circumstantial evidence on its own doesn't make up on the facia case but they both leans in favor of the plaintiff can we put them together and find a prima facia case i would i would say the answer to that is no if you don't meet the direct evidence case or the direct evidence standard then you move to the circumstantial evidence still there so in your view the separate tests not to not to be used in conjunction with each other they're separate tests i mean the facts certainly may apply either way but they are separate tests yes and you can't i think analytically that's the only way it makes sense you've got the direct evidence first if you don't meet that you go to the circumstantial test then the circumstantial test is do they make the prime aphasia case so just an interesting position if you get halfway there with the direct evidence you can't get the other halfway there with the circumstantial and less the evidence that you're halfway evidence for the direct evidence establishes the prime official case which in this case as well counsel then your argument seems to be that when considering circumstantial evidence that that the court is required to disregard any direct evidence that's also in the case no i'm not saying that i'm saying you can consider that evidence but if that evidence doesn't establish they for requirements of the primary  loses i'm sorry to interrupt you would never get to the circumstantial case if the direct evidence established a crime of issues would that is correct so your answer the judge question i think is if the direct evidence is insufficient to make your case we must ignore when we look at the circumstantial evidence no i'm not i'm not i am not saying that what i'm saying is and i think this court's case law says you can certainly consider that evidence in a valuating whether a prime official case is met but third eleven fifteen in that case at page eleven twenty seven this court said that a plaintiff can prove pretext in two ways indirectly by showing the employer's proffered explanation is on worthy of credence or to directly by showing the unlawful discrimination more likely motivated the employer these two approaches are not exclusive a combination of the two kinds of evidence may in some cases serve to st so as to make summary judgment and we're already talking about step three there we are but the court does have some precedent to say that it's not just direct evidence because i got some step through what about perhaps or that's correct but there's not not that i'm aware there's any case law that says any precedent that says you only look at it direct evidence in step one because you can prove it you can prove step one direct or by direct evidence or circumstantial evidence and i would say that there is ample direct evidence in this case because it we're not just talking about one comment about age what we actually have here is two age related comments by chief gilbert three instances where chief goldberg and or his deputy chief boat right try to push mr france into a rehired a new it's in position you have three separate retirement discussions and you have two offers to essentially demote mr francis to a patrol agent in charge all the while stripping him of his managerial portfolio operation streamline it cetera so you don't just have what is  what do we do if the direct evidence is not sufficient and circumstantial evidence on its own is not sufficient can we look at them together yes webster says that i don't believe there is a case this is sara lee that says that i don't believe that there's a case that says that you can't either in other words i believe the analysis goes hand in hand and remember at least in terms of direct evidence the standard is that a plaintiff is required to prove quote very little direct evidence of the employer's discriminant or chris discriminatory intent to move past summary judgment and that's also in the the twain case and you ask me to distinguish the davis case i'm sorry the d a s  case the d a s case involved the seasonal slowdown in the agriculture business that was one of the statistical evidence cases that i referenced earlier in my argument indeed yes they did say that in nine and a half year age difference was not significant but what would makes diaz unique is that all of these people that complained of age discrimination were hired by or hired after they were over forty years old so they were all over forty when they were hot first hired and you have a solo act or inference in that case meaning that the person that hired them after they were age forty is also the person during this seasonal slowdown that said we've got to reduce the force under either directly for doing as you correctly that there's a mandatory retirement age fifty seven for these issues that's correct what is wrong then with people saying you know we need to groom people to positions of leadership so we have some kind of succession plan for the organization with in and of itself that wouldn't be that would be a fair statement but there swas in context there were multiple statements about age there were multiple statements follow quickly on the heels of that groom young age in statement that said hey what are your retirement plans we can get your rehired a new it's in position we can even get there for you in writing and meanwhile stripping away pieces of his manager who  to doesn't prove they don't like his age maybe who they don't like him they want to mount and you know that is the sort of the elephant in the room in this case if they had just said we don't like it and reason why we didn't select him was we don't like him then we wouldn't have an age discrimination case but they manufactured what we believe of these pretextual reasons which mask the true intent in this case which was age they never said they w  do you want to address that well i agree with your analysis judge that gilbert essentially and i think there are factual inaccuracy zor differences in how the interview panel ra r gilbert says i'm not going to select france mr france aguilar then takes exactly what chief gilbert forwarded to him recommended to him turns around and recommends it to a her there was no change whatsoever in chief gilbert's recommendation to chief eight to commission or deputy commissioner a hern selection and therefore they he is directly involved in the management decision