first in the months preceding the terminations of mark chapman his supervisor terry eichmann who was the person who made the decision to terminate march chapman made a number of comments at a vince age bias he said i'm quoting from the record you're getting too old you're an old bag of bones that's just a selection and two days before the terminations in connection with the event that supposedly is the reason that mr chapman was terminated mr eichmann said to him  you're getting too old to continue to do this job and you are an old man go home mr eichmann did not just focus his discriminatory statements on mr chapman he also made similar statements about a number of other older employees under his supervision including about one that man is not eligible for a promotion quote because of his age now these are not a leak at least a jury could find these are not the sort of obey leak references to succession planning that might one might easily wri off these are not jokes rather these are statements that evinced the sort of age bias that this court has said time and again he's rare to be found in a discrimination case though it right your client fire because we have e mails in this case so it's not a matter of conflicting versions of what was said that he basically refused to carry out a work assignment and my question to you is whether any lawyer right that your honor the employer has to tolerate it in a couple of different circumstances one it's important to look here at sikorsky policy that's contained in the unsealed appendix a page a one forty four and the policy says that the order given must be reasonable here a jury could find this order was not reasonable in fact here is there evidence of that in the record to me i was unclear to me what was offered that in summary judgment we could say ok this is going to be a dispute a fact yes your honor there is substantial evidence from which a jury could conclude chapman was set up for failure by being given an impossible assignment what is the evidence of that first he was given an assignment despite having been out five days on medical leave and sick leave second he was given  twelve hours to complete this assignment even though his supervisor knew he had to leave at one pm for a doctor's appointment was due at eight pm it then took the replacements to do that assignment dozens of hours to complete a third party not mr chapman confirmed i would not have been able to do that assignment that's ms light see mr chapman did not know even where the proposal that he was supposed to rewrite was physically contained he didn't know where the data was he'd been out for five days if his response  been it's impossible no one can do that assignment in that period of time i can see where you would have the argument but given that he just said i'm not killing it  and did not make any attempt to do it it's not like he tried to get and finish it and got fired for not completing these i mean he defied the order and that's that's the concern i have yes responses to that first is i think under the circumstances mr chapman could have been more specific he could have been more detailed he could have been more responsive but that is not a material distinction here because under the circumstances a reasonable jury could he said to bat not working on the i am not aware of that statement in the real i didn't think so and you want you're saying that because other some issues that whether they were in the same position or saying they couldn't have done that that that's going to be enough to admit an inference that he was set up for failure when when you know we've got this record that he he said no i'm not working is not touching this anymore too bad not working it three times he tells his supervisor when the supervisor tells him to do the job that he's not doing that's right joining the record speaks for itself here but the emails other responses that your client could have given them that's what we're roughly not knowing who is going to happen here it's he could have said this is an impossible task i can't get it done you know i can't get words to that well he if he'd said i cannot do that you know he he chose to offer  i'm sorry didn't he chose to and he had options open to him that were not tom and subordination but he chose the nuclear option and he told his employer to drop  the he could have been more articulate i will agree with that however there are a whole totality of circumstances here that suggests that that was a that a jury could find that to be a reasonable response under the circumstances this court said in sumter and we can't what he says i didn't quote the whole thing is you benched me not touching this anymore so the the explanation he gave was that the boss had taken him off this and therefore he wasn't coming back and the response from the boss is no one has been b no your honor i would not concede that i would not concede that it was insubordinate or violated the policy thank you thank you or may please the court my name is eric sussman i'm a lawyer a day pitney in hartford and we represent sikorsky aircraft corporation the plaintiff mark chapman was fired from his job it's accorsi on september twenty ninth two two days prior because as i said three record but the contacts offered by the plain i know disputed by you is that this follows a series of statement that could be understood tapdance eight by is so so why should this go to a jury because there's no nexus between those statements and the ultimate decision and what the plaintiff needs to show your honor why isn't that a jury question well you know as counsel just or get in the briefs show one of the statements is made within hours of this e mail exchange so why isn't it a question for the jury whether that spoken by us informed this exchange and the ultimate decision to fire two things your honor number one the jury's inference needs to be a rational inference based on evidence in the record and to  remarks that occurred two days prior to the plaintiff's terminations planted mit's that that comment was in the plaintiff's words in a jesting kind of tone and that's in the record to se one fifteen so it's like in every question  those emails don't say anything about the assignment being impossible in fact he wasn't terminated because for failing to complete that assignment he was terminated because he refused to do it in first instance his e mails don't say he needs other materials or that he has an appointment that day what his email say is too bad you bench me that's the only semblance of a reason that he gives not because there's age related remarks or that he's concerned about age discrimination in the workplace but an unequivocal no i'm not doing this and it's that that even if the rest of the record would it need it and inference that this particular supervisor had you know a bias against example as if he had punched him in the know certainly your honor and that was so even if the plaintiff could somehow show even if this evidence were sufficient to show that mr i can didn't like older workers mr tries to compare this case to a hypothetical situation in which a supervisor fires a female employee while explaining that i just don't want any women working for me and that's not this case first of all the plaintiff doesn't claim that mr i can meet any age related remarks in during the terminations process and that's undisputed second the plaintiff doesn't claim that i can actually said to him i don't want you here because of your age but let me could change counsel's hypothetical slightly to make it more applicable to this case suppose you have a certain a supervisor making age related remarks to the plaintiff that he's too old to work and so forth and the plaintiff gets angry and pulls out a knife and stamps the supervisor couldn't really say at that point that there's an issue of fact about whether the plaintiff was fired but for his age i think the mere utterance of aids related remarks doesn't insulate him from terminations and doesn't insulate him from summary judgment either but we don't have a stabbing a punch in the nose whatever but you are saying that this e mail exchange shows such insubordination that we should treat it the same way that no matter what the employer's mindset and employee who acts like this can get fired without without having to defend the act i think under these circumstances under these facts that is true your honor if the plaintiffs this this could be a different case if for example the plaintiff had some other evidence some statistical evidence some meaningful comparative evidence and i  this in a moment he claims that there was a supervisor or i'm sorry a coworker who was insubordinate and wasn't terminated but but but he has no evidence of its inconsistent explanations being offered for the termination no evidence of age related remarks being made in the termination process if i think we're talking about the same person that was an employee who actually said that it was impossible to do the work under the circumstances presented not not doing it that's that's he was unable to do the work in the circumstances presented right that's correct it couldn't physically do it that's it that's correct your honor what she said in this is this this is a situation in which the plaintiff claims that that this particular coworker jan lights situated but she was not because she didn't in gage in conduct similar to the plaintiff plaintiff counsel makes an argument is brief saying well this wasn't the same conduct it doesn't  early that it has to be the same conduct or he's suggesting that it's not there that she similarly situated in ms and the plaintiff claims that light she refused to do this work and in fact let's use testimony was not that she refused to do it her testimony was that there was one occasion when mr eichmann asked her to do something she said she physically couldn't do because of access she didn't have any she testified in this is it eight to sixty five in the record quote part of the project that needed to be completed again was access i didn't have and it had to go to a different a different department to get done i could not do it so his lights he was not similarly situated to the pla september and it seems to me if i were counsel i could make some plausible argument to the jury and tell me why i could please look you know a supervisor just got tarm all of this and decided r the what he needs is evidence that but for his age he wouldn't have been fired for his insubordination and the difficulty is that in this case in order for the plaintiffs the argument goes on and i understand exactly what you said the argument is i'm going to set this guy up because of his age so he is insubordinate there and it seems to me the facts would support the argument and get around the but for problem tell me why not that is the argument the plaintiffs making about being provoked into this this insubordination and the problem is that there's no evidence the chapmans insubordination e mail was think that you would have to argue with judge sauls surtees that there really was again the a really was a contract that they had to to do i mean it wasn't that they pulled out of the blue requiring him to do it by certain gate they had a client who was putting this pressure on and they had to do it so it's a bonafide the assignment don't you have to be able to say that the record will only admit that conclusion no you are the wild the it was a bona fide assignment your honor but the problem is that the plaintiff wasn't terminated because he didn't complete the assignment but the to the extent the concern is that he was set up this is not a supervisor who gave him an assignment that he didn't really need to have an employee do he needed an employee to finish this right he or did i situation where mr chapman had endeavored to to complete the assignment and failed and then got fired for it this might be a different case but that's not what this case is this case is an unabashed refusal to do his job and for those reasons you circumstances i actually don't think it would your honor if if if he tries to do it any fails and the supervisor says well you failed you're fired again maybe that's a different case but the idea that the pla should be you know the age discrimination statutes are or are not intended to prevent employers from running their business and here mr check mr chairman was given a it's not one that presented here but even then it seems to me that the plaintiff in sort of brazenly in taunting fashion telling his supervisor i'm not going to do this what else are they supposed to do he you know he is given a in order in a direction to complete an assignment and he's given a direction three times in three consecutive e mails and three times mr chapman says no no no he's taunting his boss he's mocking him and telling him to go away he's just not going to do the job we've got two possible responses one of which is he starts to do the job and can't finish it or says to him out do my best but i'm not sure i can finish it then he gets fired that you're saying could possibly be a problem but it's the refusal to do it job whether he thinks it could be done or not you're saying an evidence in the record to pick up on judge parker's question and i believe judge paulus question that mr chapman was set up here and that terry eichmann knew that this is one that was impossible a reasonable jury could find that he was given this assignment in order to get him out now we don't dispute that this the existence of the project was real or the existence of the deadline that's not the problem the problem is that it was given to him rather than to somebody else when he knew it was impossible in fact it took the people who ended up doing this assignment most recently been working on who it rewritten this proposal over the weekend in a superhuman effort dozens of hours to complete four hundred percent of the time given to mr chapman that is certainly one of vailable interpretation of this record not mandated but one available interpretation and if that isn't available interpretation it's for the jury to decide what happened to their cases or to the jury and for the jury infers that based on his based on bias that eichmann has evinced through his statements eichmann was trying to find a for this purpose i do understand why if he had made a good faith effort to do it couldn't do it and got fired you would have the argument that nobody could do this and this was a set up but i don't understand what brief say that it is not ok for an employer to provoke an employee through discrimination and then fire him for the response now a jury could find those other case the i would say that that is a matter for the jury your honor it's a question of what is the level of provocation and whether the response was reasonable here erie on which a rational jury could say giving someone a work assignment works through the night he hands in the assignment eichmann says i didn't think you could do that and then doesn't look at it for weeks so if this had been the first time maybe chapman would have tried maybe chapman would have said mr eichmann i don't think i can do this but this is the second time this happens in the course of three weeks and in conjunction with a number of statements where he's saying you're an old man get out of here and you're getting too old to do this job and those are in the context of the terminations process i want to add one more point if i may which is my my  counterpart said that this is not a case in which we have a false explanation here we do have a false explanation and it's summary judgment briefing sikorsky says we fired him because he took a few days off when there was a when there was a tight deadline that's in their summary judgment briefing that is that a jury could conclude that was absolutely false mr chapman went out on a pre approved medical leave he was recovering from surgery and an illness and remember the point of pretext is not we don't know what happened the point of pretext is when a jury could dissembling it is lying the jury can ask what are they covering up for and in fact in the reeves case from the supreme court they said that is quite persuasive evidence of discrimination at your we have that pretext in connection with a very strong thank you very much we're going to take the case under advisement and will try and get you decision soon as we can