morning your honour's i would like to reserve five minutes for rebuttal time this is a very simple case a come a very small corporation and middle tennessee where the employees numbered somewhat certainly less than fifty usually between thirty and forty employees with the economic downturn and a kurd in two thousand and eight it was decided that some of the employees need to be let go i represent this brewer i grain who were the two oldest employees and also the only two black women who worked in the packing department the packing department consisted of four women my clients and two korean ladies who were both significantly seniority of any employees there the only person that came close to them was the plant manager mr john martin ellie and november two thousand and eight mile flight east learned that they were going to be laid off as was one other  and after they were laid off my clients learned that i would not be returning to work at new where they found this action alleging rights and age discrimination the district court dismissed the case on summary judgment and we're here to ask the court to reverse that decision and this is a case where we feel like we've established a promise facia case discrimination the trial court said we had not because they took the position that the ladies were not replaced ladies who had been called back to work since they were the ones with the greater seniority and is also our position that in determining who should have been laid off it should not have been misprogrammed great because they had the most seniority lay off and recall based on seniority your views of the nature of the job order what are the factors in terms of company policy what we were able to show at the court was that mess when any when you're in error about all that out the predecessor they had all employees come in and sign a statement saying that they were aware and had been educated on the seniority system hundred ninety four had filed a complaint with the e e o c alleging that they were getting paid the same as what recently hire employees were gaining pay the company took a third of its plant manager took the plant manager mr martelly took the position that there had never been a seniority system that new era and the trial court believed mr martelly over my client's filing that no raise them all fact fonder  it's to fight your honor we think first of all the fact that the supervisor for both of these women was a biracial man half korean half why they waste a minute there's plenty of evidence in the record to show that he favored koreans he retained one korean employee and let out a three but is it is the holidays were over brought back the other korean employee who had been laid off and left the two older black women let them be permanently without a job james nor the intent to testify that this supervisor mr price did not like those of the black race we have this direct discrimination direct evidence of discrimination  the trial court went out to look at pretext under pretext we believe the fact that there was a seniority system that was not used in this particular case where is it had been in other cases certainly show that company failed to use their own policies and procedures circuit then in the am to get rid of these two black employees taking that into consideration there had been discussions with one of the owners of the company mr j f k and who had made direct evidence it certainly is indirect evidence that can be used to show as part of a problem facia case to show that the not letting these two ladies work was indeed age discrimination they were the two oldest and were replaced by younger employees who were just over the fifty year mark they were qualified to do their jobs in both of these ladies lost their jobs now when the layoff occurred there were perhaps two or more employees who were under were laid off they were not in the packing department but they were certainly in other parts of being there one was in his mid sixty's he had been there just a very short period of time the other employee was in their fift to a trial we certainly thank the defendants evidence of pretax we have shown that there is a genuine issue of material fact upon that thank you you thank  firmed because there is no statistical and this morning there is an admission there is no direct evidence and there is no circumstantial evidence required in  slow this down a little bit you know and rescind the race discrimination claim or the age discrimination claim yeah i would believe in a ref that additional statistical direct and circumstantial evidence has to be proof for both case if the court and to look at just that the race case seems to be based upon we have it mission this morning even though it's in the briefs there's no direct evidence of race discrimination here the very racial comments are  there proof of circumstantial evidence again as we understand this record in the argument relies upon those same race comments as circumstantial evidence of course that imposes a different standard but again the very rac comments as despicable as they were are were number one not by the decision maker and that's a factor in the analysis the race comments had nothing to do with the plans had nothing to do with the ref and the race comment were not in temporal proximity not in time to win the riff or curbs so though the rice comments about not decision maker years unconnected to the job action with contin is insufficient evidence yawners for it to constitute circumstantial evidence of race discrimination course there could be an issue whether the decision makers knew such comments were being made and  in fact took disciplinary action when it came to his attention that mr price who had no role in the ref except for one of them put to mr martelly brought that to his attention so we believe the age case i mean the about it to the owners of the kompany and they took no action but yonder again those comments were to mr annoyance and there's no proof in this record that the plaintiffs ever heard mr price make these racial comments there's no proof in the record how did they find out about it to put it in their briefs and things in the case of they didn't know about it well there's a companion case and i think that cited in the record you know to mr northerns and also f several pinions it still has to be some connection to the job action and it's under speed in this record that missed that these comments by mr price were only to mr norman and had and were never to the plan is in fact there riff that these folks were selected because of their age but even assuming that there's an inference there on the rice or the age it's undisputed in this record that we have articulated legitimate nondiscriminatory reason it's not been shown to be protect the records show that the riff was the selections from the riff were done on three factors where the knot employees were crossed trying whether or not they could do a good production and whether or not they work well with others and there's much in the br the conclusion he this was a small plant he was the production he was the facility plant manager about twenty five employees some he testified and in the record that he had knowledge experience about the working relationships of all the employees he knew them all by name this is not a big fake i would tend to observe that gave rise to his conclusion that these two didn't work well with others if anything in his deposition t mony talks about the fact of the crime the argument and the fact they didn't get along for a crown and that was just to say crandon mean anything unless there's some explanation that goes with that so far you haven't given any reason the crying inside them but you haven't told us anything as to why they couldn't over well with us well we have presented a perfect part of our summary judgment motion that mr martelly found they did not work well with father as he has explained in his testimony the reason i won't believe that you can move on to something else well he's explained the reason for it if that were not true you are the burden then shifts to the plaintiffs to come forward and show through admissible evidence on summary judgment that they did work well five am place a burden on somebody to disprove all manner of things just by making and an assertion if you don't have any basis for the assertion that that that would that would second one of the three bases the the the there was two other bases the cross training and then performing whether or not they did a good production the second most of the goo d production i think that this record you know on or the on a summary judgment analysis is there is proof that they did do a good production i think what we're talking about here is in terms of their ability to perform in the they were limited to one department and that was the three reasons why these people were rated low in the risk right rob and there's evidence you say to support each of those three reasons and the briefs talk about the first one you just engaged in a colloquy about the third one i'm asking about the second there's nothing in there or there is something that supports that as a basis for rating them low in the referral not i think in the  martelly found that they could produce a good production in the package department but that fact that that was a have factored in help the didn't support the companies decision to rate them low in the is mr martelli's deposition testimony where he goes through each of the factors and all that factor about not working well with others talks about that it was constant interaction arguments on the on the on the packing line with the other employees he talks about instances over time when the miss brewer miss gray color at one point there's testimony and says they almost quit she says i almost quit my job because she was talking to me so mean she was being so disrespectful to her on the line and took her in law to testify about that they also their destiny their deposition testimony is i have to emphasize it was a very small plant that did not use all the traditional kind of h r procedures and policies that may be used in a larger man with i can see that the stuff that you are now each and every employee and as you know my question my question was that all of this not working well with others and these negative comments and incidents were not documented to the personnel file and that decision should be affirmed the replacement element is quite clear we believe that the three there's no direct circumstantial statistical evidence here that would support them for establishing a problem in france or case but even if they did on this record we continue and that there's been no proof of pretext in the selection process and therefore the judgment should be a f think that you all have hit upon one of the problems in this case the problem with and why mr can sharpen answer some of these questions is the defendant did not take the position in the summary judgment that these ladies could not get along with othe it was the trial court to sue a spontaneous look at some of the death parts of the deposition and they made that decision that's why plaintiffs didn't come back with it as submit the raise and walk the fans didn't re e that is because in the middle district we did not summary judgment we don't file an entire deposition you take the pages that you're going to rely on and that's what she found only those pages the pages that were not found is the rest of the story where these ladies did not have problems getting along with anybody that had all three ladies in the packing department had one time been told to get along well the thing with each other bates herself said she never had a problem with georgie bro work there was one issue one time in thirty years with miss crane both ladies worked it out the problem is when the court says the spawn take comes up and says well we just ob side in order that this is a valid legitimate raise them because they slowly state and get get a long way off if we had been allowed to grace that in the court would have seen the rest of the story thirty four years work with no problems in their disciplinary panel no problems in their personnel high these ladies were good employees with mr nor the intern himself testified what good hardworking employees they were now jeff price although not labeled as a decision maker supervisor the biracial supervisor was certainly consulted regarding things should be laid off mr martello he was honest with that he said he c