good morning may it please the court monday ms kristine or brown and janet hill and i represent daryl also broke and michael kirkland in their age discrimination claims against banon county georgia now this case initially involved six plaintiffs all six of those plaintiff swart in the road partment in fana county georgia and those six were selected terminations in an alleged reduction and forced the district court denied summary judgment as to those plaintiffs who were above the age of sixty but granted summary judgment to the defendant as to those plaintiffs who were below the age of sixty that would be mr also brooke who was forty two at the time i mean fifty two at the time of germination and mr kirkland who was forty seven at the time of discrimination and with regard to both mr also broke and mr kirk one we pointed to a replacement or someone who took over their duties following their terminations who were substantially younger than they were are now the plaintiffs contin and that the district court air and three different respects one is that the district court considered the age related comments in the case as it related to those sixty and a but not as it related to those below sixty and that seems to have been the determinative factor for the district court and what was the substance of those age related there were a couple of age related remarks that specifically mentioned a one with regard to mr aware that he was to all held as mr way or mr where was i believe seventy one and somebody said he was too old for the job to continue working and his health was not good enough to continue working at another one that specifically mentioned a was a county commissioner who stated had it been up to spouses and relatives about the candy looking to get rid of people who war fixing to retire so to speak so the rest of them involved comments about read they had some budget concerns which make pretty good sense as a business operating operation but these comments i guess are there interesting they go to it but  and we presented facts that we contend with the lauer jury to believe that the basis for the reduction of force was pretextual the district court disagree but we have we have set forth those facts and that's one of the reasons we are asking for reversal because we think that it was appropriate for a jury to consider the evidence of whether the reasons were pretextual  beyond that thought the reasons were just generally a list of the people of versatility people get in more than one job and and people have shown a little initiative or dedication by being on a list where they could be called in on weekends or nights and based on that your clients didn't measure up as well as some other people did but you know as the law is i mean even if you disagree with their reasons as long as it's a reason that they on it that could have honestly held then we don't really go back and say well gee you made a bad mistake on that one joe blow was more versatile and somebody else that is the law understood your honor and we have two different arguments here we believe that we set for authorities to make the decision is to these people that were listed to be dropped well it's not mean i think i think witness where you have the defendant's document showing the various ages but as to your honor's question about the pretext argument part two of that is that with the record that it was a pretext for what you're saying but i mean the dummy up a reduction in force and then they dummy up a criteria for the sole purpose of firing a forty seven year old in a fifty two year old when in fact there were some older have people who were dismissed and replaced by young girl employees there we have new hires occurring within months of the  that he had to get rid of some people but he had to cut his budget well your honor i think that would be up for a jury to decide but why were to dispute well because it's plaintiff's contention as testified to by mr c that mr simons was the decision maker and we have so many different explanations that contradict how it went down and no matter who the decision makers hard to see the global sinister plot here i mean you've got to show that everything was done to discriminate based on the age to get rid of older people and that's where i'm having trouble and our condition is between the comments about morning to get rid of of older people the older was over seventy one and into sick your clients are over seventy one nobody thought they were no end of those four that summary judgment was denied their war  also clients who were in their sixty's and so then you know one organizer they still are going to get their day in court you've got clients that are are getting their day in court it's been amicably resolved your honor well they got a position where it could be amicably result sharana but in terms of the selection process we do not believe the evidence shows that charlie collins was the decision maker nor that his comments about good morning tom donald cronin and may it please the court i represent the sole defendant appellee in this case which is phantom county georgia and there is some discussion about winter weather just for the courts information fan and county is right where tennessee and north carolina meet is that county right under that border so they do have winter weather it's at the foot of the blue ridge mountains and getting people to work in winter weather is not an insignificant consideration when you are scaling down your work force and forgetting the out there who don't want to be out there it is very treacherous dangerous work at times it is felt like appellants have been presenting a vicarious notice requirement that they have to volunteer for extra time or volunteer for different  vehicles and these people who are basically doing what they're paid to do are to be correct in some guys showed more an issue of and desire than others some guys willingly went out in bad weather and obviously in the reduction of force you want to keep the guys who are versatile and who are flexible and that's what the record shows and i at times this case feels like opponents are presenting about carious aces criminal law suit because they talk about facts and evidence relevant to the older c plaintiffs who were formally in this case and they utterly ignore facts that are material to their claims for example i think judge carr's mention this also break totally ignores the fact that he was rehired into the very position from which he was laid off two months earlier kirkland ignores the fact that two of the truck drivers who were laid off with him were rehired both of whom were significantly older than him respectably five in ten years and both also broke and kirkland ignore the fact that truck drivers older than both of them were retained during the reduction in force specifically for truck drivers older than kirkland were retained during the reduction in force three truck drivers older than also brooke were retained during the reduction in force but instead of addressing those facts they present a litany of arguments that we contend are not suggestive of age discrimination and more importantly not suggestive of trial court er believe someone mentioned statistical evidence and that's one of the errors that is enumerated correctly excluded that evidence because you had selective sampling you had no analytical foundation and more importantly as referenced by i think it was just you had attorneys that witnesses presenting that testimony in terms of selective sampling they create a statistic to show the age of the row department before and after the reduction in force only they kept out of the calculation the four oldest row department employees one of whom was a seventy six year old part time road employee who was not laid off during the reduction in force obviously you can't pick and choose your facts when doing statistics another problem is the lack of analytical foundation reduction in force case what matters is the people in your universe the people with your job descriptions your job titles it doesn't matter how someone in a different job category was treated so when you have a monolithic statistic such as average age before and after it doesn't reflect the reality of the problem face it case you have to control for age within each discrete job category which in this instance would be truck drivers and lastly we have a situation where they present a statistic showing the average age a year after the reduction in force but they in no way controlled for employment actions that would not be indicative of an intention to rid the workforce of older employees for example they don't control for voluntary resignations voluntary retirements voluntary transfers and unfortunately death the seventy six year old i mentioned passed away in two thousand and twelve obviously or the war forces and get younger because of his passing through no fault of accounting so the statistics were correctly excluded by the court for numerous reasons lack of analytical foundation selective sampling and they come from an attorney not a witness and opponents are also applying the wrong  did the plaintiff present evidence that would allow the fact finder to reasonably conclude that the plaintiff was included in the reduction in force because of eight that is the standard that was used below correctly and a palace do not challenge that but they are applying a different the statement there was a reference to a commissioner who said he would have made the selections based on seniority not age we address this down below i think in this court but that person was not part of the process and there's no evidence he had any communications with the people who made the decision specifically charlie collins is the individual who made up the list so that evidence is absolutely devoid of any and all value in terms of pretext the argument that appellant's made was that simon is the chairman is the decision maker no he's the final decision maker there was also another decision maker by the name of charlie collins who was the department head and the palace try to wish him away wish him out of this case for the simple reason there's not a whiff of age discrimination concerning any of his actions or any of his statements so they harp trying to focus more attention on mr simon's then charlie col the employment action they don't disappear when the rubber stamped by the final decision maker they become part of the case so all those arguments about mr simon's the chairman being the final decision maker is just an attempt to distract from the decision maker below the react commending decision maker because there's absolutely no evidence in the record that anything he did but was related to age go through that i have plenty of time what happened was the finance director by the name rita kirby concerning the catalyst running again kirby k i r b y thank you she concluded the county was running low on money based on her benchmarks and they had a new system and further concluded they would have enough money to support the two thousand and twelve fiscal year budget so she went to the chairman simons and said we've got a problem you should take some cost saving measures sheeting she just left it at that the chairman decided a reduction of force would be appropriate and he decided it would be appropriate in the road department and you have the dominoes fall and it should be noted that there were some contemporaneous cost saving measures around the same time there are three things in particular number one the county refinancing the bond on the county courthouse that was one of the options they considered what they think they did it they did four things they did that which either didn't cover the shortfall where they were they were being very proactive i don't think they knew what the shortfall was going to be the issue was with the property tax money coming in much slower than usual the county doesn't collect the taxes an independent constitutional officer a task commissioner does so if you're the county and you need this money and the money's not coming in and you have no means of collecting it it's a very precarious situation for a county so they did four things the riff the refinancing the bond they restructured the m s department to reduce over time and they also changed them urgency reporting protocol before the change to vehicles would respond to every emergency after the change to would only respond in specific and limited circumstances i think that was a few and over time matter that the county was trying to address but there's no doubt there was a legitimate financial reason and there's no doubt that a palace don't contend that ms kirby had any age animus or that she somehow was in cahoots with anyone in terms of the reduction of force or selecting the individuals for the reduction in force so their argument that there's pretext around him her actions even if there were you can't connect it up to the ultimate inclusion of these two appellants in the reduction in force because obviously without an allegation of her being collaboration with somebody you can't connect her actions with the ultimate employment action in this case  viable if you believe the defendant's version of the facts and that's not where we are on summary judgment if you believe the plaintiff's version of the facts which is where we are then the retirement looking to get rid of people close to retirement i don't see how those are relevant to your clock again neither him whom are close to being seventy one years old neither of whom are close to being near retirement age well and  cases hold that retirement comments can be your proxy for age bias but it almost sounds like they would be wanting to keep your clients because compared to other people they're far away from retirement i still having trouble seeing the connection but for the fact you take these two clients and replace them with someone younger than them and i think that a jury could conceivably weigh those comments differently as it applies to someone who's in their sixty's than someone in their forty's but at the same time i think they're entitled to be considered by the jury because otherwise i don't know how you end up with the a bright line rule about comments about people nearing retirement are a proxy for a if you're above the age of x but not if you're below the age of x i mean i think in the context of all the only rehired mr also brooke he told me to it was fair that he was fired to begin with and that's why i was bringing him back and our contention is that mr simons made the decisions colace testified he went into this meeting where he was asked to tell mr simons what all these different people could do and that he did every member of the road department but now they're there he is mr collins as opposed  substantially older than your client mr kirkland well for example mr henslee who was a truck driver at the time they lie off decision mr r collins testified he informed them mr inslee is going out anyway because he's got to have surgery and he never were termed so and with regard to the seventy six year old that defendant complains we didn't include in our numbers in determining the average age he was a part time employee who was not part of the decision making process and the fact that we didn't include him  benefit because of his death there after which would have positively affected our numbers any other question i thank you got your argument thank you will be in recess