nondiscriminatory and then after that the employee has an opportunity to attacked to attack those reasons as pretext or with some other type of evidence discriminatory motive the court's order cuts off the analysis at the p case and i'm here to argue that that was incorrectly done the reason for that is that there is evidence that at least for the prima facia showing that my client was replaced by younger employees by way of a declaration from and another employee that was fired after my client was fired instead the court rules that the fourth elements cannot be met by immediately citing to the demographical evidence that was raised by the defendant without ever looking at the evidence provided by my client well  so how's he just doing it because mr pi's is saying that he only saw people that were younger that this is what you're relying on to suggest that there's a material a material fact that pretty precludes summary judgment yes i would be to the extent that i would even be able to get that far but i wasn't even able to get that far in the underlying case actually was improper so counsel there is evidence in the heart declaration which i understand was put in the record by your by your opponents that suggest that some of the drivers were between twenty and twenty nine others routine thirty and thirty nine which would make them on the on the younger side correct so does that give you enough evidence to show up a prima fascia case just on the fact that they have actually hired people in their twenty's and thirty's if there is another element of circumstantial evidence with regards to pretext the problem here is that the judge very specially your honour's he he jumped the gun on the first step he should have allowed this evidence to that my client was also was replaced there was that there were younger folks and older folks that were that were hired after he was terminated and also two other older employees were fired at after my client was fired so the inference is that older folks older drivers were being terminated and replaced now i understand that the demographical evidence presented by the defendant is that the court did not apply the test correctly the demographical evidence should not have been applied until step to the mic on the steps but instead it was shoved in the to step one had had the mcdonnell douglas has been correctly applied the prima facia case the evidence for that is that my client was over the age of fifty he was qualified to do the job there was no other than what happened last year there's no evidence that he wasn't doing his job for sixteen years and i turn to the judge the retaliation claim just we are making the argument that there's an inference through that he was complaining about age discrimination through his initial letter in october two thousand and thirteen complaining about his treatment but he didn't seem to me he did not use the words a discrimination no but they should have known he was complaining about correct i would have to admit that yes it would be hard for me to argue that instead but i'm here to argue that the middle of august as was incorrectly applied and before i know i have nine seconds left  the if the if it were correctly applied we would have been able to show that there is no evidence that my client was a person supposedly at least not admissible evidence my client was a person that was i think about and saw the person who was but we are being asked to believe him for the man for the truth of the matter sort of asserted for a document that was not a producer to the court i still don't know what that document says for all we know it doesn't have his name and other compelling evidence is that the person that was supposedly made this complaint didn't want make anything in writing there's no description in the contemporaneous e mails from the company describing mr carlos there's no real admissible evidence pointing to him other than we just have to trust the supervisor that we're alleging fired him for discriminatory discrimination crazy specifically that the employee was terminated i mean was was replaced by someone substantially older i will get to some of the case law in a moment if an employee cannot meet actually under he substantially younger politician or  if the employee cannot meet that burden we don't even get to the next step which is the the employer showing that there was a legitimate nondiscriminatory or non retaliatory reason i want to get to the issue in this case there seems to be a mis application of these two particular cases that they seem to rely on the first case is the in the branson case in that case where the proposition that you don't need to necessarily show evidence that you retained that you were tainted younger employees is evidence of discrimination in that case that was a reduction in force case the circumstances of that case or distinguishable from this case particularly where as here we had evidence that mr carlos was replaced by someone older than him but even our hiring practices show not i mean by our place i mean next person higher the next other second next person are not the next person correct correct the next person that was actually hired by the company was go because for economic reasons typically you can't hire anybody new so the court in that case says well there's a rebuttable presumption that if everybody that you select if there's a substantial number of the people retained are younger these are the those that were let go that would be a rebuttable presumption here even if you applied that to this case which as i say is distinguishable because it was a reduction in force the demographical evidence that we submitted which by the way mr pie is never objected to the date hard declaration nobody objected to that declaration taking the evidence as a whole which the district court did as well as the declaration of of mr paez was considered by the court when you take all of that information into consideration it's enough evidence which is undisputed to rebut that presumption and then the second case which is the bagnall case and i think this sort of goes to the heart of the arguments made by here which is that simply by virtue of that we replay that with the next person that we hired was older than mr carlos is somehow out outcome to spot the thought was that  by virtue of that piece of evidence the court said we won and that's not what the court the court really did look at all of the evidence and again not making a prime showing you don't get to the second or even the third text the third the third prong of the mcdonnell douglas standard which is pretax which is a substantially higher showing that needs to be made but i'd like to just briefly discuss bagnall to show what they did in that case it's first of all it was a case that was a judgment notwithstanding the verdict so it was really the circumstance where the trial court eliminated took away the jury's finding on the facts and i think that that's that's an important something to point out there and that the court said in that case the one of the plaintiffs was let go and someone at the company assumed her responsibilities and that particular individual happened to be within the protected category and so the court granted judgment notwithstanding the verdict saying simply by virtue of that piece of evidence we're taking that away from the jury in that case in the end on an appeal rightly so the court said you can't do that there was ever other evidence that that should have been considered and the jury did consider that evidence weighed the credibility of the witnesses and made that determination that there was discrimination there and the court reversed saying no there was also evidence in that case from the president of the company and it's worth noting because it's something that's case in that case the president there was the evidence from the president that he made a comment to someone in marketing saying that we'd like to have someone that's young but not too young someone that wears makeup i'm not correct and i think what we have to keep in mind here your honor is that these are the comments and the statements made in mr pryor's his declaration are based entirely on his own subjective belief as to what people at old dominion said to him contrast it to for example the statement in this case the in the bag not case where that clearly implicates you know comments that belief it's a subjective belief that he's telling me i should retire because i'm old and i mean that and that that's as to mr pious i mean i think that that's a whole other issue as to whether you can take the subjective beliefs of a nonparty as to how the employer treated that nonparty and therefore submit that as evidence in support of out how the company treated mr carlos and we submit that you can't do that  and that was when that was about approximately two weeks after his actual terminations of employment and the law is very clear in the ninth circuit and frankly around the country that you don't have to utter magic words for protected activity but you really it's really a no to standard you really do have to put the employer on notice of the alleged unlawful conduct an employer really cannot be in a situation where they're trying to glean from from you know on articulated facts circumstances and in this case what the the letter that mr carlos drafted to the c e o of the company back in two thousand and thirteen i mean it medically a deposition he admitted that that had nothing to do with with age it was really an issue of just feeling micro managed and mistreated and the reality is that as the district more correctly noted there is nothing in these the evidence of missing of micro management they're missing the next step which is to show that the micromanagement was not extended to younger employees and we just don't have evidence of disparate treatment between the younger and older here and the demographical evidence which again was not contested by mr carlos at the summary judgment stays taken as a whole shows that the cut the company made a legitimate decision here and going forward continue to apply people well into the project i understand that you think we don't get beyond the prima facia case but what about suggestion that there really isn't any evidence in the record showing that he was the person that was being complained that there is evidence in the record your honor that mr bunn ten did confirm through the daily routes that it was mr carlos so what is the that's correct i think well first of all that was never objected to none of the data there was no objections to the declaration submitted by mr carlos and so that would i guess be deemed admissable your honor but the reality is that there were e mail at this piece of paper and any clues mackoff i don't believe it was the bill of lading i think it was actually just on the daily route that that was on his daily route and that was confirmed by the customer start the internal customer service at old dominion along with m test been appropriately applied here there is evidence that that's just during that that doesn't even say anything about who was hired after he was hired i mean this this this kind of an allegation just means that any company that hired anybody that was younger than somebody they that they might fire in the future ought to be careful because you've now created a prima fascia case if you hire younger drivers well the policy the state allows of it's not supposed to be an onerous burden then that's that's the language even the supreme court uses here in this state they'll be but there's a reason for the sequencing in an age discrimination cases says that that suggests that you do need to show that you were replaced by somebody who was who was younger it is not a requirement risperdal just that we happen to be hiring people that are younger than than fifty it's not a requirement to show younger person replace you it's something that helps but if you have evidence if you had any other evidence but you don't have any other evidence to counsel other other than the observation that folks who were that were younger outside the protected class who were hired and also by their own evidence of folks were hired the state does not allow someone to get out of liability of discrimination just because you hire somebody in a protected class you can still be racist if you hire if you fire a black person and you hire another black person that's allowed but the question is what if you have direct evidence of course you can do that but if you're trying to do this inferential way circumstantial evidence you have to have something at the outset the assignments for the day and it's actually the last item that's objected to in their line case and then another that is related to age that's the problem you don't have anything on there that says you are just disciplining we're just disciplining drivers who are older for going off route at lunch but it doesn't have to be a hard line if you like something that suggests that there was an age problem giving a comment by a supervisor i don't have something said to him that he had a prior complaint about about the way they were treating him because of his age this there is evidence that we presented and there's evidence that they presented that older people were being fired and younger people were also being hired replace them along with other folks now combining that with the fact that there is no evidence that my client was a person that supposedly that supposedly was making sexual looks or comments to this one client that is the case now the court didn't even look at the potential law in fact the court said you can't even get to talking about pretext i'm arguing that the process that is laid out mcdonnell douglas was not followed by the district court the district court from the demographical evidence so compelling that it weighed the evidence as true without without making any inferences to the other way which is what i the opposite of what you posted in an emotion for summary judgment in a motion for summary judgment the plaintiff is supposed to get the the rubber the great so to speak but that didn't happen as soon as the demographical evidence was probably was looked at and that's the first thing the court talks about after