t something i want to clarify regarding our id any argument that is i'd like to emphasize the fact that general motors has changed its stance regarding joe young when it learned in september of two thousand and two of the terminal illness of his wife prior to that the record shows that at all times  employees joe young knew he was in the pipeline on the list at general motors in michigan although perhaps he was not but from what he knew he was in the pipeline and he was waiting and waiting to have a chance to go to michigan and to be tested and interviewed for the job that he once he had informed the company of his wife's illness which he had to do immediately for a variety of reasons once he and informed human resources of his wife's illness he was in a all shall we say three hundred sixty thousand per year or four hundred thousand for your applications on the internet and attempt to get his job in that manner as a person would do who in the parlance of general motors was applying from the street is there any other than the question of timing is there anything else in the record being the timing and the change in stance whereby he was for the first time in form if you want a job get a job by applying on the internet but there are no statements by anybody  taking a job and then as he assumes he would be hired he would have full benefits which is that mighty general motors benefit package and now not only would he received the benefits but they would be obviously called into use immediately for a very costly case which indeed although she had been expected to live for six months indeed she loved somewhat long general motors a tax mr young's qualification for his job in a situation like this where young held two jobs sometimes i'm a tenuously level six supervisor maintenance and level question is actually performing the job in question here over a six year period but for any substantial period of time and this person has been selected by the employer to perform that job because general motors had its pool of three hundred sixty thousand persons obviously general motors would not have had mr young performing these important jobs if these jobs were not deemed by general motors i would also like to address the question of three hundred day during those three hundred days prior to the filing of this lawsuit was filed on july nineteenth two thousand and two general motors did have jobs open and did hire people at level six excerpts at two o three n two zero four zero six people hired in the three hundred day period and the record also shows that mr young was seeking a level six job anywhere in the country and i could be a maintenance job it could be an operations job he was happy with either kind of job and he was not limited in any way to reno nevada  five there was a first a first on first hired policy general motors regarding people that were on the list the being two hundred fifty people who were who were qualified for the job and waiting and general motors had an explanation for its policy it did not want to keep people on this list waiting around month after month after month well of course we can see in joe young's case that is exactly what happened he was placed on the list according to the information given him late in two thousand or early in two thousand and one during all of these the fact that an employer a temporary employee at plant where mr young worked who was in her twenty's was moved into kember two thousand and three from her temporary job into a permanent job the people but they hired if i understand it the people that they hired almost all of them during this period had college degrees that right certainly the great majority had  and we are not questioning that there may have been and institutional preference for a college degree but for example mr t v s he was in charge of the hiring center called t n a in michigan stated in the excerpts to seventy two to seventy three that if a person were holding a temporary job successfully and wished to move into permanen in general motors own materials regarding what its practice or policy was at any given time unquestionably in two thousand and whatever practice preferred but yeah he was not hired on a permanent basis never he did apply he was actually put my position where he never had to apply because he was recruited in his own employment and he was denied the opportunity to work as a test for employment there was reason to believe that if he had it's just the employer have information before it did general motors had information before that he wished to have a permanent job and that he did not have a college degree yes it had that information certainly as of two thousand and one and the memor now bearing in mind the odd circumstance that in all general motors records there exists almost no trace that mr young ever worked for general motors at all but there are several emails and th are on on the record the e mails show that the resume i have mr young was in michigan and human resources person mr herman at the local plant is saying in his e mail to in his e mail to michigan he is saying you have the resume of mr young because he was scheduled to have been that is correct and sometime in the middle of two thousand and two during summer of two thousand and two mr young came to realize that he was kidding himself and that his application if we want to call it that or his search for employment within g m was time well at any time to g m ever give him a statement as to why it was not stressing him or did he ever ask for one he was always given so much encouragement that he was always led to believe that assessment was right around the corner respectfully was awaiting to hear from human resources when he was to go to michigan and that brings me to the final point that i wanted to make and that is  the need for college as a pretext quite slide from the fact that g m s and records show requisitions during the relevant time frames that call for associates to create or equivalent quite aside from the fact that their master book of requirements called the red book indicates that for this position and the position above  what is required is high school diploma or equivalent quite aside from that this is different from the ordinary pretext i'm calling this so for free text for the following reason this isn't just a situation where after a discrimination charge was filed the employer gave an explanation that may not have been strictly factual that this is more than that because this phrase in college as just for that time and of an absolute requirement and making those statements to joe over a long period of years is quite different than raising the college issue merely as a defense after the fact once the cat is out of the bag and the discrimination charge has been filed here the college issue was raised from nineteen ninety six onwards it was first raised by mr markham in one nine hundred ninety six who was in a very high position and indicated to mr young that this was a requirement that incorrectly it was made by many people made by people in high positions and it was not made by michigan it was made by regional directors and  managers under them and people in human resources and regional human resources manager but looking at i'm sorry that's what i would use your argument that my college degree in place and the inconsistency shows that but on the other hand i think a college requirement for a job that does not connect to college or does not have where the college degree could be what i just i'm still not understanding when did this happen that he was not assessed he was not just over a period of six years he always thought he would be assessed he watched first of all during was in fact hiring people who did not have a college degree and the college he and he learned that from somebody needs to work his deposition is on the record who explains the very great flexibility of this requirement receive that job without a college degree he had to learn from here not claiming a cop breach of contract no we're not claiming a breach of there was no contract your honor so where do we get an inference that this was because of age and not because of something else  something well i think you wanted that it couldn't have been negligence and it couldn't have been a breach of contract because the only contract if any that mr young might have had this was not a kind i mean i temporary worker being told well you know they will do something because your honor if there ever was an application blank he did not know of it the process by which people applied on the internet did not evolve until two thousand and one mr t v which indicates that that was gradually brought into place and that it was up and running sometime in two thousand and one he straddled a period when there were many changes that were not explained to him his position at the plant was such that he was so important to the running of the plant and so positive from everything that was said to him that they wanted him to be there as a permanent employee it was suggested to him in any way whatsoever that there was any procedure for him to follow and therefore he did not thank you it's your way over time thank you very much the court good morning my name is david vogel and our office represents general motors corporation in this matter this matter quite obviously is before the court on a order granting summary judgment the other to decide to nevada and so looking at it from the summary judgment perspective we need to focus i would respectfully suggest on what the judges analysis the district with analysis was done with regard to the undisputed facts that were before the court and there's one key undisputed fact which is general motors prefers that it's entry level supervisors in this division which is called the s p o division and to have a college degree that's mentioned on page thirteen of the district court's order and i don't think there's any debate about that it's in the appellant's brief mr young  deposition counsel repeated again as oral argument would you tell me i'm just what doesn't fit your client allegedly did it was for reasons of fact that he didn't have a college degree rather than the fact that he from the right two of the of the court's order which discusses in one nine hundred ninety six timeframe when mr young first became a contract supervisor at this facility and started talking to his supervisors about the possibility of painting regular employment he was told repeatedly you know you really don't meet our hiring criteria because we look for people with college degrees but we'll talk to people we'll see what we can do and so we would say from the outset that the very least most if not all the folks they hired had college degrees and we would submit that that the case really centers around is that stated college degree preference a sham or a pre discrimination and if you look at the numbers that just can't be correct if the charge was filed the lawsuit was filed on july nineteenth two thousand to the charge was filed on july twelfth two thousand and two if you reach back three hundred days from that which we would  proper limitations period it take is the power sixteenth two thousand and one in that three hundred day period there are actually a lot of been full time supervisors hired at the entry level positions which counsel referred to them as level six that's generally where they come in they also come in  level five of those eleven supervisors ten of them had degrees there was one exception the individual who the exception was made for was actively enrolled in college and was pursuing and i'm not sure it was a male or female because i don't think we identified the folks so pursuing his or her degree which if you know in the record there was a two thousand and one memorandum that g m put out and said well we generally require college degrees we will evaluate people on a case by case basis who are actively enrolled and pursuing their degree this int excuse me this individual it's important to point out to these and i'll go ahead and call it an exception who the success was made for was forty eight years old at the time they were hired so that would be directly below any suggestion that this college degree what i beg your pardon your honor four of the eleven were forty or older  one was forty two were forty i'm sorry one was forty three one two or forty three two or forty three one was forty six one was forty eight so out of eleven and keep in mind i think your entry level position so this is  where sort of people get into the management structure of g m so we met it's not surprising that many of those folks would not be all over he was working there all this time that's correct he was my capacity as if it was a contractor or he was actually i believe an employee of kelly record reflect that he would absolutely be considered i think the record reflects the people that we like you know we think you're doing a good job even though you don't mean for standard criteria we'll see what we can do and and in fact they did i think the folks that reno at the local facility contacted corporate in michigan and said can we get this guy through the process and the response was generally well there are two responses frankly one is there wasn't a lot of hiring that we know going on during this time period the last hiring that reno prior to the september two thousand and three hiring which i do want to touch on for a moment was in one thousand nine hundred ninety the from one nine hundred ninety nine to two thousand and three there was no hiring at all in the reno division but the second response was and i will acknowledge it's unclear whether the folks at reno directly conveyed this back to mr young but the folks in michigan said you know except in extremely rare cases we're going to look at college degrees and we pointed out during the limitation or people who are actively enrolled in college and getting their degrees and as we noted in the limitations period they follow that policy or practice whatever we want to call it one hundred percent of the time we'd argue you really can't challenge the decisions made outside of the three hundred day limitations period and that regard we also note but at about that evidence could be pertinent to the issue of motivation absolutely your honor active detentions that are made within that limitations period absolutely judge and if you let's look at those numbers if we reach back to one nine hundred ninety six when mr young first began working as a contract supervisor of the plan through the end of two thousand and two when he left that job there were one hundred ninety two people hired within the s p o division nationwide which is a series of i think it's half a dozen warehouses in different locations that's what these are their parts warehouse this is for the courts knowledge one hundred ninety two people were hired out of those hundred and one hundred to one hundred  eighty four had their degree two were actively enrolled in college and in the process of speaking their degrees so we would commit one hundred eighty six out of one hundred ninety two people fit the college degree preferred there were six exceptions none of which were in the limitations period of those six exceptions two were in the protected age class one was older than mr young at the time he was higher so we w submit that one when you follow a policy or practice ninety seven percent of the time the fact that you made the versions of that the sample size of one hundred ninety plus people six times is not sufficient evidence  second it's very clear based on the ages of the people actually hired and i don't want to be overly clever with statistics but when you have a pool of six and two out of six are in the protected class which is almost the third and almost half where is the suggestion that that college degree preference which everyone agrees is a true preference is being used or exceptions are being made to screen out older people and by the way no exceptions were ever made or have ever been made to our knowledge at the reno facility which is where the plant work and what mr to vieira's actually said in a deposition was we would consider a contract supervisor who might not have a degree at the facility where he is a contract supervisor that same consideration would not carry out nationwide so we would submit in response to your honor's question judge graver that even if you do look at it  historically yes there are exceptions which is generally where we establish pretext or you make exceptions to the rules but the exceptions were so rare and almost equally benefited people in the age protected classes they did younger people could happily say it's a or age discrimination that simply doesn't go with the sta one hundred ninety two people higher judge you asked me how many people in the in the limitations period were forty year over and it was four out of eleven but that's misses a pretty decent percentage for an entry level position if you look at the whole seven year period one thousand nine hundred six to two thousand and two there were thirty one people who were forty year old or out of that hundred ninety two now that might not sound like very many but again it's fifteen percent which when we're talking about an entry level job we would submit i don't have any sort of occupational study showing that but if it's fairly i think comparison to the age breakdown of the applicant pool well your honor i think because of some other laws we don't have an age breakdown of the applicant pool because general motors doesn't want doesn't request information regarding age in any of its applicant process and also the screening process and i'm sorry i don't have the record cite for this but the screening process when g m takes in all of these resumes they pump them into a computer and the resume the computer search my understanding is it's age blind so no general motors does not keep records regarding the age of people who apply and we don't have we don't have any way to now if a law firm which i realize is different but certainly in my law firm i think most all around the country entry level attorneys i think if you did a study most women in their twenty's or thirty's because that's how the entry level folks come in and that's how we see that happening  in fact and i think this is important given i'm not trying to be cute with these statistics but six hundred ninety two people hired were in their fifty's so when the appellant states in their brief in their reply brief in fact on page nineteen  they say well g m has a policy they just don't hire people in their fifty's well if the attack is well you made exceptions this college degree preference policy we did that six times over seven years you don't hire people in our fifty's we did that six times over seven years so for every time we make an exception the policy there's also an example of an incident where we hired someone in their fifty's we had a lot more people than that in their forty's in terms of the things i want to touch on because i do think it jumps out in the br somewhat about this contract supervisor who was hired in september two thousand and three and i don't know if the courts familiar with that i'll mention it quickly i don't measure by name because her name does jump up several times a woman named holly hard time who yes was in her twenty's was hired at the reno warehouse she was a kelly contract supervisor she was hired in september of two thousand and three couple of points about that that are brought up and i think they're very well addressed in the district court's order because the this came up after the close of discovery after an order had been issued on summary judgment the plaintiff raises this as sort of a motion for reconsideration under will sixty first and foremost this individual had a bachelor's degree and although the record does reflect the beginning in two thousand and three some folks at  p o did say quit knocking people off the list for consideration if their contracts to provide a don't have a degree that the preference was still for people with degrees and she did in fact have that degree well you know i  honor please born with regard to the hiring decisions specifically that's there i want to i want to hit that real quickly procedurally and substantively warrant that information was in the plaintiff's hands no later than january of two thousand and four they didn't raise it for more than two months or after ok the other point being being this the plaintiff and i think this is this is important and i was jumped on a little bit on this when the plaintiff filed a reply brief on the rule sixty issue but in the course of this case it's mentioned the record excerpts record ninety eight it's also attached as exhibits in the record to our opposition to the rule sixty motion for the district court the plaintiff's counsel had sent a letter to g m s counsel in the summer of two thousand and three that set unequivocal was that was in the context of settlement discussions and i quote ruled out when it's six oh wait that says that's not fair it's not fair to say tell your client he's not interested and then say you know what he should have been hired for this job filled in think there's another point to be made to there are questions that i have and the fact that maybe he had taken himself out of the running doesn't necessarily imply that that everyone in the running was under forty so for was no more opportunity to be discriminatory in other words he may have been out of the running but for all we know there were five people seeking and all of whom were older than the person who was hired so i'm not sure of that that you know steven well we couldn't give it to him really gets totally off the hook about motivation it may get you off the hook and that being the triggering moment or a vent when he should have been hired so i'm not sure if we don't we don't know if we can even speculate on that so we don't exactly know how that was built but with regard to the question about the issue of gosh it doesn't look like he was a good supervisor and he was a good person and they like him with a real facility first i'd submit and i really think it passes the smell test there is not evidence that the folks up in michigan who shot down from on high the message were really look at people college degrees knew how old he was his resume is not in the record i haven't seen it in the record he that his age of his high school the year of his high school graduation was on there i don't think there's any evidence i have ever saw that but i think more important is in there's the barn's case in the sixth circuit the real case in the tenth circuit cited in our brief and even the cotton guy he doesn't have a degree and the resume screening process did look for a degree that was the key thing it didn't look for years it didn't work for how old somebody was it looks for degrees and it looks for experience and that's what they have and it's a judge on that under degree i there are those cases cited in our brief in which they explicitly state you know their it's not an argument to say a college degree really wasn't required for this job the point is if the company truly prefers people with college degrees they follow that policy in most situations it doesn't seem to be a pretext for knocking out people of a particular class and i think that's a very good point there's no record or evidence despite its statement in the brief while older people are less likely to have college degrees which is an opponent's brief there's no statement that effect ironically the spine case which is the sixth circuit case butted in in the briefing which is one of the only cases we could find honestly the deal with this college degree issue it was the opposite a gentleman wasn't being hired because the company said we don't hire people with college degree if they think they're overqualified and he said that screens out older people so i don't think there's any empirical evidence or anything with regard to that i just want to use my last minute i can to touch on the a b a claim because i haven't i think we argue the fact that there was their knowledge issue to mit nothing changed after that they didn't hire mr young before the tragic news about his wife's illness they didn't hire him afterwards it with the same reason the one individual hired in the f b o division between september two thousand and two when he learned of his wife's diagnosis and may of two thousand and three when when sadly she died it was one person it was in reno that person had a college degree and in fact the evidence in the record is the company called mr young and said hey we might be doing some more hiring could you please submit a resume and he didn't do it there's some issue as to whether he was confused on how to do it but he didn't do it thank you thank you very funny fung conversation on the record between man and general motors in michigan is the one which the record shows that mr young was privy to it was a funk all that a statement from michigan to human resources at the plant to the plant mr young is now on the list which he was allowed actually to because it was a voicemail and the record shows any little chit chat about who had a college degree who didn't that was carried out of a none of that is on the record there is no such thing for purposes of this case no such phone conversation