here the last case on the calendar marcus first love of time manufacturing to work in a dozen years at and his company and had a bad day last year and used profanity and in response to that he was fired you know could that be the reason he was fired because he had one bad day in twelve years and used profanity i guess it could be but at this stage we're all reasonable inferences are to be given for the for the pleadings i don't think that that's the only reasonable i'm doing my job properly it doesn't make sense that they would fire me just because i use bad language so first off you're running in response to your question i believe it that in of itself is questionable if the if the employer would have said we're terminating you because you were purple shoes on thursday i might have one purple shoes on thursday but it doesn't make sense that that the redress the reason you find out enough to show that the stated reason didn't make sense you have to also on  comparably situated no i don't and when we say complex situated these were employees at the company now whether or not they were in his position i don't believe that's the necessary standard at that stage who come in and just say you know they're firing older which seems to count against the position of the fetzer that is their argument but we don't believe that that's necessarily the case what we're saying in that in that context is two people two other individuals in the same company  could make an argument is no there's no disputing that if it's the reverse in other words if it's they who have the burden of showing something you're right that deck that is a plausible inference that they're not discriminating because they didn't do it the purpose in alleging that in the complaint is to show no they lie they're making it up they're making it up because a two different employees use profanity we're not terminated no other employee ever while from from from the complaint was ever terminated for using profanity i go back to what he said about if i wear purple shoes on thursday if if they've never terminated if the if the company had a policy you know what there's a lot of reasons we need to there's no at this stage there's no clear distinction in other words they were only he units that are problem you seem to see that as an advantage i tend to see that as a problem with the  i would agree with your honor if if it wasn't the fact that the inference must go towards the pleader towards the plane we're alleging that that that was not the real reason the reason we're alleging is not the real reason because nobody was ever terminated for using profanity week before or ten years earlier that's true but certainly happened while he was there but the problem is that it's not there's a lot of facts as you have known the company could have a policy any time anyone over fifty five does something that we can a way that we can get rid of them we're getting rid of them we don't know at this stage we get rid of the other guy who us comparable any no but they think that that doesn't make sense that that's the reason they got rid of  idea what sort of vanity each person has gauged you just put the word profanity i would say at that point well if you're if you're told you're being fired because you use profanity that's the word they use so at this stage of but what if you don't make that threshold i mean just firing a person based on the family may be the wrong thing to do in the context of any limit your particular if other people are not fired for that that doesn't get get you anywhere if there's not evidence or some showing that there's a discrimination belief on a protected ground the standard is plausibility and you are protected category i believe a dog's should because we don't have the benefit of discovery i can't show the court in a pleading what was in defendant's mind but i can only allege that it doesn't make any sense it doesn't make sense because people have used profanity for doesn't make sense that the person worked there for twelve years had professionally and thereby now that can be the reason that may be the legitimate reason that he was terminated but i don't believe that he should not have his day in court or at least be able to attempt to prove that that's not really morning your honor smith please the court my name is david greene asked the law firm i'm jackson lewis representing the theory that where there's smoke there must be fire spoke here i think here there there really isn't any smoke as a matter treating everyone the same that that with respect the least of profanity they're treating younger employees the same as they're treating older employees that does not make us fight i'm sorry but that doesn't make their could be dozens or hundreds reasons of why they fire d the most likely is the reason that they gave him and the only thing this makes more plausible you know doesn't make his age claim more plausible the only begin makes more plausible is that the quantity or the quality of the profanity he use was probably significantly different than the quantity or quality of the profanity that the other employees use but again that's something else that's lacking here not only does he identify a younger and older employees the characters he doesn't identify the words you use he doesn't on the second component of this of this smoke perhaps is that plaintiff alleges that the defendant was quote trying to get younger and retaining older employees well again he worked there for twelve years he presumably met and spoke with people along the way he has an obligation to investigate his claim before filing a complaint he did not allege a single comment on the part of anyone in management indicating that they were in fact trying to get younger he didn't identify single conversation he even had with his coworkers that they thought the company was trying to get the identifies a woman named susan yolanda and again it's not clear from the complaint whether susan yolanda is a younger employer retained or an older employee fired that's not the summer just promotion or it's not alleged in the complaint here bright as he needs to allege some facts from which the court can draw even a minimal inference that that he was treated differently by it's on his age and given these facts he has an alleged even that  has in a late he hasn't led jenny ages comments he hasn't alleged any comments made by anyone but with management a little you know supporting this claim of the company was trying to get trying to get younger you know it in this case this is you know this really doesn't make out of so so number one i don't know that her use or her reliance on the gal douglas is per se improper at this point but in any event this court is reviewing the record to novo and i think under any standard the allegations here do not point of also has claimed that her words are that's pretty clear that the parents don't get legs that that's not so i think the his even conceded that he and all the employees not just men and not just him he and all employees were treated allegedly worse than this woman who was having an affair with her supervisor i'd seen by i've read the complaint and i've read basis for us believe that those hired were younger non minority nor does he notice the identify any comments made by supervisors or colleagues or any other facts that would imply he was denied the promotions on account of his age or ancestry his belief is insufficient without specific factual that the management people they are smart enough never to say by the way we're going we're going to have policies that are going to target older people and and if that would be the standard we have to you have to make more than just  times so clearly that there is it there's at least a reasonable inference of plausibility that that's not really the reason because plaintiffs only use profanity one time one time in twelve years yet the comparative multiple was prohibited by the right and i think at that point if if if there's a pretext if they're lying about the reason they're terminating them then you would least get a reasonable inference a fact finder as to why that was done other than yesterday and you have to place that person over a younger person you know or at least see if you replace the person with the younger person that that's evidence against you but if you wan but that was the reason and i just think that we were choir to be to do acquire a player especially in these kind of cases where i've got a proven and and most of those are not easily provable things in general but forget about just