looks here just generally speaking is it what happened is you had a person who came here with a few thousand and he left at the end of april of two thousand and eight and you know he had some personality issues with some of the doctors one of the guys who was him at the beginning dr who works really there was pretty sour relationship toward the end where what do you see in the record said i've seen of course my my opponents before they claim that terminal appointment is just a language that's that's thrown around all the time it doesn't necessarily mean what it says the reason why i know for sure that the final appointment was a terminal appointment was because in fact it was his terminal appointment i'm not sure that at the moment that you're given the terminal appointment even though that certainly was what was obvious that this was necessarily is terminal appointment clearly from the communications that at the period of time in two thousand and seven well because it was obvious it's not a terminal appointment and it's not permanent that i times i correct the direct evidence that we have your honor is that the employer was either placing a substantial negative reliance upon age in the making of decisions related to his employment or that that that  those decisions and those statements indicate some form of but for causation in the form of you have dr emerson saying that he's making decisions regarding my client specifically with respect to his age we have younger better faculty to take care of that when asked about opportunities to move away from dr emerson and his department that he's told that he will not be taken care of given  space for his r one a grant research because in this case dr green head of another department or younger also had younger faculty to take care of which is what was communicated to him it was communicated to him by his direct supervisor and mentor if you years earlier that he should expect this kind of age discrimination from his second level supervisor in the form of discussions about his future at penn and information being given to  him you know that steve meeting dr emerson liked to promote younger people who replaced him that was younger than him and that his truck who did his job that placed him believe that the replacement question is a difficult one your honor but him spells out that they discriminate against him there's there's approximately three parts that i'm sorry are great i believe there's three parts to how you how you would look at that argument under the first is that i believe there's evidence percent of the work that my client was performing at that time for dr coleman that some portion of that work was picked up by the person who was already working for dr coleman and his lab we've identified that person her name  seven years old because you have to show that all those people did functions other than what your client was doing your honor if it's a reminder of what did in fact they did something that they did what your client was doing with respect to three that came in what evidence is there that they were doing his work and that together or or individually they are replaced him in the sense that the work that he formally did there is not evidence that they did the work that he did your honor the evidence is that and continued to seek out individuals but the qualifications that my client had those being the qualifications that penn pr enough in order to designate someone a research assistant professor and they hired people in the same department that my client partner medicine that my client worked in and then hired those people who were younger you m dr coleman testified that she continued that she continued the projects including the project that she'd been working on with with my client in addition mr marger made that representation at the  were involved in any way in the situation to terminate your client your honor with respect to mr mulhearn there that there might be not such good blood there but complaints was given a complaint about discrimination but he's not a decision maker he was not eat was not the ultimate decision maker who was the decision maker it it is unclear to what extent  dr emerson participated in the decision or influence the decision not to i don't know i didn't ask you who wasn't or who's unclear who was the decision maker it's been represented that doctors bennett and shannon were the decision makers with understand you just said bennett and shannon were the decision makers but they were influenced by emerson and sharon yes ron was there was a record evidence demonstrates that that was the case the record evidence that that demonstrates that ms mulhern was involved with the and that she was making that recommendation because that's exactly what happened we think that a reasonable fact finder could determine that her recommendation and discussions with the dean were actually followed with respect to with respect to dr emerson there are conversations with when did he leave to become president of haverford i believe was a a year or two before the termination of my client but not before being involved in creating and forwarding the the the terminal woman for my client when we hear from your opponent they will get you back on  and john myers instead of doing what i thought i was going do i think i should address some of the questions of us mr bell let me start from the last thing we were talking there you were talking about which is the role of the relevant fact is what dr pope told other people doctor there's no evidence at all the doctor pope weighed in on it decision to terminate extend or any of that he was involved several years earlier in a dispute over the way the plane of was being treated whether there was space whether penn could find another mentor for him because of his position the background here is that the position is not a tenure track position it's a ten year limited term position research assistant professor to take ten year ten years the absolute maximum so he was he was very almost and he was there almost a buffet and and it's a it's a it's an odd position from the outside in the sense that these are positions on which pandas not to take financial responsibility for funding and that's why in each of the appointments two thousand two thousand and three two thousand and six it is made clear that there is a maximum term which is either the end of the years or the end of funding one of the doctors it's that the reason  that they needed the space as it turns out his face remained unoccupied after he left in april two thousand well there was a trip there there's no doubt but that there was a transition with respect to the space you can't just flip if you will it's not like buying a house where i can move into more there was a transition in the space and there is a way to look at this and says oh well gee whiz pant i mean it must have like millions of square feet but the fact of the matter is that the department i mean everybody's in a department the department didn't have the space the department got space because dr cohen how do you how soon after two thousand and eight was the space that was left by in there were people working in the labs there was a cleanup at the end of the issue and if that and the focus has to be on the eighty percent which was really the job of the grant ended which ended the research there was no continuation period so there was no nobody was brought in there's no evidence anybody was rotten there were people there who did clean up but the l this the essential job which was the specific blood research covered by a grant wasn't continue isn't being continued because there was no funding to continue such research have no deductive common hire someone to replace them now there's no evidence that he did i mean i mean if if the question is at this point as dr coleman had other people in his group i am not able to answer that there's nothing in the record if the if the question is what do you hire somebody to replace doctor passionate  answer is there's no evidence that he hired anybody one of the problems here is that the plight of wants to paint with a very broad brush and say well there were all these other researchers well that really proved too much because what it really says is there was a man brought in on a specific basis as a non tenure track externally funded person to support dr who works in two thousand that didn't work out for reasons it didn't have anything to do with each they were at each other so it didn't work out so what was pens response pens response was to try and help him out and the people who tried to help him out then become the enemies in litigation so mulhern and coleman and others it's clear in the record came up with a plan which wasn't exactly why he was hired but ok we can work this out dr coleman would take them on a temporary basis they could find office space for him and he could continue while looking for a job which was clear from the earliest days that he really needed to move on and there were no punches pull everybody said it's in the record six or eight times so they did that and now coleman taking him in and getting him space is somehow turned into an act of discrimination now this the other thing about mulhern in addition to the fact that she's probably thrilled to know she's now become a key decision maker in the medical school is that the conversations in which she was involved in those in which you were involved were the early ones two thousand and four two thousand and five and this goes back to the point that you raise with jim if you need to renew it probably for the your to at least that's right but that what so so you know was a to terminal decision there there is no doubt that anybody reading the correspondence and the appointment would know in dr had in a situation that he needed to find other employment but he was given a very long period of time within which he was also given a tremendous amount of assistance he was given they got in the lab space there are dozens of letters of recommendation clearly from the decision makers to other people which both tout his expertise and give a pretty good explanation of why he's looking because in this time in that place all that of course is now somehow evidence of discrimination but mother inside in the he's clearly told this is it that the others going back are really repeats of language that is standard in these in point of letters you only have if you look at two thousand you only have until two thousand and three it's conditional on funding so forth and so on so let me just see if there's something else i really feel like i need to cover unless you have questions i really  do as as as a as as as jurist in order to find something probative a probative task to substitute for that language you if someone believes that that's necessary is something that would be we don't have to go through the economy assess what is the direct evidence that the general would like to hear from you that you have that he was discriminating against the direct evidence  emerson about the age related and a mist of other managers at penn and if emerson were the decision maker we probably wouldn't be here right i mean that's your challenge it seems to me is that we see a fair amount of cases where inappropriate comments that are actual under the civil rights laws are made but not always are those made by the decision makers and then your challenge around out in the third circuit either the employer play substantial negative reliance upon age in the decision or potentially in light of the recent supreme court's in a two thousand nine supreme court decision because because we no longer have the pricewaterhouse shifting one would imagine that we would begin to look at a reasonable articulable an articulated reason nondiscriminatory reason from the employer and then as record i'm not sure if you're if you decide citing anything that would get you what you need to survive summary judgment if you decide to dr emerson that it was not a decision maker or that there's not a valid material factual dispute about  appointment up to co op and in terms that even even that even that action shows some animists which is at the time that he made that request to to the the board that would approve it he sought only one year he sought a period of time that was less than the time that was remaining on dr pasha next funding and the board came back and said wait a minute this is one year or two years there was one year and one portion of the letter and two years in other portions they said well ok it's it's it's two years and then they got two years so even if he was terminated on the schedule that was set by dr emmerson when he did this in terms of the cats argument your honor there is there is a mystery which an unfortunate doctor machine was unable to solve a reader in his deposition which is immediately preceding the letters in september and october that were sent to my client indicating that in fact that that term that the i'm sorry appointment would be terminal there is a flurry of e mails from d not remember what that reason was but in terms of the timing of it it's it's years after the last appointment it's at a time when dr mission is no longer physically present at the university of and in fact he's off doing his job about sort of negative situations involving my client at exactly the time it gets terminated we believe that there's record evidence that he was trying it in at a minimum he was trying to trying to influence the determination we believe that he influenced that terminations or was part of the decision making because he was the one who made the recommendation that he will the last one it was the last one and at the time when the letters went out he was sending emails to the decision makers