very excellent bright by the apple lays thank you can't conclude anything except that it is nothing but a weighing of evidence are or what they call a loan relates to the evidence of age discrimination that have you even shown break i can't say that they are they are going to i'm talking about brief here they they filed a response brief you filed an opening brief in a reply you didn't make you didn't show a promise fuzzy case in your opening brief they say in the reply brief you haven't shown a evidence was that she had she'd been the director of managed care for ten years short of for some months before she was told to retire her department had been merged with another department that was headed by mr morgan i think there's a lot of contradictory evidence but i'd say the best evidence is she remind the time of director managed care you could look at it like he was now the director because he  the department and he was and a vice president but all the evidence was that those two positions were going to be merged it was going to be left one position mr morgan announced that he was not stay he was leaving that was because  the merge position that was her she's sixty five years old because she's been done according to her she's doing that in and percent of the whole job because here was her version because the what he had been doing one of the reasons he was leaving what he had been  that they all they would deal with the positions and they decided they were going to do that and he decided to leave so she described the new position as being ninety nine percent of what she had been doing as director managed care that had been her job so he left at that point there's only one logical person to have the position the position is clear is now called director of collaborative care according to her it's ninety nine percent of what i've been doing but wasn't the decision made to merge the two him ignored her and gave it to a thirty two year old so the position taken everson alive was filed upon if the position was her position that she had and she's replaced by a thirty two year old you know after six months she's replaced by a thirty two year old fashion case is reduction in force case law in specifically therefore the your client would have to show that she was qualified to assume another position yes i do accept that i accept that but that they  your pages seventeen through starting at the bottom seventeen three twenty you cite only factors but you never have one cite to the record i thought it was side of the facts well are we supposed to go back then and match them up thing what is the law is retirement always a reference to retirement is that always proxy for age or is the law allows a company that's in a reduction of force to say instead of firing you those that are closely want to help you get the retirement have the connotation but if the if the context is we have to reduce in force those of you that will be let off that are near retirement we're going to help you get retirement that can't be in that context i wouldn't see how that could be a use a motivating factor i think that's an accurate statement of what it said not exactly in the context not exactly on the side effects as we had here when they confront her and say you're going to retire and she said five two thousand early two thousand and fourteen and she said that his decisions and she gave example after example was permeated with age by us he was the most colorful thing that he said he said you can take a secretary at  about have the secretaries if they're young they're financial they can move a buyout at their own or if they're over forty they're slow and he was the most compelling thing about his tighter seats forty five years ago and when he took over he had been chief executive officer then a few months he's the decision maker he makes and he's a decision maker but this is not the party saying he made it to her this is a secretary saying it over some period of time i'm just quick quite curious as to how it's admissible or not to me if the question holland wasn't there you know sure but how it himself testify that he protests played it in the decision and he was the overall decision maker for the whole method of which it was going to be done and the methodology that they described was we're mary was in the personal but in both of those positions they replaced them with younger people and they get a strong opinion testimony that it was all related to age we think that was our thank you can thank you  eager to answer any questions that you have a couple of things that i absolutely am compelled to point out before you go on is a few a few items that need clarification i think from the earlier argument that we just heard one he was the executive director of finance for the system he was there before before mislay left the system's employment and when she left he had to take on the very critical needs of of what she did and what chris morgan did while they were still singing river employees but he still had to do his job as the executive director of finance and that brings me to a final point of clarification which is that counsel opposite suggested that the system never offered offered a legitimate or nondiscriminatory business reason for the decisions that it made that adversely impacted the sleigh and i submit to you that the system in fact offered eighty eight million legitimate nondiscriminatory business reasons and when i referenced that number that is the audit adjustment that the system discovered in march of two thousand and fourteen it was an overstatement of the accounts receivable basically and i'm not a math hartson there was eighty eight million dollars in the books didn't belong on the bo hollande the newly minted c e o lights up one morning to learn that the system is now on the brink of financial ruin as the second largest employer in jackson county mississippi with over two thousand employees this was a significant problem something that i certainly want to learn would want to learn here two months on the job even though he was a long time employee he was new into the chief executive officer role and that that day when he discovered this overstatement of accounts receivable that precipitated everything that came after the mr howard met with all the department heads including mr morgan to say we have got to do something we have got to take this is jim down to the studs to figure out what we can do to save it from the brink of financial ruin because that's where it was going eighty eight million dollars is not in says not an insignificant amount to me no i think objective way we can look at that amount and i realize a tremendous response was necessary so mr holland met with mr morgan and all the other department heads but specifically mr morgan and said we've got to do something about this report this department the the parties they breached an agreement that two leadership positions within that department were not necessary they can streamline the functions of each position into a lower level management position they bring in an outside consultant to talk with them about how to restructure reorganize well they brought in the gobby group and that group came in to look at the way they did their managed care contracts which is kind of a term of our industry term of art  the on the insurance agreements that the system had with blue cross blue shield or whomever to see whether those agreements were structured in such a way that it best benefited the system and certainly that was part of the  bulk of your brief went which is that the priest not pretext mining is correct but you tossed in at the beginning that you were contending that there was no prima facie case here well just that to but but but it's important for us to understand if you're making that as a coherent argument because the gist record assumed it your brief only mentions that responsibly in one sentence and the law says it's a very low bar so exactly which element doesn't exist anywhere in this record sure so one under the  eframe work their core elements we can see but mislaid could make out three of those for the problem that he has is making out the elements that that she was qualified for another position there is dispute in the record that she she did not apply for another position she specifically the director of collaborative care position that justin rickly filled in january is the best case law on this element because qualified sounds different than applied for case he still does not have the substantial evidence to show that there was some kind of pretext on the part of the system and she fights she makes various arguments i think over a dozen in total none of those arguments have any  n bases and in addition to the other argument the salient two points struck me that i was in counsel's one and two is that a remark about retirement even if best intention will just get you there under our law is something that could where one of the elements to consider in a constructive discharge analysis is continued harassment of something he submitted that he was repeatedly encouraged to retire and that no reasonable person would felt like he could stay in that in that environment that is actually age and he was also part of the river for he actually made a decision that was contrary to his own self interest when he agreed with kevin holland that that apartment had to be restructured that a lower level management team member could lead that department in doing so he really he kind of wrote his own ending with the system he knew that he didn't have a future there and while mr hollande suggested to him i would love to see you know see stay around he had operations experience he was it you know the vice president of clinical integration  knew that there was not an opportunity for him to do the kind of work that he needed to do and so in may of two thousand fourteen he left on his own accord knowing that his his department had been completely changed is it again open to a jury to infer that when they bring in let her know that she's going to have to retire because the department's been restructured not until january of two thousand and fifteen does the system bring in a new person to fill a completely different role certainly it has some of the same functions but just in  director of the current director of collaborative care people that mislay never performed and though the record of her deposition testimony reflects that she didn't for instance participate in these population health initiatives which are these the hospital systems are doing whatever they can to to make money particularly when you suffered eighty eight million dollars shortfall and this is just one of the new the new mechanisms for hospitals to be profitable mr participated in the decision for her to be bored to be suggested to holland's those two positions can be eliminated what if any government is there in the record as to discriminant age discriminatory comments mr hollande might have made at that time when he said all right we'll get rid of these two positions  so after the decision that you're know you're out of i'm sure is and i'm enjoying your question first he looked at these things objectively from a business decision and once the decision had been made he said what happens is you know compassionately how does this affect our employees and from there it was that mislay was eligible for retirement and he's asked about what ways they could maximize her retirement status and this is something he testified to the record that after the decision was made then he said well what you know what benefit can we give recommendation that you see with the house is that more compassionate than the alternative so the what was compassionate about mislay situation is that she was told in april of two thousand and fourteen that she had to retire her position was going to be eliminated and then instead of shutting the door on her hearsay argument frankly they probably have an argument that these things come into some kind of motive and that ultimately would be something that gets before a jury i submit to you though that we shouldn't be at that point because not only were these comments unrelated to the employment decision issue comments that misled never even herself heard so remote in time that they couldn't be related and missed the person who purportedly heard the statement she couldn't recall the specifics she can recall when they were said left the employ what year in two thousand and fourteen and you're saying these comments were made no later than or at least nine years ago two thousand that is what the record demonstrates your or at least that miss taylor could not put a date stamp on when the comments were made but even if these comments were given the way that you did this report gave them some circumstantial evidence weight but found that because they are it's the only circumstantial evidence it has zero probative value because there is no  misplaced burden is to to come forward with evidence that is substance of state substantial evidence that shows that there was some sort of pretext in order to warrant a reversal of judge roll as well reasoned decision we submit to you all the that is is not what prong evidence circumstantial or direct from which a fact finder might reasonably claim clude that the employer intended to discriminate in reaching the decision at issue that's the same as  test for pretext i think that it is it certainly sounds like the test for pretexts but the requests the caliber of evidence that we need to overcome a pretext or to make a pretext argument is that substantial evidence whereas on this level it we don't see the connotation of substantial being tossed around in case all that discusses t he did and then she said that it was still occurring when she left or she clearly imply that because she said that's the reason i left because i'm forty five years old and he had just tell me that you're forty five and you still look good for forty five if a decision maker is prejudiced against older people it is more likely than they would otherwise be the case that he would be prejudiced against a sixty five year old woman it doesn't the fact that he didn't particularly manifest any discrimination against her ever cite where she's too old she's sixty sixty five he said that the sixty year old nurse administrator was too old and the lawyer who had just turned forty was to a lemonade two position morgan comes back and says well these are the two positions are going to be eliminated and in holland i'm so outed taylor hall and met with morgan they decided on morgan's recommendation to position to be eliminated that they did that that whatever whatever the decision was made then what happened next then what happened next is i told her she was going to retire we now say they you mean morgan and i mean morgan morgan told her there was another person present h r person  you your you know you get your retirement so it's asia for you that is young but i don't understand that to be a defense to the age discrimination act when congress made the decision that older people are going to be protected and it's not left to the employer to say well for