saying that not candy was passed over for promotion because of his agent was terminated because of his age we had an expert witness who reviewed what happened and found that with peter piper s explanations for determination in the promotion were pretextual and who understand on concluded that cheney was terminated because of his age we had reasons from peter piper of the change depending on who they told their story to whether they were telling me candy or whether they were telling their internal people in the email or whether they were telling the equal employment opportunity commission we have direct evidence of age related comments over a long period of time directly related to determination and finally we have an equal employment opportunity commission reasonable cause finding when you put all of those together this case had disputed facts that deserve to be heard by a jury i want to spend a few minutes talking about the reason of the reasonable cause determination i come to you as a lawyer with thirty years experience and  do is employment lawyer representing mostly employees and when an employee comes to me the decision about whether to take the case is to a large extent governed about whether there was a reasonable cost determination i hope that this court uses this case and this opportunity to give guidance to the equal employment opportunity commission to practicing lawyers and to district judges about when and how a cause find should be used in connection with summary judgment proceedings do you agree that the state of the law in the ninth circuit now is that that determination will not alone the feat and most for summary judgment i agree that that is what coleman says i agree that there are cases there mondello didn't read that in mondello i think with march of this year what happens your honor is there is not clear guidance as to when and how reasonable cause determination should be used and that's what i i don't even see a pipe or doesn't argue otherwise in line a case of say so but what degree of weight does it get and more important if the district judge says not to give it credibility that the judge should say why this judge  believe that is not now the law in spite of what you said in your brief i believe we have conflicting decisions within this court plumber says the very clear the hold that when you have conflicting decisions from the same court you take the last one i agree with your honor about i do concede that a in your words a e p o c determination should not be a free pass what i hope that you do is give us all guidance and by the way your honor i wanted to focus on that for a few minutes because i think that is an important issue here but that's not the determine if you determine the vishu and your honor what happens is that you have to look for cracked questions and you don't have to look far in this case we've listed i think twenty three fact questions in the last three pages five pages of our opening brief and try as i might i read their answering grief and what they did was argue with our fracs they did what this court has said a number of times is improper and that is to take their spin on the facts and ask the ask the court to look at them a different way they did with the district court did not do or did which is to take all inferences in their favor and argue that those  short i'll give you a number here some simple ones not counting was terminated in early october of two thousand in june three months earlier he was put in charge of all of the other places all of the other a fair is in charge of all area managers immediate boss put him in charge of all of the area managers when he went on leave that's a fact question why put him in charge you have to through just a handful of months earlier if he was so bad to the person who put him in charge of anything to do with time and he was one of the two people who were there he was malkin he's immediate supervisor when he was terminated two people were there and this becomes important in fact mr tool was there because you're black i would not hired in the first place a full tool is letting them go i mean why isn't a rational inference from that that it had something to do with performing ups and not age old school didn't speak at the terminations and even the man who did was o'tool in the wrong world and then your clients i thought greg was saying i was tool i don't read it that way i couldn't be an area supervisor and you're just in the wrong world that's like saying i couldn't be a fullback in the n f l you get killed and that's what people to you meeting you it means sort of a universal you know it seems to me what he's saying here is i couldn't be you just in the wrong world he's referring to himself and you're either with that comment was heard by now i think to be an age related comment that comment in the context of the conversation can reasonably be seen to be an h related comment and that's the kind of thing a jury should hear there were a whole slew of comments like that the question is whether you demonstrated enough to destroy the pretext for the purpose of summer jobs i think the standard this the same if we have enough information to go in the first place that overcomes pretext as well and if the prim shifting reasons would be a big factories and now kenny was told you're fired through your operation of store eighty three that was what he was told and that was significantly emphasized in the e mail pre term anation reason he was being fired barton then segments under oath that he was mistaken you can read it any way you want but you read that deposition testimony this in the record the operations of store eighty three were not backed off completely shifting reasons for terminations creates a fact issue if you need to go you don't need to go any further than reading the disk records as upon analysis is not clear that the prime for justification or not fundamentally different this planet suggests you know there's some there's some differences but the district court concluded it's basically the same or some different articulations but if you look at all the reasons you had them up under and in every circumstance pretty much the same thing don't think that appropriate and that is another piece of evidence to turn over right turn over rate how do you i think a good report to read would be the expert witness expert should do but if you look at the underlying facts and how he got there mistaken calculations about turnover rate quality performance that story the three the facts that he based his opinion on are in the records they're there they're highly and they were ignored by the district court where this is where do we deal in a case with the weight to which an expert's opinion must be given with pretty much going to the ultimate fact what as i was saying he does your honor that's the ultimate fact that i was asking that you read his report to see how he got there because when you read the underlying conclusions that are clear in his report those create a fact question as well the longer what evidence has to be a deduced in order to constitute direct evidence with the comments that are put clearly sexist racist or similarly discriminatory the one statement they rely on here is that and i'm out here in the seems to be the person behind the decision he made that decision and he's the one who believes that how the seat at the time i believe was thirty eight or thirty nine and why isn't the stuff the whole of of of of of you that he's saying hey i statements which were somewhat arguably less ambiguous as to each to be too ambiguous too ambivalent to constitute direct evidence of this from a nation in all of which cases this court upheld the trial court's brands of summary judgment with respect to the circumstantial evidence i guess i would start with the issue of the of the performance matters and i want to talk about a couple of the things that were mentioned by appellants counsel turn over for one thing  to talk about turnover rate so that is in fact the case when it came to him and when he was shown the turnover rates he said well i guess what i really meant was the number of turnovers he had twenty turnovers in a very short period that mr barton cough about a rate when he meant the number does nothing to raise a fact issue as to whether or not the turnover rate was inordinately high because the appellant himself testified that his turnover rate was inordinately time he by the case was very clear and i would cite the court most particularly to the coleman case the fact that someone takes issue with a measuring device with the way a company assesses performance with the way this is turned over whatever the case might be is not enough to revive the legitimate nondiscriminatory challenge to raise an issue a pretext unless it can be shown that that measuring device was applied discriminately or indiscriminately i guess i would say in a discriminatory manner termination but the company's position paper of the you'll see it live so whole bunch of different things that seem to be unrelated to that how would you get around that discrepancy i don't think there's a discrepancy the the plaintiff was given a letter a memo from mr barton that said here are your performance issues you need to get back on track regarding profitability regarding relationships with your staff regarding a whole host of th ings those reasons were all supply place and the fact that his terminations to be that laundry list of problematic performance issues were not again reiterated really does not create an issue with respect to whether the reasons changed if you compare what he was told on the eighteenth of or the eighth of september memorialized in the memorandum on the eighteenth of september with what was in the position statement they are a precise match the reasons did not certain is they say why don't you compare the october fifth e mail that mr barton sent to the human resources department where he says in addition to the things i previously discussed with mr kenny here are some things that have happened since our september eighth meeting and they say if you look at what's in the october fifth e mail and compare that to the positions they've been they're not the same well two responses are why would you limit the comparison between the position statement e mail the october fifteenth mail that not in this race or supersede the reasons identified in september eighteenth and and number two frankly the items mentioned in the october fifth in there are also mentioned in the positions  the fact that all of those reasons your honor were not mentioned that determination meeting does not create an inference of pretext there is no obligation that when you're terminating an employee that you sit there and you go through a laundry list of reasons it's clear these reasons of that's in that memorandum related to things that happened after june of two thousand there were significant number of people who left the company during mr of under mr kenny supervision there was a violation of the company's policy on august tenth there was a violation of the company policy on august twenty sixth there was a robbery that was on reported on august twenty sixth there was a i'm satisfactory event regarding the health of a customer resulting in through twenty something on august twenty first there was an incident student with a with the hiring person ms taylor on august twenty first there was a issue on september fifth that came up regarding the profitability of the school lunch program there was a visit on aug seventeenth to his restaurant eighty three that was on satisfactory and there was a risk visit to his restaurant number eighty three on september sixth of september sixth that was on satisfactory every single item in that memorandum prime minister to it to mr barton occurred after june of two thousand so the notion that the court should infer or conclude that there is a fact issue based on the fact that in june mr toole requested that the plaintiffs cover the stories for ten days while mr two went on vacation really does not raise any inference or pretext operational issues there were at least two visits to that store that were in satisfactory in terms of the service that was being provided in terms of the dress of the staff a whole host of things that are more realized than mr tools to temper seven memorand deposition admitted admitted that he never responded to mr tools requests regarding cleaning up the act at that school that's in the record that cited in our brief with respect to financial performance requesting four operations here so yes both of those were mentioned specifically in detail immediacy physicians to with respect to the finances of story three that we've heard considerable chatted chatting about here and in the u k i would but for example mr barton said well i really need more information i don't know for example if the school lunch that his picks are in theory not so based on these two pages it looks ok it looks fine but i don't have all of the information i need beyond that in way the other the other performer with the police performance was in fact comparable to it is a miss klein she was thirty eight years old her performance was equally poor she was terminated three weeks before he was thirty eight sure why he felt the need to do this but he told the e e o c that ms klein was terminated because her financial performance was terrible rather ironic given that that's what mr kenny claims that mr barton said to him or at least put in a memo in fact in financial performances equivalent and that being the case it's hard for it's hard to see how mr kenny could now take the position that his financial performance wasn't terrible when you characterize someone whose performance was equally poor as having a terrible  summary judgment motion says well the company said that mr kenny was a poor performer but he's produced evidence to me at the e e o c that right before he was terminated he was nominated as employee well we didn't know he told the o c that number one so we had no opportunity to respond but putting that aside one could understand why the investigator would have said well for that seems inconsistent with the united seated nondiscriminatory reason and that's a basis on which is based on that fact and we can prove that mr kennedy and he admitted this at a deposition nominated himself why does the fact that it isn't a clause the termination make that a fact that is less susceptible to disprove it ruminations of a trial judge during oral argument really are no moment when this court is reviewing this de novo so i'm not sure what relevance that has anyway but but beyond that of the the the fact of the believe that the judge was waiting with explain that to me what does that mean in the fifty six since the waving of the determining whether it was a genuine issue of material fact whether it appeared in the in the terminations letter by the e e o c or elsewhere what the court did was for example on the turnover issue on the employee of the month or order issue on the issue of the of the financial performance of the courts of we looked at the evidence presented and determined whether or not it raises genuine the issue of material fact i wouldn't consider that a weighting of the evidence in the in the trial sense but it certainly if we could not to get hung up on semantics your honor it certainly is a waiting in terms of the term meaning has the appellant come forward with a genuine issue of material fact with respect pretense i think that's all the work is doing i think that's quite clear from the court's opinion and the fact that the court did not specifically say let me go item by item through the cause finding i think is of no consequence because the court in its overall appraisal of the evidence in one way or another did in fact hit all of the plays a role only in that it's another piece of evidence to be evaluated and if there are facts stated in the cause findings that the trial court needs to look at the facts set forth in the cost findings and like any other factor in a cost finding not in the cost find it essentially determine that the things that he did that are shown on this record causing women under his supervision to cry telling them to take a tooth brush to clean the floors fire leaving rules and then asking that they be excused to work explaining why he thinks they shouldn't apply t it felt like we're in the middle of the jury argument it felt like i stand up and say here are some facts he distributes with the you're great with words with a closing argument i look forward to that for example he says mel nominated himself he forgets to tell you mel did so on the of two other people who were too busy to do the paperwork yeah he did the paperwork but it wasn't just his nomination he gets up and tells you that who signed the not part to other people signed the nomination he just did the paperwork that somebody else said now you should be very supervisor he prepared the paperwork that he does and says did the paperwork for himself to nominate himself somebody had to do the paperwork yes who signed it but he did so according to his testimony on the urging of others who asked him to do the paperwork turn over rate he makes a big point of that and talk to you about turnover rate if you read the testimony of  been discussing numbers of terms isn't it true that mouse turnover in one thousand nine hundred nine was the second lowest of any area supervisor within the company and substantially below the level of the company's average answer yes in one thousand nine hundred nine it was the second lowest are right do you know why you would have told her that it was the highest when that was the second lowest answer i could have been looking at the number of terms as i explained earlier he counsel talks to you about financial foods new kinds of dough making why if the operation of story three was so bad did they use story three to train new managers and new employees why if the operation of story three was so bad did they use it my brain people from the outside to show how peter piper operate which is why those visits occurred that he complained so he tells you about another employee who was terminated miss klein i hope you look in the record and compare the documentation about her terminations where they followed their own procedures documented said why and mouse terminations where there was no documentation why was there no evaluations of mal kenny for three years why when he was hired was there no posting of his job in the end i can go on with these are things that will be argued in front of  jury and not here i would rather remind them and leave pretty just some of your own decisions i appreciated judge struck your decision in the sugar case where you said quote we require very little evidence to the contrary all in francis must be drawn in favor of the nonmoving part of the reasoning and decisions of those cases and the others he cited show why summary judgment should not be granted in this case which you have a