reserve five minutes for rebuttal i'm confident that the court has had an opportunity to review the briefs i would request however to give a very short summary of the facts that the court would al and fifteen a branch manager position became available a younger lesser qualified employee mr b was placed in that position july twenty fifteen pla march twenty sixth less than six months later a younger less qualified male is hired for branch manager position march twenty sixth seen a younger less qualified female is hi for branch manager position jason how who sturdy six hired it doesn't matter to us council which branch these new hires go to i don't believe it does and the basis as to why i maintain that is mylan had worked at practically on every branch of oxen bank as a manager she was their utility person she was the eldest person and most qualified person she could perform any job within the bank so it's my contention that to the extent there was a branch manager position available they had never hesitated to put her in the position before why should they hesitate to put her in the position now i'd like to thank discussed particularly as it relates to the age discrimination claim if i may we maintain that there is a prime a face a case of age discrimination i believe the lower court and the defendant dispute pronk for as to whether or not miss mining was replaced by younger employee or alternatively treated less favorably than similarly situated younger employees it is clear in our contention that miss mylan was replaced by a younger employ heidi h and i would refer you to the deposition transcript of miss rosen strat or id page one twenty four page twenty one of the debt question what did this what did miss mylan do while she was at goodrich answer she ran the day to day operations question once miss molly was terminated who ran the day to day operations at goodrich answer heidi hawk we would refer that was closed down house and after that i'm rich that bridge was shut down goodrich was not officially shut down i don't believe until february of two thousand and sixteen however miss mylan was terminated from the good branch in october and fifteen that didn't happen immediately the elimination but mylan was terminated and it's our continuation contention that she was replaced by heidi hawkes already working there heidi hawk was already working there however your honor i will rely upon two cases as a relates to our contention that this constitute determination i read to you what the deposition transcript said of rosen strat that she ran the day to day operations now fuck runs the day to day operations i refer you to the case of barnes v general court inc eight ninety six at second one four five seven six circuit case which states a person is considered replace if any employee is hired or would like to stop you for a moment mr sanders tell me if all of this is in your complaint because in your complaint i thought that the focus was on a mr right that that was in the deposition of your client there was one person i felt was getting advantages and that was eric right and he did get the job at the favorable job forget which branch it is it's not orion which one it's you know where he got the job eric ryan we maintain was an individual who was younger but who also received more favorable treatment in your complaint you know that's what we have to look at the court i believe it is in the complaint your honor and i'm looking particularly at the complaint why no it's in the deposition to write and i just i know where that is page page id one sixty nine but i'm i thought that that was the focus and where you thought the district court went wrong here and you're not you haven't even mentioned him you have a whole new person that i don't remember reading much about well what we do state in the complaint is playing for experience treatment that is different than that experienced by other similarly situated employees with respect to the terms conditions or benefits of her employment yes i agree so we're still focused on what that where the district court went wrong we are also in the complaint line twenty eight i say plaintiff was disadvantage in favor of younger persons because  her rate so i believe that that is in the complaint in terms of where the district court went wrong i believe is twofold one the district court did not find that there was a prime a facia case as a relates to problem for being replaced by a younger person i believe that that is clearly supported by the case that i just cited by the deposition testimony there has been testimony and the deposition testimony do you think it's there about that employee because i didn't see that i thought that deposition the best deposition testimony for your side was this testimony by your client saying we're focusing on ryan if that's how you pronounce it it's run right ok so that seemed to be the focus but today you're talking about the replacement individual with another name the female absolutely honor and that is that tied to your client's deposition testimony that the district court could have used and you pointed the district court to in saying you this this is wrong to grant summary judgment to the bank because i've given you a prime facia case absolutely we argued that she was replaced that howdy hawk was favored over her individuals heidi hawk being one of those individuals eric and eric right yes your honor so the bank says well we had this plan to eliminate this branch  and that's that's what we did and she was the branch manager and that's the position we eliminated along with her salary we didn't hire anyone new to replace her we just the person there and didn't i'm sorry what is the supervisors name rosen strata and i thought the testimony was that they both took over the duties well i specifically asked her and i read through that testimony what was the plaintiff's responsibility running the day today john once plaintiff was terminated who did those recounts sponsibility she testified heidi hong she then went on to explain that she would come into the branch once a week and more or less supervise heidi hop which she also did for my client so it's our contagion that pursuant to the general corp case as well as the pearson versus acquired graphics case seven forty nine f thirty five thirty that this was a replacement by a younger individual additionally we made that case in your brief yes we have that ok and if you don't of your time has expired so heavy reserves some time here first of all the appellant plaintiff has groot the number of branches and i think it's important to know how many branches there were and who was in each branch not by name but my age and my sex there are a total of eight branches in oxford if the relevant time period here and plaintiff offers up as the comparables an incomplete group at the time that her position was eliminated he needed complete proof i do i think she does your honor why do you think well because she just lays out that the treatment that she this agree and add something to that the crux of this case is whether or not plaintiff was treated differently because of her age there's no direct testimony in this case no evidence whatsoever that she was that there were any statements about her agent derogatory statements about her age no direct testimony whatsoever in the same thing applies to the sex discrimination claim and the sexual harassment claim and the age ransom claim so it's a matter of what evidence is there in this case to show differential treatment with younger people and i thought that compared to our here of course this gentleman ryan instead of this heidi well i think that plaintiff attempts to and will get to eric ryan but i think the plan protect attempts to expand his argument to to use pretty much as far as the age claim is concerned every other branch manager who's who's who's younger than the plaintiff so getting back to its original group we have eight branch managers there's a reason why that the plaintiff may be able to do that and that's the bank continued to move or i'm a low three branches well let me let me get let me get to that your honor is since you brought it up let's talk about the transfers the plaintiff work for the banks since one nine hundred ninety between the ages of thirty and forty the plaintiff was transferred between three different branches it's not uncommon and when she received a promotion at the age of forty eight to become an assistant branch manager she was transferred to another branch then when she received a promotion aged fifty two to become a branch manager she was transferred yet to another branch and then when she was transferred to the goodri branch which is the one issue here in two thousand and thirteen she was given a raise of two thousand eighty dollars so each time she transferred protested that she didn't like it well she didn't like it because of the distance from the office but  as the case is raced right is all the cases indicate you know a personal preference for working at a particular place place as opposed to another in a in a transfer claim is is more or less urelements whether or not their duties were changed or title were changed their pay was decreased and none of that occurred in any of the trail but the problem is she trains this guy and then he takes over and she gets moved to goodrich after writing a letter explaining the sick people at home need her nearby she wrote a letter and i understand they asked i understand that you look like that you don't know what letter no no i when you when you say he wrote a letter i said she wrote it she wrote a letter right ok yeah and you say it doesn't matter but good bridge everybody knows is the branch that has the least amount of business that had at one point been close before and i guess then reopened and you know and as it turns out that's exactly what happened he was he ends up getting kicked out because she's the good good the good good manager she was transferred the good was branch in two thousand and thirteen which was several years before the strategic plan was written where the black the branch was going to be eliminated so there's no nexus between the elimination of the goodrich brand is the good which was the goodrich branch at all times the slow branch and hadn't it been closed once before it was there was there was there was more than banks the branches don't get a lot of traffic so there are some branches were on a part time basis but that branch and she was transferred two thousand and thirteen she testified that it was asleep it was the slowest branch during that time period the big question that judge white asks and i'm curious about too is having trained the younger gentleman having trained him at a ryan she begs to stay there and she's moved and he stays so what's the story there well i don't think that i guess my response to that would be where's the discriminatory animus where is the any any place that state party age is is lurking all over that well let me and i think that's important to get to these to the wider group of branch managers because planners council said a number of times that that the plaintiff was the oldest branch manager which is completely not true the branch managers at the time the broken time period there were three other branch managers who he left out of the were not and i think i apologise if i'm repeating what's in my brief but it's all there they were not there was no evidence of any adverse treatment there were two depositions in this case our deposition the plaintiff in the plaintiff took mr rosen spitters deposition and there was no evidence on the record at all in this case whatsoever that any other employees of the plaintiff's age there were branch managers were treated adversely so what was the explanation for putting him in that position and moving hurt to the slow branch i don't know that there was an explanation that anybody delved into there's the vent that's triggered the whole thing is the fact that ride got put in as the branch manager of the the branch that actually stayed around and lam wasn't even working at the bank in two thousand and thirteen so i just want to do the best i can to dispel the idea that she was transferred to the goodrich branch because they knew that branch was going i i think that that that's important to the timing of this case is very important in the number of branch managers the ages of all of them because i think that that is to say that eric rhine received preferential treatment but is there any explanation for why he stayed there and why she trained him and then he stayed there and she was moved to a different branch i don't know i don't know that the answer that question because it was never gone into so that so we're left to to i guess speculate which i think it would be speculation and so nervous on the point where it had anything to do with age or sex or moving forward there's a plan in of two thousand and fifteen right and then she then the supervisor is promoted and now there is a vacancy at the addison branch for the yes ok so if you know that you're about to close the goodrich brands and she's going to be out of a job why does somebody else get promoted into that job i just don't understand i mean in defense to the f o m a year you say well this was planned back in may so we couldn't possibly be lieve discrimination and then when it comes time to fill the addison position you say oh but she wasn't laid off until july or august and it just doesn't it doesn't i don't get it teller there at the time the position was vacated july sixth because nancy rosen trader was promoted to vice president of retail sales so that position was filled on july sixth obviously it came open a short period time before that at that time but for the aids just scream anation claim if you know in may that you're going to close the branch that this long time very competent apparently employee is running you know that come within a month she's going to be eliminated her jobs going to be eliminated why does this younger person get promoted into this branch manager position rather than the person who you plan to eliminate the following month i understand what your honor is focusing on and instruments are not raised by the pla what i didn't hear you and that's an ardent raise by the plaintiff but here's my response to that number one plaintiff had was already occupying position at the time as branch manager goodridge and that the defendant but we can sit back and in hindsight and say well maybe we should have done this and maybe we should have done that the law does not require the defendant to to to transfer employees back and forth reduction in force what prohibits an employer or employer from or where they get in trouble with transfers is if they treat younger employees more preferable than older employees when it comes to reduction forced in this case their it was a promotion to the branch manager position we can say well shouldn't the defendant have in hindsight thought about the plaintiff getting laid off maybe they should have slid into that position that second guessing the bijan the business judgment of the defendant where i guess is the discriminatory animus to them where is that there's any evidence that it might have been a a good thing to do but why was it a just combination to not do that the only way that the point of can win that argument is to show that there were other employees younger employees who lost their position who were branch manager and were transferred to other positions as i did that why does it have to be pants manager of why isn't it a matter of exactly what happened when well first of all when do you when do you say you closed the goodrich brand it was closed in february february  sixteen seventeen so it was over in a year and a half after you got rid of her yes it was over a year and a half if your position was eliminated even though the plan that you're relying on contemplated doing it and june of fifteen it was it is it's an exhibit but the plan says the target date that doesn't it wasn't this is a date  stone that it will be close it was a target date so so and then ok so and when you closed to the people working there were transferred somewhere else where the people that were working there were transferred to other branches ok so it's not far fetched to ask the question that at the time her position was eliminated there were no open branch manager positions well that's right at that time except after you knew that you were going to eliminate the position that you transferred her to two years earlier the slowest position a different branch manager position became available but even knowing that you were going to get rid of her you didn't put her in that position well you may say you has no obligation to but yes it comes back to the same thing again which is we can second guess the decision well yes in the us and these questions might the question of us questioning whether or not she actually has we think you know we might think she has the question right your honor it's whether she is a prime fish case and also whether the business reason that we gave for the elimination of position was a pretext well what but so there are number of prongs about that but the i think the trial court got it right when it said that  she did not meet the last element of a prime official case and especially i think in a reduction of force case a prime official case is a little bit different so i've got another question i just am wondering is it just seemed to me i get she gets she goes on leave and they already know that they're that they're going to get rid of her position nobody says anything and then she says she's coming back october twelfth and nobody says anything and then she gets a letter in the mail offering her  settlement if she resigns basically if she accepts it with no explanation there's nothing that says we're closing the goodrich branch there's no longer position for you i mean i don't get it if that's why you're getting rid of her because you're closing the bridge but you weren't closing the branch and someone took over her duties what why put that have been in letter well  i think in her deposition testimony when she received a letter she testified she never contacted oxford to discuss transfers to discuss anything she just which was i thought was remarkable but she did not but how would she so to discuss a transfer if she wasn't even told that the reason she was being asked to leave was because her position was eliminated they didn't even tell her that well i don't know how she i can't speak for every single conversation and what she knew after that but she certainly knew her position was a limited at some point in time i think it's very important that the court consider the case of fairly versus teledyne industries one ninety four michette three fifty two that case says that an employer must explain why particular employees were selected for economic layoffs here we have heidi hawk one hunnicutt believe it is that was selected to stay at the ridge plant younger less a qualified trained by the plaintiff no explanation as to why she selected and the plaintiff is not we also have case that case that i cited says that the point that the employer has to give an explanation when they are claiming an economic layoff as to why they chose to keep and that explanation has to come in the form of the letter terminations or the elimination letter or i don't know how the explanation has to come but i believe it should at least come in response to arc our position of establishing a prime  face a case we established a prime facie case i believe at some point they have to give an explanation as to why they chose particularly younger lesser qualified individuals over this individual they had no exit counsel as it is the reason you say the need to offer reasoning is that in the context of showing pretext exactly your honor what i'm suggesting here is we have established a prime a face a case we say that all of the elements are there that she should have replaced by a younger person right she's replaced by a younger person and of course the argument is no she wasn't her job was eliminated correct and we cite the case law that suggests that that is simply is not the case that the job wasn't eliminated as relates to heidi but it is forward that right right additionally you have the branch a position that's now open they know that there's this plan to imminently close goodrich and they don't put her in that position moreover counsel argues that well you know we you can't challenge our business judgment that's not exactly what the case law says michigan civil jury instruction one  five point zero three says that the fact finder is permitted to consider the reasonable reasonableness of the employer's decision here no reasonable explanation is tender for the decision of terminating your eldest most qualified individual and retaining younger lesser qualified individuals the more on reasonable  decision is the more likely that it is a pretext for discrimination lewis case eight forty five s six an f second six twenty four six circuit those are the points what we're doing here heidi worked with my client and was trained by my client and is younger than my client heidi assumes my client's responsibilities it but then she got transferred out later or did she get fired out no heidi assumes my client's responsibilities are good rich or well and then when goodrich's eliminated heidi is placed in another position at another branch once the employer was aware that goodrich was going to be eliminated a position arises at the end of addison brains jennifer sure beat less qualified younger then is promoted to that position so our contention is there is a pattern as a relates to giving preferential treatment to younger less qualified individuals over the plaintiff this it matter that heidi was not promoted into the branch manager position not at all your honor and that's the case that i cited for you the general court case a person is considered replace if any employee is hired or reassigned to perform the plaintiff's duties additionally i would you to pearson versus quad graphics printing corp seven forty nine f thirty five thirty six circuit case so here it's clear heidi is reassign the deposition testimony said plaintive ran the day to day duties now heidi runs the day to day duties so i don't believe that it matters that she wasn't hired but i think we have your point thank you i appreciate the court's ind counsel as an aside the court the court has studied your case and assesses pre argument we assessed it as bearing risk some both sides and we took the liberty of inviting our mediation coordinator mr mcfaul to attend argument he's here today and ok but well various that's that's our mr mcfall anyway if you are interested mcfall is available to see if there's any middle ground here on this interesting case all right thank you