of the ninth circuit is very clear serves that because the ultimate question of motive in a case like this is one that can only be resolved through a searching inquiry a perfectly conducted by the fact finder upon a full  terminated if you didn't sniping at the c e o zara i don't dispute that the meeting took place in december of two thousand it did take place the comments were made to listeria outbreak at the plant is that correct that to put it in context you have a long term employee who's promoted to vice president sales third highest position in the company in ninety eight all right there been animosity floating in the air between the president of the sales manager for some time with nothing ever stated mr serious with the president the same person who had promoted him and given him pay raises it's yes the president is the person  the chairman is the person that promoted the man ninety eight the president who's mr you'll is the one that gave him a pay increase in december of two thousand at the time that the in response to my letter alleging wrongful termination we received a whole litany of stated reasons for terminations that certainly would lead one to believe that this was a well thought out how many decisions and they listed several things they listed the what they call open disdain for m which is the incident that you're referring to they also listed performance deficiencies they also listed the fact that the his performance during the stereo crisis and they also listed the issue of a cost savings measure ok know that the court should properly take a letter by counsel after the terminations when the employee hires counsel with a certain degree of how shall i put it healthy skepticism that what we have here is basically a lawyer who is trying to put the best face on it for the client i guess what i'm more concerned about is the discovery evidence i mean did witnesses testify to the fact that your client had been making critical comments for some time about mr you'll be at the yes your honor but again through de who is the admitted decision maker that we learned through discovery in the case he never saw in the case that he couldn't recall anyone ever having shared any of those comments that mr series made to other coworkers as having been relayed to him yesterday also indicated that because i ask you what factors went into your decision what reasons did you have for terminating him and he acknowledged that the fact that there damn the incidents between mr ula mr sherry age and this kind of error of comments that were being made may have it was not and that was not a positive i think was to use his words but he could not even on my questioning couldn't come forward and actually say yes that was a factor serious issue of material fact on pretense perhaps you could explain what your response is to the fact that in the middle of the listeria crisis you know your client essentially goes off to visit some of his key sale accounts after he's been told that all hands need to turn to to address what turned out to be a very recall in the history yes or let me address that because on the stereo issue  isteria crisis you have to first put it in context that this was something that had been going on for some time there had been notice of this issue for several weeks before this fateful week when mr serry is accused of vacating his post a the recall decision made i'm assuming that they came to a head when what the f d a said you have to pull this stuff off the shelf what happened was there was the indication of an issue the company response and this was going on for some time then there was a letter that they're going to suspend operations and everybody comes into phoenix to meet and decide how to reach the deal with that it's during that week mr series leaves on a monday afternoon and returns on a thursday for two previously scheduled sales trips that he had a vice told that it was as a result of the fact that he had essentially abandoned the watch in the middle of this crisis and that that was the last straw absolutely not ok and that is the key your honor if this i admit expect him to have said something to the president of the company when you've expected him to say something to the board when he says i'm going to terminate this man and wouldn't you have expected him to say something to john syrie following this incident when you have expected him to say something on his i've been called in under an emergency condition it's turned to the with theory a problem why would he need to say anything it was with obvious that he wasn't there at the time when they needed you know before he left he was asked to put together a kind of an outline of a plan and there's some discussion in the record about what he was really asked to do and what he all right he gives that and then he leaves on a monday over the weekend he leaves on a monday afternoon and returns on a thursday and again all the senior management continued to be there for some period of time so my argument is that if that was truly the critical factor i still say you would have expected him to say something to mr de the chairman to say something to exactly what the ninth circuit and the supreme court of the united states have instructed the lower courts to do with employment discrimination claims judge mark tone very conscientiously identified that there was no genuine material  reason it would have been quite creative for an employer to create such a devastating mishap for its organization to target john serge for his terminations there is no question that there is no evidence of pretext based on that reason the ny circuit has repeatedly held that it does not demonstrate pretext that an employer doesn't sit down with an employee at the time and say you're being terminated for this reason in fact of board decision is not a reason but the court needs to appreciate these people have grown up together in this organization they were the founders of this company they know each other inside and out and tim day had expressed his dissatisfaction previously as your own has pointed out in december of two thousand about john siri just leadership in this organization he didn't have to say anything other than walking into that boardroom and saying where is john syringe at this moment of a most critical circumstance in our history of our business and when he was told he was out visiting customers and knew that he had not completed the assignment that was given to him and at that time turned to bob mule and said this  could because of their long standing relations unfortunately that's probably the case it was not going to he knows my expectations i've made it clear to him this as we pointed out to the court we ha people in management positions who were by passing opportunities in one instance to hear a daughter saying in carnegie hall because of the seriousness of this and john serge decided at that time to go see customers doesn't have to sit down with him and say john is the senior vice president of this company do you realize how irresponsible that was that doesn't constitute a pretext it might it might have been the defense of a lot easier if he'd done that but i  guess i thought that was pretty easy defense i guess the other thing we can look at is the fact that he was trying to get him to accept a severance package which probably included a release of any claims that he might have against honor that was the next document that was placed but what was underneath that shot absolutely and and also your honor with mr stan as well in this in this litigation oriented world that we had of course he's going to try and given you can prove there were other discriminatory reasons and one thing that i'd like you to address is that planes terminations was timed to a reorganization where younger and fewer executives who were paid hooters throughout top management he mr de gave slightly different versions as to whether the cost savings by hiring younger people was the reason think first of all that there was ever a statement by mr de that he was trying to reduce costs to attain a younger workforce he was trying to achieve cost savings no question about it but i think  and that was a candidate that there was an overall four hundred thousand dollars that's almost two million dollars your honor and that's the irony of this whole this is just a complete red herring because mr de did say and i think  you just said it yourself it was a timing issue about the reorganization it wasn't the motivating factor as to why i john surge was let go he asked bob you all in april to take out two million dollars plus of this company's operating costs and he didn't target he didn't direct any particular individual except to say because of my that dissatisfaction with john syringe that is that is hasan paper that's the supreme court's decision and he's on paper exactly the supreme court's urged us to stop drawing these close shaves between saving money and older workers higher rates of pay as though there are some corresponding relationship there they specifically said what's wrong with the company saving money unless you can prove age was the reason was there any offer to  salary so he would be more expensive to cut the salad no your honor this was purely an issue of leadership as a vice president of the organization and based on the company's performance by the way your honor but you can't based on that circumstantial evidence and i think this hazan paper case disposes of that make and age discrimination claim if i i would just like to turn to one other issue on the motivation motivation motivation absent proving fault so that of the reason or that there was animists directed towards serious because of his age motivation is not a buzz word to insulate employment discrimination claims from summary judgment and that's what that's what mr bottom a which have this a decision based upon age animists or that the reasons were flawed faults we believe that judge moore cones decision was sufficiently and well reasoned and support showing stated reasons the stated reasons are unworthy of cretins we have both in this case in fact i submit we have substantially more evidence of discriminatory motives in pretext in this case and the then in the cases of pres out the succession plan they had replaced all senior managers over the age of fifty five as of june of two thousand and one with the exception of the chairman and the president i submit that that is direct evidence of this crime an asian insufficient for me to take this u and other