justices it's purely a financial decision but it's long overdue that's the reality of it thank you if we were in front of a jury which is the real question that we're faced with on this issue i would argue that and additional the comments young and hungry obviously are age related saying it's purely a financial decision is it age related because it denotes that the younger labor is cheaper and then by calling the younger labor labor that she can fly denotes that dr welch is young and he's not going to fly so he's old and he's that is what we're arguing is the direct evidence that should get us to a jury on age discrimination us and i pointed out of my response was hold on there's also another way to prove discrimination as being direct evidence and then there are defendant's response in a reply on a motion for summary judgment basically was what those comments are stray remarks and those are the kind of comments that are that i give to a jury and i think those are exactly the comments that we give to a jury on direct evidence and and that's what i'm asking this court to find i would also note the other evidence we have the size of those comments are half what i call the one point first with regard to the the problem is this we have all been trial judges and i'm not sure cumulatively how many hears but i think it's probably forty we've been there is were any questions asked of counsel by the trial court where the representations made to the trial court were there any remarks made by the trial court granting the motion  discretion for instance it might very well be that there were some explanation or some discussion or some concerns expressed or the trial court might have been musing about it going to grant the motion that would make a different stores and we don't  one about this and that's fair i would certainly agree that the court has more experience than what all the relative to being a trial judge i thought that day that there was a corporate when we went on appeal they said th on a different standard now as far as abuse of discretion goes i think it it is abuse of discretion because their sole reason was but let me be fair i think there were two reasons one is we didn't quote tender to our defense counsel and then to there was some sort of mistake we had we had also we've been the defendant said there was a administrative charge we filed that ministry charge for the edge from a nation with all my department human rights and they they basically said we thought that was the but what those are refuted by is the fact that i mailed a copy to their attorney so i think it's unfair and incorrect for them to say well we did we did not tender it quote tender to our counsel to be fair they're talking about their insurance co supporting record i'm sorry the bystanders report does say is that the parties argue consistent with their rents missions and so they had to excuses both of which are refuted by the fact that they were sent to that private attorney  column and it wasn't just sent to him it was mailed and facts to him including doesn't clean the fax cover page that shows ok that the facts are received by his office they don't go anywhere they being the defendant in the underlying matter or in their really brief to show up the other thing that they didn't to they didn't do was when they filed a motion to vacate they filed the bare bones to page and verified motion to vacate no evidence no testimony and setting and again all that they did was have an under five to page motion at the question on for reviewing court is whether substantial justice is being done and have an international by case which is for this are case says there's four factors relative to determin to be claiming that he stated the proper cause of action he should be briefing them here so we don't have to be going to the common law record to see which argument here the trial and i underlying core if the judge thought for example that we were setting the claim correctly usually we would get leave to amend so that's another reason why i thought it was clear that the trial judge did for twenty six nineteen and if i admittedly i don't cover the twenty six of team issues very much in my way for the reply because again the judge just granted it pursuant to twenty six nineteen i can find in my notes  then send it back to the lower court give us a chance for leave to amend if we don't if we have it was to correct that one of the thing defendant raises in the brief on the twenty six fifteen argument is that we didn't clearly state mandated public policy and they cited almost versus memorial medical center and turnovers as memorial medical center that was not an issue that they had argued in their underlying twenty six fifty motion to dismiss and that's one of the reasons why i didn't address it in my reply  the reason why the reason why i thought that and maybe it was a good time to correct this in my brief i said that the defendant only argued under twenty six nineteen one thing that it was failure to file it first as administr so i thought that went further to the fact that that's why the judge granted the motion to dismiss both times was for failure to file as an administrative claim because that was the only issue defendant raised both times and when we were there the second that the contract required ninety days notice in the cinema letter that said here's a ninety day notice but the problem was the letter said your last week is going to be next week or your last day is going to be next week so i was essentially at nine days notice none in ninety days notice our basic breach of contract cases contract says you're to work as a dentist quote part time as scheduled and quote and that there was a ninety day termination so if you give ninety days notice just left are in the contract that's why either ninety days is if you're not well employee and they say your last is next tuesday you know i'm going to say well that's unfortunate ok thanks i guess my state's next tuesday when you have a ninety day noticed with vision and they say your last is next tuesday it's like hold on wait i  have a ninety day contract you know what i'm supposed to work for ninety days you just can't tell me not to come in next tuesday and i think it's also somewhere that the defendant if he quit they pl they cancel the contract i understand i asked you what would be the result if they simply stop schedule after you have won the nose then we would  guarantee minimum number of hours but i think it's more than zero that's a part time basis that goes to the alternate arguments that we may that there was first we ask that it's  easily bring the same message and say i apologized but i have to let you go because the status bankrupt and there's no funding and if that were the case and assuming you were you were over age forty which is the  still would not be a violation of any anti discrimination laws regarding age because the seventh circuit held that any decisions are made based on financial reasons even if it means germinating an older worker are not and take said that you were young and hungry which is not what the comment that was made the comment was made was the replacements was eager to to work hard because she was a recent graduate and the dental clinic because it had been qualified for a federal clinic i was able to offer a loan forgiveness program for a new dentist so the comment that was made and again we admitted this rippers of summary judgment but it certainly the comment would not have been admitted  explained that his thought process was that this was a person who had said she can work hard she would work for a percentage of a profit she was going to work for less money or is young and hungry was used was i believe there were two separate phrases cracked ok and the jury could hear this and they could make a decision you short circuited the process but i think george this jury no jury should be permitted to consider this because there's no generate issue of material fact it were be explanation was reasonable and sufficient to undercut the tenor of those earlier earlier state nets that's why we're here you're saying that your explanation was so good th and the briefs he ruled that summary judgment was was granted and so we're saying that that was a proper ruling because the evidence showed that it was not a statement that showed age bias or animists and there were so instrumentation he couldn't identify a similarly situated employer he said he couldn't because the dental clinic was too small but there were two dentist but he was hired to replace because they were like so full of productivity one was in their late twenty's early thirty's one was in her early forty's one of them was terminated actually for low productivity and one was going to be terminated for low productivity but so she quit instead so there are two similarly situated employees right there that defeat his claim if you analyze it under an  so i think there's other information and also the the ability to progress jobs you have more complaints than anyone else in the clinic ever had and day one he had complaints that in day one she went three he had complaints not only from patients but from staff patients that said they wouldn't come back staff to said they don't want to be scheduled with him so there are more than enough reasons to support his trauma nation other than a discrimination and i think that those reasons were put in the summer it doesn't motion and that's what the judge ruled on that there was overwhelming evidence were there were no issues of material fact given all the facts that were put into evidence and it's a summary judgment was it was granted counsel then argued th this under these circumstances it seemed like the defense just blew this off well i it's unfortunate that it appears that way there is some misunderstanding crankiness not the attorney handling this case now he appeared but he did  charge that forwarded to us the process is that the charge should go either through their insurance broker because my firm is an insurance defense firm hired by the insurance company does to approach for the broker will send it to be adjuster and about this case wasn't a discussion about it wasn't there gossip a part of the courthouse among your client and all over cooper county but i don't think that the my client was confused i don't think you realize there are two separate cases i don't think that the director of a health clinic that's necessarily supposed to know the difference between the ministry of charge and the law about james there is a suit who's a lawyer is a being responded to a did don't have to print kane who was not their lawyer unfortunately so by the time he former assistant state's attorney and because of her ass out of chicago at times we'll file briefs and want to use local counsel to appear and behalf of us to save our clients money because we represent our firm is insurance defense counsel to municipalities public the rise once we gave him the motion we sent the file to him and said can you please appear and on our behalf for this motion to vacate now counsel stated that he had appeared at other times as well which is correct after we drafted the motion we sent them to administrative charge so they sent a notice of default and that's when we responded within fourteen days we had a motion on file regarding the motion to vacate the default judgment and explain that just there was a confusion this wasn't any deliberate delay that as soon as we received it as insurance defense counsel we responded to a row that's what you do your clients know they didn't carry on i think that they didn't understand difference and when they did send it to us we reacted as quickly as possible so what burden should be on clients like an agency like this to understand the difference or to call your lawyers and ask is there a difference because you know they get the focus because they didn't do it you know what happened and i think if they had you know they could have been should have done before and sooner than could absolutely they could have been should have but i don't think it was a deliberate delay which is well now you're claiming that it was negligent i'm not claiming i think it's i'm claiming it was a mistake and that was good cause because of the confusion over the two different you know normally people who file charges in a lawsuit him simultaneously normally there's a charge and we get the right to sue that or you filed a lawsuit and incorporate that contacted our office and that was our point is that if the insurance carrier was aware of it then then yes if we have a case and sat on it for three months i know it would not be good policy to just let us a file a motion of a can have that much she granted but clearly there was enough information in what we filed that the judge said ok you know we'll proceed on the merits and that's what we did so we filed immediately and and apologized saying there was this confusion and sell now we want to say ok charge in the lawsuit and i think that was the reason that the child said ok let's see what you have to say and we said as soon as we got it as attorneys i think we are held to a higher standard because we all know what the law is i don't know that interact or a public health grievances that's part of doing business and providing the services they provide and i think there could be more education around which cases get censure insurance defense counsel in which family risk management trust then certain issues regarding a point of interest are handled by the trust and that's when the case needs to get to an insurance defense counsel and i think that added to the confusion in addition to having the charge and the lawsuit filed simultaneously with recommend real quickly as to the age discrimination i thought telling this anderson tried to explain away all these age related remarks which just goes to show that it's a jury question to maybe something i forgot to point out