it please the court i would like to reserve three minutes for rebuttal my name is doug janney i'm here on behalf of the appellant james pearson and mr pierson respectfully request that the court reverse the grant of summary judgment of the district court based on the aggregation of genuine issues of material fact in this case as to whether the defendant eliminated mr pearson's job position or whether it discharged him because of his age for we have several points regarding genuine issues of material fact we'd like to make first q g offered contradictory testimony on whether corporate resources from wisconsin assumed part of mr pearson's job duties or whether david de priest a substantially younger fifteen y younger employee assumed all of those duties he himself mr mueller thirty six representative in this case testified at one point that a number quote a number of people replaced mr pearson at the beginning but then he goes on to say that only mr de priest had replaced pearson and the reason for that is because they want to say a number of people replace him to avoid a finding that of replacement but they want to say that only priest i actually want to say a number of people replaced him to avoid a finding that mr de priest was not qualified and that's a big issue in this case we contend that mr pearson was substantially objective lee far more qualified for retention in the job on all that or i think that's going too far because an employer all they have to do is say that and then you get this higher burden of proof but we think if there's other evidence of discrimination or evidence of plainly superior qualifications that that would overcome that even if the employer does in this case we they say on the one hand one person replacement on the other that several people replace them so that right there is a genuine issue of material fact we're supposed to take all the facts in the light most favorable to your client right absolutely your honor viewing all of these issues and facts in the light most favorable to mr pearson this case should be reversed and remanded for a jury trial if there is no dispute that mr de priest the younger individual his job fundamentally changed when he when he moved from nashville tennessee to rural dixon tennessee and began doing mr pearson's plant facilities manager job he maintained the same hours worked with undisputed that he maintained the same work hours that he had before his previous travel schedule was greatly reduced that's what q g testified he assumed a number of direct reports that he'd never had before and this all makes sense if he's taking over the job duties of your client full time employee to physically move to the plant and and be in that plant doing that job suggest viewing the facts in the light most favorable to the plaintiff that he replaced him now even if he didn't there is evidence that mr pierson should have been travel in the things he was doing before traveling extensively that all stopped and he came to dixon and was doing mr pearson's job which was a full time very demanding client management job so that's part of it we also contended that mr pierce this position was not eliminated that's the legitimate nondiscriminatory reason asserted in this case is that that is that the plant facilities manager job wasn't eliminated and that's just not the case that that same summer summer of two thousand and eleven q g invested three million dollars it to upgrade its printing presses at that plant and mr mueller bof a corporate representative testified that if you're going to maintain for they didn't after two thousand and twelve your honor they did not in two thousand and eleven and two thousand and eleven with the time you know they took less than a day to eliminate mr eliminate mr pearson to be a conclusion that is stated is there a basis in the record there you're a believe so and that was a major point that we raised in the district court carl lance the thirty three year old supervisor testified testified that he went told sandra snyder the h r manager at the dixon plant that he was coming to dixon from oklahoma city where he worked coming to dixon to discharge mr pearson because he was at least in part because he was not a team his other evidence is mis niters one page of handwritten notes of her phone conversation with with mr lentz she even wrote the words in quote team player and so viewing the facts and evidence in the light most favorable to the plaintiff and drawing all reasonable inferences from that evidence that's a reason that they asserted and then when this litigation began that they contract in their reasons and that and that reason was dropped from the litigation and they insist that team player and performance had nothing to do  but you've got a say in the team player reason and you also have there's an october tenth two thousand and eleven memorandum in the record authored by an h r person that says that the decision was based on performance not age this was after mr pearson had submitted an email pearson was discharged there was no time that's another thing judge moore's opinion in blair versus henry filters discussed is that if an employer doesn't have a blueprint or an objective plan for reduction forces say like a rift policy it's reviewed by labor law attorney and you've got this objective plan in place to eliminate job positions that that's evidence of pretexts here joel mule bock in wisconsin learned on aug eighteenth two thousand and eleven that he was expected to review every position in the company and say what positions could be eliminated the very next day august nineteenth two thousand and eleven carl lentz decides to discharge mr pearson allegedly because he was not a team player and tells me to prove that decision and  considered in this case that that mule bought didn't learn he was expected to eliminate until august eighteenth the very next day they discharge mr pearson and mister mid they he did not even consider the duties of no there was an os small offer but he firmly believe that his position his discharge was because of age and did not accept that and try and made a complaint to the employer of age discrimination they never interviewed me all bach the priest or lance about m unclear which one of those actually had this year of you're absolutely correct your honor it's in addition to differing reasons and there's conflicting testimony about who was principally responsible for this discharge decision if you read winces testimony he says that he made the decision in that meal bought merely approved it if you read mule box testimony your box says mule bought made the decision so you've got conflicting testimony about who was primarily responsible for the discharge issue you've got contracted reasons for the issue and another thing that's really important your honour's is that this defendant manuf that they they're a big twenty three thousand employee company they're sophisticated they know how to conduct a riff and how do we know they know how to conduct a risk because after the decision to destroy mr pierce and it was made they manufactured documents falsely purporting to compare mr pearson and mr du preez for reduction when it's it and they admitted that they did no such thing they did this they went to great lengths to make it appear and you say they manufactured there are two sets of documents your honor there are these documents called criteria for selection forms that karl once went back after the decision already been made  rate mr pearson and mr de priest and less when i'm qualified to fill out those forms because he didn't even supervise david dupree's but they created these criteria for selection forms filled them in after the decision had been made and admittedly without ever actually considering david decreased for reduction now less testified those were the two people who we were considering for reduction but q g s it says we never actually considered a priest for reduction at all and they gave mr pearson when they discharged him and a chart with with information about him and a priest age falsely purporting to compare those two based on qualifications job duties and business need and then they admitted litigation that didn't happen they went to great lengths to make it appear that they had after the decision but i'm asking whether they put the proper date for i believe that they thought so i mean it's a different thing to manufacture evidence than to write  for after the fact that actually does compared to people as long as they're being honest after the decision was made we did up this form and it shows that  in their view better than the other they did up to two forms your honor that you can't say that they put a false date on there but the date of the forms and that there are signed and filled out is definitely after the decision was made and so that begs the question why fill out these forms that on their face the court my name is laura linney and i represent the appellee q g l c in this matter i think it's important to understand that this was really a two phase decision to address judge clay's point this all started with in an e mail from the c e o of the company on august eleventh when he announced an initiative called fortress quad which was an overarching cost cutting initiative following a very big acquisition by cloud graphics of world color and following that was consolidation in the need reduce operations subsequent to that e mail mr mueller box boss told him you need to review the positions in your ignorant organization and decide if you can eliminate some of them and what day was that that was sometime after the eleventh we think around the thirteenth mr mubarak was traveling and his father died so the dates were a little fuzzy for him you mean back decided to do in his organization as part of cutting costs was to eliminate positions so reduce labor costs through that so mr mubarak decided i will cut cost ok i got the only thing is that that's not t it was mr pearson was eliminated in sort of the first wave of the reduction in force the reductions occurred over two years you not answer my question though when did the rift come into being mr pearson was eliminated on august twenty third as part of a force reduction himself in another  formal institution of this forum and reduction in force program i can't get from you when did the rift get instituted in this organization it was august eighteenth or nineteenth you're if there was phases of productions i mean the the one that mr pearson was as mr mubarak said on the leading edge of this initiative may be part of the quandary here is was there a formal rift program and if so like was there a document that said this is our rift program and wasn't that arguably from what your opponent is saying in two thousand and twelve as opposed to what happened in august of two thousand and eleven which seemed to be this more informal hey guys we've got to reduce our force because we've got to cut costs see what you can do which is not a formal program at all but just sort of like  aspirational thing right there wasn't a formal program announced that says for example you have to cut ten percent of your workforce was there ever such a formal announcement not on a corporate wide basis the corporate white initiative was cast cutting and then it was put down to the forces below saying you figure out how you're going to do that and when you're in a never not even in two thousand and twelve was a formal riff program saying we're going to you need to cut your employment by hypothetically i'm making this up ten percent of the about was this meeting occurred on the nineteenth his position was identified as one that could be eliminated as well as his counterpart at the jonesboro plant and mr d's mr lance sent an e mail to the h r manager saying we can eliminate these two positions mr pearson's in particular the h r manager and then went back to mill back he'll back said yes and that was sunday the next decision was ok we're eliminating this job but we still have some facility management duties that need to be performed who's going to do them and that was then mr lance's decision to decide ok and mr mubarak testified i'm leaving that to lance to figure out who is going to cover these duties and mr lentz then decided ok i can use m to do that mr lance prior to this whole announcement of cost cutting had already tapped mr de priest to assist with facilities management job duties at the dixon plant he had gotten feedback that certain yeah well that's fine if that's what he thinks but all the other evidence of that is that let's who was in charge of getting a replacement and dealing with this plan thought the guy was not a team player and didn't want to keep him around there now all i'm saying is i don't know what the truth is but there is a inconsistency and i would think that  view that he's not a team player would leave go we're into the decision making process if they're not stupid you know so there is a dispute a fact seems to me about why he was destroyed and there's not a disputed fact as to the decision on that point for this reason first of all mule back identifies pearson and his counterpart based on the fact that he knows dixon in jonesborough being downsized so he doesn't need full time facilities management lance understands from the meeting i got to determine if i can eliminate positions in my organization and still meet my commitments he says i can get rid of pearson the notion of team player comes in because after they finalize this decision h r then just goes to lance and says well you need to fill out these forms to sort of explain your selection decision to companies but there is evidence that would indicate they may not be forthcoming about all reasons you're welcome that's all i'm saying well unless testified that yes he viewed mr pearson as not a team player for a couple reasons first of all he said he got feedback from press operations that now you're going to the merits of whether he is or isn't a team player well there there is support in the record for that view that's on refuted and honestly held by mr lance i want to mr pearson might say i was a team player mr lance's perspective when he filled out the form was i didn't feel that he was as much of a team player because of the fact that i got feedback from the press room guy he also says i brought the priest over because of before this whole rift stuff started i brought priest over to priest over to run some of these projects because they were getting none and pearson wasn't managing those product projects so the team player issue just gets introduced by virtue of these forms but the testimony as to what was their thought process when they decide by sunday the nineteenth who is going to go that wasn't the decision and the testimony was very critical on the team player point just that they decided on august nineteenth who's going to go but you said just a few minutes ago that it was august twenty first that the decision was made to eliminate the plaintiff's right so on the nineteenth they had a meeting and said positions are going to be eliminated and then on the nineteenth len sent the e mail to so so the decision to get rid of the plaintiff here was me going to and lends right and butt and finalized by mailbox through this e mail communication by the twenty first s yes we want to terminate mr pearson and that's on a sunday and that was after that these forms were given to mr lance to fill out and mr milbank didn't even know about you know those forms and frankly those forms i disagree that it's manufacturing evidence because those forms didn't affect the decision and again the records clear that decision had already been made the forms weren't used in any way in making the decision why were the forms created for some reason somebody and human resources they should have some forms that document this decision and mr lance from his point of view was thinking ok i'm eliminating mr pierce and i'm going to give those duties to mr de priest so these are the two folks i'm going to compare on the forms and the important thing to remember it's when it comes to qualifications the issue isn't who's the most qualified facilities manager i disagree that the position was eliminated the position is gone we're down in employee mr pearson was gone he was not replace the issue then was who can do these facilities management duties now that this positions been eliminated if the it's sort of hypothetically suppose that that the company decides it needs to have one fewer person in the company because they just don't have enough money for x and so they have x minus one so what kind of situation is a legitimate and what kind of situation is one that is not in terms of people taking on the duties of the the now missing job position in other words going back to church quiz question should it make a difference that one current employee takes over all of the work of the now missing employee were should it be apparent that the work is spread around among existing employees i don't think that matters and i think the court's decision in barnes is instructive on that point environs the court said if you reduce one employee that's a reduction it doesn't need to be it can be one it can be twenty it can be two hundred  fact of the matter here is mr pearson's position was reduced and the record shows others were reduced at the same time again mr taken and jonesborough the same position his position was eliminated the same time within a day they were announced as termination s i don't think it matters as to how many people you know replaced whether it's one or both i think what's important in this court's you know case history is if you're if you're replaced in a hole then the burden of proof is different the fourth element becomes a heightened one and you have to show additional evidence pointing your singled out because of your age and here i think it's the evidence is undisputed that mr de priest did not one for one replace mr p retained his energy related duties he testified he didn't take over all of pearson's duties he took over whatever was left of those duties yet never was left meaning the management of the dixon plant and the  plant was reduced they went from five presses to three presses overtime staff was reduced but he did take over those facilities management responsibilities and retained his energy and energy related duties and that was critical to the priest the testimony is clear he was critical to that energy job because he was he knew of like there were over three hundred utility contracts that world color had had that he had intimate knowledge of they were tied up in bankruptcy and so they had to retain him and he stayed on to do this work the notion that he didn't travel is really irrelevant mr dupree said i could do that work from anywhere the fact that i was primarily in dickson doesn't foreclose me doing energy work and i certainly agree with you are but this isn't i don't think the evidence here there's not enough circumstantial evidence here to suggest that age was the factor unlike this court's other cases where you've reversed summary judgment decisions for employers there is no evidence of any age just remarks there's no evidence of any statistical disparity there's no circumstantial evidence suggesting age was a factor here there was some very young person who was retained and you address that person yes name is adam dillard he was in the national facility so in a much lower level position than mr pierson the nationalist facility was actually expanding so unlike dixon in jonesborough that facility was expanding they didn't consider elimination of mr pearson points to him because he's younger they weren't you know necessarily even doing the same things there is not a one to one comparison in regards to those positions and he was in like i said a different facility that was expanding and they were reason that they're saying it in on the one hand the corporate resources did it is because they know that mr de priest was not qualified to take over the full plant facility manager job and how do we know that because he had no printing experience in grave you're printing this  better margins with margins or straight or water or does it mean exactly these the presses are different the presses are different your honor it's a different printing process and it's a specialized printing process and mr pearson had years of experience in this specialized printing process and mr dupree said middling not only had no experience in that but had no solvent recovery experience those are the two major components of the dixon plant facility manager job grieve your printing experience solvent recovery and fire milk compliance and those are the things that mr pearson did we're not we're not talking about flip flop in the roles where pierce is trying to go do the priest job it's the priest coming in and doing the dixon plant facility manager job and the last point you're ours is helped with contracts for the tennessee valley authority that's that's in our brief aside there he testified that he did have some experience in this and mr de priest didn't have a whole lot of energy for human experience he admitted that he only began doing that in november two thousand and nine when he came to q g and its predecessor company that's the only experience he had mr pierce's position is that he could have done these minimal which had become greatly minimalized mr de priest duties at the at the nashville plant had ceased and mr pearson contends that he could have done these other marginalized duties the main job is shoe was running the dixon review or printing plant and q g did not make a reasonably informed and considered decision there was no time to there was no time to assess the job duties of these two men and their respective qualifications in less than one day they did not make a jury could find that they did not make a reasonably informed and considered decision and that's evidence of pretext thank you very much thank you both for your argument the case will be submitted