[00:00:00] Speaker 05:
Number 23-3126, Raymond v. Spirit, Arrow Systems Holdings.

[00:00:07] Speaker 05:
Mr. Castor.

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Thank you, Your Honor.

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Jim Castor, for the appellants, may it please the Court, I'd like to reserve three minutes for rebuttal.

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The calibration sessions that occurred just before the layoff that is at issue in this case are described by four courageous first-line managers who testified, volume seven, starting at page 53 of Appellant's appendix.

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They're brought into a room.

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To do this calibration, HR owns the calibration meeting.

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They're present.

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Upper level management above them are also present.

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They're not allowed to take any notes with them.

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No notes, no cell phones, no recordings of what happens in that room will go outside of the room.

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They meet again and again.

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They're told before the first meeting by David Walker

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who's the chief technology officer, that young people are the future of the company, that Boeing people are old DNA.

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The only evidence of Mr. Walker's statement is through Deborah Miller, right?

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That's correct.

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Who starts at page 70, right?

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Ms.

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Miller testifies that they're told to protect new hires, the fresh young faces in the company,

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to downgrade the older, sicker employees.

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And those who refuse, and she testifies about Ellen Oh, who specifically objects to this, she is terminated.

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She's fired.

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Those who refuse are suspended, terminated, or forced out.

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The district court disregarded

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Mr. Walker's statement that young people are the future of the company in this an age case.

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Is there any evidence that Mr. Walker had anything to do with the reduction in force in 2013 July?

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Well, what the evidence demonstrates in the 2018 order that the district court entered, the district court talks about the same upper level managers

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orchestrating the plan, which was created in October of 2012.

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Do I have specific evidence that Mr. Walker was involved?

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But the district court found was that the same upper level managers executed all of their steps in 11 different steps.

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Well, but aren't you conflating things?

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Because in 2012, originally, I think in October,

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They were conceiving of a voluntary retirement plan, which is perfectly permissible.

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It may be permissible, Your Honor, when you're identifying a protected class, like long-tenured employees.

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Well, you certainly have never argued, I don't think, that 623 D2D

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Bii would prevent them from singling out Older employees 62 and over for a voluntary retirement.

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I know we don't we don't contest that okay.

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Mr.. Okay.

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Go ahead.

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No, but Mr.. Walker's instruction to the managers is certainly involvement of

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Your Honor, he instructs the managers who are conducting this reduction in force grading that they are to remember that young people are the future of the company.

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Now these meetings happen again and again, according to Ms.

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Miller's testimony.

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They have entered into a rigorous calibration

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where HR and upper management needs to agree on the calibration ratings.

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And the people who don't go along are pressured out of the company.

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That is involvement.

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When he tells them this is what you need to do when you're doing this grading for the calibration, remember, young people are the future of the company.

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Well, isn't it a problem, though, because Deborah Miller, your source for what David Walker said, specifically says,

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that the pressure that she got from HR, she was specifically asked, do you know whether or not these were the people, the higher level authorities within HR or within the company?

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And she said, no, I really don't know whether or not it was

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You know, just the one of the 300 managers that, you know, or one of the HR people that told me what they thought.

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So Deborah Miller couldn't isolate what she, the pressure that she received.

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to say that this was a widespread pattern of practice.

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Well what we do know, she testified about what she knew happened in that room.

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She testified about meetings happening again and again.

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It's a reasonable inference.

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that David Walker, as the chief technology officer of the company, when he speaks that young people are the future of the company, is speaking for the company.

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He is a chief officer of the company.

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So he speaks for the company.

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Isn't that a tautology to say young people are the future?

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Young people are the future of this court.

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Certainly, Your Honor.

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I mean, is it true that young people will certainly be sitting in all of our positions at some point in time?

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Of course.

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But in an age case, when you're told between measuring X or Y, and you're told specifically by someone speaking for the company that young people are the future of the company, that is an admission.

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That is direct evidence of age discrimination.

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And that is then ignored by the court as essentially a truism.

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Well, they were specifically told not to consider age, weren't they?

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That was one of many things they were told.

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They were also told... And I think you're taking issue that the first line managers wanted to keep XYZ people.

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But when it went up one level, they said no.

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We're not going to do it that way.

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What's wrong with that?

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If, if the first line manages buddies with Judge Harris, Hartz, and he wants to keep him on because he's a good guy and he's, he does pretty good stuff.

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But the next level up says, you know, he's not really up to it.

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Is that age discrimination?

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It may be.

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If the reason why the other person is saying the next person up is because of age, certainly these are credibility determinations for the jury to make.

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When an officer of the company who speaks for the company as the company's direct

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sponsor, someone who makes an admission for the company, says young people are the future of the company.

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That is a direct admission.

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That is direct evidence in an age case.

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Now, what I would also say

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There are two orders at issue in this case, the 2018 order and the 2023 order.

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They're here on summary judgment.

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They're here on summary judgment, both of them.

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So the standard of review is de novo with us receiving the benefit of inferences from the record, which goes back to the questions we're talking about now.

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Our position is the district court weighed the evidence.

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and actually drew inferences in favor of spirit on significant points like this one that we were just talking about.

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Well, how does our Apsley case fit into this?

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Well, that's an interesting question.

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Thank you for that question, Your Honor.

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Apsley is a longer decision.

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And so I picked out one sentence that I think actually supports our position in this case.

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Unlike the cases cited by the plaintiffs, I'm reading from Apsley now, there is no evidence that upper-level management viewed older workers as less capable or younger workers more favorably or believed that older workers needed to be replaced by younger ones.

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That's exactly what we have here.

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Well, you mean by saying the future is with the young people, that's automatically bad.

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Is it automatically bad?

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I mean, you can argue about what that means.

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You can't say that is what you're telling us.

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Well, it would be impermissible.

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It would be relevant evidence, let me say that, for me to say, well, I think that this company would be better served by having all males.

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Does that indicate, if I'm speaking on behalf of the company, does that indicate automatically there's liability?

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It's an admission.

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It's a direct statement.

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What if you're saying that in encouraging a voluntary retirement plan to entice people that are older to leave the company?

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Not a riff.

[00:09:19] Speaker 01:
Yeah, not a riff.

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Is that impermissible?

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Well, let me just say this.

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The actual document that where this comes from is drafted in October of 2012.

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It's a series of 11 different cost down measures, which includes

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a voluntary retirement program, there's a significant intervening event between October of 2012 and the actual layoff in July of 2013.

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Because Jeffrey Turner is the CEO in October of 2012, he is opposed to layoffs, flatly opposed.

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There's no dispute in the evidence about that.

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Then Mr. Lawson starts on April 6th of 2013, and he is totally in support of layoffs.

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and dogged about the headcount reduction.

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So it's a reasonable inference that this idea of replacing long-tenured employees with new hires evolves.

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between October of 2012 and July of 2013.

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That is a very reasonable inference from this evidence, given the fact that Mr. Lawson comes on board, and he is dogged on headcount reduction and supports the layoff.

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What we also have in this case is they're hiring while they're firing.

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So this isn't really the same as what you think of as a reduction in force.

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They have 50 salary job offers ready at the time of the layoff in July of 2013.

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They have almost 500 new jobs, hourly jobs, they say, ready by the October job fair.

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And the evidence in this case is that they hired 1,766 people between 2013 and February of 2015.

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That's clear evidence in this case.

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And so this isn't really a reduction in force.

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It's a replacement in force.

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Well, how many people retired took the retirement option?

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There was actually a retirement option in September of 2013.

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It wasn't offered until then.

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We didn't get data about how many people were involved in that and how that implicates the rest of this.

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I can't answer that question.

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We didn't get discovery on that issue.

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But it's wrong for companies to try to replace the less valuable employees.

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Well, what the evidence is saying, they want to get the 10 most

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dispensable in the 10% most dispensable employees.

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What's wrong with replacing them with people they think will be more productive?

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That's certainly a question of fact for the jury.

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Did they focus on the bottom 10% or did they force people to downgrade the older employees, which is what Ms.

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Miller testified was happening?

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And other managers, Smalls, Fuller, the other managers testified to the same.

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I'm going to, into my rebuttal, if you haven't addressed the statistical evidence at all.

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Well, I haven't addressed the statistical evidence, Your Honor, and what specific questions does the court have?

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The district judge went into some detail in analyzing that evidence.

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And I don't think your briefing really challenged the reasoning there.

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It made allegations.

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The appellant is supposed to show how the district court made a mistake.

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And I didn't see, this is complicated stuff, but I didn't see any attempt really to explain why the district court's analysis of the statistical evidence was wrong.

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The reasons for rejection of some of the evidence, for the reasons for thinking this evidence isn't very probative and all.

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Do you have something to say about that?

[00:13:29] Speaker 04:
Certainly, Your Honor, it's a battle of the experts.

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Once the court, this is what I would say about the statistical evidence.

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The evidence demonstrates through Lance Kaufman that people who are older were twice as likely to be terminated as those who were younger.

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And the judge didn't credit that.

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So you have to explain why the judge was willing to discredit that.

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Because the analysis didn't include things such as, what's the term, their versatility.

[00:14:01] Speaker 05:
That wasn't even included in the analysis.

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I would have expected some argument about why, how the district court treatment of the statistical evidence was wrong.

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It's not enough to say, oh, there was a contrary expert.

[00:14:18] Speaker 04:
Well, Your Honor, there's two basic differences between the experts.

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And one is about the population that they studied, Dr. White choosing the smaller spia population.

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And the other is about he chose the spia population specifically.

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So Dr. White's analysis

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What we're saying is those, and Dr. White also divides the analysis into 151 pools, basically subscribing to the notion of decentralized decision making.

[00:15:02] Speaker 05:
You're not responding to my question.

[00:15:04] Speaker 05:
The question is whether Dr. White's analysis was any good.

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The question is whether the district court was correct to give very little weight to your experts' statements.

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And he showed various things that he found were flaws.

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And I would have liked to have heard how the district court heard in its analysis of those things.

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And I don't see that.

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The briefs just say, well, we had contrary experts.

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But the judge, particularly with expert testimony, the judge has a gatekeeping role.

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And here he didn't go so far as to say this wasn't admissible under Dalbert.

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He left that unsaid, unresolved, but said it's not probative of what they're trying to establish in this case.

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The versatility and criticality are, we think, subjective standards.

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With respect to the performance management rating, they're supposed to go into that.

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So what Dr. Kaufman did is demonstrated that between 2010 and 2013, older workers were twice as likely to be downgraded.

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Right.

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And twice as likely.

[00:16:19] Speaker 05:
You're not responding, but did you have a question?

[00:16:22] Speaker 01:
Well, I just wanted to ask you about that very point.

[00:16:25] Speaker 01:
So you're saying that from 2010,

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The 2010 retention exercise versus the 2013 retention exercise had disparate results.

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Older workers were twice as likely to have a C rating in 2013 versus 2010.

[00:16:41] Speaker 01:
But as you've discussed earlier, you know, the elephant in the room is the 2011 and 2012 recalibration of the way that they were evaluating.

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And I mean, you find fault in that, but I don't think anybody on either council table is going to dispute that the whole criteria, the whole rate-making exercise in 2010 and 2013 are going to be wildly different.

[00:17:08] Speaker 01:
So I don't understand why Dr. Kaufman's comparison has anything to do with whether or not the RIF was targeting older people, because

[00:17:20] Speaker 01:
You're not comparing apples and apples.

[00:17:23] Speaker 04:
Well, Your Honor, between the critical dates that we're talking about, what Dr. Kaufman demonstrated is that older workers, under the same rubric, under the new rubric, were more likely to be downgraded than younger workers, which we think is probative.

[00:17:41] Speaker 04:
Once the court allows the evidence and doesn't exclude the evidence, I think those kinds of determinations, population choice and pooling, for example, are questions of fact for the jury.

[00:17:52] Speaker 04:
Thank you.

[00:17:52] Speaker 04:
Thank you.

[00:17:58] Speaker 05:
Good morning, Your Honors.

[00:18:04] Speaker 06:
I'm Stephen Moore, representing the Appellees here.

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And this case is about how the District Court reviewed the undisputed material facts in the light most favorable to the plaintiffs, but ignored unsubstantiated allegations, statements of counsel, speculation, and conjecture.

[00:18:26] Speaker 06:
Only reasonable inferences were accepted by the district court.

[00:18:31] Speaker 06:
The district court here actually drilled down to see, there's a statement made in the brief, drilled down and noticed the record didn't support certain allegations and statement of counsels are just not evidence on summary judgment.

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And the 10th Circuit has said evidence on summary judgment has to be reviewed in the context

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when summary judgment is being considered.

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That's the O'Shea versus Yellow Tech case.

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And as it relates to statistics, the 10th Circuit in Apsley versus Boeing Company and Spirit Aero Systems says statistics must always be evaluated in the context of all the surrounding facts and circumstances.

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Now, before I go any further, I want to explain we are dealing with a pattern or practice theory.

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It's critical.

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It's different than a single plaintiff theory.

[00:19:27] Speaker 06:
That would be under McDonnell Douglas.

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Pattern or practice means the standard operating procedure was discrimination.

[00:19:38] Speaker 06:
Looking at an isolated or sporadic situation is not enough.

[00:19:45] Speaker 06:
the court must look to see, and that's what the district judge did here.

[00:19:49] Speaker 06:
Was there this continuous pattern or practice of this alleged discrimination?

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The answer was no.

[00:19:58] Speaker 06:
I submit, Your Honor, that's where the rubber meets the road in this case.

[00:20:04] Speaker 06:
Now, there are decisions made by hundreds of different first-level spirit managers.

[00:20:15] Speaker 01:
The managers exercised discretion while applying facially neutral standards.

[00:20:29] Speaker 01:
She believed that she was being pressured by HR to downgrade older employees.

[00:20:35] Speaker 01:
She then couples that with what David Walker said.

[00:20:38] Speaker 01:
David Walker did speak, you know, as the chief technology officer, that the future of the company was newer employees.

[00:20:46] Speaker 01:
viewing the evidence favorably to the plaintiff, why can't we reasonably infer that there was a pattern or practice to downgrade older employees when they were deciding who was going to get a C rating as opposed to an A or B?

[00:21:01] Speaker 06:
Your Honor, this is where the district court did drill down on those kind of statements of counsel.

[00:21:07] Speaker 01:
That wasn't a statement of counsel, that was a statement in a deposition by Deborah Miller.

[00:21:11] Speaker 06:
Okay, let me start with Mr. Walker.

[00:21:14] Speaker 06:
And then I'll address Ms.

[00:21:15] Speaker 06:
Marra.

[00:21:17] Speaker 06:
There's no evidence that Mr. Walker was involved in any decision to conduct a reduction in force.

[00:21:23] Speaker 01:
How the reduction... But can we reasonably infer that he had a role to play in the performance rating in 2012?

[00:21:36] Speaker 01:
Because the performance ratings in 2012

[00:21:42] Speaker 06:
Directly went into the combination of versatility and criticality in deciding who was going to be a seat get a C rating in the retention exercise the The criteria for the retention ranking was a three-prong You had performance versatility and criticality so performance is actually distinct from the other two but

[00:22:07] Speaker 06:
There's no evidence that he was involved in rating or selecting any employees or directing anyone in that regard.

[00:22:15] Speaker 06:
And the Doe v. University of Denver case would view this, the 10 circuit case, as an isolated remark.

[00:22:22] Speaker 01:
And his statements... It's an isolated remark even if he made that statement in the calibration exercises?

[00:22:31] Speaker 06:
Well, the allegation is not that he made it in calibration,

[00:22:36] Speaker 06:
as I understand, performance, which is not the same.

[00:22:39] Speaker 06:
But he is not commenting on the reduction in force and the decision making there.

[00:22:50] Speaker 05:
I'm getting confused here.

[00:22:53] Speaker 05:
If he had a role in how employees are, how their performance is evaluated.

[00:23:02] Speaker 05:
And there was an ageist bias in that regard that Mike Wells show up eventually in how you determine who's going to be riffed.

[00:23:15] Speaker 05:
So if he had a role in evaluating performance and he's telling people how to evaluate performance, would that not be a pattern, a practice, a high-level decision by spirit?

[00:23:28] Speaker 06:
There's no evidence in the record that a chief technology officer had any say with the hundreds of people who were involved in many different divisions.

[00:23:41] Speaker 05:
What was the nature of this event where he allegedly made these remarks?

[00:23:47] Speaker 05:
I thought it was a performance evaluation meeting.

[00:23:53] Speaker 06:
As I understand, Deborah Miller testified about this.

[00:23:56] Speaker 06:
But the record doesn't really reveal where it occurred or how or to whom.

[00:24:04] Speaker 06:
But let me just point out, even if a statement was made, the 10th Circuit line of authority dealing with stray, isolated comments has to be by a decision maker.

[00:24:15] Speaker 06:
There's no evidence that

[00:24:17] Speaker 06:
Mr. Walker was deciding anything, reviewing any performance of anyone as it relates to this case with the reduction force.

[00:24:26] Speaker 06:
And there has to be a causal connection on top of that to the reduction force here, the selection of older workers.

[00:24:33] Speaker 06:
The evidence is just lacking in that area.

[00:24:37] Speaker 01:
Well, if there is no testimony about the context in which David Walker made the statement,

[00:24:46] Speaker 01:
in front of Deborah Miller.

[00:24:47] Speaker 01:
And if Deborah Miller didn't testify not only to that statement, but that she was being pressured by HR to downgrade older employees and put them in the C category, how do you say that there is not a reasonable inference to be made that this could have been made in the context of calibration exercises

[00:25:13] Speaker 01:
that the whole point was to train these 300 managers on how to exercise these PM ratings, on who to put in the lower 10%, the C ratings.

[00:25:30] Speaker 01:
Doesn't the vacuous nature of the context countenance in favor of denying the summary judgment

[00:25:43] Speaker 06:
No, Your Honor.

[00:25:45] Speaker 06:
As I said earlier, this is a pattern or practice case.

[00:25:49] Speaker 06:
There has to be a showing that all these hundreds of decision makers, all were motivated to discriminate on the basis of age.

[00:25:58] Speaker 01:
What if Mr. Lawson had sat there, or Mr. Turner had sat there with the 300 managers,

[00:26:05] Speaker 01:
and said, I want you to downgrade older employees, and all things being equal, put them in the C rating.

[00:26:11] Speaker 01:
And also, keep in mind that the future of the company are the newer employees, not the old men and women.

[00:26:18] Speaker 01:
Now would there be evidence to support an ageist pattern of practice?

[00:26:26] Speaker 06:
Your Honor, there's no evidence that either Mr. Turner or Lawson ever said such a thing.

[00:26:31] Speaker 05:
But let me also- Would you agree that if they did,

[00:26:34] Speaker 05:
That would be evidence?

[00:26:36] Speaker 06:
If they directed the first line supervisors to engage in discrimination, yes, but that does not exist in this case.

[00:26:45] Speaker 01:
Well, down let's say you substitute Jeffrey Turner and you put in David Walker, Chief Technology Officer.

[00:26:53] Speaker 01:
Why is the result different?

[00:26:54] Speaker 06:
Well, like I said, there's no evidence to whom he was referring to

[00:27:02] Speaker 06:
How many people was he referring to?

[00:27:04] Speaker 06:
Who had even heard him?

[00:27:07] Speaker 05:
I thought, maybe I misunderstood.

[00:27:10] Speaker 05:
I thought this alleged statement by Mr. Miller, or not by Mr. Walker, was to 300 managers.

[00:27:20] Speaker 06:
No, I don't believe that's accurate.

[00:27:22] Speaker 06:
It's not in the record.

[00:27:23] Speaker 05:
There's no record of when he made or to when they made that statement.

[00:27:27] Speaker 06:
That's correct.

[00:27:28] Speaker 06:
And Your Honor, I would like to point out the absolute billing

[00:27:32] Speaker 06:
and spirit case from the 10th Circuit in 2012 addresses comments that were found to be stray and isolated.

[00:27:42] Speaker 06:
And the court basically says a mere handful of statements in the face of hundreds of decisions in performance ratings, retention rankings, and layoff selections is just insufficient to establish a pattern of practice.

[00:27:59] Speaker 06:
I'll give you an example.

[00:28:00] Speaker 06:
The latest pattern or practice case to come before the United States Supreme Court was Walmart versus Dukes.

[00:28:09] Speaker 06:
It was a gender discrimination case.

[00:28:10] Speaker 06:
It was a Rule 23 case.

[00:28:13] Speaker 06:
But there, the U.S.

[00:28:14] Speaker 06:
Supreme Court

[00:28:15] Speaker 06:
in addressing commonality, it did address the pattern or practice paradigm.

[00:28:20] Speaker 01:
I thought it was commonality under Rule 23.

[00:28:23] Speaker 01:
Yes, I understand.

[00:28:25] Speaker 06:
But the court did address the elements of pattern or practice.

[00:28:28] Speaker 06:
I'm just bringing this up as an example.

[00:28:32] Speaker 06:
The U.S.

[00:28:32] Speaker 06:
Supreme Court found there was just no evidence that the decision makers, the frontline supervisors, in that case dealing with pay and promotions,

[00:28:42] Speaker 06:
were somehow guided by an edict or something else that required them to always exercise their discretion against women.

[00:28:51] Speaker 06:
So taking that by analogy to our case, there is no evidence here whatsoever that the first line managers were guided by some edict or policy or something else that required them to exercise discretion against older workers.

[00:29:09] Speaker 06:
Now keep in mind,

[00:29:11] Speaker 06:
Dr. White, who was the statistician, did a traditional analysis where he measures the expected number of how many people over 40 should have been laid off.

[00:29:24] Speaker 06:
And there was a deviation of eight people.

[00:29:26] Speaker 06:
And that was found to be statistically insignificant.

[00:29:30] Speaker 06:
There was also, and by the way, uncontroverted, the other side never did an analysis of that type to refute that number.

[00:29:41] Speaker 06:
The average age did not change materially.

[00:29:48] Speaker 05:
Isn't that a part?

[00:29:49] Speaker 05:
In part because the number of people RIFT was such a small percentage of the total workforce.

[00:29:56] Speaker 05:
So you could have great disparities in who's RIFT without changing the average age makeup of the workforce.

[00:30:11] Speaker 06:
The way the reduction force was carried out, even though some of these plaintiffs are crying foul, that they were selected for the reduction force.

[00:30:20] Speaker 06:
Their co-workers who were much older were kept on in many instances.

[00:30:25] Speaker 06:
But the age before and after is something the 10th Circuit has looked at before.

[00:30:31] Speaker 06:
For example, in the Apsley, it was an important issue.

[00:30:35] Speaker 06:
And if they're alleging age discrimination with the intent to get rid of older workers,

[00:30:40] Speaker 06:
Well, the evidence at least on the average age front doesn't support that.

[00:31:06] Speaker 06:
Let me just address briefly, there was a comment about new hires after reduction force.

[00:31:12] Speaker 06:
Those were for hourly positions.

[00:31:16] Speaker 06:
The plaintiffs in this case were salaried employees, not managers, but salaried employees.

[00:31:25] Speaker 06:
The positions that they're saying they were hiring for in 2013

[00:31:30] Speaker 06:
were hourly employees, a whole different job category.

[00:31:33] Speaker 01:
Were they for the Wichita plant, or was that a company?

[00:31:37] Speaker 06:
They included for Wichita, and that's where the job fair was.

[00:31:40] Speaker 01:
No, I know it included Wichita.

[00:31:42] Speaker 01:
OK, it included Wichita.

[00:31:43] Speaker 01:
I just didn't know if it included Tulsa.

[00:31:45] Speaker 06:
Do you mean the openings or the?

[00:31:47] Speaker 01:
The statistics that you're rebutting.

[00:31:51] Speaker 06:
They were just simply for Wichita.

[00:31:53] Speaker 06:
For Wichita.

[00:31:54] Speaker 06:
OK, thanks.

[00:31:57] Speaker 06:
Yes.

[00:31:58] Speaker 06:
This reference to all the companies hiring afterwards, they're hiring for hourly positions that are not part of the positions that were eliminated.

[00:32:08] Speaker 06:
And the district judge did say that there was no evidence that anyone was hired for those positions where the employees were laid off.

[00:32:18] Speaker 06:
I think that's an important fact.

[00:32:31] Speaker 06:
And just real briefly on the statistics, there was no battle of the experts here.

[00:32:37] Speaker 06:
The judge accepted as true many of the things the plaintiffs' experts said, but they just didn't address what was needed to find a pattern or practice of discrimination.

[00:32:49] Speaker 06:
Many of the studies by both experts didn't analyze the correct population.

[00:32:55] Speaker 06:
While it may have been mathematically correct, their numbers, it didn't answer or lend

[00:33:01] Speaker 06:
any support for a pattern or practice of discrimination.

[00:33:05] Speaker 06:
And the district judge, he really did go through the statistical issues and explained his rationale.

[00:33:12] Speaker 06:
It is supported by the Apsley case.

[00:33:15] Speaker 06:
I see that I've gone over, but the Apsley case found that higher standard deviations were not sufficient for a pattern or practice case because there was no evidence

[00:33:27] Speaker 06:
of any sort of pattern or practice with other evidence.

[00:33:32] Speaker 06:
We have the same scenario here.

[00:33:34] Speaker 06:
Our district judge said two and three standard deviations are not enough, especially when these policies are facially neutral, workers are being trained to not use age in their decision making.

[00:33:48] Speaker 05:
When you say there was no battle of the experts here, I thought the district court discounted a fair amount of plaintiff's experts.

[00:33:57] Speaker 05:
testimony as being poor science, perhaps, because, for example, in performing their analysis, the experts didn't consider the fact that versatility was a factor in hiring, things like that.

[00:34:20] Speaker 05:
You don't read the district court as having done that?

[00:34:22] Speaker 06:
No.

[00:34:23] Speaker 06:
I mean, the court did say that

[00:34:26] Speaker 06:
Dr. Kaufman didn't control for versatility and criticality, and that was factors being measured for retention ranking.

[00:34:35] Speaker 06:
He did point that out.

[00:34:36] Speaker 06:
But let me give you an example.

[00:34:38] Speaker 06:
Like Dr. Bardwell, he says, he's related to the hiring claim, he says if you're a former employee,

[00:34:50] Speaker 06:
chances of you being employed are less than if you were an external hire or an existing employee seeking a promotion.

[00:35:01] Speaker 06:
Okay, the judge accepted that as true, but that didn't address an age issue.

[00:35:08] Speaker 06:
Okay, the correct analysis would have been to look at the applicant pool, external, internal, people seeking promotions,

[00:35:19] Speaker 06:
People formerly laid off or fired for other reasons or resigned.

[00:35:23] Speaker 06:
Look at the entire applicant pool and measure the number of people coming in.

[00:35:28] Speaker 06:
So Dr. Bardwell didn't study that.

[00:35:31] Speaker 06:
It was not helpful because he didn't correlate anything to age.

[00:35:34] Speaker 06:
That's my point.

[00:35:37] Speaker 05:
I'm not sure we're saying something different.

[00:35:40] Speaker 05:
I'm not sure why you're unwilling to say that the district court

[00:35:45] Speaker 05:
disregarded some of the experts, some plaintiffs' experts.

[00:35:51] Speaker 05:
I think what you're saying is, yeah, they performed an analysis, but it was irrelevant to the issue.

[00:35:55] Speaker 06:
That's what I'm saying, Your Honor.

[00:35:57] Speaker 06:
Thank you.

[00:35:58] Speaker 06:
I appreciate the time.

[00:36:14] Speaker 05:
You had plenty of time.

[00:36:17] Speaker 05:
Thank you.

[00:36:19] Speaker 04:
I want to point out that under 216B there's an initial certification which under the Thiessen case requires the same policy decision or plan.

[00:36:32] Speaker 04:
That's the initial certification standard under 216B.

[00:36:35] Speaker 04:
The final certification requires a higher level

[00:36:40] Speaker 04:
a stricter analysis and a determination by the district court of whether we're talking about one trial or 271 trials.

[00:36:49] Speaker 04:
If the individual managers were making this decision,

[00:36:53] Speaker 04:
then the case gets decertified.

[00:36:55] Speaker 04:
The district court said this, that the assertions by spirit that these were individual manager decisions without influence by upper management or anyone like David Walker, they said the case should be decertified.

[00:37:10] Speaker 04:
The court said this, those assertions, and that's at page 11 of the 2023 order,

[00:37:16] Speaker 04:
are outweighed by evidence that the plaintiffs were subjected to common policies.

[00:37:22] Speaker 04:
So the court said this was, and then in the same order.

[00:37:28] Speaker 05:
You're taking your minute.

[00:37:29] Speaker 05:
All right.

[00:37:30] Speaker 04:
My point is this, Ron.

[00:37:31] Speaker 04:
The court found that there was a common policy.

[00:37:36] Speaker 04:
That was necessary and essential to a determination of final certification

[00:37:40] Speaker 04:
And that undermines the notion that individual decision makers, individual managers made these decisions.

[00:37:47] Speaker 04:
Thank you.

[00:37:51] Speaker 05:
Cases submitted.

[00:37:52] Speaker 05:
Counselor excused.