[00:00:00] Speaker 04:
You may proceed.

[00:00:03] Speaker 04:
Thank you.

[00:00:03] Speaker 04:
Good morning, Your Honors.

[00:00:05] Speaker 04:
May it please the court, Joseph Klapich, for the appellants, and I'd like to reserve two minutes for rebuttal, if I may.

[00:00:12] Speaker 04:
This is an appeal from a summary judgment in an age discrimination action.

[00:00:16] Speaker 04:
The appellants presented compelling evidence that Circle K deliberately concealed open directors positions from qualified and interested older employees and chose instead to secretly fast track and fill those director positions with their preferred younger candidate.

[00:00:33] Speaker 04:
The evidence in the case includes direct statements of discriminatory intent, hiring of an unqualified employee, promotion and violation of internal policies, false statements being made about that promotion, and extensive efforts to replace older workers with unqualified younger workers.

[00:00:53] Speaker 04:
And this is exactly the kind of evidence that the case law has said creates tribal issues of fact in age discrimination cases.

[00:01:00] Speaker 04:
Now, the trial court here granted summary judgment because it mistakenly excluded evidence on what I'm sort of lumping together as two critical facts.

[00:01:10] Speaker 04:
The first critical fact was appellant's evidence that Circle K had violated its own internal practice of posting job openings when it promoted Angelus to the director position.

[00:01:22] Speaker 01:
Let's assume for a moment that that evidence was appropriately excluded.

[00:01:28] Speaker 01:
Does it make a difference in the bottom line?

[00:01:32] Speaker 04:
No.

[00:01:33] Speaker 04:
I mean, I'm willing to argue it wasn't.

[00:01:35] Speaker 01:
I'm trying to figure out, as we deconstruct your problems with the district court's approach, which ones are essential to your argument and which ones just add to your argument.

[00:01:47] Speaker 04:
I would state our arguments on this issue as being twofold.

[00:01:53] Speaker 04:
The first argument would be that even if this evidence had been properly excluded, there was still sufficient evidence to create triable issues of fact here because there was admissible evidence that one, Circle K deliberately failed to publicize the director positions, and that's at pages 374 and 75 of the record.

[00:02:14] Speaker 04:
and that Circle K knew that the appellants were qualified and interested in being promoted to those positions.

[00:02:19] Speaker 01:
I'm trying to figure out what the failure to publish adds to the case.

[00:02:24] Speaker 01:
It's a nice fact, if admitted, but they had expressed an interest in the position.

[00:02:32] Speaker 01:
There's no contest about that.

[00:02:35] Speaker 01:
And the position was open and nobody contacted them ostensibly because

[00:02:40] Speaker 01:
other evidence may show because of their age.

[00:02:43] Speaker 01:
So I'm wondering why that fact is essential to your case.

[00:02:47] Speaker 04:
It's not.

[00:02:48] Speaker 04:
And to follow that, we believe that the Below and the Mostafa cases provide that when an employer has an open position and knows that there are employees who are both qualified and interested in that position, the employer can't just

[00:03:05] Speaker 04:
Secretly fill that position with someone else.

[00:03:08] Speaker 01:
I think see that's why that's why I'm pushing back I think the employer probably can as long as he doesn't fill that in violation of the statute which is to say preferring somebody or Preferring somebody or grading somebody down because of their age correct.

[00:03:24] Speaker 01:
There's no general requirement that positions be advertised

[00:03:28] Speaker 04:
Correct.

[00:03:29] Speaker 04:
But then what we would be talking is, what's the evidence of discriminatory intent?

[00:03:33] Speaker 01:
That's right.

[00:03:34] Speaker 01:
And that's what I'm saying is that since you have other evidence, I'm not sure why this is the most important part of your case.

[00:03:42] Speaker 04:
Again, it's an issue.

[00:03:46] Speaker 04:
Because what the trial court said was, you didn't apply for the positions.

[00:03:50] Speaker 04:
And we said we didn't apply because we didn't know about it.

[00:03:52] Speaker 04:
And our position is first,

[00:03:55] Speaker 04:
not knowing about it, even the fact that they filled the position without giving us an opportunity excuses us from having to apply for it.

[00:04:04] Speaker 04:
And then second of all, there was a practice here, an internal practice that was violated.

[00:04:09] Speaker 04:
So I think that's the first issue that we would talk about.

[00:04:13] Speaker 01:
Let me spend one more second on this.

[00:04:15] Speaker 01:
Is there a requirement under the statute that one apply for the positions or merely that one expressed an interest in?

[00:04:23] Speaker 01:
in the promotion of the position.

[00:04:25] Speaker 04:
Right, and this is what we believe an error is of the district court here, is that there is no requirement that you apply if they know that you're interested in the position and they fill it without giving you an opportunity to apply.

[00:04:37] Speaker 04:
The way the case law describes it is if they prevent you or discourage you from applying, the one case very colorfully said if there was a sign, no Irish need apply,

[00:04:47] Speaker 04:
If you were Irish and didn't apply, then you wouldn't have to show that applying in that case was a feudal act.

[00:04:55] Speaker 04:
Here, my clients were prevented from applying.

[00:04:58] Speaker 04:
And I think the second critical evidence that sort of advanced the argument was the fact that the trial court excluded on hearsay ground the evidence that Wilkins made the decision to promote Angelus in December 2019.

[00:05:13] Speaker 04:
And that evidence was also not inadmissible hearsay.

[00:05:16] Speaker 04:
And there's two components to it.

[00:05:18] Speaker 04:
Let's start with the evidence of who made the decision.

[00:05:22] Speaker 04:
We have various forms of evidence on that.

[00:05:25] Speaker 04:
One is Maloney's testimony about the custom in practice.

[00:05:28] Speaker 04:
He said there's a three-step process.

[00:05:31] Speaker 04:
There's a posting.

[00:05:32] Speaker 04:
There's the supervisor sign-off.

[00:05:37] Speaker 04:
in which he actively and personally participated in.

[00:05:40] Speaker 04:
And then there's the interview and selection that's done by the vice president here at Wilkins.

[00:05:48] Speaker 04:
And so that was his testimony.

[00:05:50] Speaker 04:
And because Maloney was personally involved in that promotion process, our position is that that's admissible as a party admission under

[00:05:59] Speaker 04:
the Mikowski case and the Marra cases, which we cited in our brief.

[00:06:03] Speaker 04:
And then in addition to that, we don't think it's... It's not even really a party admission, is it?

[00:06:07] Speaker 03:
Because he's not testifying about what anybody said.

[00:06:12] Speaker 03:
He's just describing a fact about what happened, right?

[00:06:15] Speaker 04:
Correct.

[00:06:15] Speaker 04:
And that would be another one of arguments that I was going to get to, too, that it's not even

[00:06:20] Speaker 04:
Here say because all he's doing is describing the procedure that's normally followed and then his testimony is this is the procedure is normally followed We follow that procedure and other examples we've put we started following it here because we had these two-day meetings in which I advanced the appellants as saying they were highly qualified and should be approved you know should be considered for this position and

[00:06:41] Speaker 04:
And then all of a sudden, I found out this position was filled.

[00:06:43] Speaker 04:
And he says, and I called up Wilkins.

[00:06:48] Speaker 04:
And he says, this is the second part that was excluded as hearsay, which I don't believe is hearsay.

[00:06:53] Speaker 04:
It's also a party admission.

[00:06:54] Speaker 04:
And Wilkins, I said, hey, why didn't we follow the regular process here?

[00:06:58] Speaker 04:
And Wilkins said, I made the decision.

[00:07:00] Speaker 03:
And what about, you also have, I believe it was evidence that Angeles had said that Wilkins hired him.

[00:07:08] Speaker 03:
Why isn't that hearsay?

[00:07:09] Speaker 03:
The district court said that was excludable as hearsay.

[00:07:13] Speaker 03:
Why is that wrong?

[00:07:14] Speaker 04:
I would believe that it is hearsay but not inadmissible hearsay.

[00:07:17] Speaker 04:
And the reason why I would say that is because Angeles is personally participating in this process.

[00:07:23] Speaker 04:
He's the applicant.

[00:07:24] Speaker 04:
He's the one who's applying for the job, right, and he then is in a position to state that he was hired, I was hired by Wilkins.

[00:07:34] Speaker 04:
Wilkins was the one, he interviewed me, he told me I was hired, and here we are.

[00:07:37] Speaker 01:
He's in a position to state it, but what exception to the hearsay rule gets in his out of court statement?

[00:07:43] Speaker 04:
It's a party admission, and I think here the evidence is really quite stunning because as Randall Smith testified.

[00:07:50] Speaker 03:
To be a party admission, it has to be,

[00:07:52] Speaker 03:
you know, by the party's agent or employee, which he was, about something within the scope of the agency or employment relationship.

[00:08:03] Speaker 03:
And what he's, what the statement is about is about his applying for a new position that he didn't have at the time he applied for it.

[00:08:12] Speaker 03:
So how is that within the scope of his employment?

[00:08:14] Speaker 04:
Well, I think what you have here is you have both the applying employee

[00:08:20] Speaker 04:
and the departing, or the applying supervisor, let's call it that, and the departing supervisor, they're both, and this goes more to the when than the who.

[00:08:28] Speaker 01:
But separate the two.

[00:08:29] Speaker 01:
I mean, you've already told us why Wilkins is, why you think Wilkins is a statement.

[00:08:33] Speaker 01:
Right.

[00:08:34] Speaker 01:
Angeles is making an out-of-court statement not within the scope of his

[00:08:40] Speaker 01:
responsibilities as I think that's what I'm inclined to think that Judge Miller's got his finger on the problem here so tell me why with respect to him not with respect not with respect to whether was corroborated by Wilkins.

[00:08:54] Speaker 04:
I would argue that is within the scope of his responsibilities as a newly promoted supervisor to explain to his employees when he was promoted and by whom.

[00:09:07] Speaker 04:
And so when you promote an employee and he comes in and he held a team Skype meeting in which he said, I've been promoted, I'm going out to California, make sure you send all your emails to this guy because he's going to be kind of filling in during this transition period.

[00:09:23] Speaker 04:
I think under those circumstances, it's within the scope of his duties as an employee to explain

[00:09:31] Speaker 04:
you know, what happened through the promotion process.

[00:09:34] Speaker 04:
He comes in one day and he says to his fellow employees, I'm going to be your new boss, right?

[00:09:39] Speaker 04:
Or he says to his former, the employees he formerly supervised, I'm no longer going to be your new boss, right?

[00:09:46] Speaker 04:
I think that's within the scope of his duties.

[00:09:49] Speaker 01:
I think all that's true, but is it also true that saying I was promoted by Mr. Wilkins is within the scope of his duties?

[00:09:57] Speaker 01:
That's that's the question.

[00:09:58] Speaker 04:
Right.

[00:09:59] Speaker 04:
I think for for Angeles and and boner the incoming and outgoing supervisors.

[00:10:08] Speaker 04:
I think the important thing there is for the when it really goes more to the when when when he comes forward and says in December 2019 I've been promoted.

[00:10:16] Speaker 04:
I think that's evidence that he was promoted in 2019, and that can be considered for that purpose.

[00:10:22] Speaker 04:
So that even to the extent it's hearsay, which I don't know that it is, it's just the fact that he said it at that time, but I would agree that the stronger evidence is

[00:10:34] Speaker 04:
Maloney's statements to Wilkins and the policy that was in place, that was departed from, at least with respect to the first two steps of the process that Maloney testified to.

[00:10:48] Speaker 04:
And it was within the scope of Maloney's duties because he's a supervisor.

[00:10:52] Speaker 04:
And we have the cases we cited, the Mikowski, the Mara, the Simple case, which is discussed in those cases.

[00:10:58] Speaker 04:
All these cases say that when a supervisor is

[00:11:03] Speaker 04:
Explaining an expert is describing an explanation that was given to him by his supervisor About what happened in this promotion process that that's not inadmissible hearsay in fact Can I just take ask you to because you're we've we've used up your time that will give you two minutes for rebuttal But I just want to ask you to address

[00:11:23] Speaker 03:
an issue that maybe isn't before us, but if this case were to move forward, if you were to win here, you've got three plaintiffs.

[00:11:34] Speaker 03:
They couldn't all have been hired, so how would that work going forward and how do you see damages working?

[00:11:41] Speaker 04:
Oh, boy.

[00:11:41] Speaker 04:
I think that's sort of a bit beyond the scope of here.

[00:11:45] Speaker 04:
I think it would have to be a question for the jury to decide that there are three plaintiffs

[00:11:51] Speaker 04:
you know, what would have happened and which of the three plaintiffs should win, you know, or should they all win something because they were all discriminated against even though it's hard to tell exactly which one would have been promoted.

[00:12:07] Speaker 03:
Okay.

[00:12:07] Speaker 03:
All right.

[00:12:07] Speaker 03:
Thank you.

[00:12:13] Speaker 03:
Ms.

[00:12:13] Speaker 03:
Rodriguez.

[00:12:14] Speaker 02:
Thank you, Your Honors.

[00:12:15] Speaker 02:
May it please the court

[00:12:18] Speaker 02:
I want to be as direct as possible and concise.

[00:12:21] Speaker 02:
I think that the key issues that we should respond to in sort of reverse order, if I may, number one, the cases the appellant cites to support the notion that there was a policy related to job postings being required all include written policies or at least an email.

[00:12:42] Speaker 01:
Does it matter?

[00:12:43] Speaker 01:
That's why I asked.

[00:12:44] Speaker 01:
That's why I was asking your friend this.

[00:12:47] Speaker 01:
A position was open.

[00:12:48] Speaker 01:
Nobody doubts that.

[00:12:52] Speaker 01:
There's evidence, finder of fact, may or may not believe it, that each of these three people who seem to be facially qualified had expressed an interest in promotion.

[00:13:05] Speaker 01:
And there is evidence, I think, you can contest this as we go on, that one reason they may not have been considered was because of their ages.

[00:13:14] Speaker 01:
Does it matter whether there's a policy of posting or not?

[00:13:17] Speaker 01:
See, I'm having trouble with the district court's notion that, well, you didn't apply.

[00:13:21] Speaker 01:
And whether or not there was a policy of posting, open things or not, surely the statute can't be circumvented simply by not posting.

[00:13:33] Speaker 01:
and then favoring people of a younger age.

[00:13:36] Speaker 01:
So I'm trying to figure out, I was asking the same question of your friend, but I'm asking it of you now, why is it terribly important whether there was a policy of posting or not?

[00:13:45] Speaker 02:
Understood, Your Honor.

[00:13:46] Speaker 02:
We agree, and it's clear from the record in the district court's 33 page, very well reasoned decision,

[00:13:54] Speaker 02:
that plaintiff failed to show that there was any discriminatory animus.

[00:14:01] Speaker 01:
Well, let's turn to that in a second.

[00:14:02] Speaker 01:
You started off with this notion that they're wrong, you don't have to post things.

[00:14:09] Speaker 01:
The cases don't say that yet.

[00:14:10] Speaker 01:
Maybe if there's a written policy, you have to.

[00:14:13] Speaker 01:
And I'm pushing back on that because they had an open position.

[00:14:16] Speaker 01:
that these people say they weren't considered for because of their age.

[00:14:20] Speaker 01:
And I'm not sure why it matters if they can show that, that there was a policy of posting or no policy of posting.

[00:14:29] Speaker 01:
So tell me why posting, is it all relevant here?

[00:14:32] Speaker 02:
Sure.

[00:14:33] Speaker 02:
I don't think we believe it is necessarily relevant.

[00:14:36] Speaker 01:
But the district court relied on it.

[00:14:38] Speaker 01:
The district court said you never applied.

[00:14:41] Speaker 01:
And their response was, well, we didn't apply because you didn't post it.

[00:14:45] Speaker 01:
And I'm saying, I'm not sure why the district court's reliance on the absence of the application moves us anywhere.

[00:14:53] Speaker 01:
And I think to the extent it did, it may have aired.

[00:14:56] Speaker 02:
Yes, Your Honor.

[00:14:58] Speaker 02:
Bonner announced his resignation in January 15 of 2020.

[00:15:04] Speaker 02:
And Angeles obviously raised his hand for it.

[00:15:07] Speaker 02:
And what I think that the district court refers to also are previous openings for this type of position that were filled by a variety of people, both over the age of 50 and under the age of 50.

[00:15:21] Speaker 02:
And in those cases, the plaintiffs also didn't raise their hand and express interest.

[00:15:29] Speaker 01:
Well, but you're not really saying that there's no contest that these people weren't interested in this position.

[00:15:37] Speaker 01:
They presented evidence that they were interested in the position.

[00:15:43] Speaker 01:
So I'm just not sure why we need to... The real question for me in this case, and so I'd like you to get to it, is there sufficient evidence of discriminatory animus?

[00:15:55] Speaker 01:
And there's what concerns me there,

[00:15:58] Speaker 01:
aside from whatever presumptions arise from differences in ages, is a fairly robust record about ageist comments made by Circle K personnel.

[00:16:10] Speaker 01:
And I'm trying to figure out why they're not enough to get them past summary judgment to a jury.

[00:16:17] Speaker 02:
Your Honor, I believe you're referring to comments ascribed to Wilkins.

[00:16:22] Speaker 01:
who was not involved in the decision whatsoever, and the record's clear that Simonelli made the decision to... Is the record clear on that, or is the record... Do you have good evidence that he was, but there's some evidence that Wilkins was involved?

[00:16:38] Speaker 02:
No evidence has been presented that Wilkins was involved.

[00:16:41] Speaker 03:
What about the statement from Maloney that in the normal course the decision was made by the Vice President to whom the hire would report, which would have been Wilkins?

[00:16:52] Speaker 03:
Why isn't that evidence that Wilkins was the decision maker?

[00:16:56] Speaker 02:
Well, Your Honor, I think that at least from what I heard from Appellants Council talking about

[00:17:03] Speaker 02:
The, for example, statements that Angeles made at the end of 2019 that he's moving to California, it seems like we're conflating the first promotion that he got to the D&T position that is what brought him out to California.

[00:17:17] Speaker 02:
And at least the way I heard it, there was some confusion about which decision we're talking about.

[00:17:23] Speaker 01:
But if there's confusion, is that enough to get us past summary judgment?

[00:17:29] Speaker 02:
I was trying to be diplomatic.

[00:17:31] Speaker 02:
I felt that Appellant was confusing or conflating those two promotions.

[00:17:36] Speaker 02:
And when Angeles made the comment on the phone call or the video conference that Appellant's counsel is referring to, it's clear that Angeles was talking about the D&T position, which is what brought him to California in the first place.

[00:17:52] Speaker 02:
And what is clear

[00:17:53] Speaker 02:
in the record is that appellants argue that Wilkins made the decision to promote Angelus in December of 2019, which is factually impossible from the admissible and uncontroverted evidence in the record because Bonner didn't make the decision to resign until January 15,

[00:18:18] Speaker 03:
So I wasn't asking about Antilles' comments, I was asking about Maloney's.

[00:18:22] Speaker 03:
I had understood that Maloney testified about what the general practice was for hiring when a regional director position became available.

[00:18:35] Speaker 03:
And he didn't say, and it was Wilkins, but from his testimony about who would do it,

[00:18:43] Speaker 03:
in the normal course, one could infer that it was Wilkins.

[00:18:47] Speaker 03:
Why doesn't that support the conclusion that it was Wilkins?

[00:18:51] Speaker 02:
Well, I think Maloney was testifying about a general practice, not what actually happened in this case.

[00:18:57] Speaker 01:
So if he were to say, the Vice President of the United States normally picks the head of the National Security Council, and we were trying to figure out who picked the head of the National Security Council, but there was no other evidence, wouldn't that be some evidence that the Vice President of the United States picked that person?

[00:19:12] Speaker 01:
I'm not sure that corporate America is as organized as... Oh, it better be.

[00:19:17] Speaker 01:
It better be better organized.

[00:19:21] Speaker 02:
Well, we'll leave that for another day, Your Honor.

[00:19:23] Speaker 02:
But I think that that's not what happened in this case.

[00:19:30] Speaker 02:
And I think that that's what's important.

[00:19:32] Speaker 02:
And there was no doubt from the admissible evidence of who was involved in the decision.

[00:19:39] Speaker 02:
And not only did Wilkins not make the decision,

[00:19:42] Speaker 02:
for the Corona position, but he had no influence in the decision.

[00:19:46] Speaker 02:
And Simonelli made that clear that he was the decision maker.

[00:19:51] Speaker 02:
And I think what actually happened is what's relevant in this matter.

[00:20:05] Speaker 02:
I would be happy to respond to any other questions that the court is considering.

[00:20:10] Speaker 03:
Well, maybe just to sort of go back to the point that we started with.

[00:20:16] Speaker 03:
In the normal course, a prima facie case requires the plaintiff to show that he or she applied for the position, right?

[00:20:25] Speaker 03:
Do you agree that if the employer doesn't tell the employee, or it doesn't tell the potential applicant that the position is available, that they don't need to show that they applied to make a prima facie case?

[00:20:44] Speaker 02:
Now I think that the issue here was that Bonnert made it clear that he was leaving, so it was clear.

[00:20:48] Speaker 03:
Well, I mean, I know this is just a question about the law, not about what happened in this case, just in general.

[00:20:53] Speaker 03:
Is an employer excused in making a prima facie case?

[00:21:01] Speaker 03:
Let me start over.

[00:21:02] Speaker 03:
Is an applicant or a person who was not hired, it's a person who was not hired, a plaintiff, excused from showing that they applied for the job if they can show that the employer didn't tell them that the job was available?

[00:21:20] Speaker 02:
Well, so, Your Honor, I think it's two parts, right?

[00:21:22] Speaker 02:
The applicant has to show that they were qualified and that they applied for that.

[00:21:26] Speaker 01:
But just focus on the part he's asking about, application.

[00:21:31] Speaker 02:
Application, I think, is about showing interest.

[00:21:33] Speaker 02:
It's not necessarily that you have to handwrite an application.

[00:21:37] Speaker 02:
And certainly, if the appellants in this case had raised their hand and showed interest in the position, there'd be evidence that they were considered for the position.

[00:21:48] Speaker 01:
Now I want to extend your time a little bit on this.

[00:21:52] Speaker 01:
Not this case, so you don't have to tell me the facts are different.

[00:21:54] Speaker 01:
You have an employer who says,

[00:21:57] Speaker 01:
I'm never going to post positions because it's really a pain in the neck to deal with all these eager employees.

[00:22:03] Speaker 01:
So I'll never post them.

[00:22:06] Speaker 01:
But that employer along the way prefers people because of age or defers people because of age.

[00:22:12] Speaker 01:
So are they outside the act because nobody ever knows to apply for the positions?

[00:22:19] Speaker 01:
Can't raise their hands?

[00:22:21] Speaker 01:
It seems to me just not to make any sense.

[00:22:26] Speaker 02:
I'm not sure that that's the way it works in a company.

[00:22:29] Speaker 01:
I'm not asking you the way it works.

[00:22:30] Speaker 01:
See, we're asking you for a legal construct.

[00:22:33] Speaker 01:
And you're saying you at least got to raise your hand and say I'm interested.

[00:22:37] Speaker 01:
You may not have to formally apply.

[00:22:39] Speaker 01:
But what if you don't know the position is open because your employer doesn't post it, whether out of ill motive or otherwise?

[00:22:48] Speaker 01:
Are you then not protected by the act?

[00:22:51] Speaker 02:
An employee can express interest in a position whether it's open or not.

[00:22:54] Speaker 00:
Well, what if there's record evidence that the employees had expressed interest even before the position came open?

[00:23:04] Speaker 00:
It seems the record reflects that there was evidence that upper management knew performance had been rated highly, that they were due for a promotion, and that they were all interested in a promotion.

[00:23:19] Speaker 00:
So that was, and that was known, did they, why temporarily did they have to re-express that interest when the position came open but was not posted and was quickly filled by someone else?

[00:23:31] Speaker 02:
Of course, Your Honor, and I was responding to that question, but to your point, assuming, arguing that they had raised their hand and that the evidence bears out, at the end of the day, Angelus clearly had

[00:23:46] Speaker 02:
the supervisory experience in that position.

[00:23:48] Speaker 00:
Well, that's a different issue.

[00:23:49] Speaker 00:
We're focusing on your contention that, as a matter of law, that the plaintiff has to show interest in the position.

[00:23:59] Speaker 00:
And you said, you know, the position got announced, it's opening, and they didn't raise their hand temporarily, right?

[00:24:09] Speaker 00:
Perhaps you're correct that there wasn't a post announcement.

[00:24:13] Speaker 00:
Let's assume you're correct.

[00:24:13] Speaker 00:
There's no evidence that post announcement they said, I want his job.

[00:24:18] Speaker 00:
But what if there is evidence that pre that announcement, they had expressed interest generally in a promotion of that kind?

[00:24:28] Speaker 00:
Why isn't that enough as a matter of law?

[00:24:30] Speaker 02:
Sure, I understand that and I believe that it's true that if the decision maker understood that a person had an interest that they should and would be considered.

[00:24:41] Speaker 00:
I'm not sure that the evidence shows that the decision maker... But if it did, that would be potentially enough to satisfy the interest requirement that you're saying is in the law?

[00:24:50] Speaker 02:
I would think so, yes.

[00:24:51] Speaker 02:
And if the decision maker knows that a person's interested,

[00:24:54] Speaker 02:
then they would be considered.

[00:24:56] Speaker 02:
I think in this case the evidence doesn't show that the decision-maker had any idea that they were interested, but even more importantly, assuming arguendo that the decision-maker knew, I think at the end of the day,

[00:25:10] Speaker 02:
Mr. Angeles's experience in that corollary position in the southeast and his extra supervisory experience beyond that that the appellants had falls squarely under for federal purposes under the Wilborn decision that shows that where the selected employee possesses more supervisory experience than

[00:25:37] Speaker 02:
the other candidates.

[00:25:40] Speaker 02:
There's no discrimination and under state law under FIHA 12940 A5A where promotions within existing staff hiring or promotion on the basis of experience and training does not amount to unlawful employment decision.

[00:25:58] Speaker 03:
Thank you counsel.

[00:25:59] Speaker 02:
Thank you your honors.

[00:26:02] Speaker 03:
Mr. Klapich, rebuttal.

[00:26:06] Speaker 04:
Thank you, Your Honors.

[00:26:07] Speaker 04:
Just a couple of brief points.

[00:26:09] Speaker 04:
First, my friend on the other side makes the argument that there's no evidence that Wilkins made the decision that's sharply disputed.

[00:26:18] Speaker 04:
As we've talked about, there's Maloney's testimony about the regular

[00:26:21] Speaker 04:
the regular process.

[00:26:23] Speaker 04:
There's Wilkins' own admission to Maloney that he made the decision.

[00:26:27] Speaker 04:
And there's also the common sense.

[00:26:29] Speaker 04:
Wilkins is the supervisor.

[00:26:31] Speaker 04:
Why would the supervisor not make the decision on who's going to be hired to be his direct report?

[00:26:36] Speaker 01:
Can I ask you to turn to something that was touched on by your friend only at the end?

[00:26:42] Speaker 01:
Let's assume that you get through the whole analysis and now it's their burden to come forth with evidence that

[00:26:50] Speaker 01:
that this wasn't pretextual, in effect.

[00:26:54] Speaker 01:
And they have a qualified person.

[00:26:56] Speaker 01:
He's got some warts on his resume, as I suspect everybody in the room does.

[00:27:01] Speaker 01:
But he's not unqualified, and he's been working in a position that would seem to suggest he could move up to this new one.

[00:27:13] Speaker 01:
Tell me what creates a fact issue on pretext.

[00:27:18] Speaker 04:
I think the fact issue for pretext here is several fold.

[00:27:24] Speaker 04:
First, we have direct statements of discriminatory intent by the decision makers and the decision maker supervisor.

[00:27:31] Speaker 04:
We have Wilkins saying things like, you know, you should really think about retiring or getting too old for the business.

[00:27:37] Speaker 04:
Now that you're older,

[00:27:38] Speaker 04:
supervisors who are telling these employees that the company's not embracing these older employees, and that's exactly the kind of evidence that was found to create tribal issues of fact in the Abrans and hybrid case.

[00:27:49] Speaker 01:
So does it matter that the person actually promoted?

[00:27:53] Speaker 01:
See, I'm a little concerned in your briefing that you say, well, my people are really good, and this guy has problems with his history, and therefore, that must have been a pretext.

[00:28:02] Speaker 01:
And I'm not sure that we do that.

[00:28:05] Speaker 01:
in the pretext analysis.

[00:28:06] Speaker 01:
After all, they're entitled to promote a less qualified person as long as it's not because of age.

[00:28:12] Speaker 01:
So the real question is

[00:28:15] Speaker 01:
Was there evidence that it was because of age?

[00:28:17] Speaker 04:
Right.

[00:28:18] Speaker 04:
I mean, the question is, was the decision motivated by discriminatory intent?

[00:28:23] Speaker 04:
That question is an issue of fact when there's disputed evidence on both sides.

[00:28:28] Speaker 04:
Here we have evidence of discriminatory intent.

[00:28:31] Speaker 04:
We have evidence that they didn't follow the normal hiring procedures.

[00:28:35] Speaker 04:
Our position is they basically fast-tracked an unqualified or under-qualified younger employee

[00:28:41] Speaker 04:
over much more qualified and much better suited employees because of age.

[00:28:47] Speaker 04:
We have, in addition to that, false statements that were being made.

[00:28:53] Speaker 04:
My friend on the other side said, well, it's factually impossible.

[00:28:56] Speaker 04:
We don't think it's factually impossible.

[00:28:57] Speaker 04:
We think they lied about it.

[00:28:58] Speaker 04:
We think that there was a decision that was made before it was announced.

[00:29:02] Speaker 04:
And that's why we have Angeles, who's giving Skype meetings, which he's saying he's been promoted before the, quote, records show that the position became open.

[00:29:14] Speaker 04:
And then the last point, I think, is we have a lot of evidence here of a lot of actions that are taken, a lot of pressure by senior management to get rid of very well-qualified older employees in favor of under-qualified younger employees.

[00:29:28] Speaker 04:
And our position is that all of that evidence combined at least gets us past

[00:29:32] Speaker 04:
the summary judgment stage, where all we're talking about is, can a trier of fact believe that discrimination occurred here?

[00:29:39] Speaker 03:
Thank you, counsel.

[00:29:40] Speaker 03:
We thank both counsel for their arguments, and the case is submitted.