court granted the employer summary judgment on a motion that was final sign pennies with the sentence answer there was no discovery the senator a district argued in the district court that the investigation by the human rights party provided all the discovery things needed the issue before the court today there's two issues really one is is there any issue of material fa whether the defendant retaliated with pleading for having protected activity there's not really any issues of law except to the extent that one might be raised satisfactory he received no discipline or complaints about his work for more than five years before he was terminated the defended defendant doesn't claim that they terminated him because he was performing satisfactorily they said it was a reduction in force after he was after the plane was transferred to a different section of maintenance to the building grounds section he routinely  upon the entire track and seniority think these are actually two different positions and that this reduction in force had he not been the one chosen that someone higher up the ladder would have got bumped which would have been contrary to the contact under which he worked and receive benefit you're under the the collective bargaining agreement provides for seniority and there still be dispute that he was on the bottom of the seniority and the mechanical section but what provides a dispute is the fact that the defendants hired two people just months before they leave in the previous position but these are two distinct job classes right on your honor on paper there are two different job descriptions however the duties of the job descriptions are very similar and there is no dispute that during the time that the plaintiff was working in building and grounds he was transferred up to six months of time to duty to do the other job there's no evidence that he didn't do that satisfactorily for the for the last five years not during the times that he was transferred back out he didn't but he said they didn't want to have that position permanently because they'd given him a good trial and that section to the building and grounds section simply said he was being transferred didn't say it's because you're still not doing a good job can and after he was in the building ground section there was no new documentation and no evidence of any verbal comments that he was not satisfactorily doing the job and they sent him back to do what we've been doing  so to to conclude that these were all these were completely separate is parsing the situation and course that's what the defendant would like to do is look at everything in isolation rather than everything that happened that the evidence that he was satisfactorily perform his job it's disputed read the defense could have somebody come testify that he wasn't satisfactory perform his job but they would be subject to cross examination well if he wasn't quite in people signing them to do the same job he had been doing for six months at a time and there still exists a speculation by the findus attorney that there are only parts of the job that he did when he was that there was a reduction in force of whack the defendant could have said we're going to get rid of you because you're not performing act quickly and then there would be remedies in the union contract as to whether that was just possible but they didn't do that they said we're going to have a reduction in force but you're the only person who's forswear reducing the defendant tries to imply that well the reason it was him is because he i think there is evidence that there were positions that were not filled but there's no evidence that anybody else had ever been laid off for lack of work in the history of the senator's so that's a completely different situation if you don't fill a position versus singling out one person and saying you're being laid off for lack of for the good the defendant tries to have its cake and eat it to try to say well this was a reduction evidence of ostia skills was far of basic qualification by the defendants all the evidence he had basic qualifications or at least enough to be able to have a jury  of the time between when someone takes protected action complaining of discrimination and when the retaliation occurs is one way or an employee to prove one day the employee files a complaint says i think they're discriminating and that same day he gets fired obviously that's a pretty good way to show that there's some kind of connection but there's no case law that says that don't act immediately what to do what the plaintiff has to prove what we needed to prove it was stay show some evidence for which a jury could believe that the reason he was terminated was in retaliation for that  and were not relying on part but it but the fact that time elapsed again does not then give the defended immunity here there was no evidence against the evidence is that the plaintiff was terminated in february two thousand and eight after you've been working for the i mean the plaintiff was terminated after you've been working for the defendant for just months before they reduced force if there was such a separation between the two departments that no jury could find that  in force but then they keep trying to prejudice the the court by bringing in the performance if it was a reduction in force why is the defendant even mentioning his performance it has nothing to do with he was terminated the treatment is tied in to the move from one department to another which prompted him to file his initial claim so off i mean you can't ignore the fact that there was from the perspective of the mr savva standard work performance that was documented by telling him in having made a corrective actions and telling  that he was at risk of being terminated and in the letter transferred telling him he's being transferred explaining how you do i do you not get into that you talk about retaliation you whatever happens to them first the point where it's reasoned whether it was filed or not found it has no bearing on whether a person can be retaliated against later for filing so i mean we really don't for a retaliation complaint we don't need to show that yeah i'm not suggesting that you need it i'm saying it's part of the story well it is part of the story yeah i don't mean it's if it's something that you need to affirmatively show it all sure ok with respect to his performance that way i want to say now if it was terminated as a result of a reduction in force his performance if not player role in the decision to reduce the terminations part really is a risk that's all that it's and it's clear there's no evidence to the kind unless unless this court were to find that there is a material is fact that the secretary district sat back and waited for six years because while he doesn't have to establish a day after proximity or six months after proximity that there so when i was looking at this i was thinking how to put this before the judge because i'm proving a negative force which is always difficult so how do i put this before the judge well how would i do it if i were the flight was a close in time was there some direct evidence was there is a part of the reduction in force you seem to single out a certain race we eliminated one position that absolutely eliminated one position there's nothing wrong with that we don't have to have a history of eliminating two positions at a time one position a time the fact that we had not filled prior positions as through attrition that is a kind way of reducing air force because of that the better yes that's what happened between it was a process and i think you have to look at lives for the purpose of problems and see if this you have to look ok let's go back to two thousand to two thousand and three when mr  raft that's all there is to it his performance did become an issue and as just disconnect you cocked it's an issue because we're going to retaliation and we're claiming you know well there were two positions in the mechanical section that open in the year prior to mr goodwin being terminated why didn't you tell mr goodman that he was going to be terminated and that the mechanical positions were open so he would go ahead apply for those and presumably that th when somebody in the mechanical section quit moved on retired i'm not sure what and it's not the record but last and there was an open position in the mechanical section after mr goodwin strong nation why don't you have him come in for an interview why didn't you offer him the position his performance in mechanical section then becomes clearly an issue his performance in the chemical section was not satisfactory there is no evidence in the record that he was performing the same job it was clear that he had gone into the mechanical section from time to time and done something that's all that's clear it's mr good on saturday who tells you what he did and he says and this is the record of page one thirteen after he was transferred to the building grounds i was rich elitist going to work as a quote maintenance worker close quote in the mechanical sector mechanical section sometimes for up to six months at a time that's all we know that's all we know he did he was filling it in the mechanical section for up to six months at a time it is not the mechanical section job you need it's different when you have someone filling all of us have dealt with temporary help one in one form or so there is too yes if we would have gone to a jury yes we would have to deal with this because you just said that on the bass and we would have had to deal with it but it doesn't get to a jury because there was nothing to get to positions in the mechanical section came up there are no new positions in building the grounds there weren't and haven't been any new position in building so the trial force that doesn't have to deal with that nor does he filed a claim six years ago he did that's just the way it is the last thing i want to address the lesser questions of course mr either way was this waiting six years doesn't immunize the sanitary dysphoria the other lawyer from retaliation is absolutely right know there are there are probably people or employers that would wait to to do that certainly couldn't wait for some period of time would you wait for six years and then i got this we can do a reduction in force he's claiming here i filed an employment discrimination charge in two thousand to say i didn't like the way i was being treated so effectively any time you make a negative employment decision about me i'm going to hearken back and say it's right retaliation that's what happened here with nothing more than the fact that he had filed to retaliate for an employment discrimination claim in two thousand and two without more there's not enough there's not an issue of material fact this doesn't ever get to a jury summary judgment that are directed pernik it doesn't get to a jury there's nothing if he doesn't spell out every every task they did that would be trying to have to prove the negative they did everything the defendant would have had to provide evidence that he record aside from what the defense what counsel is our state of the record is that when he was transferred back when he was assigned back if you don't want to call it transfer he was doing the same the the defendant takes refuge behind the collective bargaining agreement but the collective bargaining agreement obviously did not prevent a person who was nominally in building in grounds from working in the mechanical s because of distracted when did it for a long lengths of time not just for a day or two if someone was absent but for six months at a party so to say well this was just something that the collective bargaining agreement required there certainly evidence from which in fact finder did say that isn't what the collective bargaining agreement required otherwise if i was in his son the defendant admits they only eliminated one position i think the admit error that in itself raises questions why does the one position that you ever decide you need to riff involve a quack man who had previously caused trouble by filing a discrimination claim we're not arguing that because he had previously filed discrimination complaint he is then immunized and can never be fired if he's not performing  defendant stated reason is the gym look or not that's what processor for