eighty eight cases found in favor at least the question of fact as the st three elements the only one that was left to be decided by the court which is decided against the plaintiff was the whether there was an inference of discrimination that was the only issue laugh the court did a very lengthy decision but really only one sentence that address the topic and it's a page and one hundred and sixty two of the appendix where the court said the plaintiff has not shown that she was essentially replaced by similarly situated younger employees and therefore has not met her burden to show an inference of discrimination based upon age that's not the standard on the standard that should be applied that is applied by this court to determine whether there is an inference of discrimination is whether the plaintiff was similarly situated with other younger people and she was traded treated less favorably on a month sixty four the judge also found that even if you  by her as a long standing teacher with no challenge to her competency contained in the record and she was assigned from her teaching duties for classroom duties to a program in which she was told by the binders also help develop lesson plans and is in the know in the no your honor to support other teachers developing lesson plans she was going to work with teachers she's going to take all the stuff on the wall the binders  twenty binders four inches thick she's going to photocopy those and then she was going to be a support to the teachers who the teachers want to do their lesson plans and they were going to do the teaching she was not to do the teaching she was right but what's the but for evidence that th cause was discrimination in other words my my understanding is that she was teaching seven or eight classes and that you know basically when she was moved the people who took over those classes ranged in age from you know their twenty's to their signing her because of her experience and skills you don't need experience thirty years of teaching experience and skills photocopying binders as a teaching assistant that das any of that proffered reason which is the word that  the courts use is at least the question of fact if not very obvious she's taken from the classroom experience teaching to photocopying and that's going to be only for half the day and that's what her job responsibilities were she was  various it was confirmed by the c e o and the principal in a subsequent meeting the head of the program steps the fide that it was out of character for her experience to be given that assignment and that no other teacher had better ever been assigned such duties ever in the school's history and she actually testified this is the person running that program said the assignment was in her view just not right she's management she's on she's there person and that's what how what she concluded about the assignment with respect to the  task which going back to what your honor what i st started with was she treated less favorably and so what the deal with the defense focus on it says you need to do a replacement you need  a completely replace being in terms of employment and that is not the test there's a lot there's other instances in the record of an inference of discrimination st off they hired these two young teachers in january and  year and one of them wasn't even a teacher she was a teacher's assistant the one that was a teacher again they're both in their twenty's came on board and they were allowed to be teachers teachers my client was removed from teaching she was no longer a teacher and that that's the removal part of it you don't have to match up and say absolutely they took all her classes they took some of her classes went what's the discrimination some of the other indicators of base discrimination in a school there will always be somebody younger than you are and somebody older than you are what's and then you get you say once because the exam went to me and that to somebody who's younger that doesn't support an inference of discrimination that's all it does support park but you're right there are we need other so when she would speak to this the principal who is the actor in this case when she would talk about her experience her time in the organization and skill set he would he would do this thing that's described in the record where he would he would use he would he would talk over her and make noises as she's talking about her experience of what she had done he go bye bye bye bye bye like very mature or maybe a jerk but what's the basis for concluding that that's on the basis of her age because that's that's what you have to prove under the claim no yes which but it is the inference is because of her long time there her age that's why he's acting in the fashion he does as the younger people in the room he's forming over them and soliciting their ideas and when the complainant or the plaintiff speaks he talks over her and is there evidence that he's doing that with respect to other people of in the appellants briefing really mischaracterizes this is simon by trying to boil it down to making photocopies and assisting other teachers with lesson plans some going to read you from the testimony  individual who spoke with the plaintiff supervisor was the principal of the school but what the assignment would be she has to xerox common core standards for the courses that were being taught in the already program and she was to work with the teachers in preparing lesson plan and xeroxing hundred and twenty five years there were students who were being referred from the city school district of albany because they were having behavioral or academic difficulties they range in age from twelve dollars to eighteen dollars so this is a broad spectrum of young students students  academic but most likely it was behavioral and so imagine then come october th when the st student entered the albany program now saying an institute has to determine where that student is in their education they have to determine why it is there for if they are in why they're falling behind if they're special education students have to review their i p's they have to review their file for plans if they have them this is a complicated matter and so that was the testimony of sentence in this case they said the very st indication we have of what the assignment was it was to plan it for the planning and implementation of instructions to students in that program and we have never denied that ms the monica was chosen for that responsibility because she is inexperienced in the field of education now her the plainest would present this as she was in the same classroom seek teaching the same courses for thirty years and have some dramatic shift it wasn't she had done behavioral assessments she had been the of special education chair and only in the last two years had she been an actual in the classroom teacher you agree with the proposition that if there were evidence to support the conclusion that the defendants explanation for the  that that would require denial of summary judgment if there were proof that their explanation were pretextual yes your honor but i think what they're driving towards the why is there not a factual dispute on that based solely on ms doris's testimony that essence you know she was well overqualified for the job and this was highly unusual and so forth i want to come back to qualified your honor but i think the question of fact concerns the rd prong of a prime official case whether it was an adverse employment or an action or not there are many cases have said whether a transfer or a demotion whether the unique aspects of that particular job qualify as an adverse employment action creates a question of fact but those courts just like the court in our case went on to say let's assume that they have let's assume that being assigned to this role in the albany program was an adverse employment action where is your honour's have pointed out when questioning the players counsel where is the evidence of age discrimination this case one of the two individuals who made decisions fifty nine years old  there are many teachers the same age or older than ms in monaco they were not chosen for that role there simply is no evidence of age discrimination other than subjective feelings about this person who was a jerk he was not nice with his monocle they had a lot of the students that year and if you read the players complaint it explains why you think you give away too much when you when you say that that evidence that could support the proposition that the given reason was false would be sufficient to show whenever a kind of discrimination i agree or not it actually points you to hicks which is being court decision that says the mere rejection of the defendant's proffered reasons does not compel the judgment for the plaintiff who had all times bears the ultimate proven burden of proving intentional discrimination i agree there is no way there is scarcely any area in which people more frequently in regular false explanations in the employment context and it's in part because the persons who know the true reasons are not the person who speaks necessarily because the action is brought against the corporate employer not the individuals who made the decision but furthermore the true reasons just could be any number of a range of reasons which people have of have a motive to conceal because they may be illegal they may be they may show greed they may show all sorts of improper circumstances without necessarily showing age discrimination or whatever is is is is contended by the by the particular  is sufficient to go to the fact finder isn't established by any hard rule it's a logical assessment of what the evidence is is that is the evidence such that it supports a reasonable person concluding that that the reason was the type of discrimination of edged you know the the appellant's counsel has cited the kwan case are also direct a court to the carlton case that we cited in our brief and i think those cases the type of age discrimination case that should get to the to a jury they are a case like if you take the carlton case where there was a there was evidence of his comments we don't have that in this case then we have a company it says we need to do reduction of force and yet then they retain a younger person hire another one and give back to the older employees give his responsibilities to the employee they give the younger player recall option but they don't give it to the older employee they and most importantly to the case law talking about the defendant stated reason being unworthy of credence in the quantity and in the carlton case what happened was the defendant said my reason is a when they had to exhaust her administrative remedies before the e e o c and yet when they came to record they said well it was actually a and b and the courts had will wait a minute which one is it you had an opportunity to tell the e e o c what this was why didn't you tell them it was that nd reason and it really brings into question with all of that other evidence what really was motivating the decision here we did is just simply absent in this case but you get back to something your honor said a moment ago about experience about time that's what this case really boils down to this lot of says i ha thirty years of experience they should have put a new teacher in there well that experience has nothing to do with age there's a correlation i would agree that in order to have thirty years of an education she would need to be approximately fifty two years old but if a teacher were thirty nine like the one i married to who has eighteen years of education experience and is thirty nine years old she would not have an age discrimination claim so i think you have to be very careful to align experience and age they are very different things and so then the not to teach in the albany program and the answer that's quoted is no and the risk pelley refers to the record well that's not what the quote is because there was a or rather she signed by the witness who changed her answer to that question of that question doesn't stand and it's not part of this record the case because no one ever whether it's age is criminalization or racial discrimination they're always concealing what the reasons are if that's an a driving force behind you would be surprised there are many cases in which people in an unguarded moment  exhibit hostility based on race sex religion disability and they do when it exists it sometimes services doesn't have to but it  i've handled many of them around there and many were not as obvious because people have become smarter to hide their their true motives so we have to look at the record we have to look at a little a little can go a long distance but nothing is still nothing right but hiring two young teachers uncertified teachers even and have them take over a classroom that she taught the young teachers are ever going to get any experience if they're not given any classes the are classes but they don't push out the older ones which they did in this case you had a claim that this was a separate claim that this was based on retaliation for her essentially in compliance with respect to the school correct yes  honor i don't believe that the facts support that this was the reason given the the way that it unfolded in terms of the the younger teachers in how he treated her how he treated her different in settings with the younger teachers