the next on our calendar is robin collymore of the city of new york and certain individuals thank you the morning council you can take the podium good morning your honour's my name is special hagen and i'm here on behalf of appellate robin collymore i appellant which is to make the following arguments in support of her case were an appeal personally were under the impression that the district court erred in the standard it was bin standard that it plot although it actually articulated the standard be analysis was inconsistent with some of the case law for example with  amendment retaliation argument judge wayne cited the zelnick vs fashion institute of technology case erroneous lee v the year attributed to that decision was two thousand and fifteen however it was two thousand  which coincided with the decision in burlington north and also at that time you know the standard was different as far as defining the materially adverse point action may be were bad i have difficulty seeing how you time these bad things to your client either a woman or being an african i don't i have difficulty finding  at department of information technology the complaint talks about the disparity in pay to she experience between herself and a comparative by the name of mr donahue we compared the education but also how mr you had instances where ms collymore had you know exchanges with mr mr austin and miss maloof but there was also an instance and i think we're talking about gender where there was sexual harassment on we said others we never said everyone we said others and then it goes to the language which was c and let's say in the red decision that this court this court actually decided back in two thousand and twelve specifically holding that that's the complaint alleges that the touching was because of her gender the complaint doesn't necessarily allege that was because of her gender but my client perceived it to be sexual in nature she was uncomfortable she communicated that was unwanted and  of continued to touch or and then on top of that when she complained she experienced retaliate over and over again she complained several she actually complained seven times within a nine month period and it was because it all started with the unwanted touching from miss maloof and do it's repeated failure to address those unwanted touching so to actually try to get into the intent of misbelief would be an inten it would be an issue of fat which would be more appropriate for a jury to decide that it was because of gender and my question is does an allegation appear in the complaint we wouldn't say it was because a gender would be say that it would be because of a sexual her perception that it was sexual and that she was on the front element to this right or the reasonable person is a question of whether or not a jury could reasonably find whether or not miss most unwanted touching or sexual in nature and that's the argument that we are making that my client a reasonable employee found these repeated touching no matter if she communicated to miss that she did not want to be touched or if she moved objects between them or she distance herself she continued to be touched the complaint alleges that it was uncomfortable that was on well and you're standing here now saying that in her mind she thought it was sexual in nature my question is is that alleged in the yes complaint where in the i'm in the complaint does it allege that be on want to touching was because your client because of your client's gender well not necessarily because of her gender is because don't you need that to prove title seven well to a certain degree to kind of touches on on kali for example on call you had same sex employees right same sex same sex or end victim i'm calling that it was a touchy feely person who was in appropriately touching but was she doing it because of gender and more point is that alleged in the complaint is not necessarily alleged as far as is because of her gender is because of the sexual connotation that my client interpreted and felt in the red decision for example there is there's a language that says when entering a workplace reasonable people expect to have their autonomy circumscribed and a number of ways but giving control over who can touch their bodies is usually not one of them and read the diff the employee didn't necessarily is scribe the the sexual harassment to any of the factors cali but the court nevertheless found that it was a violation of the point to civil rights in the us in that case so i know your time is expired but i have a question for you yes ma'am would you describe the retaliation that your client endured after complaining about maloof and austin in terms of protecting her health can you talk about that yes my client suffers from migraine headaches and initially when she started working for do it you know it was controlled she had no problems but when she complained to me initially in september of two of two thousand and fifteen began to start and austin began to retaliate against her one of the things they knew that my client needed for example was to take lunch at a certain time of day and they started insisting that she work through that time as a result and they knew if she didn't work through that she would have a migraine headache and what happened was they consistently started to harass her they started to have her work through launch she started getting migraine headaches this treatment would deter denied by client training they started closely scrutinizing her work and surveilling her from day to day they started having gelling matches with her nasty emails be raiding her at meetings excluding her from various opportunities throughout the company throughout the agencies of these were things that took place and at one point there was a disk there even though that we believe that the judge should not have considered this just austin written her up for alleged infraction so all these things took place during after my client complained of the discriminate of the sexual harassment and she did so seven times in this period of nine months and was talked about sexual harassment i was talking about the retaliation but retaliation yeah the retaliation but the complaints themselves were protected activities and so there was retaliation as a result has expired you have reserved some time for about oh yes things here from the city of new the first is the sec space clans and as this court pointed out there's no allegation that any of the conduct in this column or alleges was motivated because of mis calling wars sex and in addition mis calling or in a reply brief cites this court's decision in all but that case involved a reversal of the district court for failing to consider sexually overt acts considered only sexually overt conduct and not sex neutral conduct in conducting a statute of limitations analysis but in any event the mall decision actually cites alfonse cited in our brief which says it is axiomatic that a title seven claim must be because of sex so affirmative the sex based claims i think is rather straightforward turning to the claims of harassment of discrimination on the basis of race there's two independent bases that this court could affirm dismissal the first is as judge eaton point out it pointed out the conclusion  manner in which the inference of discrimination was pleaded here regarding the harassment claim this calling more alleges harass me harassment of the basis of race in only the most highly generalized terms on page twenty three of the record she says that behavior was attributable to a race she says that those supervisors took every opportunity to silence and humiliate her because she is black and on page twenty two there's an allegation that a white colleague by the neighbor brummer pointed out to maloof that she had never chastise anyone for completing their work early but the only other part of that allegation has to do with race it's pointing out that miss callie more was the only person of color in that meeting looking at the why would that be enough well be six allegations are well they're there are many specific allegations about negative conduct and there's an allegation that the plaintiff is black and that she was treated differently from whites is that enough no the city's position is that is not enough but even if you were to disagree with the city's analysis for guarding the conclusion or a manner in which she supports the inference of discrimination there is still the case that there has to be a sufficiently adverse effect on her work regardless of whether we're looking at her harassment claim or her disparate treatment claim regarding harassment claim i think it's important to point out that the complaint is vague when it comes to certain key specific specifically what happened when she has to show either severity or pervasively and i think those omissions are telling responded oh this court's decision says that the conduct alleged must be sufficiently continuous concerted as to be more than of being treated differently from white and so why is that not enough on a twenty six motion because there aren't enough specifics regarding the allegations that there was an adverse action flowing from  to her supervisors she alleges that she was sometimes tonight over time but we don't know how frequency this occurred how frequently this occurred there are two isolated shift changes one in november of twenty fifteen in the second in june twenty sixth seen the month that she resigned  but we don't know how long these lasted and as the city argues in our brief any shift changes have to be more than episodic she argues that she was paid comparably to miss donahue not less than this donahue with no allegation that she was paid less than someone similarly situated to her in all material respects or that she was paid less than what she was entitled to and she also alleges she was denied unspecified training opportunities but the lack of specification being that there aren't facts  support an alec nation of adverse effect is calling more sites the very good decision from this court to say that the court should look at the entirety of the universe of allegations but vague and makes clear that there must be at least one adverse employment action and i believe this calling more effectively concedes that she cannot identify any single action that was sufficiently materially adverse and it's unclear how she had to work through her lunch hour when she needed to protect against complaint of an ordinary person no it's not if you want to jump to the retaliation component there's just not any allegations to show how frequently this occurred what effect it had on your work and given that the standard for a way at this stage of word on occasion but turning to the finger case from this court if this court agrees that hostile work environment has not been stated then by necessarily implication she has not stated a claim for constructive discharge either and  reason why constructive discharge is not made out is it requires intentional action on the part of the employer in here that's the sole allegation regarding austin and the loose knowledge of her health was that she had migraines had lunch at a certain time made it work through which exacerbated her condition right yes that's correct even if it was once or twice isn't that true even if it's one i don't know if it's once or twice i don't know if you want to try to see that but she claims it was in retaliation for making complaints isn't that correct that's correct but to answer your question there's just not enough given that a reasonable person standard is what is required to say that having to work through lunch on occasion allows you to make out either constructive just charge claim or retaliation claim they are having to work through lunch once in awhile sounds serious to me the city's position is that it would not dissuade a reasonable person from complaining or speaking out if we're looking at the retaliation component and that it's not does not make it a constructive discharge claim but there's an additional reason why as to the retaliation claim she has failed to state a claim for retaliation and that's because our case law does not require that every factual that her complaint substantially motivated and any of the conduct but here there's telling omissions from the complaint is calling more relies on the vega decision and the fact that you can show causation in directly through temp  proximity but the case law makes clear that there have to be complaints followed closely in time by retaliatory conduct here however there's only four specific instances of mistreatment that miss column or alleges that have specific dates attached to them they are the unwanted touching starting in september twenty fifth teen there's the two shift changes in november and june there's four numerated instances of either austin or maloof yelling at her in november december january and then several months later in june and then there's one disciplinary write up in january of two thousand and sixteen other than highly conclusionary allegations that within days or within weeks of allegedly making complaints bad things happened there's just not enough to after plaintiff's complaint well i think i think it depends on which of the complaints are looking at she complained in september twenty fifth teen to maloof about i want to touch on that same she complained to agency staff she was in a numerate through about sexual harassment the meeting that she had with austin where austin allegedly gave a directive to hide information from the department of best occasion that was not until december seventh and it sometime thereafter she complained to a union representative on january fifteenth complaints to a woman named emily emily johnson and a man by the name address who are responsible for enforcing do its code of conduct and ethics she complained to kirk's that month but that was about austin yelling at her and what she describes as discriminatory conduct she did not complain to kirks about austin's a legit instruction to hide information from the department investigation until june twenty second twenty sixteen six days before she chose to resign from do it and there's several other complaints but she doesn't allege that she made in the last one of the he went through the dates that we you know about we know about with respect to made i think is in september twenty fifteen about the un wanted touching from the loop and she made that to maloof herself and agency staff according to the complaint this is on pages twenty and twenty eight of the appendix but there's just not allegations that close in time to that any specific conduct started she really lumps everything together and in her brief she effectively concedes that necessarily and this is on page forty of her brief alston maloof would not have been good would have engaged in conduct and continued behavior that would not be specific to any one given complaint protected activity during the course of her eleven months of do it and i think that's quite telling this court should affirm unless there's any further questions you counsel thank you very much you have three minutes for  about the unwanted touching so the first adverse employment action that she experienced was to change and shift as counsel pointed out in november so there you have at least two months but the go back to the bigger i guess holding in this in this circuit was that there is no fixed time that the court is ascribed to protect poor proximity in this instance there have been cases that have found up to nine months to be you know sufficient i mean still enough to kind a link to be protected activity to the adverse employment action but we don't have that here we have a series of complaints that been made in a nine month period we have seven complaints by ms collymore made within a nine month period and in between those complaints she experienced unwanted touching i mean that unwanted touch but adverse adverse employment action so that's one and you asked at one point what you  miss how often these migraines took place in the amended complaint paragraph seventy seven appendix twenty one through twenty two we talk about in this column more missing more and more days a work and the migraines taken place in a regular basis because of mr austin and mr insistence that she work through launched so you went from an employee who never missed work to someone who frequently missed work and discovery will show in our in our belief that you know these migraines took place because she was continuously harassed there were questions about her attendance at work because she was composite lee missing work because of these their insistence and harass marking for  exacerbate her migraine yes the frequency in fact extent that she had so many of them that when she resigned within four months she was diagnosed with a brain aneurysm and then they then council also tried to downplay to some degree  the disparate treatment specifically between ms collymore and the other whites that in the unit specifically she was being yelled at her work was being sabotaged she was belittled in front of her staff members the white staff members were not treated that same way and i believe that a reasonable juror could find was the bully that she experienced disparate treatment based on her race but also  i just wanted to talk about the first amendment retaliation claims first off it was clear that ms collymore complained at least twice she complained to her union representative  the the labor representative mr driscoll and that's one instance and she complained to kirk's now when she complained that the first time which was in december and january within the same month austin yelled at her she got it and he intended to bring her up on disciplinary charges that was in january so she complained in january she had an altercation while austin had all the cation with her in january and then also attempted to bring her up on disciplinary charges for violation of the code of conduct and that's pleaded in the complaint and then in june investigate any of the complaints and i want to bring that up for the mono purpose because we did clete a policy in custom of the agency itself not investigating the e e o c complaints citing specifically a complaint with this of the city commission of human rights where the person alleged the same thing that the agency did not investigate the complaint and the e o officer and her and his subordinate also acknowledged that they did not investigate in this column was complained april and that's when she complained of sexual harassment by miss ball a second time in the agency failed to act so i just try i want to try to touch on all the bases to show that we played enough at this stage for a reasonable juror environment i mean i would say disparate treatment more so than hostile work environment to the extent that she experienced disparate treatment based on her race from the her coworkers specifically mr austin and miss thank you very much