you may proceed good morning i man clarke i represent pala hokum this is a case with numerous pieces of direct evidence of retaliatory motive the district court disregarded most of this evidence construed facts against the plaintive and misapplied key aspects of the law the direct evidence ranged from e mails amongst the decision makers saying things like if people if this whole goal were just friends are all going to stop fighting she could get her title back to the actual the formal submissions on summary judgment were statements were made that the reason she was never reinstated from what was supposed to be a temporary suspension was because she has not settled and has instead pursued this litigation the district also made a fundamental error in trying to  professor when they settled with russia early on did that mean that they necessarily had to make the same deal with her even though she had retained a lawyer and was fighting fighting everything well certainly if they wouldn't make the same proposal which they did not i thought they made a similar proposal but that they could proceed because she had gone ahead and  court in saying they were offered the same deal that was an earlier deal that they both rejected because it was reinstating them two roles that were changed and with workloads that were unacceptable to both professor coke and professor r by it was it was never proposed to her and they are saying that they didn't give raj his position back because he agreed to drop his grievance they are saying that the reason they did it is that he agreed to change the way he approached the position and agreed to change sort of the structure of the role and professor raj vehemently denied that that was any part of him getting his position back the position that the defendants have taken is  professor holcomb to get her position back she has to also engage in some sort of discussion about her role and possibly change the role and they never offered her that position outside of settlement discussions it wasn't in also said that he never said he was going to change the way he did things oh and there's e mails suggesting that professor raj continued to engage in conduct that others found it annoying there after so there he said he never have that discussion and get her job back and it is clear and the position is really supposed to be a suspension for one school year they've given many different reasons for what they were doing at the time they first they said that they were going to do a study they said there had to be that that that does seem to be a part of that's what the other side is saying and that seems to be a major factor here because everything flowed from there was that the able twenty ninth me on may one i think it was they issued  and and and and then at that point the administration was faced with that seemed to be pretty close to a riot on the part of the faculty members who were counting on these competitions to as part of their educational  program there are a number of factual disputes with respect to the causation here the director both are told professor holcomb that while he disagreed with the decision it was her right and professor reges right to make the decision about the concerto competition winners  defendant as assistant director kilpatrick testified that he did not think the concerto competition alone could have been the reason for so drastic an action as demoting professor holcomb in press professor rudge much like fine gold where what the defendants are claiming is an intervening event we're claiming is the pretext there's other evidence that they had long linked to concerto competition in the ensemble policy it wasn't a last minute  one of the areas that we think the district court made is that she was engaging in two types of protected activities simultaneously and the district court try to parse out the union activity from her complaint that she believed the director both or was expressing a romantic interest in her and when she rebuffed him was engaging in hostile and retaliatory conduct her her initial protests of the sexual harassment hostile environment was through the union they were back to back meetings and certainly once she hired my firm we were protesting retaliation that was based on both types of protected activity certainly as a matter of law that cannot be parsed out when it was so linked and it's clear that they were angry about both types of protected activity director bolter for example and suggested the school not expend any money on behalf of one of her initiatives until they see what played out with the legal situation and specifically mentioned how complaint the union that she reasoned with you she raised with the union two things both she and professor rudd were raising issues with their workload credits that's where there was an agreement reached in the first meeting that was then reneged they were raised in the ensemble policy and then in the second meeting with through the union professor holcomb was raising the issue of director both are expressing a romantic interest and his retaliatory acts when she rebuffed him that's an same joint action which outraised outrageous music faculty the mere fact that rudge was suspended on identical terms is conclusive proof that plaintiff's opposition to sexual harassment was not the but for cause of her suspension plaintiff's only response to this argument is to say well plaintiff and raj also engaged in joint union activities regarding their workload and the ensemble rehearsal policy but as we explained in our brief those you know activities are not relevant to the claims before this court they're only relevant to plaintiff's separate state labor law claim which the district court properly declined to exercise supplemental jurisdiction over so the plight of can't use her union activity claims to bootstrap her sexual harassment retaliation claim in addition to plate that to rogers identical treatment there is a wealth of evidence showing that this was anything but a pretext the faculty e mails speak for themselves contrary to point of suggestions the record contains e mails from no fewer than ten professors who expressed extreme disapproval of plaintiff and rogers actions including school music director himself who the day after this action sent an e mail to the faculty calling their action extremely regrettable and concluding by saying i will take action i will i will handle the consequences of this decision directly with plaintiff and raj and shortly thereafter they were suspended now with respect to the continuation of her suspension i'd first note that this was a this was a side issue nature of this pension as i understand the nature of the suspension wasn't just you did terrible thing it was you we have to look at the the authority that you're your authority to do this kind of thing is us as an institution that was that part of the picture correct the faculty members were angry because they felt that the two directors were overstepping their bounds and this created this exacerbated tensions that had already existed between plaintiff and raj and the other faculty members and and the suspension was designed to address those tensions it's and there reinstatement was conditioned simply on their agreement to participate in a dialogue with the university to work through the tensions that they had created and to discuss the scope of their authority well he was your he was the director of the school of music and in fact he did recuse himself from a trip to china and plaintiff uses that as evidence of retaliatory animus so the fact so in one instance where he decided not to travel with the plaint china bit was involved in other aspects of determining what to do with missile when the complaint was about him just interested well the the complaint was first made on april twenty ninth that the same day that plaintiff and roger geishas misconduct and the ministration didn't see that complaint as related to the consequences of their misconduct and baltar as the music school director was then the person who would who would handle these kinds of issues he was the person who had to ensure that usually in a little servants of the internal complaint process under the very cases when it's the supervisor doesn't really have a role in assessing the complaint right well to be clear you are i may have misunderstood your question bolter didn't have any role in assessing the validity of plaintiff's complaint alleging sexual harassment against him that was handled by human resources director michael daly and john cage and ski he wasn't even at the meeting where she made the complaint that was held for separate meetings on the twenty twenty nine correct when dealing with union problems and the other dealing  sexual that's correct and baltar didn't take part in that second meeting and he wasn't involved in the assessment of her sexual harassment complaint what's it's been ms clarke points out and this may be my confusion that the union activities which you say rightly are really relates to state the state law claim but wrapped up in side the complaint about the unity of a t is the complain about sexual harassment that's correct your honor but that doesn't advance her cause to distinguish rudge because what she's saying is ok roger got the same treatment but he they were also retaliating against me and right for union activities but the union activities that rush participated in had nothing to do with the opposition to sexual harassment so she's making that argument to get around what i think is the you know the fatal flaw in her claim which is that roger got the same treatment for the same action although he was not involved in any activity protected by title seven and the fact that plaintiffs union activity in compass both sexual harassment and other issues doesn't help her get around that problem and with respect to the continuation of the suspension complaint which merely noted that the plaintiff had not yet been reinstated at that time it was given equally short shrift in her summary judgment argument where she didn't even frame it as an adverse action separate from the initial suspension itself and yet now becomes the focus of her appeal argument and the reason is she recognizes the fatal flaw in her main argument and this strategic shift is unavailing because the university had an equally valid reason for maintaining her suspension namely her unwillingness to engage even in a dialogue with the university about the tensions that she had created in the wake of the concerto competition controversy and judge walker is correct that she could have easily gotten the same deal that roger had gotten the university made the same exact offer to them initially that was conditioned not on them changing their behavior but simply agreeing to participate in a remedial process with the administration to discuss the scope of their roles ok i understand this position that you're making but the question that is before us is whether this can be resolved in summary judgment and that's you're you judgment that's i think at least we're to where your adversary open you ever sponsor that yes i think with respect to the suspension itself the issue before the court is not whether that the faculty was justified in being outraged at the plaintiff and roger's actions a lot although i think there's ample evidence to support that the question is simply whether this outrage was real and was the basis for the suspension and there's undisputed evidence that it is her own she testified that he understood the reason for this is pension was the concerto competition controversy that's undisputed that's undisputed evidence the e mails from the faculty members are undisputed expressing extreme outrage at and again the fact that roger got the same treatment is undisputed evidence conclusively showing that plaintiff's separate sexual harassment claim wasn't the cause of her suspension and with recent a difference obviously between possible reinstatement or in engaging in this remedial process and see how we can engage in this room you know process while there's this pending suit there is an e mail suggest what about that statement well first i would say that there's nothing unlawful about the university making a settlement offer to the point of and saying we will reinstate you if you drop your claims and participate in this remedial process that's what they did with raj that's that's completely lawful what the university can't do is say we will have no discussions about your reinstatement unless you drop your claims and there is no evidence that that was ever communicated to the point of to the contrary there is no dispute that lawyers both from the attorney general's office and suny counsel's office relayed the university's willingness to have this remedial dialogue without her dropping her claims it was an expression the unconditional offer that didn't fall under the scope of will for a wait and really pursue her claims if she was settling the case let's say i mean there were there were two different no but the university gave her the opportunity to mediate this issue without stopping her case that was  appendix work which plaintiff cites for the proposition that she was never given any such opportunity and that page says what was up in terms of thirteen fifty seven on that page she said outside of settlement discussions no administrators have offered a remedial dialogue but she doesn't deny that lawyers made that offer and lawyers made that offer outside of settlement discussions in fact after if they have the administrators on behalf of the administrators not to return lay's question there is evidence that the administrators were confused about whether they could proceed with the reinstatement process while the case was pending in court because they felt that is being handled by the lawyers but even if there was any such confusion it was cured by the lawyers who communicated the university's willingness to have that discussion without her dropping her claims and finally i'd point out the university there's no evidence that the plaintiff was even willing to participate in a remedial dialogue not agree to changes in her behavior not admit wrongdoing but simply engage in a remedial dialogue when asked at the at her deposition would you be willing to have a remedial discussion without dropping your claims she said i don't know that's three years after her suspension but let me start with the last point which is there was never an unconditional offer conveyed through counsel in their briefs below own page twenty three of their brief own defendants argued that the  that there was talk about reinstating her as part of settlement discussions i don't recall all the other parts about it but it was always in connection with dropping this case there was never any offer of let's reinstate her or let's  have some other discussion separate from the concept of settling this case in their own brief they say that she wasn't reinstated because unlike dr raj she wouldn't settle seth gilbert's in the sunni lawyer in his affidavit states that she was on reasonable in her settlement demands and that is why she was not reinstated they've tied it directly to settlement and dr bolter the director continued to have numerous discussions about all sorts of other things about the conditions of dr holcomb's employment there's no reason he could not have discussed the terms or reinstated her own i just want to point out that the law clearly states that there is but initially supposed to be a temporary suspension they also said there was going to be a study they said there'd be a dialogue they halted all of that as soon as she instituted the lawsuit and did not engage in any of the steps that they said they were going to take  in numerous cases that that sort of linkage is on its face retaliatory it is clear from the e mails and from the statements made that the defense are very upset about any sort of oppositional own activity particularly if it has a legal or cause i legal tinge to it and that tends to be read to by a jury as evidence for their initial decision to suspend her and that's under the cars because  earlier in our brief where somebody got up and said that this person filed charges against us and we're going to fight against them and that that was evidence not just that the union was discriminating at that before they were dr both there was no longer the director the new director came in and was working toward reinstating dr holcomb and a little over a year ago she was reinstated and there was no mediation there was no discussion there was no change in her i actually have the it was august thirteenth twenty sixteen it just states in consultation with the dean and here by our friend you appointment as director  bands and no other terms and conditions and that was signed over a year ago so there was no mediation required there was no additional if there was mediation we don't know what there was i'm just saying that they kept saying that their statement which is what you want to correct correct but where's yours before they said she couldn't get reinstated unless there was some process and they never offered her the process either through administrators or through counsel it was a rumor you're see