in morning may please the court my name is josephine miller and i represent the appellant in this matter he sues this appeal has been taken on a very discrete issue and that is whether or not the district court properly refused to grant a motion for partial summary judgment that was filed by the pla issue was whether the district court in granting summary judgment for the defendant on that issue you are suggesting that we should find that there is no issue of fact in this case at all and that you are entitled to judgment as a matter of law that this was a retaliatory action i am arguing both things ok that district court should have granted our motion for partial summary judgment and that it should not have granted summary judgment on the issue of r court to grant judgment in your favor right on the issue of retaliation as the court knows there are three principle issues that have to be presented number one that the plaintiff in this case was involved in protected activity and he clearly was in this case mr wiens had filed a complaint in federal district court and then was given a right to sue letter to then bring charges of title seven violations at the time of this litigation my entrance into the litigation  there was a motion made to open the judgment because it had in fact been the case had been closed and remanded in part to the state court were had a recently been removed from what happened was that an evidentiary hearing was held before judge thompson on the issue of whether or not there had been a settlement between the parties and that  held in october of two thousand and sixteen full evidentiary hearing judge thompson then decided that there was no valid settlement and that the plaintive could proceed with his amendment to the defendants in the case to then issue a notice for a lot of mail hearing at which they then said they're going to now seek terminations of him on all of the pending employment issues and only thirteen days after the amendment of the complaint respondent or the defendant did exactly that they terminated mr release so he literally protected activity when he moved to a mantis complaint here's my question and isn't that exactly what you might have anticipated in arguing that the settlement did not exist in other words they offered to compromise this case and they evidently thought that the compromise had been agreed to but they were wrong it hadn't been so there was no compromise so then everything returns to status quo ante and they didn't do what they would otherwise do and you do what you want to do and we proceed to decide the case on the merits right well i would disagree with that you are using you're saying they aren't bound to by by the fact that they were willing to compromise on a lesser penalty that this somehow limits the kind of penalties that they could later impose or argue in court were perfectly appropriate we're arguing that but for mr always in gauging in the protected activity of choosing to add title seven discrimination and workplace rules and a hearing was set up for march and right before the hearing is when he filed his e e o c complaint act however the issue is they have retreated from their position that a nation was the discipline that was going to be sought to retrieve between it from that by saying and there are multiple admissions throughout the evidentiary hearing in federal court as well as the documents that they presented as well as their filings in the state court where their position was as to all of the employment issues that were then pending they were only going to see demotion of mr we and a two week suspension and sending him back to the position of work or if this was before the settlement or that was part of the settlement that was the settlement i've you can't have it both ways though right so otherwise what you're saying is that plaintiffs can induce employers to enter into settlements that would review halt and less drastic conditions then get out of that settlement agreement but say that the employer still bound by it or that it's evidence of the employer's retaliatory intent as any trick i think that we can't look simply at the manner in which the court is looking at it there were three and a half years that lapse between the time that they decided that they were going to gage and some discipline of him in which they kept him on it ministry to leave with pay for three and a half years they took no action somehow is a commitment that they believe that terminations is inappropriate which would be evidence that when they do seek terminations after he files an amended  complaint that is in retaliation for the amended complaint rather than what they intended to do all along well the position is that what their intent was is clearly shown and it in the admissions the multiple discipline they will seek that is outside the context of settlement negotiations well in our motion for summary judgment we did take the point out to the court that the defendants admitting that the only reason why they decided to terminate him was because he elected not to settle on their terms so the issue was clipped clearly raised in the district court regarding their admissions as to what their intent was also in the motion for partial summary judgment we pointed out at page nine that the defendants readily acknowledged even as of the time  it is found at page nine of the motion for partial summary judgment citations to the numerous pages of citations to the transcript it is also clear that even after the defendant conducted their investigation of the performance issues with mr w well as the vehicle accident that he was involved in they did not engage in any further investigation after me two thousand and fifteen so that by the time they then decided ok we're going to now hold this loudermilk hearing there was nothing new in the way of evidence they simply rely or all that heard one on one previously and significantly the agreement that they had reached was or that they thought had been reached was that that agreement to resolve the employment issues was to be with respect to any and all differences and disputes whether gnome or unknown they now would have this court to believe that there are thoughts about settling was sole with regard to the vehicle accident matter while this language clearly refutes this it shows that they were looking for a global settlement and it was a bottle i'm sorry you've reserved three minutes for good morning may it please the court my name is john metol i represent the city of bridgeport thomas austin and stephen lugano in this case i think i think the best way to start here is to look at what the point of his argued to this court the play that is using the concepts of judicial stoppel and judicial admissions to support her claims on the retaliation claim in the claim basically is that  when the state that the city retaliate against the plane to want to terminate his employment because he decided not to settle the present case and several pending employment discipline the issues  going with the arguing that the settlement agreement which the plaintiff disavowed later on and that's before that's clear in the record only required the plaintiff to be suspended for two weeks without pay and then demoted to animal district court and as well as the judicial missions argument your honor and it's our position that it's not proper to make those arguments before this court right now now in our briefs your two factual statements be by the same party someone a party asserts i want to party assumes an assert a certain position in a legal proceeding and succeeds in maintaining that he can't lead iran you know assert the opposing position especially if it prejudices the opposition and that's the concept here and the plank this argument on the judicial stop of which wasn't raised before the district court is a little confusing the pla cites to the companion state court case that was pending at the time and just a little background here and it's in the record plaintiffs at the district court case but also had a case pending in the states appear in court where the claim there was that the plaintiff was retaliated because the plaintiff workers compensation claim against the city of bridgeport and what the plaintiffs are used to this co as the basis of the judicial a stop the claim was that the defendant persuaded the trial court to dismiss the case the state court case because of his claim that a settlement agreement had been reached between the parties which resolved all claims by the plaintiffs and both the state and federal cases and that the settlement agreement should be enforced the argument is that the city of bridgeport convinced the state court of that that did not happen that never happened it's totally incorrect and it's just simply not accurate and if you if you look at the record that we provide let me back up for a nd the record that the plaintive provided to support that claim there is no record to support that claim they simply provided this court with the state docket sheet that shows what happened but just looking at that you really can't tell what happened so in order to be inclusive in our record we included the actual pleadings of what happened in the state court case and if you go through it in july of two thousand and sixteen the plaintiff in the state court case wanted to modify the court's scheduling mordor and july th two thousand  sixteen the city bridgeport objected to that and we objected to it under the same grounds as that we that we were seeking to enforce a settlement agreement before the district court so we objected to that and then what happened next is that on august st two thousand and seventeen the plaintiffs filed a response to our objection and then what happened next the very next day if you look at the doc judge ballasts of the state's appear court dismissed the case on august nd two thousand and seventeen the records unclear as to why the case was dismissed if you just look at the docket she but if you if you look at the subsequent pleadings that were filed in that case it seems that the case was dismissed because it was reported as settled the exact same thing that happened in the district court case when we reached what i thought at the time was a settlement agreement in may of two thousand and sixteen on all of these claims we reported that to the federal court the district court which is appropriate and also to the the state court and generally under the rules in the state court if you are reported case settled if it's not actually withdrawn and i think it's sixty days forty five to sixty days the court will administratively dismiss it and that's what appeared to have happened here but what happens next is that the plaintiffs filed a motion to reconsider the dismissal of the state court case on aug th two thousand and sixteen and doesn't pursue that motion and then waits eight months to do anything else and and then files with the state court on april rd two thousand and eighteen a memorandum in support of a motion to open in vacate order of dismissal state court case said you're too late under the connecticut practice book in order to move to vacate an order of dismissal you have to move within four months so that's the reason why the state court case was dismissed and had nothing to do with the city or bridgeport convincing the superior court judge that there was a settlement agreement that should be enforced and that's what happened and so the whole sure chronological question yes back in two thousand and fourteen a letter sent to mr ruiz charging him with violating certain rules based on this dog incident and as hearing a disciplinary hearing is set up for march of two thousand and fourteen in the interim mystery's files a complaint with the connecticut commission on human rights correct i believe that's correct you're all right and so at the disciplinary hearing that was set for march of two thousand fourteen was that was terminations on the table at that point well not maybe not yet your honor because i think if you look at the tally the whole case even after that there were some other things that he engaged in for example he performed other performance issues thereafter and he's got this car accident right october of two thousand and fourteen as a motor vehicle accident and there's a hearing  there is a hearing on that and we had that hearing is about terminations it's a terminations that hearing is about discipline that includes germany could include terminated there is no decision made with respect to whether or not to terminate  and and the defendants understand that there were some delays in this matter but the district court looked at that and said those were legitimate explanations with respect to you know why it took a while to typical to this one say we're seeking to have a hearing and the goal is to terminate you know just say in this case we're going to inquire into your being charged with violations of rules  you but here's why and then you can contest it just as we think you did these things were wrong then there's a hearing and at the end of the hearing one of the issues if there is an adjudication of misconduct is what the penalties exactly and  house obviously serious the matter is so that that's that's my i guess the bottom line is you didn't unilaterally withdraw terminations as a penalty absolutely not there's nothing in the record that shows that and so any discussion of lesser sanctions was in the context of settlement yes it is and one other point i think see i'm running out of time the the judicial mission aspect of this particular case what the plaintiff or lies on the plaintiffs says that that the defense made judicial admissions at the evidence or hearing on whether or not to enforce the settlement agreement those weren't judicial admissions that's evidence of what happened on that may rd two thousand and sixteen day when when the city of bridgeable even had a settlement agreement those are traditional emissions thank you very much thank you very much admissions because they addressed this argument about judicial stoppel to the district court order the other not that you're not the judicial but it is our position that we didn't make the argument about admissions based upon the language that appears multiple times in our motion for partial summary judges know what do you do with rule for ten of the federal rules of evidence rule for ten for says in a civil war criminal case evidence of the following is not admissible against the defendant who participated in plea discussions say is that i think that this is a different set of circumstances because not only do we have counsel making the assertion of the fact of a settlement they literally came and testified about the fact of the settlement the circumstances of the settlement they introduced the evidence of the of the relief that was to be signed and they took the position that this is what the parties intended as disciplined take it took through out the window for ten because they came in and attempted to use it to say this is what we intended to do but that's that's the argument the army has this is what the settlement was going to be and your argument was no it wasn't ok but i think there's a distinction aren't you bound by a judicial admission but this was never intended by anybody correct but our position is that the admissions made by counsel when he testified as well as when he introduced the settlement agreement was to say this is the intent as far as discipline to be taken keeping in mind that three and a half years had gone by when they took no disciplinary action whatsoever and then only chose to take that action thirteen days after mr ruiz engaged in the protected activity keep in mind also that there was no additional investigation done there was nothing new that was brought up and the notice that went out to mr always was with regard to loud a mail which is collective bargaining not title seven issues collective bargaining issues are totally distinct and there's case law that was cited for that proposition there was nothing new that happened in the interim between the multiple hearings that had taken place back in early two thousand and fourteen on the