described your race as black or country of origin is egypt she's a muslim she wears a he job she emigrated to this country in one thousand nine hundred five and she became a citizen two thousand one she also went to college community college here you got a degree in accounting there are a lot of facts in this case but i'm going to just focus on the central ones because i think that's what makes the case for reversal they involve very humiliating very frequent conduct remarks and actions by two persons is juror anthony figaro who's the head of the apartment and her immediate supervisor maureen russo now figaro had worked with with ms ahmed before at sovereign bank so he knew or she was hired on a very unfortunate date at a story september eleventh two thousand and thirteen so after she was hired for probationary period of ninety days so after the hiring take specially south side talking to coworkers and figure out walks by and this is what he says to her he says oh you still look the same take that rag off your head i don't like it said this on the front of all the other people who are there then he makes a bad joke about terrorists you know i'll at least i'm on the other side of the building so if you're blow this up you won't get me and that was that was the first day but this was just the beginning of his bombardment of her with remarks and talks about this reg that's  interesting question in both the deposition and in the declaration it seems to me there is a sprite lack statement by ms ahmed that these repeated comments about the he job actually occurred at a story bank as opposed to in the prior employment at sovereign can you can you point to where she says that this this is where she says on several occasions figure i made inappropriate jokes about my race ethnicity or religion or that in relation to jokes but that's event those those statements and he told me to take the reg off my head and he constantly told me to remove the judge but it doesn't say that this now that this followed paragraph eleven the talks about the interview at a story a bank but then of course she goes straight into the whole story of her prior fiance which occurred at sovereign bank so i'm just having trouble i mean we just we are to infer and of course we're supposed to draw inferences in her favor but it seems a little odd when we're talking about things that she herself says where the dates could have been provided where it could have been made clear where to infer that because paragraph eleven talks about the  this sort of terrorism statement which does not refer to the job although in other testimony she says that occurred on that date to that then she goes into these several occasions the things that he says about the he job the things that had to do with some of her prior fiance all follows after that is it just the idea that because that is a reference to statements that were made at a story a bank they did the no question but that her statement he constantly told me to remove my her gippi job refers to a story  she did but she separated it i mean she's to this this is clearly this this this current this first comment about the reg occurring at at at as a story is clearly that on the day she was hired that's when he came that's when figaro declaration that i've ever seen but again as you point out we supposed to draw the inference is in your favor and let me give you mickey if you what i think is a little help in that regard later in her deposition she talks about the last day when she for some reason decided that she was safe she couldn't be fired and now she was going to tell mr figaro and ms russo about these comments and what she thought now here's what she says so so this is now summarizing in her mind what had happened and then of course is all questioning by the defendant so you went to his office what do you say to him look as you know i'm sorry page four hundred eighteen of the appendix i told him comments are getting really too much and i don't like the way my religion culture and belief is being represented and i think i'm being discriminated against this is too much discrimination his that's my question i'm like why can you it's i mean obviously you know it's one thing after the summary judgment motions filed and now there's a need to kind of improve the record to some extent but if there's a discrepancy between words and in a deposition prior to that and then got that you have a final statement trying to patch up the holes that's a problem for you well it's not contradictory she didn't there's no contradiction between the two and that's what you need to do if you've got to throw out a later declaration because of adept prior deposition has to be stark contradiction that's what the case law says that we don't have that here and you know i wish you know i wish you could see her she just doesn't that's right it wasn't there but then she later came and she told her whole story but let's face it she she she in her deposition when she talks about what she said to figure on rousseau she made a pretty clear very clear for this woman that that this was ongoing constant behavior and she had had enough because it just gotten to a level where she couldn't tolerate it as a deposition testimony that i read to you  the bad actor entirely in that complaint is miss russo six months later she brings a complaint in that complaint again there is no reference to mr figure on i'm sorry other than the fact that mr figaro hired her and the fact that mr hart figaro apparently trusted her enough to give her some overtime work she then amends that complained a different lawyer and let me tell you why yes let me tell you two legal issues that we think arise from that one and we raised this issue before the judge weinstein didn't address it because he versed on other grounds we believe the fact she didn't raise it for the e e o c men that she did not exhaust her administrative remedies now you have an easy complaint for the you see certainly is put on notice that it has to investigate that there's language in employee files a charge with the e e o c saying i was subjected to a hostile work environment and lists three people who made nasty remarks that she didn't exhaust her administrative remedies that would preclude her from in that case in some ways it's even weaker than this case because it's talking about the same person but they said look that that was the case that was reversed on a single incident basically a supervisor beat up the different the plaintiff and the question was whether or not that was sufficient by itself to be a sole incident hostile environment as the case unfolded later after they went to the e e o c they claim that well it wasn't just the beating it was the fact that well before that that person engaged in retaliate tory and discriminatory conduct going into the past they held that that question can you remember any other comments by mr figure who can you remember any other comments by anybody that you're relying on the answer is yes unfortunately that was not included in the record to judge weinstein we made a motion to expand the record that was denied there's nothing on the rocks so there's nothing to follow there's nothing on the record let me just say something about something else about that the type of constant activity the testimony comes through asked about the issues in the complaint there's nothing in the complaint about mr figaro that engaging in this we finished our questioning and now there's an opportunity this is only one of about six opportunities plaintiffs had to include that there's there was some constant activity plaintiff does not stand up and say you were asked about what happened before you were asked a little bit or you said something about what happened on the first day tell us if anything else happened so yes it could have been asked by us and yes i'm not saying that there was a burden on the other side to do that however given the posture of this case where there have been so many complaints in which mr figaro was never mentioned that certainly would have been an appropriate in a prudent thing for him to do is that what you're relying she does say something that can be inferred to be talking about us behavior and history of bank in the declaration that is in the record for summary judgment and you are arguing that it should be disregarded because it contradicts her deposition testimony the argument i missed refer to is that it simply supplements the deposition testimony because she never said in response to quit she was questioned about this the civic incident she told about it and she was never asked is that it figure  let me a just a further brown versus henderson where which is we have a standard quote about something being contradicted by the deposition comes up but there was something else  brown it said you know they looked beyond just the deposition and they looked even to the e e o c complaint and they said that we really believe we have a sham issue of fact here because basically the entire theory of the case has changed talk about a pivot this case was never about mr figaro or for a year and a half after the e e o c complaint it was only on a third amended complaint that name in the complaint but then you didn't do the fourth name subsequently and that's a contradiction i think it's more fundamental than that i think the what happened here was that the entire case was based on the conduct of miss russo that was the case before the e e o c and going forward that there may have been instance with mr figaro up back in sovereign bank but in fact there really was not a problem with him at a story after it became clear that the incidents involving ms russo were not enough to justify a hostile environment mr figaro was and it into the mix i think your honour's exactly correct that if you look at every document in this case they appear to be artfully drawn to avoid one question that question is while a story a bank did he constantly refer to your his job one of the only reference she made is on that these she was interviewed even before she was hired and even that essentially was sort of going off script so i would urge that that was clearly at sovereign bank but there are two things there are two commons yes job and and the what are you three of us that are both at the deposition said to have taken place on the occasion of her first visit to history that direct all right those are the only places where there is any specific reference to him actually doing anything there and there's no reference to him do anything at all there after and frankly i believe in light of all of the testimony and everything else that the mention of his job because every time she speaks about his job a little bit different she  says he said it at the same time on the occasion however in all the other references as you're on a noticed it is sort of separated out from that incident but if we were just in this case really on the frequency i mean has to turn on a frequency because dancing i mean it can be a hostile work environment but it's rare that that is a hostile work environment so we what we have to do is focus on his her that's our counsel as to whether this was he repeated band or not that's correct and what i'm urging you is to not to basically say look while they're entitled to every inference you can't put facts in that aren't there if the testimony came from would say on several occasions figure roommate inappropriate use of a recent well particularly when particularly when it's not at all clear whether they're talking about something that happened five years before its sovereign was something that happened to the story they studiously avoid saying that these comments were made at a story and given the entire history of this case we figure only lately comes to the game is even accused of anything that has to be looked at very suspiciously thank you  not studiously avoid telling mr figaro and ms russo about what those comments were like constantly at the end of that ninety day period there was no avoidance she said it she said in a deposition and there's no doubt judge walker when we talk about frequency that this was frequent this was every day every day knowing full well that this woman is an immigrant ms russo speaks very slowly tour and with hand gestures and says you take the files out of the cabinet you put them here you take it it does this all in this very demeaning manner with is service after she had said early on that she wasn't to take any time off and in the three months that she was there for on probation i don't trust those those are ok that that's not those are not substantive in my mind i know they were mentioned below what is what but here's the here's the important thing about what you said judge walker this is not the that hints that that hand gestures the slow talking is not linked to her being a muslim it's linked to her being an immigrant statements to this on is yes i don't have time to what you did but i had in my brief you'll see she says to you no you really shouldn't wear that he just i mean and she says she doesn't say that actually right which he says is i mean and i mean you know we're going to quote things let's quote them because you have an argument to make here it's a fair argument she says something about i don't understand why our women cover their hair this is in the context of  conversation about ms ahmed saying that she sent her daughter to have her here done in preparation for the holiday and was rousseau says oh it's really wonderful when women get their hair done i really feel great when that happens and i understand why arab women don't do about this the slight it is a cut the inference is why do you wear that ok and the other thing is she why do you wear that thing is a lot different than a conversation about i don't understand why people in a certain culture do this i don't overstate