please the court my name is jesse rose i'm the attorney for the plaintiff pallant iris lawson and her claims against the defendants in this case there were four errors committed by the district court the first was in determining the testimony directly contradicted an affidavit submitted in opposition to summary judgment the second was an error and in determining the plaintiff didn't plead to claim for hostile work environment which is very clearly delineated within the complaint the third was shifting the burd burden of proof in three different claims to plaintiff and not requiring the defendants to meet any burden on their motion for summary judgment prior to dismissal and finally the court erred by dismissing plaintiff's claims for contro constructive discharge without performing any analysis is required by this court's holdings for claims of constructive discharge primarily the court found that there was a sham affidavit submitted in order to do so this court has found that contradictions between deposition testimony  case doesn't fit within that precedent helpless that is your the standard for that is that the contradiction has to be unequivocal inexcusable and unexplained none of the contradiction cited or even close to that second this court  found that when a third party some it's evidence that supports the claims made in the affidavit that this alleviates the concerns that are had that this might be a false claim in the affidavit that happened here we submitted an affidavit from a third party johnson astron who supported almost all of plaintiff's allegations in her affidavit this levy it's any concern that this is a sham third this court has consistently looked at the extent of questioning during deposition when determining whether the whether the testimony during deposition was alyssa did properly to get make sure that a plaintiff has the opportunity to testify in this case the deposition lasted a mere two hours and forty one minutes of the seven hours permitted the questions asked or simple they were relating to very specific instances and then those answers were taken and applied very broadly the first contradiction had an opportunity to correct or year but the questions asked didn't relate to the way that the answers were used the first contradiction they claim is because she said she was never demoted that she couldn't also testify that she was given different and lesser job assignments no her job title never changed her salary did not change but she was required to work at the front desk she was required to work additional hours her job duties change but she wasn't demoted simply saying i wasn't demoted doesn't mean she didn't have different job duties those are two different questions this isn't an inescapable or unfair to your pay change do you change or pay did not change but her hours changed so that she was required to work ten to twenty additional hours every week and if she's working the front desk every day then that is a different job title and in fact if you look at mr van nostrand affidavit she didn't have a different title but she was performing the work that would be required by somebody under different names i apologise that's not an actual contradiction at all it's semantics the second contradiction that the defendants claim is they claim the plaintiff never complained to miss hominick however if you look at the question in defense counsel was asking about a specific conversation that was had miss lawson when she returned from a family leave in february of two thousand and thirteen she overheard a conversation between her coworkers where they were talking about why she was out on leave her coworker told her yes mr for brees you know who's a manager told me that you were out because you were severely depressed they were discussing her medical condition and that was the only conversation the defense counsel asked about he never said did you he asked did you complain to miss hominick about this she said no i didn't he never said did you complain about any of the insults did you complain about how your subordinates called you crazy every day when you came into work made comments about your mental health every day or almost every day from that time when she got back until she resigned he never asked that question and in her affidavit she says i didn't complain until five months later five months later after enduring daily harassment she finally did complain to miss hominum these are different situations they're talking about a single conversation in the testimony cited by defendants and then defense never followed up and said well you did did you ever complain about something else did you ever hear anyone make a comment about you that was derogatory based on your mental health never asked the question only asked did you ever hear someone have a conversation about your medical records  times instead her deposition testimony suggests one time and her affidavit suggests multiple times and that that was the contradiction why is that not the right way to look at it when i don't think that it meets the high standard that the court is set to find that this is a false statement it's not unequivocal it's not unexplained further those allegations of the comments that were made to were very clearly and explicitly pled in the complaint defense counsel was fully on notice that this was something that she was claiming happened we described it multiple times in fact they got the first letter five months before she resigned when we said the reason she's complaining here is because every day she goes in to work in these people call her crazy nobody will stop it you know what she said in her affidavit was that workers laughed at or called her derogatory names among them the cuckoo for cocoa puffs line that is what she cast a fight about in her deposition  suggests that she didn't really give any more explanation at her act at her affidavit than in her deposition other than to say that it happened repeatedly my missing something there  i mean and she didn't say that it happened repeatedly and when she was asked about whether she heard such conversations in her deposition that's the problem is that the content of the derogatory comments stays the same in both but the number changes while your honor the questions that in specifically that part of her deposition that counsel is asking about were in relation if you step back two pages it's only about a single conversation when she's told that mr for breezy zero has told all her coworkers that she was out on leave because she was severely depressed he does not say any other comments about something else he doesn't say were there any other insults that portion of the questioning only related to that one conversation when they were actually explicitly discussing her medical health records that is very different than an insult and while you're correct your honor that someone could interpret that to be well did they insult you and then make comments that were derogatory because of your mental health records sure but that's not the type of contradiction that this court is required in the past to show that the kind that those allegations must mean dismissed or not considered after an affidavit is submitted the last contradiction relates to her resignation she testified that she voluntarily resigned and that she did so to start to start a daycare center however there was no question about why she did at that time whether she had any preparation what prompted her to make this decision and that's the entire claim for constructive discharge and i'll get to that later if there was an introduction also about whether she was a lot of doubt of the office that the computer ricin and how many hours a day that she was actually logged out and whether she may have been locked out and seemed in tension with her affidavit and that her testimony said well sometimes she was the person may have been on a telephone  call and wasn't that she was directed not to use the office or she was inferring that she had been locked out on a couple of occasions as opposed to that this was  deliberately done act or she testified that she was locked out and at least five times and then counsel asked her how about ten times and she said i don't remember the exact number all i know she said she said she felt like she was being locked out and she and then she testified she found that the manager's office door was locked and only a handful of occasions and that on those occasions the door might have been locked because her supervisor was on a phone call or needed privacy and it didn't seem quite the  was depicted elsewhere your honor you are correct that this is unclear but i don't believe it's unclear because the facts are unclear in this loss and it's unclear because there was no follow questioning to find out if she was told not to come in if she was told you have to stay down there you're not allowed in the manager's office until after he said she's questions websites to gain entry until the supervisor left now that that's the kind of question in answer where you know i tried to gain entry but i was told not to  whatever instead she testified that she made no efforts to gain entry into the supervisor left so how can you now posit evidence that it's to the contrary to that your  frankly i'm not sure how that would affect the analysis i think the question would be are other people excluded to whether or not she suffered an adverse employment action well your honor if she is required at that point if she's the only one who's locked out if  she's asked to now work nothing but at the front desk which is an hourly employees do we have testimony from a coworker mr fernald who said that everybody understood that he was instructed to remain at the front counter her testimony was she would just come in and go to the counter without any instruction that that was the defendant's conclusion no that's it she stated that at page two of the and they didn't there was no question at any point during the deposition  someone instructed her to and in fact she said she was assigned to work at the front desk and from then on that's one of the allegations she made it's clear in the complaint and her affidavit wearies the evidence to support it now in summary judgment her own her own testimony is that she would just come in and go to the counter without instruction but i didn't see that in the deposition or i heard that the she testified that she would just go to the front desk and do our job but there was no question of why she went to the front desk if she was assigned to claim that she was relieved of managerial duties in your claim that she worked late because she had to finish the managerial assignments your honor goes to the consideration  labor law claims as to whether she says there's tension between what you're saying she was no longer a manager for purposes of trying to avoid her being an exempt employee and yet you're saying she had to work because she had these managerial responsibilities that she couldn't get into the office to perform so that suggests that she remained a manager i'm i'm having trouble reconciling some of some parts of your argument with the record what am i missing  if this had been briefed which it was not because the entirety of defend its motion is that plaintiff was always a manager throughout and it ignores the fact that in january of two thousand and fourteen after we sent a letter to defendants her time to change so now she was required to work overtime previously she didn't have to work for a many hours over forty every week now she's required to work between fifty and sixty sixty five hours that's a lot of overtime previous to that there's almost no good morning michael webber for avis budget if leaves the court i was lost and work for a fixed budget for about twelve years she was promoted to senior operations manager she's a supervisor of twenty individuals ten to fifteen hour early employees her claims have no merit and in her deposition she was asked very broad questions what do you have to support your allegations wide open probably ten times she was asked those questions and she gave very clear answers and those answers do not support a claim of either disability discrimination or f m l a retaliation or any violation of any federal or state law and it was clear in her testimony i think that's why i judged daniel's breaded summary judgment and deny the motion to reconsider there is no trick question here there was a very broad open ended what facts do you have to support your claims no limitation no restriction no time no trick effort just let me know what you have to support your claims and she gave it and there were no basis she resigned to start a child care center i'm sorry on her a far in advance of her resignation did that happen that she was her schedule was modified with the assistance of her supervisor so that she could get the certifications it was during the two year period prior to her resignation sense of period relatively yes it took a number of hours that she had to go after work to take these classes as i take it with which she's been arguing is that she saw that she was in a hostile work environment so she had to make alternative plans but  that the fact that she made plans shouldn't undercut her claim that she was in fact constructively discharged him working on this for a while and treasure supervisor coordinate her schedule so she could take those classes it was well known that she wanted to eventually start this childcare center and in a resignation letter she thanked his budget for the twelve year she'd worked there and was in a i think two months after she left she started the childcare center so that was in the works for some time so i think that the record is clear that there is no discrimination here and certainly she didn't complain her deposition testimony is clear she didn't did not complain to any supervisor about any mistreatment did her job responsibilities change at all when she referred returned from milly leave she's been you've heard counsel say that she was directed to work at the counter and that she was given more lower level tasks even though her title and her salary didn't change there's nothing in the record that shows that there's any change as a manager on occasion and when you're an operations manager and for avis budget you want to case you're at the front desk both work in supervising it wasn't just on occasion she said that that was her regular day it was consistent with her prior work before she came back from leave he says it wasn't i understand that but there's nothing in the record that shows that she worked anything appreciably more when she came back from the leave than before and difference from before and after she came records reveal when someone in her position would be at the desk and when she would be in the office i wasn't sure i saw that i don't believe that's in the record right so so when you say there's no evidence there's her testimony and that we would have to me we have to look at this in the light most favorable to her i'm missing the point of your argument here i don't believe her supervisor testified that the change appreciably is what i'm saying with regard to the disclosure of medical information she makes some troubling allegations that her the reason for a family leave became known and was used against her in a hostile way did you offer any substantive argument judgment on the disclosure of medical information claim part of the concern is whether she had an adequate opportunity to respond on summary judge no evidence whatsoever that our client to release any records whatsoever no evidence whatsoever but did you make an argument for summary judgment on that issue the disclosure of medical records claim i don't specifically address that but i don't think in the record this supports any allegation that we are anyway released any medical records anything anything in the record we we usually have taken the view that when a district court grants summary judgment on grounds not raised by a party that has to give notice in a reasonable time to respond it doesn't appear that that happened here on background now if i understand your argument you're saying we can affirm on any grounds supported by the record in the total lab since  evidence of disclosure of medical records that we could affirm but but she's saying that statements like you are depressed you crazy and all that on earth least enough to suggest that they were talking about her medical condition which was mental our client was not aware our supervisor not aware what coworkers were saying that was not that is clear on the record that was not brought to our attention well when he said clear that that was that's in the record i  thought the plaintiff's argument is that you would infer from that that people with knowledge that her problem was mental had revealed it and that was the basis for you know we're coworkers making these kind of statements why should that not be how we feel this nothing in the record that indicates that our client one released any information or two was aware of what was going on within the workplace let me try because i may not be being clear when the not the case i don't know what i don't know what happened there because there is nothing in the record as to how that was disclosed it was certainly not from our client our we are very cautious about releasing hipaa related information i can assure you so i don't know where that came from and i don't know if you can make that inference that it came from our client i don't think you can because different though from that what was disclosed was medical information which was the the district court's right that the pla was referred to as crazy which is not a medical diagnosis correct that's what the district court said well let's let's assume that if there were evidence of disclosure and what subordinates said was she's crazy that was out because she is crazy mr hambrick also said that miss lawson had a death in the family and had to take leave because she had gone crazy that's a shift manager miss you know this is not clear that that's the disclosure of medical condition but miss lawson also testified she explicitly testified in the record on page eighty one seventy one that rich told us you were out because you were severely depressed that's a quote from another middle manager rich from breezy zero is a higher level manager rich for brees you know was someone who may have had access we believe had access to her medical records this is explicitly stated during her deposition we know it came from management the court i don't know how dismissed plaintiff's claims for hostile work environment the the complaint very clearly alleges a claim for hostile work environment it explicitly says that the actions taken created an extremely hostile work environment in the complaint that's one paragraph fifty nine on a sentence so for the court to conclude the plaintiff didn't allege didn't allege facts or didn't even alleged hostile work environment and therefore not consider any of plaintiff's arguments and dismiss those claims is against the weight of the evidence and it goes against the federal rules which require only a short and clear statement of facts we allege the harassment that occurred we allege that she complained we were edge that it was ongoing we allege that it was permeated the workplace and happened on a near daily basis from certain individuals this is enough to have played a claim for hostile work environment the district court held that we did it all i'd like to quickly make sure you can see i'm fighting  cold in the cold is winning me that a worker who says that he was told she was out because she was depressed and she thought for till death in the family that that would automatically lead to a conclusion that medical records were disclosed why do you think you have enough to defeat summary judgment here in the record that shows the plaintiff communicated her mental health status to the defendants were in the documents she submitted in order to take the leave so because those are the only records that were submitted to say why she's taking this leave of absence it's the only thing in the record what else could there have been disseminated except for that specific information is lost and wasn't going around telling people nation in the records  disclosed because it reveal much more than just pressure but the fact that she was severely depressed i don't know what level of of the medical expertise mr for breezy who has to interpret these records but to draw that she was severely depressed and then take that step further and say well she's crazy she's she's out because she's not and then that was picked up on by the subordinates who just mercilessly harassed miss lawson it was really a terrible situation i think just very briefly claimants wage in our claims i think it's important to note that the defendant still to this day have not identified which exemption they're claiming they list all three the administrative executive and professional they don't even say which one they're alleging how could they possibly proven it and they didn't plead it as an affirmative defense they're required to plead an exemption is an affirmative defense and it wasn't it was picked up on by the court and just dismissed out of hand so i don't see how that could possibly stand up on appeal and finally this constructive discharge claims the analysis i do want to note i think i don't believe i could find any case where the second circuit did hold that a constructive discharge claim can be based on the americans with disabilities act i think