man versus new york state department of labor  her former supervisor miss taylor not only harbored retaliatory animus but also interjected herself into the hiring process in order to ensure that ms land would not be hired in violation of title seven meltzer which you allude yes was said two years before the hiring action was relevant right it was two years before she was rejected yes your honor the e mails were sent in two thousand and eleven and the specifically to disqualify miss lynn from the position she said that they would do what she said and they would not question her judgment the department of labor's so qualified your honor the only evidence presented as to the official requirements for the job were to be reachable under the civil service list fluent in both chinese and english and have at least a high school diploma missed when it was reachable under the civil service list she was fluent in both languages and she had a master's degree if prior experience as a senior employment security clerk was required the department of labor could have made it a prerequisite for this her honor appellant does not concede that she was a poor employee at the previous job that's not part of our case here correct your honor she lost that job because because they found to correct we do not can see that that is the reason for that for that employment decision however since you're not contesting it we have to take the department of labor's view of why she was f d well we have contested it however the fact remains that that that previous experience in that position was not a prerequisite for the l s r position in fact mr mallory testified that anyone could walk off the street and be employed as it was are his was not necessary but do they have to be blind to her previous record with the agency it would be kind of crazy they had a record of this when they knew her and you're telling me they couldn't even consider it while you're on at the department of labor does have the ability to to base it's just it's employment decisions based on which of the reachable and qualified applicants to hire however they made this decision before even determining whether or not to hire her they decide it's not even consider her but your client and her  in the local rule seven one statement she agreed that she was responsible for making the final decisions with respect to campus and hiring and belafonte's decoration says that in his view an individual is on able to perform the first position will be unable to perform the second and that he learned before she was she ever filed her complaint he learned in mid two thousand and ten that she had made excessive amounts of mistakes and that she whether it happened that way or not what he learned that says your maker learned was that she was failing in her first job doesn't that make it impossible for you to satisfy the vote for cost no your honor first of all mr dante was not the only decision maker while he may have been the final decision maker may have signed off on these things we have produced evidence that there are much many other decision makers involved in the process including miss marcello and this month we're told directly from miss taylor to not consider m lent a second i'm trying to remember your question a second mr brodsky was the director of personnel stated specifically that her previous terminations would have no bearing on her qualifications for the ls our position he stated emphatically that no she could not be taken off the civil service list because she had been terminated and that there was no basis to do so and there is no protocol for doing so is self serving declaration is the only evidence that that her role as a senior employment security clerk would have influence on the ls our position if if a nonmoving party cannot rely solely on conclusory statements to defeat a motion for summary judgment cert surely the opposite is true and a moving party cannot rely solely on such conclusory statements to to win a motion qualified for the position refers to the criteria the employer specified for the position in williams the court found for the employer because the plaintiff did not fit the official criteria for the job which was two to three years experience here once again the specified requirements the only evidence we have of the specified requirements are that the applicant be reachable under the civil service law that they be bilingual they are not willing to be present for the job that would be but why requirements i'm not sure of the specific several services actual practical matter yes your honor however the question of whether or not she could perform this job is a question of fact and one that the jury should be able to determine based on her testimony thank you thank you we'll hear from labor may it please the court summary judgment was proper because plaintiff was not qualified for the s r position her counsel said there were only three qualifications and she had them in spades i heard her say that and that is true with respect to the civil service law mr della hannity's criterion did not arise from the civil service law it was his own honestly held criterion there's no dispute certainly no evidentiary dispute that he did not honestly hold this criterion there was developed quote based on my experience his experience as a worker in the department of labor for twenty five years and as a man is that criteria i'm sorry what was that criterion that was the dough and he handled that criterion at page eight fourteen of the record was that if a person is unable to effectively perform in the lower level proving ground position of s e s see the clerk position then that person will be unable to effectively perform in the higher level l s r job which is the job we're talking about today  and my friends on the other side say that well that criteria is lacking because in fact there's more nuance and we really have to do a much more surgical examination of the requirements of one job in the other but the question is not whether that criterion was reasonable the only question is whether that criterion was honestly held and fairly applied by mr della hannity and there's absolutely no evidence in the record suggesting that he ever wavered from that criterion and now the other side says well one of the reasons there might not be such evidence one of the reasons why this criterion appears only in the declaration is she says is because the declaration was filed after the clo discovery absolutely true but two points on that during discovery in fact all the way back in two thousand and thirteen in connection with the first case its surface that mr della hannity had played a role in the decision process and then again during discovery in this case prior to the close of this governor in the burkett deposition and the malory deposition mr della handy was identified as an individual with influence or who played a role in the employer in the decision process with respect to hiring so they were certainly on notice this lens argument in response is that she had no notice of this additional criterion and civil service is supposed to be a transparent process here are the requirements i met the requirements now you're adding another requirement of which i am unaware and would seems unfair well a couple responses your honor i'm not sure i could do much better than to quote judge winters with my friend on the other side that the civil service that deal well doesn't have to be blind to this sort of this sort of prior poor performance and in fact mr della hansie was not but you know your honour's questioning was this  was this criterion sprung on her was it transparent there's really not much evidence in the record on that one way or the other but the question is not whether one can say shame on dio well as a matter of the civil service law that's not part of this case the question is under this court's precedents like thornley and the williams case was the criterion honestly held and fairly applied and if you look at della hand his declaration which is uncontroverted in the record his own his own criteria that he developed based upon his experience was that failure in the prior job is essentially per se disqualifying for consideration in the latter job and that's what makes all of the suppose that comparative evan and that my colleague cites mr shu and mr tang in barracks perience simply not relevant here because the question is but for causation and for those individuals shoe and tang and frankly for the rest of anyone who's ever been canvassed for this job as far as the record reveals there's no history of failure in that lower level proving ground s s c position and you know if this was a motivating factor case if this was not a retaliation case but a discrimination case a sex case a race case with a like deal well might not be up here making the same argument but  judge livingston pointed out back to your decision in the chen case this is but for causation so we have to ask the counterfactual question remove all the retaliatory animists from this case what would have happened and based upon the record it's utterly implausible to think that mr della hansie applying his criterion would have found misleading qualified and would have canvassed her interviewed her and the department of labor has stated that mr delahunt taze declaration was uncontroverted and there was no other evidence that his personal criteria was not reasonably was not honestly held there we have contradicted that that piece of evidence by mr brodsky mr brodsky was testimony which he stated directly that being fired from the us the senior plummet security clerk position was not a disqualification for the l s r position miss mallory also backed him up on that statement therefore mr delahunt a's evidence is cut is in question we have created question of fact on that matter second the department of labor has stated that there is no one else with a history of failure in the senior point security clerk position similar to m well mr is due had demonstrated that he was unable to perform the l s r position in his first interview he could not communicate in english they stated that in his interview notes and yet he was interviewed for a second time they considered him a second time even though he was patently unqualified based on those three qualifications that we know of senior whether or not they're reachable whether or not they're bilingual and whether or not they have a high school diploma  the department of labor has you know precisely so many such situated because he'd never been in the the senior employment security position correct your honor however he did prove that he would be able to perform that job and did not fit the official qualifications the department of labor has provided no evidence that miss lind could not do the job except for mr dantes self serving declaration if this court finds that that is enough what  that a decision maker can simply ignore the law and make a decision based on his personal parag it is thank you thank you thank you both very interesting case we're going to reserve decision on this