an overly interpretating the local world or regarding summary judgment motion here the district court determined that plaintiff's response an opposition to defend a statement a material facts in dispute were not allowed or permitted as a separate file any under the court's local rules and in so doing the district court imposed the ultimate sanction against the plaintiff of striking that pleading and denying all of the defendants spats and as being unopposed and by the plaintiff in that in that respect ms wiley didn't the district court also do the same thing with the city of albany it rejected one of the filings the extra filings made by the city as well yes started the district court did however the harm so the clients of far exceeded the harm to the defendants in that instance because in the with respect to the plaintiff a post motion for summary judgment well i don't that's not exactly right because i mean i understand the argument about you being prejudiced to some degree but this trick or did have your statement of serial facts wh basing its opinion on the court nearly exclusively relies upon defend this statement of facts there is only scant reference to plaintive statement of facts which is document fifty  making about prejudice in that respect the district court found that you had met almost every element of your prime aphasia case with the exception of having a comparative and you don't challenge the comparative or ruling on appeal so what are we supposed to do with that went on i did challenge that compared to ruling on appeal because that kept parent or ruling dealt with karen tomlinson and the issue of insubordination part of the  is a rd party witness who said that he overheard that employee screaming and yelling at his brow thing and in fact ms brophy herself acknowledged that the employee would get so angry she would turn right in the face and that lewis wants pending at the time this case wasn't in fact the district court ruling came out in the very same day that this course ruling in loose came on the same day just coincidentally so i w would be proper because the standard was not a plan properly in this case and also only going back to the facts as as as deemed emitted by that punishment your honour's there is it's baked in the cake the emphasis that miss west was entitled to as a response in a motion for summary judgment she was completely the problem that right based upon a reasonable ruling a reasonable interpretation of local honor but certainly that was never insentient to me then that i mean but just speaking as a former district judge that would have allowed both you and the city to file over one hundred pages you you've got your memorandum of law on summary judgment you've got your statement of material facts and then you've got your or document challenging the defended statement of facts and it seems reasonable to me to construe the local rules to not allow a party to file so much without leave well if on this material plan effect to the movements responses and the paragraph so i was responding to their seventy seven paragraph pleading and like that and but there was no way to intertwine the going to all others abandon the retaliation clients and particular was dismissed by the court and i believe that the court was going to view this as a shotgun pleading which her order clearly says honor one of the things that i think the court clerk is your court focused on was the parties not being concise ms wiley referred to the fact that we filed seventy seven statements of material fact we also incorporated those statements of fact by and large i think all but about six in the statement of facts and we had pages one through a one through nine of our brief contains a statement of fact is while the statement of facts consisted of three lines which in which she said miss west incorporates plain statement of facts for which there are genuine issues to be tried and as you pointed out there were more than two hundred dollars of those so indeed that even if you take out double spacing or something like that you're still talking about maybe filing a document that would have been forty pages as opposed to twenty pages all the district court the district court criticized for filing a district court also said that she so the evidence i think the i think the court you know again we regret that the court didn't find our briefing helpful but nevertheless the court did undertake a complete review of the record and i don't think your order shows anything but that so let me just address more of the more the more you can you go back to judge bryce hers last question the district court's order seems a little inconsistent to me in one regard procedurally and that is the court says that it's not going to consider the so called extra filings of miss west and of the city but then says i've looked at the entire record so what does that mean did the court consider everything or did it consider everything except you or your extraneous filing in her explain his file my interpretation  that your honor is that the court accepted everything i'm not exams are not accepted everything but it didn't look at the entire record because there are facts that we asserted that the court didn't incorporate or didn't address and it seems to me that the court went back through that and just and took a look at the record to see whether they were supported or whether they were contradicted by the plaintiff's testimony and so i do believe it's you know i did the court said that it said that it undertook  complete review the record and i don't think the order reflects that it did not do that but i agree with you that that part there i think she still determined i hope not crook that from all the pieces of paper that were filed what was in fact industry and what was not and then to determine whether that was relevant or not ok same question same question that i think society these point was in fact issued on the same day that the court issued its order but i also think your honor with respect to the compared or that in light of the fact that mr perry made his own decision as to miss brodie's recommendation for a terminating and that that would not nest that would be necessary i think you can affirm it on the grounds that alleging a pattern and practice of race discrimination to fail to show any such pattern or practice and moreover she failed to show that she herself suffered any race discrimination she also failed to show a violation of the order whistleblower federal claims in this place are really based on the retaliation claims that she did not properly assert and out alleged discriminatory personnel actions that she didn't defend against in responding to the defendant's motion for s on the plaintiff does not claim to ms brophy any racial slurs or epithets instead plaintiff attempts to rely on a history of very simple and actions as evidence of alleged discrimination but the defendants expressly move so at this point there are in the defendant properly supported each of those claims your honor we should offer the declaration among other things we offered the declaration of derek brown who had been the plaintiff's manager the supervision and likeness like the plaintiff mr brown is african american and he testified to the qualifications of the various individuals selected and indeed sometimes even his own participation and recommendation tomlinson so our motion was properly supported in that regard and it was not properly opposed or opposed in any way by the plaintiff in her response in opposition we respectfully submit your honor that that part of the court's order should preclude  consideration of plaintiff's reliance on those acts in terms of her discrimination claim as it would relate to say the transfer or the recommendation for promotion but i can address does not contend that ms newton who was her former supervisor for example that it was a former supervisor she does not claim does not claim that she retaliated or discriminated against against the plaintiff and with regard ms tomlinson's promotion or appointment as a grant accountant or grant grant man or not to grant manager with a grant accountant that was ms tomlinson's i'm sorry that was miss newton's recommendation or that was her decision to make that and the plaintiff in her briefest tried to disparage ms tomlinson by simply referring to her as a secretary but the fact of the matter is that ms newton it was plain to st testified that she she assumed that there were other duties that m tomlinson was making up thirty nine thousand dollars a year when she was the classified as the administrative assistant to ms newton and she received a forty one dollars and she received a two thousand dollars promotion when she became the grant account the forty one thousand dollars it was a five percent raise and the plaintiff at the same time which she was complaining about was this senior accounting tech position that she got the plaintiff actually got a ten percent raise the three roughly three thousand dollars raises two thousand nine hundred and ninety nine dollars if she actually got a bigger raise for what the plaintiff contends in her in her deposition was really just doing the same job that she had done before and clearly going to tomlinson was taking on some additional duties but whatever benefit ms thomas tomlinson had gained it had been under ms newton she has been paid thirty nine thousand dollars a year under ms newton and again the plaintiff doesn't claim to use newton discriminated or retaliated against her in any issues on that plane sure with regard to the whistleblower claim your honor the court conducted here in the district or conducted a hearing asked the parties to get together to try to resolve the issues  related to a thirty six dollars deposition and we were able to come to agreement as to all but two subject matters and those were then presented by way of a protective order that we filed with the court and the court denied our motion with respect to water and granted it with respect to two another but the plaintiff never really responded to the aisle are our opposition related to the fact that they were not stated that the one that we ultimately prevailed on was not stated with reasonable particularity and so the court ruled on that ground ms ms wiley the plaintiff in this case did not really address that she stood her ground and said no we want it exactly the way it was and the district court didn't really leave the district we're going to suggest to the district court some compromise or some area to meet in the tween and that was the reason for the motion was this it wasn't state the subject numbers seven subject matter number seven your honor stated information pertaining to any external audit internal audit investigation and now assess or review of any financial procedures  injury in the course of the day and so the fact of the matter is that you know it just wasn't stated was enough reasonable particulary that we were going to be able to review that we were going to be able to prepare a witness for that and the district court agreed and plaintive really didn't leave the court with much of an option as to what to do in terms of in terms of brokering some sort of acceptable middle ground ok thank you honor from a can i address the capital just wanted to address the cat's farm with respect to mr perry in my in my time since the case since the case was decided your honor this frame court has mr barry did perform an independent investigation there was no mention of it of race or no mention of miss tomlinson in the three and a half page statement that the plaintiff had submitted to mr berry for  his review and mr berry was really then left with the situation of having to review the relationship between these two individuals and if if mr berry is being attacked or the manner in the manner in which he conducted his investigation and resolve the issue there must been some signal to him that it was more than just a manager subordinate issue and i've run out of time your honor thank you for your when she was demoted and sent to the tellers office she discovered right away that there were serious breaches and probably call having been an incompetent and internal control accountant herself and what she did was she when she discovered those her drawer actually hurt well till came up short twice twenty dollars was missing and then one hundred dollars was missing from hard to nail and she was written up for  causing the loss of public funds as soon as she sent that letter and soon as she said that they retaliated against our she was fired three days later she had a pending evaluation  paint fifty four of the continuation deposition of wendell williams who testified that miss west had me getting positive reviews the entire time she was in the department and but when she found effect and she admits that in her deposition so i changed it after she filed her notice and then she goes but could the district court the district court said that whatever miss west had west complaints were not about violation of internal rules of policy she was at the heart of her complaint was the bell loss of public funds and we were able to extract some information about the in the nature and exten twenty three thousand dollars missing criminal investigations open this was how this happened after she was terminated however the district court would not allow us to go into that and then penalize us further by saying you never really  never really proved that there was a problem here so no but the district court i know you disagree but the district court also said that with regards to the teller shortages  alleged file cam and since then after the hearing than i did before he didn't ask a single question mr brophy did not testify did not utter a word no one did an independent investigation in effect after the hearing ms gross thing went to him and