the next case on our calendar is reanna mercedes versus new york city department of education could you foresee yeah thanks i can't reach you in this title seven case it's respect we submitted to this court that the lower court erred i didn't construe the facts most favorably to the plaintiff in this case and it was assistant principal at a school she received a satisfactory rating in february of two thousand and twelve and missed a political comes in and gives only had two months to a there's plenty of evidence based discrimination against your klein there is evidence that palanker made gender based remarks elsewhere but what is via of it is of gender based discrimination started when she received a developing rating and the other two a p s did not receive a developing rating and he conceded that in there even though i didn't have enough time paraphrasing to evaluate you i'm going to still give you a developing rating and and recommend your discontinuance so then what happened after that you felt that it was discriminatory she went ahead and filed you know yo complaint in good faith in late july her to believe that she was discriminated against because of her gender because they were too comparative a p s that were males at the time and they got asses in a satisfactory so they weren't rated at all in my and they palanker did make some extraneous sexist comments right it wasn't really the sexist comments it was comments i think pertaining to national origin but that started the ball rolling she went to go which she supposed to do in july the superintendent stepped in and said you know i'm i am going to overrule the principal at that point and then the ball basically started rolling it's all outlined in the brief after she filed the internal complaint she tried to get transferred to block the transfer then you have the physical threat and actual physical threat against my client by by the principal must apply ako which she documented at the time she filed a police report and she also confirmed it in a e mail which also went to the seen such a toxic situation there after there after after blocking her initial transfer she gets falsely accused of of corporal punishment because she allegedly assigned four students to do cafeteria work i produced i produced which she disputed a couple of things about that it was not in her evaluation in the summer before her ojo complaint so you would think it would be in her evaluation the principal has two days to report a corporal punishment issue and i produced the declaration from one of the students who said none of us were interviewed by it by the principal and the principal is the one who conducted the investigation so that's a declaration that is in the record and and that's  then the next incident that occurred was with respect to the observations in december of that year and that's in dispute because she she believed that she had until january as the other a p as you had mentioned you're on a difference in treatment this is another difference in treatment i produced two declarations from teachers who submitted observations and in january the same time my client did in connection with the other a piece that's a suggests that she try to transfer out she tried to because of the developing reading she couldn't go anywhere at that it took the fact that when a new female assistant principal came to the satisfactory rating added at the end of that year which was again overturned by the superintendent so this is the nd time it was overturned and then what happens is she gets placed in an office placed in an office sitting on a small chair like a kid in garden chair she couldn't talk to anybody she couldn't do anything in connection with her four of her duties as an assistant principal and she sat there the six months and to superintendent finally intervened and said this doesn't answer the question of the presiding judge which says someone else was hired to words who's the male and was treated like males so you know the suggestion is there's no question that palanker mistreated your client there's no question about that and there's no question he lied about it and there's no question that the administration didn't look the question is was it based on gender and the fact that after of a fact somebody of the same gender is treated equally we have held in some cases is not enough because after the fact that you know to avoid blue suit you're likely to do that but it is relevant so the answer is yes he did bring in a female this was after the  she didn't have a computer she didn't have a phone she had no access to to data in order for her to like look at students and figure out what's going on what we do have right about ok one last question before your time filed another complaint december she filed another complaint in in the summer of two thousand and thirteen and the conduct never stopped the retaliation never stopped if you look at iran are saying that you we looked at her last complaint right the time is short investigation starting in may of two thousand and fourteen regarding the cell phone incident again which is well documented here my client refutes the allegations that occurred and i got the student who to submit a declaration saying this never happened and she was pressured to lie by the assistant principal when she she wanted to retract her story the principal said no if you try to retract your story if you try to read this is in may of two thousand and fourteen you'll never graduate that's in the declaration and i believe that is in page three hundred and thirty six thousand three thirty eight there's another declaration three hundred and thirty nine thousand three hundred and forty when the student came right after the answer came in to apologize for her conduct so that happened in maine fourteen now you asked the question it took six months and then she was terminated in january of two thousand and fifteen it was all over over that over that charge over the cafeteria charge and over some performance issues and by the way she got another year rating in two thousand fourteen during that summer which was also overruled by the superintendent it wasn't until they said stan she did the cell phone issue that that she was terminated in and i would respect a two year period of time when zero is somewhat similar because it started in thirteen in the last x occurred in sixteen and so i respect you look at those cases in this particular case the continuous conduct a continuous retaliation never stop please the court my name is scott shore and i'm here on behalf of the department of education the scorch of the firm the dismissal of the title seven claims because the plaintiff presented insufficient evidence of gender bias retaliation or hostile work environment to defeat summary judgment my adversary has mixed all three of these issues together so let me try to disaggregate them a bit and explain why the district court was right to dismiss each claim with respect to plaintiff's claim for discriminatory term and nation the plaintiff has failed to meet her burden on pretext there were several legitimate incidents that led to her determined to lead to the discontinuance of her probationary position as assistant principal much of this conduct was admitted to she admitted that she was late with her observations she knitted this is page one hundred and forty eight of the record she admitted to are one of the investigatory bodies that termination decision he recommended her terminations then it had to go through the superintendent and it had to go through a chancellor's committee during the chancellor's committee hearing the plaintiff brought in a witness this was a witness that o s i had not interviewed regarding the cell phone incident the committee viewed that witnesses the plant plaintiff's own witness as testimony about that incident as confirming that it happened that incident by the way is based not only on an interview with katie the student whose declaration my adversary just referred to but also based on interviews of eleven students in that class and when did those declarations you have are cerified to come in those declarations came in only after we moved for summary judgment they were produced for the purpose of opposing summary judgment and as i mentioned before ms is admitting that she had allowed the students to do the cafeteria work she admitted that her observations were late she does not challenge the nd to your ratings as pretextual but opposing counsel told us that the ratings or at least some of them were overruled by the superintendent is that correct i don't recall ever seeing that in the record or in my adversaries brief will correct me if i'm wrong i'm sure but the evidence we cited in our brief is that she challenged all of these ratings the two year ratings were ultimately upheld by the chancellor's committee the derating was ultimately rejected after ms mercedes was terminated but at the time she was terminated that had been challenged and at the st administrative level level had been upheld plus as judge pooler mentioned a few minutes ago ms mercedes was replaced with a female a p which go some distance toward showing that there there was no this this was not to terminations he just didn't like our he didn't like her that's clear but there's no basis that he didn't like her because she was a woman well and he didn't like her and he did and there is evidence would be administration didn't really do much evidence much looking into the fact that he lied so that you know in terms of what they did there is plenty of the question of whether this was based on gender is one thing that one keeps coming back to i'm not sure why your honor is saying that it's clear he lied with respect to the administrative reviews of ms mercedes complaints her complaints about her you're reading her complaints of discrimination there's no argument that the reviews were anything but fair and impartial i do want to talk about new evidence of pretax that my adversary tried to raise or did raise for the st time on reply he cited these four cases three of them brought by his own clients which he doesn't mention and he says that they were all brought by women and they all allege similar discrimination involving polanco that is not accurate only and he says they're all open only one of them the  and by the way he's mentioning these to show that i was biased against women only one of them the federal case alleged gender discrimination and my adversary doesn't mention the southern district dismissed that claim on summary judgment for failure to establish a prima facie case  this court dismissed the appeal because of a failure to perfect and he also tries to bring in his own description of a video in which principal politico had appeared he says it was a sex video that was demeaning to women that's not retaliatory terminations claim as you mentioned there is a big time lag here this is not like massaro where a school three month summer vacation can explain the entire gap i know there's a lot of background evidence that the plan for when you look to the last so that you know you have to go you have to be sensible is see what is going on and whether from that one can infer causation absolutely your honor but that is had unique power over the plaintiffs career prospects had made the threat to ruin those career prospects and then his career prospects were promptly ruined and this court applying something akin to but for causation said it's really bizarre to think that any of these things would have happened to this poor plaintiff if his professor had not been following through on his threat but here we have and i'm sorry to repeat myself several incidents where principal polanco those attitudes about or alleged retaliation against the plaintiff had nothing to do with the misconduct that she was found to have committed like the o s i investigation finding that she did in fact have a tug of war with this student confirmed by independent witnesses so and with respect to but for causation there is no argument or evidence that other assistant principals or teachers who had been involved in similar conduct would not have been discontinued gender based as your honor mentioned the female assistant principal had an office how the office about national arjen discrimination there's no claim for national origin discrimination i thought there was some claim that he said something disparaging  millikan women yes that was the only complaint about principle polanco that mercedes made that was ever upheld that he made this comment about dominican women and their shoes but there is no claim here for national origin discrimination and my adversary just admitted that he is not using that incident as evidence of anti female bias finally with respect to a hostile work environment there is no evidence here that she was subjected to the kind of my adversary sense said that these things are not in dispute a lot of these material facts are in fact in dispute there are there the cafeteria incident is in dispute declaration from a superintendent my client then there was a mention about the observations the observations were not late i submitted to declarations from two different teachers said they submitted at the same time as my client to the other a p s and there's no evidence that the a p is wherever disciplined on that and my clients and that's another factual dispute with respect to the cell phone and sitting we have a declaration my client's obviously disputing it we have a declaration what else c do but other than get a declaration from the person who was the alleged alleged person that was the target when she was restrained saying mark basically the principal told her to look to to lie not to change to stop her story and last oh if she does she'll never graduate you know when you look at the facts in this particular case i mean it's clear to me that a reasonable jury concluded at the very minimum at the very minimum given the fact there was an  doesn't let you know is that ultimately decision goes back to the superintendent when you're a probationary employee or does it designee of the chancellor so it's not an independent process where there's some sort of an arbitration that they're  on the bottom line with respect to the grievances is is it's not a you know something that's independent it is provided for in the union contract with ultimately the decision rests with the chancellor and the or and one last thing the evaluations were all contested it's all laid out in the in the in the brief the three reasons for the template for the for the for the for the terminations or contested has said it's obvious that there was there was there was some sort of i am an ominous against my client once you get to that point once you get to that point it should go to the jury particularly on the issue of retaliation  has to be based on a on a prohibited ground yes but it's a factual dispute for the jury to decide your honor if it's we tally a ship and there's plenty of evidence of retaliation which i just outline