has vs made hudson valley staff oh good morning please the court michael sussman from goshen new york arguing on behalf of mr house the district court improvidently granted summary judgment in this case for a number of reasons st of all that was direct evidence of age discrimination from three witnesses the acknowledged it was a prime official case made but the pretext analysis district court and gauged in was wanting their will for reasons that were given for point of strawman nation under the progressive discipline policy adopted by the hospital three of those reasons were never shared with the plaintiff in advance in any manner the only one which was we shared a march th meeting at that meeting mr mishaps was accompanied by miss campbell who is the compliance officer for the company miss campbell indicated that a five day discipline was standard for the act which was mis faxing a document the miss faxing was never actually directly related to miss hess there were two individuals who were engaged in the faxing as well as a staff person it was never clear who did but putting that aside that's a disputed issue of fact three other issues she never had an opportunity to even discuss with anyone who terminated her was involved in the process which is where we start getting into problems from in this case because we don't know who terminated her why they terminated her because the identity of the individual terminated her the identity of identities was never made clear by that i mean the following the nd line supervisor miss good indicated that she did not terminate her and did not the pain she who the defendant claim from the beginning was the decision maker stated in her deposition and i'm looking at pages four hundred and four dollars six cents of the joint appendix but there was no discussion of the terminations with her and that she did not have authority at that point in time in april two thousand and fifteen to make a decision at that authority had been taken from her the year before miss norman gino testified that mr good told her that someone from h r gave her the direction that you'll find that six hundred and ninety seven for ninety nine of the joint appendix but who is the person in h r responsible for that unit testify that she didn't make the decision and did not give a direction that's a j eight hundred and seventeen dollars so we had in looking at the case was trying to st understand who made the decision nd of all on what basis you i just i didn't want to interrupt your question if you have so from our point of view the case is governed by reeves in the sense that would reeves teaches and i think this is been often neglected in this for courts but it teaches something critical in terms of the role of the court and the jury they have explanations the question of whether those explanations are credible or not is highly relevant here for these reasons with regard to one of the explanations  gino court into our client's affirmation now affidavit gave a specific direction that direction was do not process this person because the person's insurance was up for grabs our client who was a start up nurse which meant she was in charge of processing system from the processing for that reason this woman you know in her memorandum and she's a person who made a just remarks about our client attested in the end the memorandum but that was one of the basis for her criticisms of client and my client was never confronted with that by anyone in a position of the progressive discipline policy that's what ought to have happened so we don't know frankly who made the decision of whether they ever heard in any way from this test you know they never did never discussed it with anyone is that is the proposition that this  whether you know there's a question as to who faxed confidential information and there's a dispute regarding other of the other of the stated reasons that the circumstantial evidence is enough to get to a jury well the there's also the issue thanks for your question with miss lamb in genome islam and you know we was not from what we can tell a decision maker by dint of her position at the at the facility she wasn't in a high enough position but under bachmann hastings several months after woods and according to the affidavit of miss odell previously as well had made repeatedly a just comments about my client now she is in fact fabricating information which goes into the decision and i suggest a reasonable jury could conclude that here or the like knowledge there are gaps because we don't know factually really who made the decision it was attributed to nehru at the highest level nehru as i have told you and you can read for yourselves obviously says she wasn't part of the decision others say she was part of it since she says she wasn't part of that a reasonable jury and the reeves could disregard all that and say they're basically concocting something they're are attributing it to people who who don't take responsibility in ownership in fact move away from it so yes i think could say circumstantial but there's also direct evidence here it's an unusual case in the circuit we have direct evidence the district court says or stray remarks with direct evidence comes from people in the chain of command reasonably proximate to the time and where it's been successively repeated the other point is this i understand there's a line of cases in the circuit which says it's reasonable for employer to ask about retirement i understand that if i'm an employer i could ask someone when do you plan on retiring that's different from repeatedly in public places were other people witnessing it making deprecating comments to suggest someone should retire to old to work there has to be a line between those two it's certainly reasonable for any employer to say to someone in that you have a succession plan we need to know what your plans are i get that that's not the context of the comments here and to rely on that set of cases seems to be somewhat fatuous the other point is this they claim that my client resigned the retired but they've had to retreat from that because their own witnesses acknowledged certainly that the evidence taken most favorably to us is that there was an emotional response which was rescinded within about an hour or two and they terminated her on the records that they themselves admit so i don't think that can save them bottom line here is this clear direct evidence of age discrimination there sufficient evidence of pretext with regard to the reasoning and the the people who are making the decision that i believe judge caris is a brilliant judge and skillful judge and i acknowledge that he certainly writes their own opinions but i think that that he frankly did not get this one right and that he erred in concluding that there was insufficient evidence to deny summary judgment else just would you marshall for me just what you said was the clear evidence of age discrimination is beyond islam geno's comments yes your honor so my client had a supervisor initially and walker at the time was that was the supervisor good was the nd line supervisor the testimony taken most favorably my client is  walker and you see this in odell's deposition made ages comments to my client my client says she reports that both to good and and s tremelo who is the h r person she says that they told she asked for a new supervisor she was not given one walker left on her own accord she also says they promised to investigate there was no investigation now good was involved in that so good would have had knowledge of that and good would not have responded in a responsible way to those claims so that's part of the evidence that's before just so comprehensive and very well reasoned decision this is a this is a what this case is it's a simple case it's a single claim of age discrimination the matter of terminations was judged kara's pointed out  lady actually your honor the the record is clear they weren't it's very clear as judge caris noted that there were three people nancy esther mera head of h r barbara good who was the administrator for the home health care department and barbara narrow and said and those are the only three decision makers which the record is crystal clear about incidentally all of them are within the protected age group two of the three discrimination to the  narrow said it was discussed at the time no rw was deposed she was no longer employed at the hospital she had a very vague recollection but did remember she spoke to barbara good about it both barbara good testified that she did the terminations she spoke with nancy esther mehra the head of human resources a number of times and that she did speak with barbara nuru who was her boss at the then v p and nursing and that collectively a decision was made of question over the passage of time who exactly said what so who can be a bit vague but it's clear in the record that those of the three who made the decision the individuals plaintiff claims made quote a just remarks one had it's again the record is clear had nothing to do with the decision they place a lot of burden on the still in the woman's you know the record is clear she knew nothing about the terminations was at the terminations meeting said nothing afterwards was shocked and upset and attempted to have obligation to go through progressive discipline in all cases and at least one of the incidents she says as the reasons for the termination is essentially fabricated she's being disciplined for not taking action on a state of care plan when she'd been instructed not to do so ok and there are some other things too looking at her the circumstantial evidence i guess i can you tell me why the circumstantial evidence that she raises with regard to the three years of age stop supervising her three months before determination incidence stop supervising her on january by january one of two thousand and fifteen as judge  pendants to forty eight in her response to an appraisal by walker she does about a page and a half of comments on walker it's all about micromanaging directing her never says anything about age and refers to how i complained about this months before so you're talking sometime in mid early twenty thousand one hundred and thirty two years before her terminations she's complaining about walker micromanaging her not a mention of age and again walker was sixty three in the same misunderstood my colleague's comment went to you had reasons that you say were the real reasons for firing her and she says those weren't good reasons for these reasons and could you tell me what the exact reasons were yes and how you dispose of what she said about those reasons yes her the reason for back the reason for her terminations was within a two week span there were four infractions you remember this was a start a care nurse she was to initiate develop manage and coordinate health care for home patients a  that is organization attention to detail documentation within four weeks and only one of these incidents involve ms lohman gino there was an incident of she failed to follow up on developing a start of care plan  failed to contact doctors she entered wrong patient care plan in the wrong patient chart which was discovered she was told to correct it made the correction but didn't change the medications so that if that wasn't found the patient wasn't getting the medications would have gotten them the patient was supposed to get the medications would not have gotten them and all of these four incidents she admitted it occurred in return to the not in regarding the not changing the medic yes that's that's i'm just saying on the nd in regard to not changing the medications which she admitted she said well if i made a mistake i made a mistake the rd was again she admitted this happened a supervisor directed her to change errors or omissions in her chart she st said well i wasn't here and so i didn't do that there was a sign in sheet showing she was there and then when the supervisor said do it she pleaded with which she had knowledge was an inappropriate notation in the chart that i wasn't here that day hour she was concerned you're not she shouldn't be putting false she says she wasn't there she can't false information and because that would endanger her license well explanation that will generally and well let me just get to the th which was the hipaa violation the the incorrect sending of confidential patient information to the wrong place she admitted she filled the fact she she admitted she didn't follow up so it's a kind of related to what we do your on i think if i was an associate and you told me to fax something and i did the fax form which was the wrong number and it went to the wrong place and i said well maybe my secretary sent that i don't think that would excuse me and she also admitted established with all due respect this court no court sits as a super personnel department employers or when you look at the reasons they could be good reasons wrong reasons or no reason at all as long as it is not as long as it not motivated or but for discrimination and there is no evidence that the three individuals who the record clearly shows made the decision had any discriminatory bias i'll also no in terms of so one with loam in general walker they were not decision makers the lore is clear statements by non decision makers cannot show pretext walker was out of the picture and as this court analyze it on the henry versus wyatt forms you look at who when what was the content what was the context made by long and you know yes for months past content was this in reference to another employee a per diem nurse that she was getting older and losing it like hess as judge caris correctly pointed out the losing it is not necessarily correlated to age and most importantly the context was this was regarding other employees that employee was not disciplined was not terminated so you're talking about a discussion about somebody not fulfilling their reporting requirements but it's in a context totally unrelated to terminations and and i think the record clearly shows one that lohman geno had nothing to do with the decision was only involved in one incident the hipaa violation went straight and i just i think this is a response from you on the hipaa violation went straight to the good the other two when students were another supervisor loretta mahoney who had again there's no obligations against her and at most there's some evidence that there's evidence that good spoke to mahoney about these incidents and at most loman geno relayed the  the incidents to mahoning and something you know i think it's always good your honour's not to miss the forest for the trees this is we're talking about health care where the st foremost and continuing obligation is the health and safety of the patients along with the legally mandated requirement to guard and protect patient information there were four infractions that went to the core of that that went to the core of what plaintiff was supposed to be doing and there's no evidence that the that the individuals who made that decision who reviewed those incidents had any age bias also no in terms of following policies plaintiff admits as part of the progressive discipline policy each of those incidents she was spoken to about and the policy also makes clear the employer has discretion in terms of where it sits where it initiates the progress of discipline and even gathering together unrelated incidents so they squarely acted under the progressive discipline policy and in some given for infractions within two weeks and health care this time nation was warranted it would have occurred whether plaintiff was twenty seven or seventy two and she has pointed to no comparisons where the hospital acted otherwise is a lot to rebut in two minutes but very simple he counsel says it's crystal clear to subpoenaed in the terminations decision and conversation he points to miss nehru being involved in conversations and says she acknowledged that vaguely please read miss neighbor's deposition she acknowledges nothing of the sort she said there was one conversation with her and she did know the content of the conversation was about the facts that's all she said she said there was no conversation with her about terminations please please read the transcript with regard to mr mehlis she says rectally she was not involved in the terminations with regard to mr good this good says she neither recommended determination nor did anyone recommend determination to her that's what she testifies to so with regard to c formulation there are disputed issues of fact with respect to his formulation with regard to the four incidents one incident my client plainly stated directly that chief as we went over earlier that she followed the direction given to her by her supervisor with regard a nd there was a meeting the meeting was about the facts at that meeting she did not quote admit she indicated at that meeting that she did not know who sent the facts that there were two names miss odell's hers and a rd person it was not clear who did it what's clear  was not disciplined for that the other staff person was not disappointed that that's part of the record with regard to the rd incident as the court pointed out my client indicated very clearly she was given direction to change a chart though she had no personal knowledge that what she was supposed to change it to was accurate and that is in permissible under her license judge caris and gauged in blatant fact finding here and counsel it could be no clearer than in this regard the jury should determine what you heard miss lamas you know allegedly cried when she found out my client was was leaving and went to personnel and said please please please there are a one million contradictions in this record and they have to be satisfied on the rarest theory of