please the court my name is gary aber i represent the plaintiff and it go a lot in this matter and i think i reserve three minutes for votto fine the beginning point i think in the appeal in this case and i don't want to rehash what i wrote the briefs is to look at the lower court's opinion in the lower court identified the motion in this matter as a request to dismiss this case for failure to plead a prime aphasia case and then the opinion goes on in three or four different instances in the brief here and in the opinion to say that the plaintiff failed to plead a prime aphasia case because of the plaintiff failed to plead comparatives in the case and as i point out of my brief i believe that first of all they're both promptly ignored all and phillips you don't have to plead a prime aphasia case that's something that's examined at the summary judgment stage and more importantly as to the other my twenty eight j letter the court has just recently decided another trombley igba caves in the ne insurance any trust of the asian by judge but the context in that case is different than in this case member of the executive decision making bodies and he knew exactly what was happening as it was happening as i did point out my brief in this case miss go a lot as just another worker beatdown in the bowels of the coming didn't even know this was coming into happen and her ability to determine the facts before the action occurs out of the blue is quite different than in a different context than stevens what in your complaint and where in your complaint do can have a vermins from which it could be inferred that the reason for this adverse action was because of her gender or ethnicity or religion because of as it was cited in the complaint you have this almost ten year history of treatment of her which would have been less than ideal well but that happens to people a lot of people are passed over for jobs because they're not team players they don't have the right skill set you have a verb that number one the other people were not of her race gender  or national origin or religion you have not averred that she had exactly the same still say that or qualifications or anything else as anyone else exactly what is it that you have of her and i've got to tell you that even but just probably possibly due to either her gender or ethnicity or her religion or where one of her meant is there in here it's a cult it's a combination of but the specific thing that her appraisals were always either adequate or above average but given maybe somebody else's were absolutely fabulous i mean a lot of people get adequate reviews and they don't move forward in life because maybe they're not team players maybe they're not they're just not as good as somebody else but as that as the complaint indicates that every time she tried to assert that she should have gotten she was she had her authority removed she was moved into a dead end jobs non development jobs jobs tha her exceptional skill maybe she well maybe she had communication but there are a lot of things that can give rise to people not succeeding in this world you do not you know the fact that to her did it happen to other people was there something that but that would make you say aha they didn't let you know they didn't allow her to have off on this jewish holiday is there something you know until very recently you know i live in wilmington and so i was aware don't know your honor in fact it was a part of the downsizing the other thing is i think i allege in the complaint why haven't they were executed as an attorney you haven't looked into that and i didn't get a chance to a discovery yet but i do know about this time there were numerous people being process here we have not had a chance to examine the rift process but we do know based upon the charge that was filed in this matter which was adopted as part of the complaint that an entire class of people all at n b n a there was an entire if there is a plausibility then you can look for the evidence to draw on or suggested in the discovery process no but she has to know it's not something you discover from the defendant it's something that she has to have a belief that this is based upon an improper motive because something has happened so that that's something that she has to know when she files this complaint well this is why i believe that it wasn't because of something else because it's targeted because of this anti discriminatory i mean improper motive it would be because this study remember she was hired because of her high level of knowledge she was given at first a quasar i developed in project and then it goes down from there well she was made a project manager along the way you know she was thought of at one point she was taken into a dead end job no reports nobody to support her but these are things that are examined on the  instance says she didn't measure up to compare or as the defendant might argue that's the pretext or she was moved to position project manager in april of two thousand and three right but then after that i believe the complaint goes on to say that you've moved down maybe she didn't perform well maybe not that that's something that would come out in discovery but let me ask you as a practical matter is there anything other than the fact that she was not moved forward and we don't know if other people are moved forward at all a else that would say because you say aha this is because she's a woman this is because she's a russian this is because she's a jew the denial of even the the opportunity to further her knowledge and education that is alleging a complaint she didn't even have a chance to say well maybe i'm not measuring up for that promotion let me go train in and i don't hear talents i can't think you're out i don't i don't i don't think you're addressing the question i'm sorry i don't think you're addressing the question other than the fact that she did not receive promotions to which she thought she was entitled and there were and that she may have received what we could call the b demotions whenever she complained about it is there anything in the complaint that would indicate there are this was because of me and the nearly no reason she really she referred to specific years when she saw a promotion and it was denied then she denied educational opportunities then her support staff is taken away from her then she has no authority over everybody it's this down going down a set of stairs to basically from somebody who is a project manager basically denied training and i'd have thought he denied staff just kept getting worse and cut you off and i recognize your honour's know nothing to finish the sentence you have the plus the fact as legend the charge that you have all the other immigrants being moved out at the same time and these this raises the specter of discrimination remember underflow entities one of the methods of proving discrimination is other people in the same class been treated in the same way as what in the but i know it states that she's a member protected class but what doesn't use the term protected class but alleges what she is and then it goes down through the history of a consistent downgrading of her within the company while she has not only adequate but exceptional evaluations and you don't generally get somebody downgraded while they're being appraised as adequate as exceptional above average or exceptional but then that i don't know why that would then you kind of raise your antenna to my mind it says you know she was doing well in this position but you know the skill set wasn't right for the next one or there are some some inference of discrimination and treated differently usually does or something else but she didn't have knowledge of the comparative remember she's not human historical record she doesn't explain the roots observing people around her i'm just talking about other cases we have where and i don't mean to argue with you but in a lot of cases we do have situations where someone says you know this person got this and the next day this was denied me and i asked and they gave you know and people observe and they put that into their complaint close i don't want to say she's not familiar with her legal system but under forty if there's any number of different ways of proving i agree comparators are a tool that i've used and can be used but you have pretext you have the fact that other russian jews are as an exhibit i think i can point you out to precisely the judge mentioned that issue but did  did the judge address the the c charge no it was even if i read it and i went back and read his opinion obviously and in context the day he seemed to emote i'm out of time but he seemed to be directing my not being denied and then especially i am familiar with the courts read very recent cases but about dealing with and then it's in the difference between the title seven and the one nine hundred ninety one or civil rights case in the civil rights case law this there are two principal issues before this court as i see them first to the district court erin dismissing plaintiff discrimination and retaliation claims under federal rule twelve b six for failure to state a claim and second the district court aaron dismissing complaint without suicide and pay off or infer a second opportunity to replace her claims unless the court prefers otherwise i will address these issues in turn the first issue involves the following question under the supreme court currently struggling with and i suggest will continue to struggle with after this case that is because there can be no bright line rule instead involves a fax specific and as a supreme court has set a context specific misconduct alleged you explain that that's more than a possibility right you've heard our questions to mr ever so what would have been sufficient to survive to be six motion in this case what should have been put there was i think i judgment all questions got to some of it there's a lot of things that could have been play she could have pled that the other people who received promotions or received other employment opportunities were outside of  protected class she could have explained what degree of what degree of factual specificity is would that require that is would it be sufficient simply to say the here that are outside any protected class that got the benefits that i was to not have it and perhaps list them by name is anything more than that required under the circumstance i think i appreciate your question i think hard answer because in this case she doesn't have identify you know in particular what things he was not but i think if she had said on this date or this month or even perhaps lee this half year i asked for this particular opportunity or this particular promotion and it was i was qualified for it and it was given to someone else outside of my protected class ideally who was less qualified or equally qualified that would be sufficient none of that detail in this complaint and i understand there's no detail but let me ask you would that be sufficient it still doesn't say you can you draw an inference that an improper motive i think we have to look at the case we would have to look at the complaint in the context that a court would look at it on a prime official level or i think it would be too much ask them to prove their case and i don't think that's what tomblin it all require but i the prime official level the general statement is there has to be enough fact to allow the inference and i think there's no easy answer to question i think would depend on exactly what was pled whether it be sufficient to raise an inference in some cases yes in some cases no how about the attachment of the charge that says ultimately after all russian born female workers based on their national origins complained about their treatment to respond that specifically managers jim h r represent a remake of a williams and others unsuccessfully charging party states that as a group on november seventeenth two thousand and six for female russian workers and she had their employment relationships ended by responding is that  sufficient allegation i don't think so your honor and this is why i think there's a couple points that are interesting about that first yes the charge of discrimination is attached it is not however specifically incorporated in the complaint is that it's an attached as an exhibit to establish that they have satisfied the jurisdictional prerequisite for coming into court that is have gone to the e e o c and gotten a notice of right to sue there's no explicit incorporation in plaintiff that should have been in the complaint in the facts of the complaint sent out there's other allegations in this charge that are not incorporated in the plate and counsel came in and decided which i'm looking i'm trying to look at the allegation itself specifically i believe what it says that the that other russian foreign female workers complained that they said as a group they were they had their relationships and on a certain date i don't think that is enough to get them to satisfy the tom lee standard just because just because someone complained that it had something to do with their national origin or race or sex or what have you doesn't give you enough to show an objective really reasonable complaint which is absolutely necessary under the law there have to be facts that show that that complaint is objective lee reasonable and i think that is what is tom well it's pretty i mean if that's not accurate it's quite a pleading that as a group of her female russian coworkers and she had their employer relationships and that they took them all as a group and fired them you're saying that's not enough that was never specifically incorporated you know i know that but but following on just rick is question if it were would it be enough i don't think so and it's because of the objective lee reasonal just because someone complained doesn't mean that their complaint has any merit that there are any facts to support it and that's what they would need to plead in order to show discrimination on the one hand and retaliation the other hand that there was an objective a reasonable complaint has i'm not sure it has to be effectively reasonable in that sense i believe maybe i need to be clear on that in order to establish protected activity which is an absolute prerequisite for a retaliation claim the complaint must be both subjectively it subjectively of discrimination and objective lee reasonable complaint of discrimination and that's where you go back to got the job when i didn't get a job well i think you can certainly overt as to what that person looks like in this case i mean the odd is saying that she is a russian born female if it was a man she could certainly allege that it was a man in april two thousand and five she applied for this promotion she was qualified and this and another a man got the job she hasn't done that had facts that indicate that the complaint of event occurred because of the protective characterised characteristic or because of protective conduct and the allegations of plaintiff's complaint in this case that she was in a  promotions that she believed to be commensurate with her skills and abilities that she complained about this and that she was ultimately terminated i do not believe that rises to the standard and i would ask the court to look back specifically at the actual complaint allegations because they are very unspecific why shouldn't why should we send this back to the district court system or let's call it a chance to amend the complaint here on earth the answer is because she already had the opportunity she declined the opportunity she in fact after we move to dismiss this claim in this case she opposed the motions saying that her claims were sufficiently fled shortly thereafter she did file a motion to amend in which she sought to amend the state claim but she stood on her claims on the discrimination in retaliation claims she's continued to argue that her claims are sufficiently pled even here today and in her briefing before this court she is not proffered any facts that could possibly suggest an inference of discrimination as a result i think the court was perfectly within its discretion and it is an abus in the complaint well i can say that the complaint itself in this case does not adopt immediacy charge she says nothing of which she says i file this charge she doesn't adopt she doesn't incorporate the language importantly she also never argue below or in this court about the facts on the e e o c charge until standing here she had many opportunities below to point that out in opposition to the motion to dismiss or even in arguing the motion amend or in fact after the judgment had been entered she could have filed a motion for reconsideration i think it's called re argument in the district elsewhere or of those under fifty rule fifty nine and say your honor you didn't look at this and this is a key facts she didn't do that i think are probably the issues raised by judge read about the complaint because if you go back and look at the complaint and per graph twenty it actually alleges that the plaintiff was moved from one from  development area to a project office which was considered as step down in the twenty one it says that she exceeded valuations exceeded expectations the paragraph twenty four it says she was offered jobs outside he apartment which did not require her professional technical expertise and if i remember the complaint alleges that she was well qualified you have better degrees of computer technology and such and then in twenty five it's as if she was denied every educational opportunity for which she applied and to drop mention that we delaware were familiar with and d n a they had classes all over the place it wasn't that they decided not to educate people they just chose not to educate her and then the issue comes up in well i dispute the defendant's argument and they stated to the court below that i cannot proceed in this case and less i plead comparatives that was in the plaintiff's lower court briefs in the opening brief it in it's in the appendix unfortunately adopted it and said you can't win without compares but if you look at the complaint of paragraph twenty six it says the plaintiff was continually denied promotions even though individuals with less experience were promoted that's because that's an allegation of comparatives less experience but maybe their skill set was better maybe they were better team players maybe they had certain qualities for the job that were necessary maybe here are first i don't have to plead compar secondly that's what you develop in discovery and that's the discussion we will have at summary judgement stage and not of the motion to dismiss the age is there ever your your opponent says you didn't really raise this issue of the e o charge it says they denied her authority that was given to other employees with her same job duties so there were allegations that would lead one to believe that there was a plausible compared our argument to be made and as to the adoption of the e e o c charge paragraph twenty thirty three the plate specifically adopts paragraphs one through thirty two which include the reference the e e o c charge attaches an exhibit  court reviewing this complaint would say there is a plausibility remember as justice souter said when he dissented in it bob schieffer member justice souter wrote but he the senate igba and he emphasized the fact that even if a savvy judge doesn't think i could be successful i should be allowed to go forward and judge justice souter use example unless i ledge little green men or my trip to the moon or something i should be allowed to perceive the issue as plausibility your honour's m believe and maybe when discovery comes up i'll believe that i'm not successful and there's also the court i may not proceed once i get into discovery but i should be allowed that opportunity because i believe the complaint though show the plausibility of advancing an argument that was wrong under the case i can't pronounce and yes for it she was saying i have to plead prime aphasia case elements which i don't know and that's what my answering prefer in the court below was but the court adopted that i do have to plead a prime official case and then you're saying if the court would have given once they decided that it was giving you another chance you would have tried them i would have an under i don't want to