court overlooked the facts in my case in terms of discrimination in terms of hiring firing and assignment rate of pay an emotional distress the reason for my appeal the the court paid no attention to the defendant not being for responding to my first motion which was a motion for judgment on a rule twelve c they totally disregarded that the fifty the fact summary judgment i made my claim kane case on discrimination where the defendant the district court failed to recognize pounces argument on his discrimination case based on race when hiring because the district court did not make an opinion pounces hire the court totally disregard it my claim for discrimination on hiring moreover the defendant did not make history respon here is my question i mean they they did you allege that they treated you differently from others and there may be something to vet but w is it that you show bring in evidence of it this is based on grace because we are limited in what we can do or any number of wrong that we don't have jurisdiction over we only have them if the reason for why the way you were treated was based on race in them being in the record you see the evidence of that the evidence is that the claim that the defendant hired all african americans no matter what the qualifications that these african americans had to the lower lower entry level position it didn't matter whether they had a college degree didn't matter in my case that i had several years of high level sales in which i showed them a past employment checked that was over  hundred thousand dollars and an email that showed that i had an account that was for three million dollars that i was working on these qualifications should have been considered and hiring me as well as promoting me in addition to promotion to defend it decided to ask me questions about the higher position that towards promotion in turns of asking me questions on how certain products or services should be dealt with from their clients i gave them manses they in turn use those dances and the results of those they gained revenues from those type of clients so to say that i not capable of increase in salary or in hiring because of my past working experience didn't leveled up to a recruiter that is a telemarketing  that for minimum wage it's it's my evidence of discrimination the promotion part is that these people are asking me questions that the project director should have kno n being that they will hide and they had these qualifications in terms of the fraud part might my income ok that i made was short from the sixteenth to thirty first i made twelve i think a thousand two hundred some odd dollars in that time frame they only paid be eight hundred some odd dollars took the four hundred seventy seven dollars and fifty cents moved it over to the next pay period which was nov fifteenth and stead of taking that for seventy seven that i already made and put that for seventy seven into what they call a miscellaneous section of my next check they took that for seventy seven and merged it would be current commission that was from november first to november fifteenth and by and your employer that the employer did all sorts of long things that's not enough in a case of this sort you have to show that if it were the reason that you were an african american and he would have done it otherwise well here's the thing with that as it goes back to sandra day o'connor as a statement at the supreme court and making those decisions would be very very very difficult for a plaintiff employee to prove that those intent of discrimination because nowadays do you not going to get the the n word you're not going to get the implo quelling to call necessarily on that basis if there were other people who were not african american who had the same kind of situation as you and they were treated differently they were given breaks and they were allowed to do certain things and they were problems with the pay were corrected immediately and that kind of thing then you'd have a basis for comparing and saying ok well then the light skinned because you get treated a certain way but the african americans don't have to say that i'm not qualify to do the job of the project director when the defendant themselves are asking me the questions that was posed for the project directors now there is an example of your scenario they had white project directors that were supposed to handle the question but yet they gave it to me  african american at a lower rate of pay and a lower position that deer right off the back shows discrimination as well as the hiring because they hired all the blacks to do low entry level position yet i'll give you heard you that but i thought that judge walker was focusing on this differential pay i'm sorry the taking of pay from one period and putting it to another do you have any examples of that particular claim be treated differently between whites and african americans it generally i mean our court just can't deal with the fact that there might have been fraud it has to be fraud that is based on one of the sphynx syl that do you have any i don't understand that you don't have to jurisdiction we don't we don't have power to could if they defrauded you by taking this money from one period to another that is not something that in itself our court can deal with do love to be able to but i can only deal with it if they did it because you're african american but if that would be a state question you know that that would be i'm sorry question if they did not discriminated against me they're stealing the money so you're saying that even if i did not have to discrimination or retaliation a claim under the civil rights act title seven that i don't have a fraud case where is the new york city human rights law will cover any sort of disparity of or let me let me  explain if that is the case and we do not have a federal case on other things then that is are you still of your fraud case was incorrect well let me let me let me clear that up for you here from section one the defendant's position statement page to a advance focus hired plaintiff as an eight dollars per hour  the visual as a minimum wage even though i had a past history of one hundred thousand dollars as well as an e mail which showed that i had was dealing with a three million dollars count the defendant in same document stated that they hired other recruiters once i got the defendant's production of documents it showed that these  recruiters were paid much higher deny was paid and it was done after i was hired in one case they paid this woman three times what they paid me but the reason for them giving this woman three times the money who by the way one she was white to she was similarly situated to me as a recruiter the difference in the money that she was paid is because she helped out they hire a higher position of project to rectus whereas when they asked me questions they didn't pay me any money so right there is the difference between a white individual and a black and this was ongoing because they didn't hire any blacks the only time that the blacks came into focus is when i started making my c kelsey and we got on well over time and you wanted to reserve some rebuttal time so i think we should hear from your adversary and then you can well i didn't get into the other parts because we spend so much substantive rights that's count seven of the complaint first count eight of the complaint is a violation of one ninety one which says that commissions must be paid within the thirty days of the month in which they were earned and  pursuant to agreement our agreement with mr pouncey and every other commission individual was to pay the commissions exactly the way we paid them with and we pay on a twice monthly basis for the weeks completed prior to that pay period ball if it were a claim it would be a state law claim yes we treated everyone the same white black asian everyone the same with respect to how we paid the commissions yes your honor but to claim that this was a fraud separately from that is a state claim if you had put a fraud claim which would include such things as a representation sorry you being a side where you think the claim is well well broader  that your honor this case has already been resolved in a final judgment if you want to state the district court judge didn't that all of the time we do that all the time all the don't mean to cut you off but the district court could have said i am not going to entertain the state law claims i am going to exercise my discretion and not it once i dismissed a federal jurisdictional claims i would say i would remain without but he didn't do that he decided to claim force and he had jurisdiction to do that we ok if your honor if that's the rule that i suppose that that's the rule i don't know there's any basis to do that here given the fact that there's no fraud and we'd rather not see mr poun back and it he had another claim against our company when he brought that claim and it's been resolved but that's the rule at night i suppose that's the rule you know turning to the race  discrimination claim mr pownceby says that he tried repeatedly to be promoted to project director during the period he worked there and that was i think from june two thousand and eleven to november two thousand and fourteen and that others were promoted and that he ended up being telling them how to perform their job or being asked to tell other employees how to perform their jobs rather than having the supervisors do it and that this was on the basis of race well th incorrect and there's absolutely no support in the record to substantiate that blacks were promoted to the position whites were brought in with significantly more experience mr pouncey simply was not qualified for this position when i asked him position what the job entailed he didn't even know his argument he said that blacks were promoted only after he brought his his claim is this what boxer promoted while he employed there he didn't bring his claim to after he was no longer working there he never to our knowledge asserted any sort of ongoing claim of you're not promoting me because i'm black that only happened after he left and the record shows i have submitted an affidavit from one of his managers who said that they did talk about promoting mr pouncey on an ongoing basis and this black manager told him he's not qualified for that position and i think you could based upon all the evidence including the evidence is submitted to court in his written communication skills would agree that we could judge that he is not qualified for this position and we but it wasn't anything to do with his race he happens to be black he had to be not promoted but that does not mean he was not promoted because he's black and that's the case that mr pouncey has brought other black people who were promoted obviously he wouldn't say the same thing we do promote b and his supervisor was black so where that comes from some connection between his race and the city and not promote him rather than the skills with which he brought to this position and if you want the questions we ask him more basic questions about automotive industry not about his job duties as a recruiter and certainly not about the job duties of the manager what they're supposed to project manager so with  hired the cork asian woman three times my salary and the reason they gave is a nondiscriminatory reason was the fact that she was answering questions and now she was discrimination was the retaliation part of the claim and the retaliation is pretty clear here i started my point of making my claim was internal that i brought up easily she was there from two thousand and ten prior to me being hired she was a recruiter once i started making my claims they high they promoted her along with to whether young black females be going back to the so i don't get too much time here the the portion of the claims that he's making with the salary the salary was taking from i guess you understand that portion of it but the retaliation happened is a big factor the last meeting that i had with the defendant c e o is the biggest factor of the retaliation along with the fact that once i was fired they retaliated against me again because at that last meeting with the c e o i told him that i was complaining about the discrimination as well as the stealing of the money and when i told him i was going to report him to the agency that's when he got very riled up and started banging on the desk and got up out of his seat walked around to me and said you're dismiss your idea so as i was going out i said no let me make sure that i understand this and i asked them are you terminating me and he was still five he said yes and his present was standing and he witnessed this so the fact that he discriminate discriminated against me and retaliated at that meeting on november eighteenth two thousand and fourteen shows that this was it was and they said that i didn't have protective activity when right then and  c from november two thousand and fourteen to january two thousand and fifteen somewhere between january of two thousand and fifteen to june two thousand and fifteen the defendant mate first claimed to the unemployment division of the new york state department of labor the department of labor the night my claims for unemployment i appealed the defendant didn't show up to the appellate two of the appeal here not the first the judge said ok we're going to adjourn and we'll come back and see if they you know have a reason for not showing they didn't show the second time so the administrative law judge put the case as being nonresponsive and reversed the claim and i was able to get my  a payment but that i want the court to understand there is a civil rights violation that's stated here as well as in terms of the fraud case of a case and and you've stated your retaliation point which is what you want to use your about all time for so we're well over time i'm and i'm going to thank you for your argument and thank you both and we're going to take the