i'd be here about an hour before like that yes your honor i apologize for that in this action plaintiff asserts retaliation claims under title seven in retaliation and discrimination claims under section  hundred one plaintiff alleges that he was subjected to various adverse employment actions in retaliation for bringing this lawsuit as well as for complaints that he made internally with the employer and to the us state division of human rights and  summer of two thousand and eleven and fall of two thousand and fourteen we believe that the court below made several hours firstly the core polo erit in holding that some of plaintiffs title seven retaliation claims were time barred because they had not been timely asserted to the e e o c before being asserted in a civil action our position is that they do not have to be asserted to the e e o c at all before being litigated claims that allege retaliation for an earlier  charge are considered reasonably or substantially related to that earlier charge under terry versus ashcroft another second circuit that ruling has been made in cases where either resulting court action what i'm concerned about is something like this are you aware of any case like this in which someone filed an ego see charge to which subsequent retaliation would be deemed related then the time then that e e o c charge ends in a right to sue letter and then there is no court action taken and then at some later time after the underlying e e o c charge the underlying discrimination charge is now time barred because the suit was not brought why isn't any retaliation charge from the past that would have been incorporated into that right to sue letter which has never been acted upon why wouldn't that also be time barred after the failure to bring the lawsuit well it is true that the cases that we in the cases that we were cited cited a lawsuit was was brought the charge was perfected but the cases did not say it say that that was a requirement but that's the facts why why would it be the case that if you have i mean it is not the law is it that retaliation charges don't need to be exhausted right we tell you need to be exhausted yes yes and the law is that if you retaliation that is add drunk to reasonably related to a discrimination case that has been exhausted then they are deemed exhausted right the retaliation charge had already been adjudicated i'm not sure i follow you've got two kinds of crimes here at least and there met there are multiple situations and they relate to multiple charges what i'm trying to get at is let's take two different types of retaliation to have an timings of retaliation in case number one and you know see charge of discrimination is filed while that charge is pending there is retaliation the e e o c issues a right to sue letter which would encompass the retaliation as well as the underlying discrimination then one hundred days pass and the charging party fails to file a lawsuit would not the retaliation claim that i've just described the time barred as well as the discrimination yes i would agree in that situation  situation because the retaliation occurred after the s c charge had already terminated had already come of it well actually aren't you also alleging retaliation that is older we're not we're not alleging any title seven retaliation claims for what happened in two thousand and eleven because we were outside the statue limitations for that and now let's now let's try something else ok now that case is dead buried by the statue imitation as to discrimination and as to any retaliation that is in compas within that charge now a year later there is some retaliation why on earth wouldn't the complainant have to a a lawsuit based on the underlying thing that was exhausted before the e e o c that any retaliation no matter how far into the future somehow was exhausted by filing an actually brought a lawsuit on the charge is there any case in which that particular that precise problem has a reason i didn't find a case that fits that exact fits the exact a fact pattern  our saying that because a because this court has said that future acts of retaliation are incompetent in the e e o c charge in cases where there was action taken on the  c charge and the case is still before the court that original case because they say in general we have said in general terms that these are tell you a few cases relate back to the following of the charge but in a quite different situation there would be no need to retaliate i mean maybe that's right but it seems to me that would be a novel proposition that we'd have to decide that's not something we've already i don't think  but yet but the court also hasn't decided that that's that's a requirement i mean that was the fact pattern in the cases that were cited but it all this court also hasn't decided that its requirements decided either way you have decided it is the way yes so i think resources continually going back to the o c every time the employer does but it's something that's retaliatory become very sympathetic but isn't that the entire scheme if you or tell you that against you've got three hundred days from the retaliation whether or not it relates back setting aside those cases where it's in the context of a pending lawsuit you've got three hundred days to file with the a c and you've got ninety days to file a separate complaint or do something else from the time that you get your right to sue letter isn't that the scheme and isn't that isn't there a reason for that scheme that that's that's the scheme but that could ends up being i think why this these terms of resources in terms of time financial resources well you wouldn't have to do it every time it's only if you have sort of made your peace letting the statue of limitations go by without filing the original lawsuit right they don't have to happen once because there's more retaliation while a case is going on then that would also be in compas by the rule that it's related to the charge that's made when i'm concerned about is  file a lawsuit within the ninety days then any retaliation the takes place at any time in the future essentially has either no statue of limitations at all or we'd have to make one up well it so has a s limitations that would be attached to title seven claims which i believe is would be three years because saddam doesn't doesn't specifically and don see a statue limitations but if you borrow from the new york personal injury you would have to go through the process you went in that's the hour about three years without going through the process and my my question is that there was an entire scheme designed to prevent exactly what you are advocating for which is going through the and going through the sea or in this case the new york state division of human process i recognize that there's that there's a scheme but i think that it's because of the way that retaliation actions often happen over a period of or sometimes over a long period of time multiple acts of retaliation that it would be it would make sense that the plaintiff would be required for every single act to keep going back to this agency we've  also short circuits were avoids or does not require that kind of exhaustion and which has a three year statue of limitations so are there any claims that mr du plan would not be allowed to bring more any relief that you well you're asking for under title seven is a three year statute of limitations so i'm still having trouble understanding why one thousand and one is better if you're right that there's a four years that you worse than title seven if you are and we're supposed to import three years statute of limitations to the rebel you can case and i'm missing something i'm probably missing something ok well the night is right now we started these claims  two thousand and eleven because this case was brought in two thousand and fifteen the rest of the claims could come up under title seven but the core polow indicated that we have these other issues of failing to go to the e e o c on some of them and they could come up under title seven because there is no exhaustion and no statute of limitations is that what you're saying in other words if we were to import a three years that good morning your honour's may please the court jonathan popolo for the city of new york i just wanted to pick up briefly on the the section one hundred one point because i think that it did sort of get sorted out of there at the end but hopefully i can perhaps if necessary clarify it further  action eight circuits have looked at the question of whether jet was nullified by the civil rights act of one thousand nine hundred one and said that it wasn't but it's still that law this circuit is not one of those eight it is never in a presidential opinion on it but it court case that has to do with whether it's the type of claim under ninety one that you could have brought prior to the civil rights act of one thousand nine hundred one versus afterwards so that's sort of irrelevant here if because of the threshold question that you can actually bring a section to the diminution in responsibilities not withstanding the pay grade i think i think so i think the last twenty fourteen and twenty fifteen as i write these are ones that would have they wouldn't be subject there were there were two categories  and i think that the response there is that those don't constitute the law adverse employment actions so that's that doesn't meet the even it as plan it doesn't state a claim for retaliation because the there's actually there was actually the claims that post date the two thousand and fourteen e e o c filing aren't actually dimmu nation of responsibilities there are arguments that there was given i'm sorry that's not entirely correct or let me back up that's not as  i'm saying that there are two categories of us of claims is one that claims that he was given additional responsibilities that were below his civil service functional level and his arguing that that was an adverse action and also that he was his ability to access the time entry system was taken away from and that's that the nation and i think on the on the dimia nation argument it's clear that something of that nature that doesn't affect your pay or benefits or something like that that's just a change in job responsibilities such as that doesn't rise to the cases can you cite a case where a diminution in responsibility not withstanding retaining the same pay grade is different that we've determined that that's definitively not or can't be an adverse employment action because the test is as you know slightly different yes and broader it's broader it's if i believe it's a foot if a reasonable person would be dissuaded from complaining from engaging in protected activity then it's considered an adverse action so it is a bit broader than industry and that is not that's not the test that the district court employed in its decision i'm not sure that that's necessar for that it's a material distinction i guess the case it has been has been in some cases well i'm not i'm not aware of a case calling the other way that saying that this is this constitutes an adverse employment action in the context of retaliating claim it's not a discrimination one is employed by a hospital as a medical doctor and his salary isn't reduced but the hospital says we're not going to let you perform any medical functions anymore but you can clean the toilets and  and we'll keep paying you because you know you are tires and we don't care that wouldn't be an adverse employment action sufficient to deter someone from complaining about discrimination might but i i'm not sure i accept the premise of the analogy i think you'd be more like if they percent you know longer get the indoor parking spot versus you get the now we're just talking about the price though right we're not talking about the principle we're talking about how much of the diminution of responsibilities would suffice we're not talking about the principle that a diminution of responsibilities that does not change the job title or the pay could be an adverse employment action now we're just talking about whether the particular ones that mr du plan a ledges meet whatever that standard would be perhaps i mean the i don't know that the court has completely fleshed out what that the you know the borderline between the distinction of what's an adverse employment action and as well we do know what the standard is did you mean we don't know what the standard is that doesn't need to be sorted out the standard is an action that would deter a reasonable person or might deter a reasonable person from pursuing protected activity and  and i think you've already agreed that in principle some kinds of diminutions of responsibility would be so tantamount to a demotion that the fact that there was no change in job category on paper would be irrelevant and that would be sufficient to deter a reasonable person so it seems to me that the question is now whether a reasonable jury could find that those diminutions of responsibility were shifts in responsibility that mr du plan is alleging are in that category there's only one that's relevant here because the others are are timeless it's that it's that taking away the access to the time management system a time entry system and i think if you look at the allegations in the complaint he alleges that this is something that he actually took on voluntarily at some prior point in time because he had extra time so he started entering the time for other people that he was supervising and then after he filed that the o c charge in two thousand and fourteen his access to doing that was taken away so given that this is something that was already something that he was doing voluntarily and it doesn't go to the sort of whoever's responsibilities of course he also alleges that this is the only thing left of what his job was after prior acts of which maybe time or day of taking away responsibilities does that context matter if he's left with no significant managerial responsibilities well but he was given he's also alleging that he was amused he's arguing sort of both as if he's saying i was given new responsibilities that are evidence of retaliation and i had other responsible a responsible like moving boxes around and doing maintenance work and being a fire warden and servant and titles responsibilities that the state division of human rights found were within his the well within his civil service function is by that's another question is that binding on us i think that that aspect of it solely to the extent that it contradicts his his allegations in this complaint is i mean it's not this court isn't necessarily bound by the divisions finding of no discrimination or indeed should we even be considering this at a motion to dismiss the pleading stage and i understood that findings of this kind by a state agency would be evidence that could be admissible at trial perhaps to defeat this claim but that's a far cry from saying that it's something that ought to be considered let alone be considered as definitive pleading stage well i think when you when you look at in the context or you have a pleading that sort of just in bare bones terms says i was given responsibilities that were below my title but nothing laying out saying my responsibilities were x y and z and my title responsibility and i understand that point that would that would be marrying for the relevance  question thank you on with respect to the adverse actions that happened after mr dupont fall the second e e o c charge and this lawsuit i just want to reiterate that diminish a change in pay or a change in title that we argue were outside a civil service and functional titles and that those included handling maintenance requests assigning seats to new employees acting as fire warden think believe that we followed the pleadings the required pleading standard by indicating the responsibilities that were outside of this title i don't think that it requires us to go to the extent of listing all of the title all of the responsibilities that fall within his title that paragraph seventeen and twelve to just say the only responsibilities plaintiff was left with were his time management responsibilities leaving him with a great deal of idle time he voluntarily took over the task of entering time sheets and so on and his responsibilities change from those of a supervisor manager of several subordinates to slowly being responsible for time that that's enough well actually the court the court made took issue with the pleading with respect to the assignment of responsibilities outside of his title which happened earlier than him being axed out of the time management system the time management issue was a separate incident he had time management the only responsibilities that he had left from when he was director of operations from two thousand and five to two thousand and eleven with management related they did not just consist of what he voluntarily took over they consisted of giving  doing reports for the city on employees use of the use of their time giving warnings to employees about abuse of time approving requests for leave so they do not just consist of what he voluntarily took on and when he was axed out of the time management system that suck away all of those responsibilities sept he was unable to perform any of those that were left from an earlier time when he had substantial supervisory authority the addition of responsible is outside of his title happened earlier than that and that's those were the maintenance related responsibilities that we believe is a separate adverse action because we actually cited district case district court cases in the circuit that have held that if if a plaintiff is assigned to responsibilities outside of below his title that's considered an adverse action in retaliation cont indicated that the reason for making this exception for these types of claims is that if i could just briefly quote from the decision the more effective an employer was that using retaliatory means to scare an employee into not filing future ego complaints the less likely the employee would be able to use to be able to hold the employer liable for the retaliation because the less likely the employee would risk filing an ego complaint as to the retaliation it also went on to talk about the costs and delays that that would be that the plaintiff would be burdened with and having to go back to the e e o c so those were some of the reasons that terry gave for may carving out  succession to the a c filing requirement thank you very much thank you