adverse act under title seven of the civil rights act and the illinois human rights act the second issue is whether or not plaintiffs have adequately pled causation under both of those acts and the third issue arises under the illinois whistleblower asked and is an issue related to whether or not plaintiffs have coverage or are covered employees under that act it's important to keep in mind that this is a pleadings case there is no evidentiary record before the court and it is not our job here today to weigh evidence or even competing assertions between the parties it is the job here today to determine whether or not the pleadings have adequately set forth the retaliation claims the core allegations in the case are rather simple curt's paramedic took over a subcontract to jointly operate months the protected activity included egregious violations of sexual harassment as well as the mass act impatient misconduct and those allegations were brought forth by both of those plaintiffs in various forms including in the northern district of illinois court before the illinois department of public and health which initiated an investigation before the n e i police department and before village meetings they can't the plainest protected activity of the variety continued through the time that curt's came in to take over the sub contract how long did the process play crew or whatever discipline was going on the report of the transfer crew transferred and the issue in this case does not involve discipline the issue eleven and by plaintiff's handling in this case plan of alan springer submitted a declaration in support of that lawsuit and both of them the only department of public health investigation was initiated in october of tw but through that time both of the plaintiffs continue to engage in protective activity and importantly your honour's curt's paramedic was not involved in any way shape or form throughout any of that time until at the earliest may of two thousand and twelve when it start first began its pleated discussing entering into a contract with any i pressed you so the first time that hertz would have had the opportunity to learn of the protected activity would have been approximately at best one month before they did made the deliberate choice to offer the paid e m t that work in the daytime under this have contracts that the daytime employees have eight mts who are employed by the subcontractor previously as a met metro paramedic on june fifteenth and june sixteenth that number went down to except for the plaintiffs in this lawsuit who are the only two whistleblowers so your honor so we submit that this is the allegations of retaliation are palpable this is no displayed and we have certainly given curt's notice of the claim retaliation and the basis upon which of existence is certainly and they also conceded the manager for kurtz the hiring manager conceded that she was aware of the bowling lawsuit at the time before they hiring decisions were made we have al extensively in the complaint that this lawsuit well as an initial matter it's reasonable to infer that when you're go about to enter into a subcontractor especially one that carries an indemnity that you would do a little bit of due diligence to look up the entity that you are seeing that you are entering into a contract with and it also it's also reasonable to infer that any arc rescue would of course inform curt's hey by the way we have this big federal lawsuit and the illness department of public health is actively investigating us in fact june fourth was the first time that the illinois department of public health issued a notice of revocation for one of the licenses of the m t s the contract between currents and a rescue was entered into eleven days later so it is very plausible to infer that of course they would be aware of this and additionally we also pled that these allegations were all over the news media in lake county and a a simple google search would have meant multiple news stories that named plaintiff falling and so that with regard to causation and if you're asking about causation causation at the pleading stage can always be inferred importantly this case this court in lovano versus versus wal mart case has expressly rich acted any suggestion that there's a heightened pleading of causation at the pleading stage because causation can be inferred even where a defendant expressly denies awareness even where a defendant expressly denies that it did it the reason for the adverse act was the obviously be incredibly unreasonable to make an inference and impermissible to make an inference for the defendant that this profound coincidence that it was just the tube whistle blowers left behind was benign but now there's a river in the underlying case and he was also employed by kirk's its predecessor match up aromatic so kurtz has a very keen motive to make sure that these two whistleblowers stay the heck out of their work place because they they had been making allegations against the prior the such revocation that three other employees had a nose replacement revocation the squat itself was placed on probation by the illinois department of public health and they were sanctioned and fined so there was multiple multiple ramifications and no but but some of the six were named in the underlying lawsuit as bad actors specifically the supervisor who was the joint supervisor of the squad of the squad and the joint employer that on the day time shift she had been implicated in the underlying lawsuits and she was retained with the other with the six and so the issue that faces your owners today is simply whether or not the plaintiffs well there's three issues as i mentioned but whether or not the plaintiff played a retaliatory act and as this court and the supreme court have recognized over and over and over again the ultimate issue in any title seven case it's discrimination down nine or in this case we tell you going on the court soundly rejected from the supreme court through this court over and over any attempt to up it here too rigid formulaic elements of a kind of it cause of action and in this case kurtz relie entirely in attacking the complaint on the retaliatory act on a rigid formulaic element of a cause of action this hearkens that although all the way to teamsters the supreme court of the united states a set forth that you don't think that can there and the relief in a case to no applicants where the application would have been futile this this court in lloyd's recognizing that this principle from teamster's stated that what matters is the factual setting of a dispute not an abstracted formula intended to be all things to the hit the void court said if the plaintiff alleges that the employer's decision not to approach people of her status was itself illegitimately motivated and shows that but for such a practice she likely would have been approached then also must  complete the chain of causation establish that had she been approached she would have taken the job we have played all of that we have pled that there is a closed application process they didn't approach anybody except the sick the secret sex that they approached behind closed doors that it was no notice posted in the station not on line not in a newspaper they took they went to these people individually they did it acquire the contact information of the two plaintiffs in this case but they made a deliberate choice kurtz made a deliberate choice not to contact the plaintiffs not to interview them not to hire them and to in fact conceal the employment opportunity from them that is a retaliatory adverse act both under the teamsters and lloyd fisher line of cases it is also retaliatory adverse act under burlington northern which is the seminal case that sets forth the standard for retaliatory acts which is broader than that for a discriminatory act importantly burlington northern states we phrase the standard in general terms because the significance of any given act of retaliation will often depend upon the particular circumstance curch or the chief in this war mildred say what about well we they didn't go because they at this point had been experiencing a lot of retaliation and the decision was final as far as it was announced and they were not given that opportunity i will say that i spoke with kurtz's counsel and we filed the e e o c charge about two weeks after this happened and i spoke with curtis counsel and i asked you know him to i offered him the opportunity to demonstrate that kurtz was not involved in the suspicion to share with me the communications the e mails and you know as i'm not in the business of suing people who are complicit he elected not to do that and at no time to kurtz ever you know then in connection with discovering that the plaintiffs are unhappy about this go to them and say oh i'm so sorry th must have been a huge mistake in a mix up by all means you can keep your jobs they were the only two who were actively prevented from keeping their jobs which which is the retaliatory act that excuses the application in this case and they were the only two who lost their livelihoods because the failure to interview them and retain them and she will offer them this employment resulted in both of the plaintiffs losing their jobs that they had held in the communities in which they worked and lived for several years i will just i see that my rebuttal time and i will just briefly mention under the idea there is no definition there's no expressed explant inclusion or explanation of africans or perspective employees the supreme court of the united robinson case that said well title seven doesn't say former employees we get that but of course it needs to be construed to apply to former employees here it needs to be construed to apply to perspective employees the illinois appellate court in the carter called versus human rights commission case which wasn't under protection of coverage but made a very strong declaration in relation to employees who had been retaliated against for having engaged in protected activity against a prior employer and the court said yes this is a cause of action because if filing a claim meant that an individual would have great difficulty in obtaining another job the exercise of basic statutory rights by employees would be more than chilled it would be frozen that is particularly the case here and applicable here where the l and i was little or as perhaps retaliation whether within or with out of the workplace clearly contemplating that applicants can and should be covered and with that i will reserve the right we would ask the court reversed and firmed no court in the country has recognized a retaliatory discharge of retaliatory failure here claiming absent any relationship or any communication whatsoever between the plaintiffs and the is a closed implication process i understand it hasn't happened in this kind of wholesale transition of one employees from one contractor to another before but given the purposes of  the lawyer flexibility and the purposes of the retaliation provisions why shouldn't we apply the rules to these facts well the boy case is far different first of all that's a failure to promote not a failure to about these plaintiffs other than the fact that there was a lawsuit filed by falling kurtz did not know that these plaintiffs were interested in continuing employment and there is good reason why they might not be if you know the allegations that the falling nothing preventing the planes what are you from culture what do you think the purpose of requiring applications in the usual case which i think the purpose is to provide the employer with the opportunity to make a decision whether they would interview the applicant and upon interviewing whether they would hire there is no allegation in this complaint in the amended complaint that curt's would have refused to interview these plaintiffs or they courts would have refused to hire these plaintiffs if they african american and kurt's invites only the six kark asian employees to apply and leaves out the two african americans but that give you pause well i have two questions number one did the african americans apply they're not aware and how could there be any question about discrimination see this is the difference we do have an allegation here of knowledge of the litigation and therefore the complaint should protected activity very well that but there's no allegation bookbinding factory and they were the management there when to all the male employees and said you were the next one ship to receive the promotion you were the next to receive the promotion you were the next to receive the promotion and left the plaintiff woman out of that that is a far different situation than what we have presented here the plaintiffs never presented themselves to kurds in any way indicating they desired further employment and to put the one where they have that entities on june sixteenth at no time in the two years between june sixteenth when that hiring decision was made and when their complaint was filed in this action did the plaintiffs ever approach hurts and inquire about employment ask to be interviewed for other six pm ts how to apply with curt's they gave those other sixty mts the informations that contact this person has the hiring manager do these things to apply there is no allegation that curt's knew plaintiffs about how to apply with kurds so that cannot be pinned the blame for that cannot be pinned on kurtz and that's one of the big problems here the plaintiffs are trying to through their allocations put kurds in the same boxes a r s and  metro and the that that's not possible here we were a newcomer to the situation we had nothing to do with the prior bad acts or the prior bad actors the plaintiffs sued and recovered from a r s in metro for the no allegation to that effect so no there's no actual letter there's nothing alleged in the complaint there's nothing of record that curt's knew that there were eight and they only had contact information for six for all they knew there might have been ten or twelve the employer in this situation think of the ramifications if you're going to impose on the employer the duty to inquire of any former employee hey would you like to come work for me was that you were any of the problems that yes i'm going to really try to clear up is just i don't want to go what they know and when did they know it but i really am concerned about what they should've know or when you'd have any hiring decision when you hire six complaint which they did it there is no allegation that additional people besides other than the plaintiffs were hired they said they were hiring decision was made these six were hired the two plaintiffs were not in isn't that a dubious coincidence but it's not six people applied allegations are six former metro employees applied six were hired the two plaintiffs did not apply the two plaintiffs were not hired you but normally you know i do a company that you know exists and  opposed to a company that is newly formed well curt's wasn't a newly formed anyone no i'm sorry i misunderstood your question chris wasn't a newly formed entity they were just the new sub contractor i could say they did this kind of work then yes they were continued they knew somebody else had come in they had to have some affirmative obligation to enquire who came in and to contact that entity and attempt to find out whether they could interview whether there were more openings whether there was an application process the fact that s might have hidden costs as identity from them for a day between the time they were contracted and in the is a hiring decision is through no fault of kurds and they had an affirmative obligation at some of my point to contact us and we did not need to go seek them out so that kurtz invited applications with some point they invited applications they entertained applications they kind of like they brought in these people for interview no no no no no no i'm beyond simply the names i would not say they delegated i think kurtz's thought process was the fastest easiest way to staff positions is to take people who've already worked for a r s record a sensible is sensible approach no one would think that would apply to everybody right retaliation against plaintiffs were reductions in hours it's entirely possible that a force of six was sufficient to cover these days ships if the force of six was fish and then they didn't need to go beyond and say are there more people can we get more if there's no allegation the record is silent on that if they had enough to proceed with six again did we have an obligation to go beyond that and try to get other people to apply and this would be the first case that we are aware of in the two minutes i think your honor counsel keeps saying that there are no allegations that kurtz knew of plants or that they weren't included but paragraph sixty one of the complaint states at the time that it asked a r s for the contact candidates for the position of e m t besides the metro employees as its hiring manager conceded quote she felt that can contacting employees who already had experience working with us would be helpful and allow her to fill the elected not to contact them the plaintiffs they elected not to hire them not to interview them the issue that we're really discussing here today is one of standing this is what teamsters recognizes and it's what lloyd recognized says it is is there a natural applicant pool in teamsters these individuals did not apply for the jobs the court said they are still entitled to relief because they were in the natural applicant pool they also discussed the contents of this concept a few to that you don't have to go chasing around and seeking an opportunity that is clearly closed to you and there was some discussion about the lloyd case said you know sandra boy did not apply for the job and the lawyer case said that the same argument was made that she she had to like the counsel argues here find out who they were discover some how some way and then that there was an open up and that there was an application going on and then insert herself into a process that she wasn't invited to the white case said boyd wonders why she should be required to actively in the general area but their choice not to race is an inference in this case that they actively concealed this from the plaintiffs in the plaintiffs alone because it was the plaintiffs and plaintiffs alone who were left behind and the teamsters case this is exactly what happened the atkins had the standing and where titles are really so curt did know of all eight and eight they made a deliberate decision and there are consequences for that decision and today we're only here to decide whether or not the plaintiffs have raised the specter that it's possible that curt's made this decision to leave the plaintiffs on a plaintiffs alone out for the purpose of retaliating against them and making sure that these was the blowers didn't join the rest of the current employees they were the only ones not moved over and even the supervisor of the squad said she found it hi only going to take of the eight employees you have now we're going to take all of them except for the two who actually were the one saying hey hey clean up this what we want to report these things that we see that are going on