david your honour's getting i believe that we have set forth arguments in the briefs that i won't spend too much of my time rehashing but i think it's very important for me to start off with whether or not  similarly situated to her comparables christopher a is who is an asian male under forty years old was hired to replace miss david upon her retirement who's african american female in her  sixty's there's ample testimony in the record that rae as did replace david reyes first of all testifies over and over again that he was trained by david that he worked under david when she when she performed the duties are security analyst  beyond race is testimony there's other testimony besides facts and there's also i believe steve dorner who would be the new supervisor of the security analyst position who says that he was looking for someone to telling evidence that they're similarly situated in that he performs those duties now definit doesn't make the are going to sorry city college does make the argument that ray is not similarly situated today because he performs some additional duties first of all those additional duties the position for security analyst was already set the pay grade was already set point reyes volunteered and said i would do the additional duties no one told them no and at the same time there's evidence to suggest that great as i was told that i'm some of the replace him so there's no i just want to be clear about what the nature of our dispute is here i don't understand your client to be challenging those underlying facts that in fact mr ray as did those additional duties your argument really is that they're just not that consequential minor him yes judge it they're not that kind of consequential number one and number two he wasn't hired to do those duties he started doing the interactive pub duties in two thousand and fourteen and so there are another difference is their call of occasions over and above their job duties they big the city college parent we place a very high value on a college degree maybe they overvalue it but that's kind of their call w argument is number one that if we go back that was one of the proffered reasons arguments as protection number one because the job duty that mr david was actually in the title that she was actually an manager in user services that job description sa it has to have a college degree and she doesn't have a college degree so the the fact that they typed the words on there it isn't isn't it doesn't have a lot of weight and a lot of value in number one number two on the security analyst job description it says that it's not before kind of even retired asked if she could be retitled but there are a lot of important contacts where you do the exact same job but you get a little bonus if you get a degree or you get an advanced degree it's a pretty common employment situation were an employer will reward someone for having an extra credential even though the job duties are to say well we'll just i'd like to address that also under the equal pay act argument because i think it's very similar under the case king vs the cost of i think it's very clear the case is very clear where it says when that's asserted it's asserted it has it's asserted as an affirmative defense and there has to be some offered other than just the statement that education plays a role in the disparity of pay and there's just no evidence there defend offered nothing other than the statement that oh well he has a college education and i also like to add that in addition to that argument is made as a profit reason for not giving her a raise so it's that she would be qualified for the job i believe that was that was what defense argument was that she would be qualified because she didn't have a college degree and that's not true she worked in the job doing the duties for fifteen years without a write ups without a suspensions without any incident for fifteen years so that  reason cannot be a real reason if she's doing the job it's just it's just a smokescreen for saying that this young asian male we're going to pay him more to do the job being him in the sixty that the retiring sixty year old african american woman if and and to speak a little further moving forward into the pretty takes issue all of the reasons that are offered for defendants i am a reason for not granting response and did send an e mail to the department of compensation to jane barnes jane barnes doesn't even know what she responded to him she gives multiple reasons as to why she doesn't think plaintiff should have gotten the point is in question have been granted but she never did it suggests the deviation from their own policies protects i'd also like to point out the internal iolo investigation that the district court didn't even address at all for some reason but the iau of investigation is also telling in that these requests and these complaints that plaintive made were just completely ignored there is no evidence whatsoever that any investigation was done there is in extensive e o policy that outlines what happens when a person believes that they have been discriminated against plaintive went through the appropriate channels made those complaints to try and get the matter rectified there was no response even after she retired there's evidence that suggests that even  dispiriting pay on the basis of race and gender plaintiff's supervisors the department of class compensation who would know of that information no one has ever contacted no one ever responded and just left plaintiff to continue to work nine to ten months in her retirement being underpaid and i would mention doing the job of those two employees there is ample evidence in the record that suggest the people softly should be done by two people christopher a is in addition to his people soft duties gets assistance even in the volunteer duties that he was transactional in nature he also states that i'm sorry barnes set forth that their approval would take several months she didn't think that plaintiff should get a new position because the pool would take several months and she was trying to thousand and twelve so it wouldn't be prudent there was that there was evidence and there was testimony that it could have been applied retroactively so barnes decided oh well you're about to retire so your next nineteen months oh well you don't get paid appropriately for it  i've already addressed the college degree argument again byron says any new position in a white t would have required and college degree how do you know when you didn't do a j a q and then you don't even know if claims of would have needed a new position she could have been reclassified into a different position her current position could have been changed we don't know any of that because you never engaged in the process but yet you're alleging that this is one of the reasons why she didn't get the increase there is also the alleged reason that there would be a fine from s this statute that if in their reliance on says that if there's an increase over six percent then there would be a fine you don't know what the increase would have been and it could have been one percent it could have been two percent there's no evidence at all from defend it of what that fine would have been it could have been one dollar of was entitle to an additional twenty twenty thousand dollars you're not going to give it to or defense argues that we could have been fined a dollar there's absolutely no evidence they are dead so again our our our position is that that is another protection reason why the last read is that it is very important is that it follow its internal policies that it has to give christopher a as a ten percent increase because his union has prior pursuant to their internal policies the prior his prior position as a functional analyst was a union position and has been because he was a part of the un he had to give a ten percent increase so number one that did not at that in turn a policy number one did not apply to radius that internal policy only applied if you're getting promotion whereas did not get a promotion his functional analyst position was a great thirteen position with a salary range much higher than that of the six seat senior security analysis so it was actually could be considered a demotion for him because it was a lower grade the senior security analyst position was a lower grade a gr while in addition the salary range was much lower so an internal palestinian plight hit number one number two even if it did apply the ten percent was discretionary up to they chose to give him that dollar amount because that's what they wanted to pay him because that's what they thought the services work number three it's ironic that they are that the defendant claims that it follows these internal policies now we have to follow internal policies but fail to follow the internal policies as they related to point did not pr well it is true that the facts in this case are largely undisputed there are two facts i want to point out that were misstated today one and i believe the appellant stated that she was sixty years old i might have heard her wrong and she may have said fifty but i want to be very clear for the record that her in her complaint filed in two thousand and thirteen she alleges that she was fifty one years old in paragraph eight she says approximately fifty want it or she says fifty one years old so that means in eleven when she was asking for the job reclassification she was forty nine the decision maker then was in over forty as well and in the protected category the second fact that i want to correct is me as misstated it is about the job requirement for her own job for her manager and user position and it is clear if you turn the page to that that the equivalent of work experience and expertise make now as a college degree so the manager and user that you've been operating for over a decade before her council says fifteen years before that did allow for other than a college degree city colleges when they did actually look at what she calls an all position obviously we disagree with that but even when they looked again at this senior security analyst position they are allowed to decide that a college degree is required even if the plaintiff or someone like bill gates could perform it without apology degree that doesn't mean that we cannot compensate people differently or require it as a degree and she has no evidence of pretext for requiring collar a degree in that position she also less erroneous but still creating a misimpression is that lance was the alleged decision there were also t intervening decision makers that were involved here robyn jackson who i think was also over forty and a proponent of plaintiffs she would agree robin jackson was her supervisor and she tried to get a promotion for plaintiffs and she had to she proposed this on the budget and she had to pull it back from the budget because it wasn't she wasn't going to be here in the next fiscal year so plaintiff while she's talked a lot about what's appropriate and fairness perceptions the facts of this case are that this is a public employer with a fiscal year from which she retired at the end of june two thousand and twelve and that fiscal year and appropriations and approval are very important and she seems to neglect those we what we do admit at the core is that the manager and user title that she had been operating under for fifteen was was not correct she did do security functions but there is no evidence that she is entitle to any more money we know that even if it had been reclassified there's no evidence that that was a material adverse  action she has no evidence in the record that that would have affected her future job prospects or anything to the sort so what she's really after is a pay raise and even after hearing her speak i'm still a little lost what they say the pay increase should be what we do know is what she keeps referring to as the old position what christopher the position christopher reyes did receive was read was written up in a job title and given a pay range and classification and that was as she said and the pay salary schedule and grade twelve exactly the grade twelve she had been at mr ray as actually had been a great thirteen before because i think it is undisputed that he has these functional application analyst and student financial aid and other monetary expertise with respect to computers that is above what she has done on the last even if we look at the job for which was posted which she actually could have applied for the grade and range would have been the same so she has no evidence that she would have been entitle to a job change i think there was an aside from  jackson trying to get her money or more money and that did not work out because she wasn't there for another fiscal year we have no evidence in the record that male or other people persons in the protect category received extra pay when they had a colleague that left and they had to pick up extra work indeed christopher re assess worked for ten years to help her then he was laid off she retires and he comes on her position of a mom to help her transition to learn to do reports but when she leaves in june thirtieth of two thousand and twelve he has left the filling her job functions and he doesn't have anyone help them until again in two thousand and thirteen he did not receive any pay raise for that and she has no evidence that people at city college is receive any pay raise what the evidence does show is that you need job descriptions in a formal a formal change approved by the board and that chancellor must make that recommendation so on there with respect to her burden even for that age case she cannot prove but for cause ation as she's required to under pros there's too many reasons why this would have happened but for her age and what was the reason for the failure to process j q well that the failure to respond to the e e o c complaint ok for with respect to the e e o c complaint the record just shows sexual harassment complaints went forward sooner and she had left by the time and they never got to that one that is not an adverse action though because she has an alleged sexual harassment with respect to the j q i think there's there is the e mail and plaintiff's own facts state that mr barnes thought that she wouldn't get any more money anyway because she didn't have the college degree so it didn't go any further and what there's not a lot except for that there's a nurse in the matter but there is no evidence even though there were extensive depositions in this case that that she would have ever been given more money without a college degree i think there's people who are paid more even in any protected category who have college degrees are paid more and indeed  trying to leave the court if it say she was fifty one and whatever the facts are that are in the evidence i wouldn't disagree with that i mean i think i'm just arguing a little too passionately right now and maybe misspoke but i did want to state that  further the the statement about her job requirement the manager in use in user services stating that they would take it quibble experience and may count as a college degree if anything judges i think that that supports plaintiff's argument that the fact that she didn't have a college degree did not mean that she couldn't perform the job the reason that she's not similarly situated to re is i think it's important to make the distinction that they raise that college degree issue in multiple arguments the college degree argument is is made saying that that makes for dissimilar from from christopher raising the performance of those security analysts duties that he's performing with that with a college degree and she was performing them without a robin jackson testified to so robyn jackson also i think that's also supportive to the point of that robyn jackson also but the plaintiff should be paid additional money for the work that she was doing but again none of that was done i think the question was asked why i know one follow up on the j q and no one followed up on the e o point within its argued that there were six i'm not even sure what the argument is about the second harassment complaints but the director of the e mail department did testify that sexual harassment complaints do take precedent but there is no evidence in the record that there were sexual i'm sorry strike that how many sexual harassment complaints were taking were were in the office at the time or that that was in fact the reason why plaintiff's complaint was never addressed beyond that defendant's policies that they like to to address the complaints timely within forty five days from the time she made the complaint from the time she retired even to this date she's never gotten a response