of unhappy but yet very thankful women carpenters who are here today toward the back of the courtroom you know there's they're unhappy because of everything that happened to him  why why that's not the case well your honor there is testimony in the record that the union had power to assign jobs and i could  cite to those portions of the record but each of the plaintiffs as well is a nonparty union member margarita peyton who had been with the union for twenty years maintain that  that mean it doesn't mean recommand or doesn't mean irony that when a work site has work available they contact him or he gets in touch with them and he finds the carpenters to send to the job site  and that is their understanding that is how they testified to it that certainly it one of the very many disputed areas of fact the the th t some of the statements made about i can get work i have jobs but i can't give them to you are indicative that mr dirk clark recognized he had the power to get to give out  however i have jobs the men don't want if you don't have these jobs which i do with insulation work that the men didn't want so those jobs were ok for these women to take that was certainly a contested area in fact that he had the power to assign those jobs and he did assign those jobs that were less favorable less desirable to the men they'd dramatic three three say in hours which was  elated to his undisputed the actual hours work ranging from thirty five percent of a decrease in hours in zero seven away compared to the prior years for misjudging and then one of the primary reasons that the union said we're not responsible we don't have the control and basically the court accepted that rather than hearing from the women in the union is discriminating against us the court accepted that the union just that they were not referring even that they had the authority to pick the people for the jobs and didn't do so yes there's testimony throughout the record i believe i cited page three of my brief with  record shows that that all of the plaintiffs were referred various times in fact many of them got most of their jobs through this way are there any instances  where they they were denied a referral one it's not just the comments it's the extreme drop in hours eighty eight percent or one of these ladies is from the years prior as far as the amount of hours she ended up losing coming in to all seven in a way it's not that it's that in combination with the things that they said it's that my people are still out of work i have to get my people work first interpreted that to me well he just didn't identify with the black female carpenters he might identify more with people in his own socio economic group or racial group except her and that's the problem i mean right there that's the problem if he 's giving out preferential treatment because of who he identifies with and that falls on sex or racial lines that's the real issue and it apparently that's what they were when that was done in june of two thousand and eight and they were complaining of being discriminated against and how soon thereafter was their perception that perception took place against them less than a month  and actually in his deposition mr dirk aleck's says that as a result of the mayor's commission meeting he requested one of the signatory contractors to issue a letter saying why they weren't working anymore and that letter at his request that letter that came at his request then went on to say bad things about them and then that might be the case but what the key is is that they're collecting after that new zone declaration said that he had the letter prior to they ever testified at the mayor's commission he changed the story of at that's that's prior to the testimony of ms mitchell who was but before the commission maybe that he was trying to not put that out and he only put it out because he as far as these various facts here michael moore and the court has in cases where the union has said it's not us it's not us it's the employers it's the employers the court has granted remedies in the past the third circuit in us of the international union elevator construction where the union had said most of the hires come from hires on the street and direct highest there the court impose quotas for hiring of black workers and work referral work hours but on on the on the union yes you know but it would have to be on referrals because they don't have y right right and the drop in hours combined with these various discriminatory statements directly from the defendants these are statements from the congress a significant drop in yes absolutely from  hour's work however i do not concede or agree with your your representation that the female workers took a big hit with regard to the referrals by the union that's obviously a significant distinction and that station which which brings us here today there is clearly the numbers speak to a decrease in work hours by females in two thousand and seven and two thousand and eight again we must keep in mind this statistics that the measure this is not a strict measure or even an incidental measure of referrals per se what the simply means is these are the individuals who were working for signatory contractors during these years and the contributions that were made on the be have this doesn't tell any complete story in fact the numbers are as judge bales and recognized essentially valueless in their role nature in that we do not know from these numbers how these individuals obtain the work why individuals were laid off were laid off and quite frankly whether male female workers were guard lists of given you know there's a huge  in the discussion with regard to evidence alone if there's no statistics regarding referrals then you probably have to go back to the hours work well that that that's a fact that may warrant consideration but you have to look at the individual this is again a fact that judge belsen rested upon you look to each individual worker is going to have his or her own set of circumstances for example if a worker bee a male or female leaves this jurisdiction in two thousand and seven their numbers will be recorded as zero that will fall into their actors and obviously if they be female  numbers would would weigh heavily in the negative math or if they go to work for a signatory i'm sorry non signatory contract they go on the side you know break the rules of the union go work perform construction work for non signatory caused the numbers  not appear there they're not fact and there is no consideration more it's more pointedly with regard to the particular plaintiffs in this matter and it's a lesser of two if of the problem we have with the statistics which by the way the when the slate is clean and there's no injury or no other being out of work with the kosovan there were significantly fewer hours worked and then you take that may not be you know enough but you take that and you combine it with some of the statements being made by people who are still water work which although judge nelson interpreted one way you know could be interpreted as the plaintiffs did that but why should not get to a jury you're are you as was recognized the issue here is one of referral fail or refuse to refer which would affect an individual a jury make that call if the facts of record the well established understood of facts of record overwhelming facts of record speak to the fact that the union does not have the ability to refer a union must in this union has done but if theoretically a union gets together from time to time often times just very informal no phone calls and it's pretty clear that there's an understanding between the union and certain employers that i am not going to refer to you as a union any persons who are minorities if that's the effect arced suggesting that and they're saying what we're focusing on are the number of actual hours that the plaintiffs got and that there were comments made that you could take perhaps one way or the other the point being why should the judge at summary judgment make the determination as to what those comments made make of mean as opposed to letting a jury make that decision  under the third and fourth provisions there was no adverse employment action and the others not of the protected class were not subjected to the same adverse actions as i said so there was no evidence that they have the judge belsen found to be uncontroverted ever ever says you're saying here the union had no ability to make the decisions on hires coa their point is more nuanced than that they're saying that that's true but the union could have a an understanding with certain employers as to who gets recommended or referred to the employer for work certainly and they're entitled to a theory a theory doesn't get you before a jury but there's absolutely no evidence in support of that fear that there could be some side understands there are approximately twelve thousand  case may be but there is nothing suggested in his statement that he is getting that he is arranging or effectuating work for males or somehow enhancing the scope of male employment to the interpretation may be the right one that may be exactly what mister meant but i keep coming back to see whether this should be decided by a judge summary judgment or should be decided by a jury i understand your concern your honor and that's why we need to look rather than focusing in upon these these the three straight comments which by the way need to be precisely analyzed and within the proper context the assertion permits but her deposition in mr barkley stated i got these jobs but i can't give them to you she agreed that she never asked him what jobs are for him to what he meant by the he could give the job to her and i we could sit here example testified that she interpreted that to mean quote that that she was not a white man of that there and those were the ones that was this people that she quote was not a part of that cook close quote and  she felt as though she were being was being discriminated against because the fact was so she's she's reading a very different way well she certainly isn't as her attorney first noted she's unhappy but the judge is supposed to construe statements in light most favorable to the nonmoving party here the plaintiffs understood and if done so one could surmise that in making that statement mr dark elect is not colorblind and mr  recognizes a distinction between races or gender but that unto itself is independent of his ability or any evidence of record of his ability to we have and we don't have a competing interpretation i guess the only thing the record could say was maybe that was just a stray remark but that's pretty tough to do even the court did hear well that that that's exactly what the court did say in that that or some they they are none were housing inspectors at the time of the litigation that the point question two thousand and three two thousand and eight some have since left you left the union and they become house inspectors but they were all carpenters at the time and there's a difference and that's an interesting point your honor and that getting back to the work of taint by the pointis during the during the time period question almost ninety when you take up the apprenticeship with ph at almost ninety percent of the work of the carpentry work performed by the plaintiffs was a result of direct referrals by the union by mr dark aleck and other business represent individuals to claim that that there was it was a within the within the ability of mr burke left to prevent them from getting work and that he was not taking the appropriate steps i think is later that's not the case that there was no adverse employment action that is with regards to the letter to the employer and the confusion over when the letter was in possession and the lead want to press that is not an adverse employment action retaliation claim requires ne action which brings us back to the underlying and larger issue here is whether there was an adverse would be an actual crime one that was at the time from the testimony but in mitchell before the that was simply bad press if you will the adverse employment action would be with regard to their retention of their employment other obtaining of employment so it would be along with apples and oranges and and if the underlying argument that we present credited then our toleration claim us must obviously fell and what's also important to note in that same realm is that and as judge belvin recognize is that the average hours worked by the plaintiffs themselves i can with regard to males and females and the thousands of members otherwise i cannot we could as great of conjecture that that that anyone in this room can offer with regard to the economic downturn in two thousand and seven collapse an employer had a mixed workforce of male female employees and when layoffs started to calm laid off the female employees first i don't know what i do know is to the position taken appellant's with regard to the decrease in hours to the to the extent that it would be credited that there was some gender based decision making on the part of the union and more importantly that the union you know possess ability that would be that would suggest that there was no discriminatory intent no discriminatory actions on the part of the union through two thousand and seven and for whatever the case may be and by the way the e e o c complaints filed plaintiffs all took place in two thousand and two thousand and eight so that would would mean to suggest that for whatever reason discriminatory intent by the by the doesn't make sense unless you look at the individuals that were ply for work in particular employers that were hiring them at that time or choosing to lay them off of course we had we've hired let's not consider this who is then laid off and what i was not reflected certainly so you could the numbers as we look at these numbers they exist in a vacuum we can we can i put our spin on them as as as i didn't in our brief plans can put their spin on the numbers and we consider all they try to engage and best work i mean three s fifteen hundred eighty three hours a and over one hundred percent increase what's the reason for that i can offer no explanation there may be specific circumstances with regard to teresa howard's work building skills or whatever the case may be the point is that one hundred is that one hundred percent increase credited to the union and they're all true isn't it it just happens that way and the through the thousands twelve thousand union members hundreds of contractors thousands of work projects not a single person not a single statement not one deposition of anybody a steward a foreman an owner or a project manager to say yeah well the union you have to hire them and we hire them not one and i think that lack of evidence is cannot be ignored even when when faced in the light of herbals yes this and the other question go thank you regard to the statistics a good reason why there was no expert testimony regarding the statistics as those statistics were undisputed by the defendants for purposes of summary judgment and that means th  at that point so she didn't do a full year in zero four however that that explains her over four numbers additionally  there's there was testimony about mr terkel of getting false from contractors and saying every time a woman carpenters name comes up the contractor says next and he just goes on and reads the next name on the list now there's also case law where not that the union has to lease the employers but a do they can't be complicit in discrimination how would they how would they put how would they i'm sorry you're saying they can't police they don't have to the case law is clear they don't have to go around to police the employers but if they become aware of the union representative would have to impose a way to deal with whether or not they believe there's discrimination at taking place in the workplace and  they would have to say why what was the situation what you're passing over every woman something to that effect there should be some appropriate response to ch just be complicit and say oh i went along with it because the person with the final say gave the order it's not me i just went along with somebody who had more authority than me it's ok to discriminate as long as somebody higher up the chain is ok with the discrimination and i could point analysis of when a union may be liable for as being complicit in discrimination by the employers where it is the union doing the discriminating one last thing we my people are still out of work if he was being inclusive and including the black women carpenters in that comment mr dirk aleck he could have said we are all out of work she still part of the union there's no what's the reason for the non inclusive language that's really for a juror to say what did he mean by my people rather than saying hey we're all out and she was obviously not included in his people that and the record and the hours which were undisputed for purposes of motion for summary judgment as well as the changing story regarding this retaliatory letter that was sent whether it was in his possession whether it was something he requested after the fact of the mayor's commission i had asked the court to send this his back and and even though you have plenary review to look at all the facts and while these women have a day in court what a jury