discrimination and retaliation the court erred in dismissing mr allen's claims because they misapplied the court misapplied the facts and then misinterpreted the law and started working for the department of environmental protection consideration at the shaft eighteen vall holloa location they're responsible for testing the water that comes into the city determining that the quality is appropriate and the appropriate amount of chemicals there w hundred nine was the only black employee working for the bureau of water supply where he worked he applied for promotion throughout his employment many many times within the statute of limitations the district court found that he had applied for twelve separate positions he'd never received in the over twenty years that he worked there a single promotion after that long he went with his union representative to three managers not his direct manager but the managers saw that four of the positions were for supervisor of watershed maintenance and that required three years of experience including one year at the supervisory level and my understanding was that there is no disputed fact that you client did  and paragraph one eighty seven it's in the record eighty three it's one of their statements of undisputed material facts the plaintiff qualified for these positions is consistent with mr march teles opposition to this yes your honor he's the one who made the decision that mr allen was not going to receive those promotions mr allen was the only black person applying for these jobs throughout the time they were all given to white employees because he was the only non white employee in the location so the district court also erred in determining that there was no inference of discrimination to establish the prima fashioned case this court found in paul v y of forms that an individual who applies for multiple promotions and is denied those promotions and those promotions are then given to people outside of a protected class that establishes an inference of discrimination the district court found that that was not enough but this court should find that it is in reverse defendants responded with what they contend was a legitimate nondiscriminatory reason for their decision not to give mr allen the positions for one of the supervisor positions they said that he had withdrawn his application this is something mr allen directly disputes he says no i did not withdraw my application i wanted this job i don't care about the schedule mr market tele said that that's not the case that mr allen unilaterally withdrew it that is the only nondiscriminatory reason that was offered by a fact witness in the case of the two thousand actually made the decision and even if we are to consider that argument as something created after the fact mr says cilia no there's nothing in the record that's admissible to say that he had any experience the only evidence that was likely to have been the actually supervising the only person who said that in the record was grace pick somebody who wasn't identified in the sky over and submitted an affidavit for eleven years too long he was there for eleven years yes and there was no evidence submitted that he had this that he had this experience until summary judgment was filed in an affidavit by grace previous which the district court found was inadmissible because she had never been identified and none of this evidence that ever been submitted previously so there's no way to vet this because it was provided only after the summary judgment motion that state they didn't really treat it is part and mr market tell you didn't consider that to be a reckless and he testified as much but he didn't consider supervisory experience to be a requirement that that was his testimony and the individual who got the job they claim that there were these other elements and in his experience that would justify giving him the job over mr allan there nowhere in the john posting there's nothing about this job that the defendants can point to that says having an additional degree or having experience in this other area will somehow benefit the position something about so i understood that mr mark kelly's testimony was that mr allen met the requirements satisfy the requirements of the job he didn't specifically say you don't need supervisory i believe the testimony and it's going back a while since the deposition was that not every requirement that's listed in the job posting is necessary most of the people who were promoted to the supervisor watershed maintainer position were it position required one year of supervisory experience and i and understood mr situ leanna have it by virtue of his acting supervisory experience and your client did not and so i'm not sure i'm understanding how you think that the market tele statement somehow precludes them from saying you didn't meet their job qualifications they didn't they didn't give the job to someone who having this extra experience or your own or the acting position was given to him by the same managers who are denying mr allen the position so even if you consider that this is something that position that the acting position is not posted mr allen wouldn't be given the opportunity to apply for it he's just assigned so that's like saying someone pad had experience at another job or something however it got it he had the experience and your client get yes your honor but if the experience is given to him suggests that if there is someone for whatever reason who is a through the more qualified or more qualified than that's in the story well i don't think that it says that necessarily because i think mr allen could create a question that a reasonable jury could point to and say you know what for this position for the supervisor watershed maintainer's position mr allen is actually more qualified because he's done it since one nine hundred eighty nine we don't we don't get into that kind of employment to see decision it's whether reasonable employer could consider someone who actually gets had supervised very experienced qualified your hundreds difficult for me to respond to these arguments because i was never notified that this was part of the he was discriminated against versus the person who got the job are you saying your client did not know that situation that giuliano was acting supervisor i'm don't believe so the time there three or six different shifts in multiple locations for watershed maintainers mr allen works one shift a couple days a week at the he worked mostly double shifts so whether he saw this individual for the period of his acting supervisory term or whether he took notice of it it's not part of the record right but this is the compared to right this is the person who gets the job that you're saying your client should have got this year and you're saying you didn't know what he did before he got the promotion the first and you didn't you didn't try to find out whether he had comparable were experienced clients or different work experience your honor we didn't get that information discovery before that doesn't ask about the v city of certainly never there's a deal on a referral or the circumstances but i think whether it's considered a nevers employment action doesn't mean that it's actionable it's only actionable if it occurs under an inference of discrimination  were he pled guilty to a violation the lowest level that doesn't even require allocution just to make it go away after he was accused of forgery and charged with two felonies first then it was reduced to a misdemeanor and then he pled guilty to violation so this was a very earlier issue barnabus that would say well it wasn't a truthful plea but your honor i think that there's a difference between what he was referred to to the deal and what he was what actually happened in this case he turned in a jury slip notice that he was provided from the court and then with that a leave slip the leave slip had the wrong month on it there's no question that this was just a paperwork error in fact his direct supervisor mr computer who turned it into and who discussed it present when mr very difficult for you to argue that this is some kind of in and an actionable claim when one studio i get sick and looks into it they refer it to the district attorney but they're the the individuals that d i y are not alleged to know about your client's complaint right no your honor but the district no i mean a matter that is significant enough that d i y after it's inquiry refers it for prosecution hardly seems to be the kind of thing in which we could say that this is going to be an actionable basis for retaliation when the employer refers it why what why what am i missing here  honor i think that there are two things that we need to look at one is what was sent to the department of investigations and that was an allegation of forgery no one in the record has supported that in fact the city ignores it in their brief they don't even bring up that m have forged a document when no one in discovery could point to a document that they believe he had forged second this is a completely different process because it's the difference between criminal prosecution which the department of investigations representative mr  testified they're required to pursue if they find any criminal conduct whatsoever versus a civil penalty and what the what the city provided were two lists and i know that the district court concluded that in every situation they're required to report this to the department of investigation they concluded that's the policy yet the city provided two lists one of people who would mitigate crimes similar to mr allen's full century of documents forgery and they produced a different list people who are referred for criminal prosecution and the first less there are penalties for what people are found guilty of having committed and in the second list those names don't match up so we know that it's not a policy that's regularly enforced and then carlo in time who was the thirty six representative produced by the city to provide testimony on behalf of the city testified that this is not the regular course of action that regularly allegations of this kind go directly to her what's the difference well for mr allen he complained about discrimination six months prior to the referral to the department of investigations he was the only black employee in the department i know you want to rese provided the city provided the records for the one person that matched the application that person was hired the district were properly found that mr allen did not show he was qualified for the positions that  he still did not state a prima facia case because he made no connection to an inference of race discrimination is that you're saying that as the record stands we should not give weight to the fact that he lack and that is because the only thing that the plaintiff has offered here is that he was the only african american employee and that he believed he was more qualified for the job we know that he didn't meet the post qualifications and we have evidence that the one person mister was hired for the position did have different qualifications it's well settled that argument mentioned that it's arguably performers that should g problematic because i think it's to what it was an employer is allowed to do which is employers allowed to take an honest or partially subjective view of the qualifications all we happen to know here is that this person had been acting supervisor at translate into an argument that the  claim would have to be not that after being qualified got that job but rather that it was discrimination giving six acting supervisory experience and not giving the opportunity up playing carefree think that's right or are that he would have to make some sort of claim about that too in order for i mean all he's saying here is i worked there for a very long time which is his testimony and that he believed that that was the reason he needed to obtain this position she did not like this that yes a hearsay exception applied to mr doniger statements but you can't get around the layer hearsay by talking about plant gossip or office gossip and allowing that to no longer be your hearsay problem if it is put into the mouth of someone to what was he confronted with the statement i need not your i don't have the trial again i don't know what the timing was of the depositions so i don't know if there was an opportunity i mean it wasn't confronted and you don't know if it was an opportunity but that claim regarding how the judge courtside to handle it the district court said that because the defendant did not produce a twenty six disclosure regarding this witness that the court would not usually consider substantive statements there is no reason to eliminate the role simply as a custodian of records so there's no they basically these records were being put in through her affidavit so the business records themselves were the ones that said that he had this experience and things like that and also this was i'm sorry your honor there were records attached to her affidavit and what was what was the district court willing to consider what was it not willing to consider the district court was willing to consider the statements in the records because including the statement about an affidavit in the records or not would be a yes or then there would not have been additional admissible evidence on that point but we believe that that does not change the fact that for all of the investigation by itself which was referred from the employing agency d e p two deal i which is an independent citywide agency that by itself a referral is not an adverse employment action just about well the timing between the situation happened with the jury duty papers and the time sheet that was something that the supervisor saw that was a problem the plaintiff was offered an opportunity to correct the discrepancy there even though i know that our my  adversary relies on his statements that he thought it was just an error he did see fit to bring it up to his supervisor his supervisor decided that pursuant to city wide policy for referring things to do that this should be something to that should be required to have a discrimination claim because the connection with the retaliation we believe for retaliation claim it still would not be but the district court did say that there could be because it could dissuade potentially we could dissuade him from from making a x but still we believe that there is still not a connection he made no connection to show discriminatory or retaliatory animists in this case on the retaliation side to believe that he just charged he just pointed to one compared or who was inside of his class who he believed was also criminally charged and he did not point to relevant comparatives outside his class who did because he does at least point to one other comparative for the purpose of retaliation clinton but the the the lists are in their favor discovery requests employees who made some kind of false entries or statements from two thousand and seven to two thousand and ten and i do want to make a correction about what we said in our brief but the second class which is really not evident from looking at the list it is actually i think we clearly classified it as employees who referred from d p to the d a s office that obviously something that would not happen to actually policy and that's why the investigation took place and there's no inference of discrimination or retaliation as a result of it if your owners have no further questions i would ask that this court affirms the district court's grant  it thank you your honour's primarily the city has repeatedly said that mr allen can't establish that there's an inference of any discrimination i would say that that is absolutely false because we've provided evidence from two different  reach a conclusion in your favor and if all you've got is his conclusion which is what you've proffered i'm not sure that's enough your honor and terry if this court found that a long term employees statement that he believed her coworker that he believed that something that happened to this point if was based on discrimination was sufficient to create a question of fact or an inference of discrimination at least within the you know since i know that mr parker provide specific examples but he did not during the deposition at the very end this was on my follow up after the question i asked him what had happened you also at that point told me about mr donaghy years and mission no mr doniger was a manager for the city he's clearly acting on behalf of the city so any statement that he makes is a party admission mr barker relayed that admission that is not hearsay because it's an admission by a party opponent being offered against their interests there's no basis to conclude that it's hearsay although the district court did that and i think that was inappropriate in addition to that we have the affidavit from mr katyal mr katyal was not the post in this case he provided an affidavit that said for eighteen years he's been a union representative he provid example of another minority who was also subject to a deal i investigation based on a minor infraction that was outside of the normal disciplinary pursuit processes and he said that based on his analysis of the situation and his experience that what happened to mr allen was because of his race and because of his complaint of discrimination and defendants make very little mention of the temporal nexus here he was referred to the dui six months after he made a complaint of discriminat discrimination but as the government says it was in the intervening time that he submitted document that contained an inconsistency that raised a concern this year and if you if but for that i mean it's not as if you've got a circumstance where they went looking for any length your client provided this and as i understand it that was given an opportunity to correct it i understand after the charges reduced to did to go from a felony to a violation that's like going from a from an assault charge to a speeding ticket there's a significant difference there including that he didn't have to allocute on the record he never admitted that he did anything wrong but regardless was no criminal charge so so what's what's the get one of the damages the compensatory damages for having to go through that process for being arrested in languish and put in to put in the handcuffs the time it's out of work while he was in jail everything aspect of this screams that the court has to take a position as to what an employer can do and referring people for criminal prosecution the deal why has as a mandate that they must refer for criminal prosecution if possible for the court to allow this to not be an everson ploy in action or to say that this is permissible in any employer could send any subset any protected class of individuals accused of any misgivings petty larceny stealing time for criminal prosecution and then the people outside of that protected class not for criminal prosecution that's really what's at issue here why was mr allen treated differently and the jury should decide whether it's because of his race and complaints of discrimination and should not be decided by the believed to be white was a kink of the name but she was accused of stealing twenty six thousand dollars i understand that's and that sewing so outside of the realm of three days on and on and juries we have slipped when the court provided him and the record shows that the court provided in the slips saying you're going to be on duty i stated i wouldn't i understand the difference in twenty six thousand dollars but i'm not sure i view this claiming of time for jury services as trivial or laughable as you suggest ok i don't i don't suggest that it's laughable but to suggest that an employer that sends white coworkers who have actually forged and admitted to forging doctors notes in order to take time away from their employer that that individual shouldn't be subject to the same disciplinary policy as mr allen because that's a comparable crime and the district court did find as a matter of law that these are not comparable but the second calendars on submission so we stand you jer