invisible prison that is he's severely bipolar and i take i ask you at the at the outset one evidence do you have that any of the individual  honor the the evidence is prior to his terminations based on the civil service law there was animists expressed towards mr pena pereira based on his disability or to meaning what others that you mentioned your honor terminated him based on the civil service list there's also evidence that the city and the defendants have ways to retain provisionals even in the face of a certified list so the evidence of that is is that from but you got you got the letter he was terminated your client was terminated by a letter from monique know who is head of human resources yes the day after she was instructed by benjamin parker that all provision all some quoting serving titles with active eligible lists of over four years must be removed immediately and so my question is what what evidence is there that any of the individual defendants played any role in causing ms know or mr  parker to take those particular actions during the evidence is that they could have chosen to transfer mr opinion or to a similar title and there's evidence that we have an e mail on the record at appendix nine forty eight that says there are a few ways out of this predicament meaning the predicament of a provisional employee such as a title transfer or to be transferred a different agency and deputy commissioner should make a boy or that also works with miss know also testified the city can choose to transfer provisionals they did that for as example for the clock worker mr schneider by changing his title and saved him and that that goes with the evidence that we have based on the e mail there's a way out of this predicament and also also admits in her testimony that provisionals and her unit were also transferred to other city agencies not terminated so the evidence is that we have is that the city has discretion even when privett someone is provisional in there is a certified list and in fact the number of provisionals serving at deaconess actually increased in the year after mr pena barrow was terminated now i want to be clear that's not for his exact title but overall provisionals in the city so the argument that the city's hands were tied and they absolutely had to do this under the service law isn't quite accurate so that's our main evidence that the city had ways out of it the other main point of why mr pena breaux did not need to be terminated is the section fifty five a now looking at that evidence section fifty five a allows a disabled employee to be placed in an exempt position where they can retain their position even if there is a certified list and there provisional and they haven't taken the civil service exam so they're anything in their record that shows that there were fewer than seven hundred exceptions already in place we do not have that in the record your honor that i'm aware of we don't know if the seven hundred are our main point is that he didn't even get to that stage of being rejected because before the settlement and may two thousand and twelve burr applied in writing never heard back he followed up in writing again never heard back from the city after the may two thousand and twelve settlement he asked his supervisor defend we're can i be certified under section fifty five day and they would know the defendants would know that that would protect his job so the refusal to respond and then what happened with mr weir mr weir said i'll speak to defend kerman they never responded to pena and this evidence is coming from mr pena barrow's testimony which would be admissible as a party opponent admission is not the case correct me if i'm misunderstanding that there were multiple he had multiple chances to take the civil service exam to get out of provisional status he chose not to do so you're correct your honor he had multiple chances the one main chance in i believe it was january two thousand and twelve or right at the end of two thousand and eleven he was hospitalized in a manic state and the person that would have had to have allowed him to make up the exam was mr john castle anetta and he was a defendant in the prior lawsuit and he made statements to mr that i will never allow you to be certified and you're never going to be picked off the list so in the city also i think cited that there were two other exams in two thousand and nine that he could have taken but he would have had no reason to take a two thousand and nine exam in another title if he was expecting to take the two thousand and twelve or eleven exam but for his his manic state in the hospital so it is correct that mr never took the exam but under our argument he did he correctly applied for a fifty five and we believe he did he filed the papers with whomever one was supposed to farm we believe the answer that is is yes your honor he did correctly comply he applied in writing to frank palminteri who was fifty five a coordinator for the department of citywide administrative services where he worked d ca the the district court judge found that he did not and you followed the procedures that are set forth for making the fifty five a application we are we are saying that your honor the district court found no deviation he did exactly what you're supposed to do well your honor i mean i'm trying to understand whether whether you are saying we argue that what he did should qualify as an application or are you saying he did what  very clear protocol of what you have to do it appears that it is the law leaves it up to the discretion of a city agency or mean in a simple agency to decide how employees should apply our point in appealing here is that the district court relied on the city's one page undated pamphlet that said inquiries may and i'm quoting may be directed to the fifty five a coordinator or personnel so we're looking at the record saying that's exactly what mr pena pereiro did he submitted the letter to frank pulmonary and we don't think there's reds raised judicata on that just because he settled the prior lawsuit and then afterwards he asked his direct supervisor definit we're i would like to be certified section fifty five day and our reading of the law there's no other requirement and the district court erred by saying he didn't fall the correct steps he didn't speak to the right person and mr weir never directed him to anyone else what he said is i will speak to defendant kerman about it now when you look at pretext and animists in their depositions they basically both said we're not very familiar with that and one of them is that i don't really know what that is so that shows deceit even though they did have that conversation with mr pena brewer if you credit plaintiff's testimony as we believe the court must on s judgment posture i see my time is up i don't know if there's any other questions from the you know you have two minutes and we thank you very  much please the court my name is john moore here on behalf of the new york city defendants plaintiff's employment with the city ended because he didn't have the necessary civil service qualification for his position thus he was terminated as a function of state law p attempt to make the case about anything other than that fails for lack of support in the record thus the district court correctly dismissed the case on summary judgment on a correct just a couple of points from the point just being made a moment ago that he did do what is required to apply for the fifty five i think that arguably he did before the first before the settlement of the first lawsuit i think that the letter to  gary could have qualified as an application but it's that application came and no action was taken that application before the settlement of that first lawsuit in the first lawsuit thus when that settlement then barred any claims going forward from the vents i think you know from the beginning of the world to the moment that the settlement was it was agreed to that precludes them from now raising the claim that he should have been granted fifty five days out is based on that application he knew at the time the settlement was entered into that his job was at risk if he wasn't certified for his title or didn't find some alternative way around that requirement and the fact that the settlement agreement did not provide for subsequent taking of the test did not provide for fifty five a status means that that he cannot now bring a claim based on that and that is not entitled to anything further regarding the conversation with his supervisor frank we're he makes the statement that there is evidence of deceit in the record because his supervisors aren't terribly familiar with a fifty for the fifty five a program to be clear this is a very narrow program that applies to seven hundred employees at a maximum citywide out of approximately three hundred fifty thousand city employees but the idea that every single supervisor must be intimately familiar with the  to mr kerman about the program he said nothing according to the deposition testimony on that page that's mirrored by plaintiff's deposition testimony that can be found at page five hundred twelve of the record describing the conversation with mr ware pointed described  mr witt response as nothing he stared politely this there was no promises to follow up despite the statements made in the reply brief that just doesn't exist in the record that's not what the record says and the argument that inferences were drawn against plaintiff during the course of the district court's decision isn't borne out because it's not it is not drawing an inference against him to say that that's not what the record says it's just read in the record in terms of  whether the application was for fifty five a status was made subsequent to the settlement agreement he says while speaking the supervisors ought to have qualified that that that step should have qualified but in plaintiff's fifty six point one statement of undisputed facts and this is on page ninety one of the record plaintiffs admit that the law requires at least that a policy regarding the law requires that state that inquiries be directed to the personnel officer fifty five  coordinator that's not the your immediate supervisor within the within your were hearing it and nor does it make sense to again this is a very narrow program that doesn't apply to many people it doesn't make sense to expect that every single person who manages city employees is intimately familiar with this program and can take appropriate steps to follow up on it and can i ask you about the the remarks of where and as well of course  the district court said with respect to those remarks which they don't like spics quote unquote or people of hispanic origin and quote all colombians are bringing drugs to this country the court said that that's the only evidence that is presented that remotely nothing in the record links the actions feelings thoughts of these particular defendants to the term the nation of plaintive that came about as a result of the applique of the straightforward application of the civil service law so even to the extent that indicates some animus on the part of mr weir or mr daz it doesn't have any causal connection to the actual discrimination that plaintiff is claiming that he was terminated from his job and so are even racial slurs are not themselves sufficient to create a hostile work environment there has to be more to it than isolated remarks in fact plaintiff said in his deposition testimony and this is on page one hundred forty one of the record but he didn't take the remarks all that personally he certainly never sent an e mail or any other contemporaneous document complaining about those remarks despite the fact that he did complain for instance about the  the taking these statements to create an environment permeated with intimidation discrimination ridicule insult does not find support in the record moreover and specifically to the remarks about think colombians all they do is bring drugs in the country there's no indication that supervisors knew that mr pena herrera was colombian in fact each of the supervisors on pages two seventy to eighty nine and seven of nine of the record indicated that they didn't know that he was from colombia in till the intel that this lawsuit was filed so it doesn't make sense to say that they were targeting that they were creating a hostile work environment directed at him based on those comments even if they were certainly inappropriate to have said in the workplace it just doesn't give rise to a legal claim from plaintiffs  here as with many of these claims it's an attempt to make much ado about nothing in this particularly contradicted by the clear evidence in the record that the reason for mr pena pereira's terminations was he just didn't meet the qualifications and just one more point as i'm speaking about these qualifications on discrimination shift into the pretext this question skips the fact that mr print in your bro undisputedly has not made a prima fascia case here he has not shown that he was qualified for his position that he held that he met his employer's honestly held criteria for the job he didn't have the civil service qualification that's required by state law so even getting into the pretexting corey is skipping over the fact that he has met the first step of the mcdonnell douglas test and shown that he was qualified for his position making that prima fascia case now he was not under an obligation to transfer into another position like administrative staff analyst he claims was actually a supervisory position that requires eighteen months of supervisor experience mr painter is not shown the hats that were granted fifty five a status to the extent that even properly applied for it given that their record shows that the reason for his terminations at the reason for his treatment was based on his lack of qualifications and for the job his terminations appropriate in the district court correctly granted summary judgment unless the distance the court has any further questions about the rest  license the city had control over that license it could be waived as a provisional he could be placed somewhere else as fifty five a he would have been saved from that terminations so if you have a qualification that can be changed by the city under their discretion and they can pick basically winners or losers who the who they deem to wade through that it's not a true license or qualification that would prevent plaintiff making out a prima fashion case and as counsel conceded the letter to frank palminteri for fifty five a was proper before the settlement this wasn't fully briefed but we don't believe that a combination for a disability can be waived by settlement of a lawsuit it's not a legal claim it's an accommodation and the agency would still be obligated to act on that request and he followed up  and the conversation that counsel pointed to in the record we don't think that that was misconstrued at all that's exactly what we were really into that he asked we're we are is that i need to speak to mr kerman about it now if we credit plaintiff's  version of that conversation it would show some acknowledgement of what section fifty five is if he had never if we're had never heard of it he would expect it to be said to ask him well what is that i don't know anything about that so then in the depositions when they sort of feigned ignorance of it a reasonable juror can think that they are dissembling to cover something up and we believe that would be supported by the record now admitting in the r fifty six that a personnel officer is the person to contact about fifty five a we did not admit that that cannot be a supervisor personnel officer is not defined in this one page undated pamphlet together so it's certainly not clear and it's a disputed fact of whether it was proper to follow up with his direct supervisor we're who is clearly also a personnel officer with superglue responsibilit in the city you're over your time so yes you do wrap up in closing we ask that the court reverse the district court screen of summary judgment there are tribal issues in fact particularly on why mr pena barrow was blocked from section fifty five and certainly under the the more liberal city standard he was treated less well because of his disability thank you very much thank you thank you arguments the court will reserve decision