and we'll hear argument next in granger of the new york city transit authority seventeen one zero seven six could good morning your honor was made please the court my name is paul the chef scam appearing on behalf of robert granger and i think that we could start out by pointing out that the lower court's decision in this case is telling in its failure to cite anything authority regarding the granting of summary judgment likewise it does not address the standards to be applied in determining a summary judgment motion assume the judge kogan well understands the standards that apply the summary judgment motions assuming that to be the case it is all we urge that not only did he apply the standards he went contrary and the reason we say that is because number one the district court evaluated the credibility of witnesses that he didn't have the advantage of observing in their testimony including emmanuel incentive a high ranking official of the transit authority the lower court wanted here except phrase a medical incapacity concerning robert granger when the district court confronted that witness statement the district court said that there's no indication that incentive is a lawyer or was interpret in the a da so that in itself speaks to the lower courts trying to analyze the credibility of mr observations appointed but the head but the transit authority in our view regarded mr granger as being disabled as being addicted to  drugs being incapacitated by drugs or there's no indication that he was and the book but by soon the that's true in this jet ski i thought that the real argument was whether the transit authority provided a legitimate non swimmers way reason for not promoting him from the scene of what he sought well in our view what the transit authority provided his reasons were really subterfuge is and if the district court had had way the evidence in the light most favorable to mr granger that would have been found that there's an issue of fact  there's a question of whether mr granger was permanently barred from being upgraded from a position of cleaner though he had been a high level mechanic in the past who mr  point out that a cleaner is a far far different position then became a mechanic on a vehicle despite the fact that though they said he was a cleaner they quote unquote upgraded him monaco on occasions to perform safety sensitive jobs and it was not until mr granger filed a grievance saying that if he's performing these safety sensitive jobs as a cleaner he should be compensated a higher rate that's when the transit of us authorities decided in the in the person of mr incentive to direct the up to the supervisors to no longer in their word was upgraded mr granger to this to this higher level position and by doing that but by and by upgrading him to that higher level position it raises a plausible argument that he was clearly eligible when he applied for that the helper position the cleaner helper position and in october of two thousand and fourteen which was still during the period before mr incentive had directed the supervisors to no longer upgrade him so as i understand it both in his deposition and in the fifty what is what sending us the fifty six point one statement that the mission the fifty six point one stage statement correctly acknowledge that at some point he did come to that understanding but there was no timeframe on that particular paragraph of the fifty six is permanent the time frame as far as when he came to that understanding so if he came to the understanding after he signed the agreement difference is that m because i think that someone if i think that something is permanent at the time or now why isn't that why is that less binding because he in fact filed a grievance concerning not being promoted and he certainly became aware that the transit authority deemed it to be a permanent demotion at that time and if he signed the stipulation and that he wasn't aware that it was permanent the time he signed it that  i believe makes a difference because later on that they clearly took the position that it was permanent and that in contrast there was another employee who was assigned to such a stipulation garden that there was an  edwin little and in his in his stipulation it's pacifically said this is permanent in mr granger's that word was was missing that within say permanent mr and as you obviously the present different situations that they represent different situations except the same type of stipulation was signed it was a similar stipulation and you know mr incentive came out and said that it's his understanding of the policy that these things are always permanent but there's no written policy there's nothing of that nature so that's a question of credibility that should go to a jury that you've reserved three minutes for a bottle issue the single issue here is the claim that mr granger was denied what's called an upgrade or promotion from the title of cleaner to the title of helper that's the only issue on the claim is that he was denied that upgrade or promotion based on illegal animist that he that somebody that made that decision perceive him as being disabled the evidence that was offered during discovery and the judge kogan considered about whether there was any evidence of animosity was one of the incentives deposition testimony which is about twelve lines long in which methodist he asked would you consider this to be a medical incapacity and i'm not clear what that what that testimony means but what it doesn't mean is that mr incentive has some kind of animosity to mr granger or toward mr granger based upon some perceived disability the other evidence that's offered by the appellant in this case was that on six or so occasions he signed a union canvass to work overtime the authority would provide that canvas sheet to the union representative it would indicate the amount of hours and the title of the person that was being requested and mr granger on six occasion signed that as a helper and he then was a lot of a helper duties which is essentially fueling busses and when mr incident found out about that that he was working out of title which he was he put a stop to it that's all the evidence city in this record and with respect to pretext we respectfully submit that the authority has offered compelling and fully which fully explains  granger situation most obviously the three titles at issue here are cleaner cleaner helper and helper and the cleaner helper title was created thirty years ago the individuals who occupy that title for the last thirty years have taken test require all the automotive skills necessary to be a helper in the purpose of that dual title was to permit the authority when there was a helper vacancy to simply bump that person up or upgrade the person into the helper title a promotion in a change of title from the dual from the dual title of clean helper to helper mr granger occupied the cleaner tile he was not eligible and in addition and equally important years of records to show that was always the case with two exceptions was not relevant here if there are no questions would rest on the brief thank you very much  quote the issue of motivation was just presented and i said i know that we all know that it's generally generally inappropriate to grant summary judgment where questions of a defendant state of mind motivation i could see as a situation where and it comes up very rarely where it's frankly stated this was our motivation and not a very common occurrence but that was it case like ours where it's not black and white that this is what was said we have to piece together the puzzle pieces and i understand your client was in a position from which there could not be a promotion and  basically accepted the cap was his position well the the plausible plausibility of the facts in this case if it went to a jury it may be it may be determined by a jury that at the time he signed that stipulation he didn't he wasn't under the belief that it would be permanent because that's ambiguous in the in the fifty six point one statement it it was very short that was acknowledge that generally and i'm paraphrasing it without a specific time frame it was it was understood that it would be permanent so that timeframe could have been after he signed the stipulation and when he was deposed mr granger also said he he was he didn't know if it was told him before or after he signed the stipulation later on in an affidavit that that was provided on the granger said that it was not at the time that he signed the stipulation but it was after all these are witness credibility issues that are not appropriate for a district court to