rainer versus the new york city this is an appeal of a summary judgment determination in an employment discrimination matter as your honour's are aware this court has continually advised that and counseled against dismissing discrimination claims summary judgment where intent is at issue is our position that summary judgment in this case was improperly granted in that there were issues of fact and issues as relates to the intent of the whole bad actor the in the principal in this matter that would have well and should have warranted a denial of summary judgment so factual issues could be decided by a jury of the two things that i find are are of utmost importance to point out at the beginning is that there were two points with in the judge this decision excuse me where he he highlighted certain factual issues that went towards intent and identified that they are issues that seemingly would be tough for a court to resolve at summary judgment but then from my perspective went beyond the scope of what is supposed to consummate judgment involve the itself in issue determination instead of issue identification and resolve those factual issues the first point was where the court explicitly said that it would be difficult to say that a reasonable juror would not infer a discriminatory animus towards white teachers based on comments that the principal made regarding white teachers negatively impacting black students and effectively what this case is this is a principal who saw saw color and i danced and verbally spoke about white and black so age invariably spoke about old young and so religion verbal assault and with the weather that motivated the terminations right short and so what is the evidence will be evidence that that the comments that he made motivated terminations are that there's numerous ones there's the fact that the treatment that he was subjected to his employer the other employees similarly situated that were not in his protected class were not similarly subjected to miles given on satisfactory ratings on two different principles yes yes he was given where there are a number of parents who complained well you know your your your client actions with respect i'll address both of those if i may your honor with respect when you're doing that there's also there's more right the independent consultant who basically said he was a disaster i'll address that as well so sure and within collins there are there are circumstances where by not withstanding the determination by an arbitrator the case may proceed and i think that's a so i think we do so with respect to the the items that were just raised the negative review that was she had by the prior principal there was testimony on the record that reflected that the principal explicitly told my client that you don't deserve this but i'm being pressured to give me some negative review of perfume reviews and evaluations you should have grieved this even he did not make his this was after the fact and that negative review was on the books as it was on the books but there's there's there's a factual there's this factual support for the fact that that was not truly reflective of his performance prior to principal kate torney who is the principal at issue in this case the parent letters there's evidence in the record to support the fact that my client actually told and encouraged students and parents to please write letters because the environment in his class was such that he felt that if letters came from parents then things might be done to remedy the environment because he was being placed in a position where he was getting a large number of students with with high behavioral issues when he would ask for those things to be addressed it would take months for that to be addressed and it was creating an environment that was setting him up to fail with respect to the thirty twenty eight which is the arbitration issue where he was terminated i believe what col collins indicates that where you can establish either that the decision was wrong as a matter of fact or that it was so compromised by bias that that that that would allow for the claim to proceed what we have here is we have numerous comments by the principal here evidencing a discriminatory intent towards my client and my client testifying and providing evidence not just with respect to him but with witness statements where he indicates that the record that was created by principled story was fabricated unqualified decision by the hearing officer in this case worried he said you know in all my years i've never seen such an effort to help him basically the second to last paragraph so how do you get over this or any bias on the part matthews there's now bias on the part of the arbitrator and that's not what we're arguing but i think in college i believe in collins one of the ways you can overcome an arbitration decision is where you can show that the record that was relied upon by the hearing officer was essentially false and was manufactured and in fact the lower court again to our point  right yes he turi friedman briefly rockman yes so you know you with your customer sure but he was evaluating that testimony from in the context of reviewing those that not record that they created in and assessing the record they created not from the context of a title some discrimination claim and whether there was a motivation that these documents were created in manufacture when they were untrue to that point it wasn't before him that right to decide whether  braith white who told my client that an observation was satisfactory only to then communicate with k torreon and do a one eighty and issue him in a negative observation whether that was a disk discriminatorily motivated so what that to assess what the evidence before him was credible and define spread well he determined that a loon was credible based on the what was before him but what i would argue is that what was not before him and what was not what should not have been what was not properly before him was the idea of what of the motivation behind this discipline and the record that was created so the record that was created  was and judge and the lower court supposedly says because most of claim there's negative reforms reports came from cantorian those reports appear to have a large part influence the arbitrator i have to consider whether there is some you know some issue as it relates to that and i think that's that's sort of the point where he identifies that as a potential issue and that there are facts in and by the way of comments that were made by bike a tory discipline that that that was issued to him that was not issued to other teachers disparate treatment towards my client that were absolutely all right thank you and it spans many years and it's not just documented by the principal but but documented by numerous individuals both within the schools in this ration and without than the school's administration at all independently assessed  respect to for example parents parents independent of parents sit in even if parents were told by mr branch or to to write to the school their complaints were that mr brenner had not checked theirs their children's homework for two months i was not responding to any e mails sent one parent complained that my child is that mr burns performance is so poor that my child no longer enjoys school i think those complaints speak for themselves and identified the very same inadequacies that mr braithwaite and mr k tory had had and others had identified and found that there was simply no progress at all improving in these areas and that mr brenner was quote unquote on satisfactory as a teacher before he was terminated that president tory said it some meeting that white teachers harming these black children now it's important to recognize that first of all the demography of the school was such that it was overwhelmingly african american so i think that while i agree that maybe a weak inference could be created by the comments it has to be taken the context of the case as a whole and in that in this case merely referencing the the fact of race and the fact of the student's race not necessarily indicative  s that's especially true where the comment was not made about brown or specifically i had nothing to do with the actual employment decision that mr brenner is challenging and it's it's not related to the procedures or the actual decision making process which the court has found to be a relevant criteria any analysis and again it was not temporarily proximate the activity that the colleague that mr brenner relies on apparently retired in two thousand and ten and she over overlapped with priscilla tori for four year period so it could have happened anywhere between six years and two years before mr brenner terminations that  that's the district court noticed it and recognize i think correctly that that supported mr bennett privatization case the the comment was about brenner of all the mind you was made approximately three or four years before his terminations which i think again  certainly attenuates the causal link but the but even if that comment could give rise to a weak inference we have again we have this overwhelming evidence of poor performance which was independently evaluated by a labor arbitrator after a f and fair hearing that apparently created a thousand pages of transcripts in which one hundred exhibits were were introduced into evidence and that arbitrator looked at the evidence of mr brown's performance that was introduced by numerous individuals important to weigh not to not to weigh but to evaluate the evidence that the strength the prime facie case whether the employer has substantially established there are there are legitimate reasons which here are like are overwhelmingly established and then determine whether a reasonable fact finder could finds commission and here it's simply impossible i think even without the labor arbitrator decision the the overwhelming evidence of poor performance speaks for itself but there simply is no way to break the causal link as a just to address some of the points that were just raised  what was just discussed as far as the arbitrator the option to didn't review this record by virtue of assessing the credibility of the record based on the comments that are at issue here and i mean we have a situation here where it's very arbitrator would have considered them and i don't think it would have been proper for him to consider them and he certainly wouldn't consider them with was i can specifically speak to why his counsel at the time did not decide to utilize that what i mean i can speak on personal experience having handled those hearings a lot of those arbitrators immediately look to not delve into those types of areas and want to focus directly on the record but i can't say whether that was the case evidence we have are a couple of things we have one the testimony regarding assistant principal braithwaite who indicated that which which indicates that the negative observation there sabrina received was in fact tainted by k tory because it was positive until tory spoke with braithwaite we have number two witness who testifies that mr de berry who was another administrator the key tory used to try to effectuate his is motivations here approached them and tried to get them to issue a false statement regarding poor performance regarding mr brennan so there is evidence based on a third party witnesses as well as my client's testimony that there were things that were being fabricated here and so there is that evidence that exists here is not just there actually is witnesses and evidence to support the potential that this record was was was manufactured and that the determination by and by the arbitrator was not based on what was not was not accurate because it because the evidence that was put before the arbitrator was was tainted hear it what would i be able to raise one more point is that is that