proceed thank you this case just by way of background is an employment discrimination retaliation case the the plaintiff is appealing the decision by the lower court in dismissing our case on summary judgment and then subsequently with respect to the claims that remained granting a motion for reconsideration dismissing our remaining retaliation claim we believe with all due respect the lower court  went beyond the scope of summary judgment in rendering factual terminations that are more appropriately determined by a jury in addition to not properly not properly  effectuating the laws relates to an inference of discrimination as well as an adverse employment action within this district the two claims that i will focus on and i'll start with the retaliation claim as relates to the job posting issue  that she complained through prior counsel in march of two thousand and twelve that she felt that her layoff and other issues as related to employment were the more discriminatory nature sent a letter through a counsel is no dispute on the record that there was an actual complaint of discrimination under the law subsequent to that she identified a job posting for her position in april so less than a month after the complaint was made there was a job posting  by nasa university medical center for her position which she expressed an interest in through her counsel after her counsel voiced her interest in that position that position was then pulled nasa university medical center allege that it was posted in  error and she was not hired or considered for hire for that position we allege that that in and of itself was retaliation part of the basis for evidence in the record that it was ever filled the evidence in the record is that the full time position at that time was not filled six months later there was a full time position filled that admittedly we say it was an it was for an operator position my client so she was not qualified for that however the evidence in the record does a stab lish that the position was at point sort of a sort of circumvent from my perspective sort of circumvented the situation to try to avoid liability by instead of filling that full time position once my client said hey i was laid off pursuant to collect the money that should be my position they filled it with pretty i'm employees so they essentially needed to work had someone do the work but in order to avoid the what would clearly look like they were of trying to avoid rehiring hire they feel that w pretty i'm employees missing testified that the job posting was an accident but that goes to intent you know i'm at the end of the day i agree however i think that's given the timing yes so there's a certain obviously with respect to the inference of discrimination there are certain facts we can establish when an employee in an employment discrimination claim rarely can establish a denial to be completely inaccurate you have to use circumstantial evidence the timing and sequence of events when you take out the october position the district court ultimately said that's a neutral fact because your client wasn't it she wasn't qualified for that position when you take that fact out are you then left with just the temporal proximity between the march twentieth letter and this posting which the employer says was accidental that's it i don't think so and i think that's what i miss and i think that's where the lower court erred in that there wasn't which is much more expensive absolutely and i'm not arguing a pretty and would be the same as the full time but what i'm arguing is that when you look at the totality of the circumstances what i believe you don't have is simply the temporal proximity the timing you have the timing combined with the fact that while they said it was posted in error there are facts that would lead a reasonable juror to conclude well they did actually need the work done because they didn't use per diem subsequently to do that work so at the end of the day now from  perspective it's for a jury to hear their argument well that was an error and we identified it after you expressed interest in the position with the facts that would lead someone to potentially reason to conclude that that might have been motivated by and not wanting to retire into that position but was there any other evidence in the record of retaliatory animus there the other evidence of retaliation goes to the other claim of retaliation which was that she had and issue of  disciplinary issue that she was grieving that was heading towards arbitration and she lost she lost at arbitration but prior to arbitration there was a meeting whereby a settlement was reached and this goes to the second element that we believe that the court or the court found that the national unity university medical center's failure to comply with the terms of that agreement and essential backing out of that agreement did not constitute an adverse employment action we testified and stated and there were there is evidence in the record that the agreement was signed by everyone at that meeting it was passed around the table everyone signed it it was agreed upon there's no signed copy and checkered there is no signed copy in the record she a revised copy after and decided not to sign that herself yes so so what happened was that on the day of the meeting plane this testimony is that everyone passed around that agreement that essentially gave her back her vacation days and and pulled the one from her file everyone signed it she asked for a copy and was told by her union representative that i'll get you a copy in the coming days two days after that her she thr counsel sent that letter complaining that she felt notwithstanding that agreement and that that grievance had been resolved there were other issues that in our employment that she believed were discriminatory nature and subsequent to that nasa united diversity national university medical center then sent a new agreement saying this is the agreement now that had a general release provision the first one did not and required that she sign that in order to proceed so everyone sign stedfast a she has said we passed around the document and everyone signed it at her deposition yes there was one question where she was essentially put to work well do you know that she signed that document and she admittedly said she signed something you know but she didn't she didn't want to say on equivocal yes but in the record it's fits very clear that there was a document being passed around that was the document everyone signed she left there with the belief that the matter was a resolved her attorney's letter two days later which is record reflects the fact that that agreement was reached and the response back from that i'm sorry nasa university medical centers attorney does not view that fact so there was enough in the record to establish if the judge that the facts that should have been accepted as true for the purpose of the motion where that the agreement had been executed it was an agreed upon settlement instead the court said it was not necessarily greed to it that that next university medical center was just did not finalize that agreement and that as a result that was not an adverse employment action which beyond that i think the court erred in finding that it's not an adverse employment action because it did cause her reputational damage instead of her having to go to having this matter expunged from a record of the vacation days back she had to go to a hearing which again for an adverse employment action the retaliation the question is  whether it's something that would reasonably dissuade an individual from making a complaint and i think that the laws would be fairly it's fairly clear that someone being forced to attend a disciplinary hearing in response to their complaints may well the swayed someone from making a complaint so i think for the purposes of the law that should have been considered an adverse action and then as far as the timing goes then there's a clear timing that would have establish retaliation because days later  on there was a new agreement after her complaint thank you good morning may please the court my name is nicholas writer and i represent the defendant appellee in this matter nassau university medical center your honour's the district court's decision should be affirmed for four reasons first this is a case where the rules civil procedure for a motion for reconsideration worked precisely as intended the district court commendably incorrectly acknowledged the air it made when it initially overlooked plaintiff's admission that she was not qualified for the r n for position couldn't identify any similarly situated individuals for her discrimination claims and fourth the plaintiff is collaterally is stopped from challenging the legitimacy of nassau university medical center's disciplinary action the discrimination claims plaintiffs and adversary focused on the retaliation claims to could i just asked a question and follow up to the argument just heard i am having trouble understanding the district court's position that the decision not to execute the settlement agreement the march twenty sixth meeting if such a decision was made couldn't constitute an adverse employment decision or employment action i mean i was under stand it this was an agreement that would expunge a disciplinary record if they reach an agreement signed signed it and then two days later they get a letter from her lawyer saying we have we believe there was discrimination the workplace and then they reneged on that agreement it does seem  adverse action to me so what am i missing about that respectfully no your honor it's not an adverse employment action the plaintiff was an employee at that time anymore she she didn't she wasn't entitled to have her ten days of leave time sorry when you say it was not you mean the failure to sign so we are accepting that allegation that it was an agreement was reached and then the medical center didn't sign it no an agreement was not reached there's no evidence in the record of a document that was fully executed and what the record does reflect is that the proposed settlement agreement the document that the plaintiff is claiming was signed which we've never seen to fully executed copy of course was riddled with errors it had confusing references to the plaintive as an m d she wasn't a medical doctor or anything else it didn't even say what would be expunged most importantly perhaps it didn't say that the plaintiff in her union would actually withdraw the grievance that was that was pending at that time or include a global release of claims even if it had been executed by my client which it wasn't it probably would have even been enforceable for lack of mutual consideration what happened was the vice president of human resources maureen already who is at the settlement talks at that time she looked at the documents  have to go back and refer this to in house counsel they looked at it fix the errors put forth the mutual consideration the withdrawal of the grievance and a global release of claims and then they proffer it back to the plaintiff in our union and she declined to sign she never signed it my client was willing to restore her ten days but it had to be in exchange for the bargain for mutual consideration that was at this the settlement talks and or are we bound to accept the allegation that it was signed and then just hasn't been produced no not when there's deposition evidence from the plaintiff as the court pointed out earlier that when she was shown a copy of the document that she claims is the final it was the executed settlement agreement she admitted i don't know if nassau university medical center really signed that document that's in the deposition that's her sworn testimony in this matter and if we conclude that no there's no material issue as to whether the document was executed that's not an issue that has to go to a jury we don't really have to decide whether it's an adverse action if the document had been signed correct your honor that's the first issue for the court's consideration is whether the plaintiff has come forward with enough evidence to create an issue of fact about even a signed document we submit it's not but even if this court were to decide that the plaintiff did come forward with enough evidence which she has not then it's still not an adverse employment action at best the plaintiff then would have maybe a breach of contract claim which she never brought if she's claiming there's a finalized contract and that a party to the contract didn't honor its obligations there then you sue for breach of contract you don't have a retaliation claim under title seven and the new york human rights law the medical center respond to discovery requests for copies of a signed settlement agreement such as she's alleging was executed it would have if there were any discovery request or order but the response would have been we don't have anything because there wasn't anything ever signed and that's an important point from here on are because there was no deposition of anybody  who was at settlement talks that day there was no real discovery taken by the plaintiff here for one reason or another to shed light on the plaintiff's account of what happened all we have in the record is that nasa university medical center's account of what happened and the really that error riddled settlement agreement that the plaintiff claims was finalized is consistent with nassau university medical center position that it would never have signed that thing and respectfully defendant summits that this court shouldn't create a standard where whenever settlement talks break down because of one reason or another that it might constitute an adverse employment action that would give any almost any discharged employee or tally action and that's not the intent of title  seven if i could respond to appellant counsel's point about there being evidence beyond the temporal connection to the record does not support opponent's position it sounds like the  claiming well they used pretty i'm workers and that's evidence of pretext or or something of the like well they were using pretty in workers before the protected activity they always use pretty in workers and importantly the there's nothing in the record  show for example that there was an uptick in producing workers there's no discovery taken on that and what the record does reflect is that now so university medical center faced approximately a fifty million dollars budget deficit in two thousand and eleven to two thousand twelve it laid off more than two hundred people in about a four month time span well documented well publicized financial problems and it had to eliminate a full time are in for  pretty and worker they can't eliminate a pretty and worker it is actually impossible to lay off a perdiem worker because they're just scheduled on an as needed basis if even if it was possible to layoff a pretty and worker which it isn't there wouldn't be any financial savings for the medical center if you do that because again they're just called in on an as needed basis and there's no evidence of the record of the individual who made this and there were only two people who were moved the rules could have been more and the individual who made the she was the nursing manager for staffing and budget choose the individual who interviewed the plaintiff in person hired her for as a full time are in for an approximately eighteen months had to make the decision between the plaintiff and the only other full time  and for which was asked reporter and had to decide who are we going to lay off here and jan sink in her affidavit she testified that well i chose the plaintiff because the plaintiff had a disciplinary record a disciplinary record that was upheld an arbitrator again the plaintiff can't challenge the legitimacy of that discipline now and esther porter on the other hand had a completely clean file so missing had to decide who are we going to lay off we're going to lay off the employee with with disciplinary problems and it deserves mention that missing is white the plaintiff is of indian national origin and ask reporters african american so this isn't a situation where the decision maker and the person who wasn't selected for layoff the person to whom the plaintiff is trying to say she similarly situated to it's not as if they were the same national origins that further undermines any hint or notion of discriminatory animus here honor just on the on the on the challenge to the the grant of the motion for reconsideration again it was entirely proper by the district court because the district court made an error that it acknowledged when it ignored the plaintiff's admission that she wasn't qualified for the operating room position that's that's a very technical position i think the court can understand probably why working in an operating room might be very different than other parts of the medical center but the much higher burden to establish a pretext a temporal connection is not enough especially temple connection here to an accidental job posting that was never filled that's undisputed that they never filled that position and really with that removed from the equation the defense ministers know there's no basis to challenge the the district court's granting of the motion for reconsideration see that my time is up so if there's no more questions thank you for your time and attention my client respectfully request that the district court's decision be affirmed in all respects very briefly touch on a couple things number one with respect to the agreement i'd disagree that if the court deems that for the purposes of summary judgment motion that has to accept plaintiff's facts that the agreement was fully executed as a as true and fact again for the purpose of the motion that it still would not be an adverse employment action and i think the wanamaker case from the circuit when i made a three d for sixty two is controlling on that where even if someone is not an employee of a former employee can still assert a retaliatory ad actions where it could impact future prospects to sell a reputation etc which obviously here having to go simply removed from her file but that was that there was a disciplinary action i think at that at that time certainly plaintiff would've and now i can't necessarily say for certain what the plaintiff would want but it's not simply that issue there  properly placed in that position it would have entitled her to the income that would have that she would derive from that position and probably place back to the position where she was let go yes even even if you're going to we were to conclude or this record that wasn't discriminatory yes because i think that that whether it was a discriminatory act or not they're not alleging that she was let go because of any performance issues they're saying she was let go as  go with the first first and first last and first now there were only two people who could have what was she and another and she among the two she was she had these disciplinary issues yes which she she disputes she had those two she had there's a planetary issues understood the what's the where does she dispute well she disputes the truth of those of those allegations i understand that but at least as to the one of the most significant ones arbitrator found against or who just simply reduce the number of days and that's as you can see on a that's that's in part why my focus is more on the retaliation element of things now but i ask you would you would you want to i mean a farmer in a district court now it's a turn off the recording machine or care and so this case i don't understand what you mean seems to me that you're arguing over three days back pay and something in her file that seems to me to be the most  was testimony that it was posted in error and that's all there was you claim that there were d m s hired after but they're hired before is there anything to suggest that you know they were pretty i'm hired that they were defacto putting someone in that position other than your speculation there is there was the timing there the fact that her place in that position at that time according to my client and i think that was and the record she said that they filled that with pretty a mess but yes beyond that as is not uncommon in these types of cases where you're going into the intent of of of the employer those are the types of things that are being used in this position and i will touch on the idea of a deposition should we had we done a deposition of of the of the actors here even if they made the same statements that no that was posted in error which is common in these types of cases did you make a discriminatory comment no i did not that still is a matter of intent that is a question for a jury to assess credibility to similar here that's going to be masked medical center they posted this position they left it up there until they were advised that my client was interested in it then they said it was an err pull the down i think the back and forth here highlights the fact of why summary judgment is an appropriate is there's a question it was posted on april twelfth and she voiced interest in it around that time when it was pulled off that i'm not certain but it was pulled off shortly thereafter once she expressed an interest in it for a day it could have been could have been but again like i said i think that highlights the the factual back and forth in the factual question