mr jenkins who served as a boss and has hasn't quite mediator for over twenty two years before he was terminated in two thousand and sixteen mr jenkin seeks reversal of three trial court rulings in the dismiss his title seven claims brought in this case first mr jenkins title seven retaliation claim should not have been dismissed on summary judgment as he stated as a prime and also presented evidence that rebutted defendants proffered non retaliatory reason for his terminations on the prime a fashion case defendant insists that jenkins wrote and sent to many e mail complaints and the lady grievances to persons up and down the trial court hierarchy especially after he was placed on leave in mit in the spring of tw fifteen and for standard go a mental health evaluation and his complaints continued through the june th two thousand and sixteen may are that he sent to the defendant's decision maker mr burke  jenkins complained about racially motivated mistreatment of him and others in the housing court d other employees and and litigants as well and his supervisors  complained to him about his complaining and asked him to stop as jenkins testified his supervisor mr neville the chief housing specialist would shout at jenkins we don't want you here and told jenkins that he should complain to his boy obama if you wanted and that was that quote that from the that mr jenkins testify what mr neville said despite this claim the defendant's claim that mr burke and judge sullivan who were the decision makers were somehow not unaware of jenkins complaints despite all the allegation that he complained incessantly defendant right apparently with a straight face that and their brief that there is no evidence that burke ever read the letter attached to the june th e mail to him they present no affidavit testimony from mr mr burke or judge sullivan to support this lawyer denial that yes they received the e mail but they didn't read it that's the only reasonable inference is that recipients of e mails we've especially when their decision makers for a defendant and their on the topic on which they're making decisions that they read and are prime a fashion claim for his title seven retaliation claim on the issue of pretexts the defendants contend that they fired changes not in retaliation the district court makes the point he's made the district court makes the point in his decision that months before your client submitted a letter in which he complains about racial discrimination in the housing court that the disciplinary process was already under way and that i  suggestion the discipline took place after the letter was submitted had anything to do with that letter the process was already under way for what they characterized as a long history of insubordination failure to comply with internal rules i mean how do you how do you respond to that assertion which i think was very important  the sequence of events your honor four minutes remaining in the sequel this sequence of events yes there was a disciplinary process that dated back to you know and and the question is was that terminations in retaliation for complaints or was that you know was that  he claims is protected activity was which is repeated complaints about issues that he he observes so so the the that the disciplinary process only commenced because of his complaints so the they kind of the defendant separates the issue they say mr burke may not have known about it until until june of tw sixteen because that's that's the letter that's close in proximity determination and we do already started the terminations but if they want to go back and say they've they started that that terminations process earlier than that true and as they say the reason it kept the disciplinary process kept elevating st it was leave then it was the nd leave it was because he refused to stop making the complaints and he says i refused t complaints because i was asking for some action to be taken on them and and so but we believe that this court's retaliation cases say that it becomes an issue for the wolf and mr jenkins rebut that cry because they say they said the housing court's big point is that his complaints were irrational the of a raving lunatic and he won stop and he had a fixation and he rebuts that and says no my complaints were real in fact i observed these things this is what my supervisor said to me and then we have also on the record the lawyers committee was a separate strain of justification for the terminations which was not tied to the mere fact that complaints were made but the way the complaints were made terminate somebody because of the way they're complaining if the way they're complaining is problematic just because it has a complaint aspect because that would just seem like an unreasonable we run a workplace so how do you respond to threat and and we believe the record does show that because while they say that while there is some tiny bit of evidence that they present that some of their recipients of complaints from writing e mails and what they said and what the reason they say it's important insubordination as they tell them to stop sending e mails ok and so the question is if it's protected activity he should be entitled to continue to send it back as you want to one other question which is they're not the retaliation issue but the os the workplace claim which is a question about exhaustion and i just want to understand the theory of how it's understand how that exhaustion claim goes because merely filing a complaint that you filed in court with the e e o c does not exhaust the claims in the complaint so i assume your argument the hostile workplace claims that could just tell me how that works and what case unfolds to rely on to support something so it's the issue of exhaustion as that is the question is when the e e o c issues its right to sue letter based on that the charge whether he whether it was whether it was reasonably aware of that claim of of the claim that it was  not and you say well we also submitted i don't know if it was there at the same time or later a copy of our st amendment amended complaint which mentions hostile and broader unmined but again doesn't seem to do any more than that and so the district court felt that wasn't really sufficient did file the st amendment amended complaint although it's actually quite common place and a federal court litigation for you to file a copy r honor is correct and the claim that was typed by or was not was not a hostile environment claim what my my argument is that as a as a pro se complainan and you're right there's an issue of fact as to whether he he did in tach the complaint because he did not file the st amendment complaint attached to the charge she filed in the in the district court but our position is that if if they got if they got the st amended complaint and that judge sheriff did find the st amendment complaint contain the claim for hostile environment then reading one why the e e o c would have to have read the st amendment complaint and seen that charge as well and therefore its right to sue letter could give me some sense of how that works because we do have quite clear case law that just putting before the e e o c a complaint that you filed in court does not exhaust every claim in th complaint so you must be saying somehow by putting forth the claims that are different from the hostile workplace claim to e o s see that somehow gets you enough in the ballpark that they're supposed to look  is that when you've attached the st amendment complaint to the charge that's part of the charge that there's no reason to not to do to draw the line it's a pro charge and and the complaint and is telling the c here's my complaints i have on the st page i've laid this charge and then i'm attaching this st man a complaint that list through my charges now  you know he had brought the st amendment complaint in in the district court before he went you know before he went to the sea so he it was just a short rather  establish that that his june th letter which is the protected conduct at issue in this case was the but for cause of his july th intermediation which is the only adverse employment action at issue in this and then mr shapiro says well that that's a question of fact as to whether that's a pretext or argument could you address that point yes that's fair and so if we if we were to move on to pretext it is not mr ways that he could complain or lodge a complaint in your way and i understand that for the pretext point he says there's a fact question for the jury under either your right that the reason they fired him was because of the way he acted the you know the way he complained or you're wrong so how do we what your answer to that point that there is a disputed question of fact on that question what is the record show about what reason the employer ga firing him and why do you think there is no factual dispute as to whether that reason  stage it becomes mr jenkins burn to separate specific acts showing that that that that stated reason is a sham and a pretext for retaliatory animists and he has not done so what he said is that he disagrees with the reason or  it's open to multiple interpretations but at this stage that's that's insufficient he must point to specific acts and he and he hasn't he hasn't shown any from which it reasonable that i could conclude that that reason is retaliation to the contrary the overwhelming record evidence demonstrates that that mr jenkins for months was sending emails to housing court judges to administrators to h r personalities using i'm  supervisor supervisor or if he didn't feel comfortable doing that sending complaints to to char and he always had his union rep who he could send a grievance to and he chose not to not to follow any of those procedures to continue sending repeated emails to to anybody and everybody at the trial  three years he's been complaining about racially discriminatory policies at the agency he complained about the way in which he was bypassed from position this was an attempt to opioids dealing with those racial discriminatory allegations or whether this was all about the way in which he made his complaint that he too and a notice to investigate a hostile work environment claim it's a prerequisite to filing a district court litigation to get a right to sue letter from the e e o c and that e e o c would therefore have no reason to investigate  a claim that is the subject of pending litigation anything in the st thing on the complaint was something v e o c should look at obviously there was overlap between the two so he gets a pro say complainant and given our case law talking about investigating claim would you come across it why isn't there some sense here in saying you're a pro se complainer he's put up there are just a title seven race discrimination that he's attached this complaint which overlaps with that flushes that out and describe conduct that they're going to see when they get into the guts of his title seven i mean if this is what i mean how strict is the e e o c exhaustion requirement with respect across a complaint i thought our language was relatively ok thank you thank you thank you would attorney sandals please thank you and attorney shapiro please read to reintroduce yourself for the record robert shapiro for  rebuttal to judge bear and question i found the cites and thorton versus the united parcel service where they say this is where this court said the scope of the investigation rule permits  a court to look beyond the four corners of the underlying administrative charge to consider collateral an alternative bases or acts that would have been uncovered in a reasonable investigation and and a powers versus brunelle where the court discussed the purpose of the of administrative exhaustion is to put the e e o c and the employer on notice of the claim and so here by filing the st many men a complaint he was he would have been on notice of the of the claim and so i'm sorry i have difficulty with the the complaint he has it open to him to amend the complaint and i don't know of any court that says that that constitutes an amendment to the complaint so let's go back to the question of whether the c would inevitably investigate the new claim of hostile work environment they wouldn't have done at about the two thousand and four well year to promote so why was he out there claim disparate treatment right your honor just to be clear the i believe the st charge and that st amendment complain were all filed on december st at the same time so it's a single document it's not like he i'm sorry he chose to run one thing and he chose to put in something else and you're saying he ought to be excused from making the harassment complaint explicit us that that is that is correct and i thought you were just making another argument that just once this question i think gets to that i'd like you to answer which is that potentially one of described its parameters and explain how that one might have u s c inevitably or probably to run into these allegations well it implied in the charges also this about differential treatment between just laughs and whites ok i don't know how you get from that to i personally have been subjected to a harassing work claim well we would argue otherwise he has the complaint has to do with not only other employees but litigants being subjected  it and i just want to thank the lawyers committee reports that you know of that whether this goes back to the st claim whether he's he's shown a pretext that he's justified he didn't write this but the lawyers committee report says that that employees of the trial court report being subject to racial slurs and demeaning comments employees also said the reports of race  incidents often went uninvestigated that employees of color rule relegated to more menial work and the minorities received disparate lesa very disciplined compared to white peers those were the complaints he was making over and over and over again and that was the disparate treatment both in the other claim but it also goes to retaliate and to show that his complaints were religious gentleman and a trier of fact could could determine that that that that method of complaining this isn't a case where they say he you know he pulled a knife on someone or or or threatened people safety he he wrote too many e mails they were trying to you one last question is was the retaliation claim referenced in the c charge that they found that was found to be exhausted yes but that was not reference separately in that charge correct he didn't i don't think he used the word retaliation mr shapiro and thank you attorney sandals please you may leave the meeting at this time