the next case on the calendar is russell the aid to developmentally disabled  you right my name is fe russell and i'm pro se china defend myself against the people that i actually was working for i've seen some abuse i witnessed and i called it in after that i had an issue with retaliation from these people saying that i wasn't qualified to do my job i was hired as a cook and not only wa i hired as a cook i started taking classes to become a direct support person which was hands on with the clients so i was both a cook and a direct support person so my supervisor would use me to come in to be the cook and sometimes she would call me in to do delivery support person job and i would do just both in this brief and they're basically talking about me being a cook on the last thirteen fourteen weeks of my employment at this  facility i was not the cook i was just straight up direct support person i had no affiliation with the kitchen if you look at the documents in the in the brief in which i made it i don't know if i could submit this to the court or right and i just put the ones that pertain to me like when they said i did a no call no show us the pain and the phone company and i got the records to prove that i did do that they also said that i didn't show up for some days if you look at the time she the clock she on june fourth and june eighth when they said i didn't come in you will clearly sleepy that not only did i come in i was that work early and i was there all day sylvette didn't happen i earn so let's just assume for purposes of argument that you were terminated on fairly and improperly and they should not have terminated you stand your claim is a claim that determination was wrong because it was based on your gender so can you tell us a little bit about that determination was wrong for retaliation against me and gender do was a gender discrimination i had complained about it several times  they would always ask us the females to take up the guy slack that's what i came in at when i became a direct support person even though i was hired as a cook i would come in and do my job as a cook and then the guys would call out the males and my supervisor would always call me in because i was qualified to do the cook and direct support person to cover for these guys if you read michel demonstrates the money which was their witness she clarifies that if you listen to the state with they tell you about the communication log in the communication log that was in there but those pages was missed in those all that grows to the notion that the been many have been very unfair in how they treated you but we can only deal with that if there was gender discrimination and it's vet which i believe a judge was asking and what we're looking for is what was it specifically having to do with gender that caused him to treat you badly because every time that she called me and i was coming in from to cover her mails her guys they would get in trouble for instance there was one who got in trouble during work hours he took it upon itself to take a quad out and go ride around a police came a confiscated a quad they called me an april to come in and cover for him as a direct support person so i went and did his job for him there was one who left a guy in a car the police came and took him they still got let him allow him to keep his job went in for he did all of these things wrong he had no let me just see which are you saying that when man did feelings of the same sort but to accuse you of very were not  being treated better well the males being treated better them constantly calling me and to cover for them always males them if you have i mean if you look in there if you look  what when did you make a complaint and then for retaliation started because when you filed it it was after you were terminated so event the filing can't be the but your comments your criticism what was for a date in relation to when the story treating you it was around the end of may i believe on when i was when i when i first called the told the job about the situation and then shortly after after i witnessed the abuse that was going on i got tired of it and that's when i called the state record which is what we have to go on i'm sorry is does  show when i got called in and mase when i started when i got called in january actually when i got called in in january was the first and final warning that i ever got from them i never got in trouble before it was in january is when they called me in for the investigation of what happened to the guy and that's when they retaliated against me because i went beyond them and i had called the state to come and investigate what went on  were put forth to the district court which were properly dismissed she simply asking this court to substitute its judgment for that of a district court ms russell's claims of discrimination and new york state human rights or her complaints of gender discrimination to any adverse employment action none of the evidence produced to the district court can possibly warrant a rational f shows the record does not show that your honor first of all of the if she's talking about in mid may she was already issued the final written warning three months prior to that the record actually reflects and will provide to you the record citation for assistance the record reflects and for forty seven to four fifty when deposed ms russell repeatedly stated that she could not recall when she complained about sex discrimination what mis believe earlier mentioned was in may her complaints about consumer abuse such as not protect consumer complaints about sick consumer abuse is not protected activity which is an ongoing it's not a protected activity under the civil rights statutes and this is an ongoing since days after her terminations that the reason for her term a nation was based upon her own statements about the reasons for her terminations were based upon her complaints consumer abuse yeah she also referred to a possibility of january a period when she made complaints about treatment discrimination on the basis of gender you're out of the record doesn't reflect that the record on the same page is cited here ms russell repeatedly stated that she didn't know when she complained about sex discrimination and i think it's important focus on the retaliation piece right now since we are on that subject ms russell produces again no causal link between her claims of gender discrimination and her alternate termination first there is absolutely no evidence direct evidence of retaliatory animus there's no comments made by any of the defendants any of the apple leaves that would suggest that retaliation was a motive second to assert she talks about compared to ours what if any evidence is in the record about the comparative oars and their misconduct and disciplinary action the record is quite does quite extensive evidence in the record that demonstrates male employees who worked in the same house as ms russell were routinely disciplined for similar infractions including attendance issues and other issues there's also evidence in the record that those male employees to which some two also were terminated for similar infractions therefore with respect to the discrimination prime if a she case she cannot establish disparate you cannot establish an inference of discrimination through disparate treatment well just for purposes of mcdonnell douglas is supposed to establish a primer but i thought that was without regard to countervailing evidence at that step you're on a she doesn't produce any evidence  of comparative or simply situated males being treated more favorably than her on the prime of case the only evidence that ms russell submits is her own conclusory statements that male employee owned conclusory statements based upon information and belief that they were not disciplined for similar infractions those arguments fail for a number of reasons as you noted in dan's or vs norton systems case when dealing with pretext she cannot establish triable issue of fact and this is dealing with the male comparatives she cannot establish a triable issue of fact when she doesn't win her belief when her statements are based solely upon information and belief  there's no inference that can be made going back to the inference of retaliation there is no circumstantial evidence of retaliation as well in the absence of direct evidence of retaliation courts often look at the actually complained about sex discrimination therefore she is not she cannot avail herself of the presumption of causation based upon temporal proximity in this specific case additionally when dealing with retaliation claims as stated in the supreme court nassar case the standard here is but for and ms russell even in her comments in her opening oral arguments and in the final page her final piece of written arguments here and her appeal repeatedly states that the basis for her terminations was based upon her complaints of consumer abuse so again she has raised that issue suggesting more likely than not that that is the reason for terminations and i just want to briefly just talk about one going back to the discrimination claim why her claim fails and why she cannot establish causation there are two inferences here that can be made against a finding of sex discrimination one we have the same higher same fire in france suggesting that  and the second reason why no rational fact finder could possibly infer a discriminatory motive is the comparative data that we have submitted in connection with the underlying claims  retaliation case and yes there were males who got who like i said they would get in trouble and she would always make an excuse for them if you listen to their star witness  testimony she verifies it she backs that up there was other females who work there we have a communication law we all wrote in they wrote in that book the state is on document the state verify that those pages that you were supposed to be looking at here today was somehow taken from that book and in that book every female wrote in the about the issues that was going on and it was an ongoing one complaint it wasn't just a pacific date it was an ongoing complaint about the gender situation ask for the retaliation situation is basically they retaliate against me if you look in the documents everything that he said in this docket seventeen thirty four seventeen if you look in appendix you will see that it is all made up the no show no call the photos to food it the missing of the in services i got my enhancement checks i was well qualified i was qualified i was hired why i'm telling you yes there has to be a link to gender and there has to be a link to discriminate to retaliate for complaints about gender vets were having problems with that the you may have been terribly unjust is another matter but it's not something that we're allowed to do anything about and write and they read to the agenda issue is they constantly call the cook who was me to come in to cover for these mails employees during the day during the night and that's how my hours was shifted around because i was constantly coming in we the females had to constantly come in and cover for these kids