next case on for argument and atkins worsens rochester city school district case of age are raised discrimination and it's it you know the court has said a lot that it's a dem in a miss burton there were two prongs that the district court said were not met even on the de minimus standard the first one i think is kind of easy to look at because the judge said there was no adverse employment action but if you look and i agree that on the law just getting a bad school or so to speak is not adverse employment action but if you look at even a two twenty two which is poured the point of stuff position she explains that because she got this bad score she was assigned to another she said less desirable position which wound up being another failing schools in elementary school so that it so the school itself is connected to an adverse employment action and under the de minimus burden standard i think that's sufficient for a  prong so i would say your honor under the third prong is is literally just did you get any kind of an adverse employment imagine that the four years you concede your argument doesn't work know well i would say the discrimination point comes in on the fourth prong it has to be that that the adverse employment action came about in some circumstance the key give rise to an inference of discrimination you need to have an adverse employment action and there is some bar i believe our jurisprudence that says that merely transfer probably even a bad a letter or a disciplinary letter in your file that's not sufficient to raise to raise the inference of adverse employment and i agree with that no i agree with your honor but again i think this record again viewed on the summary judgment standard especially shows that she went to a different adverse material change can be that if you're if you're a principal and you go to a school that's less desirable to work at than another school i think that's sufficient for an adverse material circumstance under the case law  well again i mean i think if we're looking at it you know happy to be at that school because i can walk to it from my hours i don't have to drive through three hours of traffic to get to where i was american person well i know the judge basically said you know they're really not the same because they were both principals but one was a principal of a program one was a principal of a school but they still believe both work for the scene on their long district they were built i mean even when the defendant talks about them they but you know she said wall six people appealed or a p p o or scores they were both principals i think that they were basis for their appeals or different according to the defendant's evidence the defendant said that jordan's appeal showed that her score should have been improved i think though what's significant your honor is even the district court notice on page five of the district court's decision you know matter if we were kind of at the end stage of the case but again i think the fact that procedurally from a procedural posture standpoint because we're at the de minimus burton standard i think that that's even that isn't enough and i think your honor to answer your question about the comparison i think the fact that she was younger and caucasian and a principal i understand that she wasn't a principal of maybe she was a program instead of a school but even from my reading of the record there's a lot different schools and programs and it seems like almost like it i guess at some moment used to entirely but question about whether if she was right if your client was right it still wouldn't have changed your rating to effective that's what the defendant says that's what the court adverse employment action and again i come back i know i'm handling the same thing but if it's truly a de minimus burden that's what the court really has to look at the district court probably say this doesn't even meet the diminished ms burden i think what i would say is you know i think the court should remain and get back to the district court and first of all i would say that and i know my time's running out but even if you just limited to what the defendant says the case about which is a p p your score and that they were improperly calculated i think there's enough there to get past the problem if they should case and i think the district court should have gone on to evaluate and allow supplemental briefing on remained about whether or not that there was enough evidence there to centrally get to a jury trial i don't think the court should reverse and remanded for a jury trucks i don't think that will be fair for me to ask i don't think the procedural posture is high enough there for that but i do think that there was a as more good morning a pleasure to be here today the clearest example why the district court granted summary judgment is the a p r process itself it's governed by education thirty twelve c and that law the first time using those state metrics in two thousand and twelve twenty thirteen the state growth score is one third of the component and that state growth score was by statute the common core test scores essentially for all students in the district assigned to different schools and programs the a p p r rating was developed through an agreement with a czar which is the union for principals the association of supervisors administrators of rochester a's are and the district came to an agreement that went into effect july tenth two thousand and twelve and that a p r agreement determined how state  scores should be added together to have equal weight with scores and other measures scores to come up with a score and a rating for each principal and i just ask you about the significance of this in terms of adverse employment action short particular question i want to ask you so the section you cited thirty twelve c one says that those ratings shall be a significant factor for employment decisions including but not limited to promotion retention tenure determination terminations supplemental compensation this plan of also was put on the principal improvement plan which transferred to another school why isn't all of that together an adverse employment here is that  a developing rating like many other principals in the district that year the formula was applied equally to her and all other principles the evidence that was applied equally to her to give her the developing reading is best regulations that the state of new york is that can perform three you your honor did not materially change or make adverse any of her working conditions which would be a requirement for it to be an adverse employment action she did receive the developing rating but there was no teacher and principal improvement plan connected to that the reason for that and this is in the record as well as her deposition testimony is was notified in march of tw thirteen approximately two months before the students even took the scores that were used to make the braiding she was notified that her school would be closing she was notified that she was going to be moving to a different school and she was placed into that school to begin on july first that she was not she was not imposed that requirement like you so the essentially again the district scores were imposed on all of the principals equally the other thing to everyone was the appeal process of which the district was one member out of three the a's are and the neutral party are not part of this litigation but the three of them equally agreed that unfortunately because of the students test scores in ms acton says elementary school they were the ones that she contended should be put in and taken away were only several students versus mr jordan's two hundred some students and therefore it couldn't raise your score from a one to a seven but again the analysis that was done by the appeals panel was the scene from his jordan  as for his actions and as my adversary's not contesting the fact that there's there's the other issue should not be considered if it's not reminded here th moved to an even less desirable position again according to my chance to ask about that timing and discoveries that factor into why what i wasn't a trial lawyer on or so i don't feel for her at the time have a chance to ask about that when he had ample time for discovered so i would say yes as you know there's a quire and the exact timing of when anybody it didn't look like that yeah it didn't look it looks like we're kind of bored on that part but on the inference of discrimination the only other thing i would say is if you look at the page twenty three of the of the district court's opinion to the judge those talk about sandra jordan and that whether or not that's right or wrong on the private facia standard is fine but the plaintiff s evidence actually does have a little bit more than that and i talked about this i guess on page twenty four of my brief that there were other comparatives that the plaintiffs testimony talked about that were also principals and that  the evidence if it's an affirmative defense or like an affirmative defense which i think the court kind of said it was because it was waive a blow by the defendant then the issue is whether or not the defendant should have raised this earlier than in the summer judge of motion the only thing i would point out is this you know they filed an answer in september two thousand and fifteen there were records and then they took the plaintiff's deposition to june of two thousand and sixteen summer judge it wasn't until november and i mean there was never a time where the defendant tried to call me and i'm in the answer or raise this exhaustion requirement defense in any way until the summer judgment motion which point it was too early so that would be the only