next case on the calendar is forest b new york state office of mental health between her protected activities and the alleged adverse acts that were taken against her i believe the record demonstrates thoroughly that she has established under both the direct evidence test as well as the indirect evidence test as far as direct evidence is concerned there's testimony from coworkers specifically garrick jackson that one of the supervisors who was initially named in one of the first of discrimination a suing smith had a conversation with eric jackson referred to the complaint as as crap and showed displeasure that she did not like it and she did not like that she was a part of it we maintain that of itself establishes some direct evidence of a retaliatory motive also in the in the record there's testimony from gary jackson as well that in conversations he had with with richard parks honor although he was not a supervisor he did express discontent with the complaints as well and he had during conversations with mr jackson expressed that he w mr parks that's that's right your own i think more importantly is is the conversation that mr jackson had with sue and smith where she expressed her discontent as a supervisor with the complaints that were brought against her  to the april two thousand and twelve complaint that was brought with the division of human rights wasn't what she was complaining about is that she had to back up her supervisor she that when you say that she made the complain you don't put the full testimony which she was complaining about was now she was in the middle of this and she had to back up a supervisor or someone in fact the plaintiff sued here not that she was angry with the plaintiff well your hon certainly understand the position i do feel however that position what the facts i think the facts show that she was also named in the division of human rights complaint and yes she thought she expressed her discontent with the fact that she had to back up a supervisor that she was upset about not that the complainant had crossed the line well no not necessarily your honor i believe that the testimony demonstrates that she was in fact upset about the complaint which is evident in some of the other acts that were taken against the plaintiff such as the closer scrutiny constant review of her charts and  her sesame ins things that were never carried out to the are taken against the point of prior to any of her complaints of discrimination and just aside from direct evidence i also believe the record demonstrates that there's causation through discrimination in march of two thousand and eleven and then went out on medical leave until january fifth two thousand and twelve and i know the district court certainly found that he can go out on medical leave right away right there was a period of time it was went i believe the record demonstrates it was almost immediately after i know i know that the defense brief states that it was may two thousand and eleven i believe plaintiff's testimony that it was it was almost immediately within a week or two after she had brought the internal complaint and then i understand she doesn't return to work until january two thousand and twelve and certainly under the caseload you know nine or ten months is past that is long enough to to break that temporal proximity of what our position here is that when she returned to work that was the first opportunity that her employers and her supervisors had to take any adverse action against her it's not all that uncommon in these types of discrimination or retaliation cases plaintiffs do in fact go out on medical leave because of the stress of some of the actions that are taken against them and when they return even though a certain period of time may have passed which by the courts president will say it was too long of a time period the employer takes their ever sex against him at the first opportunity that they have which is when they return to work and that's certainly our our position here and as far as the other sex that were taken against her after the april twelfth division human rights complaint we feel that they were certainly close in time to that complaint as well morning may it please the court injuries davis representing the state office of mental health my adversary says the only issue is causation and that is certainly an issue and it's certainly a reason to affirm the district court's judgment but there are also very much like what happened in this court's decision in temple when in that case there were judged and said nine allegations nine allegedly retaliatory acts and what the court said is you can't just add up trivial non material acts and say now here they are in total material in gross of course there are cases where that is possible and just turns decision actually invader's an example of that where the teacher experiences a number of acts that patient charts we would say we would agree that that's not trivial but that's just reasonable enforcement of an existing policy and some of the others we think just don't add up to with respect to the accident occurred before april twentieth tw twelve that are said to be in retaliation for the earlier complaint the judge did not reach the issue of whether those were adverse actions correct that's right now  this court reach is that your view that we you're advocating to us that they don't constitute adverse actions correct that's right judge it's an alternative ground for a firm and it was fully briefed to the district court the material is all in the record to allow this court to make that decision as a matter of law and the courts this court has routinely addressed materiality as a matter of law both on summary judgment and in a dressing room fifty post trial motions so the court doesn't need went on leave that's not right the evidence in the record is that it was in early march of two thousand and eleven that ms forest first contacted the affirmative action department to make a complaint that's in the or in the appendix of forty three to says that these being written up for minor infractions starts immediately she doesn't go on medical leave until may and that's clear from her verified d h our complaint which is in the appendix at three thirty two and i can also direct the court page six seventy eight of the appendix and this is just about on her cause ation argument i mean that's one way of looking at this which she says i was discriminated against i had only to scrimmage terry x in between this time talking about the causal connection i understand you and you know this was never raised to love i will say that there is no evidence that the supervisors were for example plotting to retaliate against her as soon as they had the opportunity and that was the fact that in the i star case that my advice relies upon and in fact the internal complaint was resolved against miss forest and in favor of the supervisors in september of twenty eleven so it's not as though she comes back in january and there's still this complaint hanging over the supervisors the complaint is gone and resolved in favor of the supervisors by that point and of course that the close ation issue is only one of the of the issues here we have materiality problem and we also have the fact that the office has proffered the judum it nondiscriminatory reasons what about the lunch policy i didn't understand the evidence in the record on that there's some testimony that suggests that you were lost pay if you took time off to go pick up lunch and that was only enforced against her but if you want to see what the evidence is on this not direct the court to page one sixty eight of the appendix long standing policy that applies not just at the sullivan correctional facility but across all the facilities that are run by the central new york region that's the try to encourage people to stay within the secur that they're available to be recalled if they needed and the way they do that is to say if you want to pay a lunch break you've got to stay inside it apparently was not being enforced very consistently or very rigorously and so the evidence is that in early twenty twelve there is an instruction from central management to all the facilities to just reimplement it across the board and appoint the court in the appendix to page one forty three which is m myths affidavit at paragraph thirty and page one seventy six which is ms depew at fifteen to seventeen and they say that they then reviewed the lunchtime policy with all staff and even miss forrest testi that happened it was a blanket policy that applied to everyone and that's what about and then what confuses me is mr jackson's testimony that set it down like that he went out of his to parks went out and they weren't docked but she was she was the only one that they enforced that policy against right and it's used to be in the in the summer of twenty eleven when mrs forrest was out that mr parks was being allowed to leave  paragraph three so there's no inconsistency here what seems to have happened is that it wasn't being uniformly or routinely enforced and he was referring to an earlier period of time that's how i understand the record here over the years and then finally on a just place reasons that they are justified in the context of this unit that houses the most seriously mentally ill maximum security prison and there's just no admissible evidence that's been induced in response that could allow  on your own is just to address the the launch policy the record demonstrates that while in theory and in writing it may have been a blanket policy in practice it was not and the testimony from garrett jackson he's referring to the time period after the d h or complaint was brought in april two thousand and twelve so while in writing the one's policy might require on ploys to use their own time charge their own time if they leave the facility in practice that policy was only applied to to my client and the record is clear on that issue mr jackson himself is testified that it did not apply to him he was able to leave the facility and he was not required to charges on time likewise he testified that others were allowed to leave without charging their own time as well and just to address some of the nondiscriminatory reasons that defendants have provided  first as far as the launch policies policies concerned i don't think they provided any nondiscriminatory reason of the record demonstrates that the policy was only applied to to the plaintiffs second their there are certain phone privileges that were moved my client during these morning reports and morning meetings the record demonstrates that is this it's an essential function of of the nurses jobs to be able to use or make calls during those meetings and i believe the calls are related to patients medications things of that nature and mr mr jackson's testimony he testifies miss forrest was the only individual who was not allowed to use her phone for those purposes during meetings was that i thought it was that all women do it well it does say females but it says  paraphrasing the testimony to the best of my memory it said females but mostly the complainant which he was referring to the plaintiff that it was mostly applied to her or more so to her to her than the others there's been no reason charts and assessments were under more scrutiny than they had been prior to her complaint there's been absolutely no justification provided for the defendants that issue the only issue here that testimony came t vicinity but there was also testimony from mr jackson that he personally firsthand witnessed that miss force charts were more subject to be pulled and that the supervisors asked others  to closely scrutinize the charges testified that he heard a supervisor say to cross too closely scrutinized her charts not records not that he heard it your honor but that he he witnessed it first hand that the supervisor seemed more after her complaint more likely to pull her charts and scrutinized her charts and they were anyone's else's and just as further evidence miss forces testified that she never had any of these issues prior to any of her complaints so suddenly after she's complained now they're pulling a charge now they're investigating her another scrutinizing her work where as part of her complaints it was never an issue of hands or someone simply looking at here i don't think that would constitute never say action on its own but you're saying a whole series of actions that aren't and hers become at birth what i'm saying is in the aggregate all the all the actions taken against her considered  i do believe one of the retaliation standards that she has met her burden of of alleging that the reason i've ever said actions taken against her certainly the retaliation standard that regard is is different it's a different burden that has to be met in the making absolutely right and just one last point i'd like to raise your honor there's there is there's an incident regarding a missing syringe which the defendants have provided a nondiscriminatory or well the testimony is a little confusing on this issue but read a half men is the nurse who actually who actually conducted the investigation into the alleged missing  syringe and in the record it's i believe from six zero one through six or way of her testimony it shows that any one number one it was very uncharacteristic clear on that but the actual documentation when rita happening conducted the investigation it was clear that there was a posted on the document stating that this had happened when the syringes were used on a patient and it was not it was put there by another nurse prior to shelley to pew's review of this document so she plaintiff didn't fill out the paper the appropriate paperwork to fill out when she threw it away correct that would be that was her testimony yes your honor that it was undocumented that's correct but her to see why that wouldn't be trivial or enforcement a reasonable policies i understand i think more on this issue is the fact that hadn't actually altered documentation and changed the syringe count on this form which i believe to be further evidence that she had a retaliatory motive towards the plaintiff if the record is clear that any nurse who reviewed this documentation in the syringe could have clearly seen that there was no there was no syringe missing and the defendants maintain that and i would not disagree with them at all that in this situation where it's a correctional facility there's a very compelling interest in knowing where all the syringes are and certainly one missing could pose a threat to other inmates as well as  security if that was such a concern of of the defendants why did they wait eight hours to report of a security issued a report immediately as a test testimony demonstrates that the security guards were furious over the fact that it was not reported immediately so i think that evidence in and of itself goes against rebuts their compelling interest in securing the facility when in fact it took seventy eight hours before the instead it was even report