it please the court everyone in this row probably know someone who's been sexually harassed or discriminated against on the basis of their gender many of us know someone who'd been retaliated against who was retaliated against for speaking out about it ms campbell is one of those people the district court below aired when they found that that the plaintiff failed to make out a case of discrimination that her claims work time barred and that the human rights law did not allow the continuation of those claims they were not told during the time that they were pending before the  believe that the court erred both in that determination and the determination that the plaintiff had not made out a cause of action for a hostile work environment or discrimination on the basis of her gender she was paid differently she was paid less than the new hires as as to payment she executed a general release as to her payment claims is not correct that general release was rescinded by her attorney  she didn't tender back the money she had accepted in payment for release is that correct she did not tender it was not asked for it was not raised as an affirmative defense and the answer our position is that it's way if the defendants had demanded it at any time certainly she would have provided it back to them i mean what do you have to ask for it she's the one who's saying she rescinded the release you don't get to rescind her release that for which there was consideration  unilaterally i believe at the ratification doctrine provides for consideration of a number of factors including whether or not she was she was in her straight form of mind because she had just gotten testimony it was right after right after is not what i asked the same thing again immediately the same day went from the hospital to the session where she's on the release of the day that she was released that's correct that is her testimony and that is that is her recollection and you notice that the release has two different dates on it the notary is a different date than the alleged signature in any event the twelve hundred i think thirty dollars that they tried to pay her for the loss there or the difference in pay did not address the pay disparity as a result of distance discrimination on the basis of gender additionally when the  i'm having trouble i want to understand what the the claims actually are here there are both claims of disparate treatment in specific adverse employment actions and a claim of hostile work environment is that correct correct and the claims of disparate treatment what exactly are the adverse employment actions that the pay is one of them is one of them she didn't have a sign on her locker she wasn't fitted for avast i believe that if you take a look at how many of these have those how many of those adverse employment memo in response having to write a memo in response to the list i'm not asking to have you argue each of them i just would like to know which are the adverse employment actions that occurred within the limitations period i understand that the hostile environment claim to the extent that there is some act in furtherance of the hostile environment even one within the limitations period would mean that it's a timely claim for the entire hostile work environment claim but with respect to specific adverse employment actions could you just list for me the ones that occurred within the limitations period  and additionally shoot the writing of the memo for going to the da about the progress we would suggest is an adverse action within the universe of discriminatory conduct as well as hostile work environment requiring her to write a memorandum explaining why she explained she complained to who to the lawyer rather than to her chief that was an adverse employment why she went to the district attorney making her write that that why is that an adverse employment action how does that affect the terms and conditions of her moment well it's outburst because it's retaliatory and retaliate retaliate you know these are separate the motive is retaliation the issue is is this something that is harmful enough to for purposes of disparate treatment we're trying to disaggregate all the claims here so we understand what you're actually complaining about so the for purposes of discriminatory treatment it has to have a significant impact on her employment conditions and the pornography has an adverse action on her work conditions as a woman it is discriminatory to be looking at porn on the work site where she is present we would allege that that is an adverse action to a woman on the job watching porn i understood the prerogative allegations to be more limited than you have just made out i understood that when the chief was  which your client had viewed a minimized version of a name that suggested that someone else might have been using a computer to look at and she complained and the department issued a memorandum reminding staff there was one one instance in two thousand and seven one in two thousand and eight i saw her deposition testimony saying that she had observed something many times i thought it was minimized version which this is not to suggest that having any pornography viewed in the workplace particularly at a police department perhaps is acceptable but the allegations were markedly vague it seemed to me as to place and exactly what was viewed could you help me flesh that out please for your i again within the the time period we're talking about because i tend to see that time in which the chief was m a twelve eighty five he was shown the exhibit of the teen sex movies dot com the date on this was a screenshot yes yes dated may twenty sixth of two thousand and eight and you s he examination before trial his testimony his deposition testimony at twelve eighty five the screenshots so she had copies of them from may when i went oh eight hundred sheet i saw that one reference search history is are we talking about actual pornographic images visible to the point or something else yes it would pop up way way that's an either or it's not a yes are we talking about of websites that someone had apparently visited on that computer my recollection in the record your honor is that there are both there are depictions of women who say they are both there  screen shots of pornographic images that were viewed by the plaintiffs that are shown to me she found is that what you're saying rect we showed them to him at his deposition at page twelve eighty five evident that page twelve eighty five there's the screenshots that are contained within exhibit or h five show website addresses is that correct correct yes that doesn't say anything about images of pornography images or excited dress i'm sorry on that says a screen site address yes but the images of teen sex movies yes and the images that my client was able to take screenshots of and preserve are contained in the record she indeed viewed it and what i'm asking is are any of those screenshots actual images of pornography and where will we find evidence of that in this record well i'd have to look at the record to look at that particular pages  and that those were provided to the court and i think you know i i understand that you're trying to make a distinction between whether or not she actually saw like a movie you said actually she observed that he was forced to watch pornography how that was with mr you know me with the words you used here and i'm simply trying to establish whether there is evidence of that in the record because i hadn't seen it that's what i'm asking you about ok i believe it's also in her testimony at her deposition that she testifies that hallam had show i'm sorry that yost had shown her pornographic movies as well as others in the department and that the screen shots are contained within an exhibit now be happy to collect them and and brief for the court for pardon me to been terminated no he wasn't terminated he was actually retired and then hired as a consultant without the consent or knowledge of my client until he started stalking her and following her again so he was not retired and the court found it significant somehow that he had not spoken with her had not had verbal interaction with her after may you've limitations is told because she complained to the e e o c and there was a suggestion in your brief that your client had specifically filed something with the state division of human rights and that something is exhibit a leavened to the plaintiff's deposition but there it is not in the record of on appeals not in the appendix and apparently had that exhibit as far as we could find was not filed in either as summary judgment motion or in opposition to it is that something that we can have surely your honor and it's contained at the record in a three eleven although that's not marked as a deposition exhibit that is the initiating complaint from her attorney at the time oh that's what i was wondering about so you're you agree that the thing that is exhibit a leaven in the deposition is the form that was filed with c also says on top of the state division of human rights right and has a language at the bottom saying i requested to be filed with the division of human rights that's that's the thing that is referred to in the point of step is ition as exhibit eleven it's my recollection that it was either that or in the letter by her attorney at page three a lemon where he alleges continuing violations yes but if i say that it's it may well be that the as a matter of law the exhibit that is filed the complaint that was filed with the letter that was filed with the e e o c constitutes as a matter of law  filing with the state division of human rights with whatever consequences do or don't follow from that i'm not trying to make any legal point or ask any legal question i'm just trying to find out whether factual there is a contention by you that in addition to whatever legal argument you have that the e e o c document constitutes a filing with the division of human rights that there was also some separate are you arguing there was also evidence of some separate document that was filed specifically with the department of human rights of the state and not with the e e o c no thank you ok very good mr him morning may please the court counsel   the one thing that i think we can all agree on is that the circumstances in the village are painted post changed as of january one two thousand and seven that was the time that chief helm took over as the chief of police to summer thirty one two thousand and six is the time a defendant yost retired as the chief of police in the village painter post it's my client's position that one of the first evaluations by this court is to determine that that line of demarcation the thirty first to the first would be the end of phase one in december thirty first two thousand and six in the beginning of phase two january one two thousand and seven i'd like to focus your attention in phase two and how the village responded to complaints that pornography was visible either as actual images or on as auto fill in mentions that showed tended to demonstrate that  department's computers were used for viewing pornography in a particular i'd like you to address the adequacy or inadequacy of the two memos that chief holmes sent one in two thousand and seven one in two thousand and eight neither of which really mentions pornography at all just says gee i just remind you about the computer usage policy could you address that because that seems to me a very weak response to a complaint of that pornography is being viewed in the police department are so i bet the way the record in case is that there was a complaint of viewing web addresses in the history of computer in early two thousand and seven february i think two thousand and seven at that time that was one of the first that chief helm issued to the department and you're correct the memo itself does not address that pornography web addresses were found in the history were obviously are obviously or that they were likely being viewed if they were in there but it did address that their computers only to be used for work purposes for for any other purposes personal or or anything else along that line at this point the point of testimony differs slightly than the memo that she issued to the chief in late two thousand and eight and her testimony because i continued to see it and it with no other specifics other and i continue to see it many times many times you know the memo she she wrote indicates that at that time that memo was issued it ceased for about a year and then there was another complaint  anyone had looked at pornography but but this time he locked the computers up by password meaning that officers could only access the computers over the internet on the computers if they received a password from the chief meaning they had to give them because we understand what i mean so that made people more accountable if they were caught i think i think the idea behind in the way that she testified was i think giving a password what help with a time frame of used to but more it would make them less apt to use the computer unless they actually have work to do on the computer they won't be able to use it in their free time is that in your view in the departments you are in villages you an adequate response to the complaints of people watching pornography at the police department at work in again the allegation was that there was found in the in the web address or in the history the web addresses were found i believe that limiting the access to the computers would limit the potential use for uses other than work you said i'm not sure i understand how it limits the use if so there's a password and you have to ask the chief for the password then you know the password he changed the password period is that in the i believe his testimony indicated that i can find it in the record and i guess the other thing that's puzzling is this goes back to the question of what is on the computer if the search history isn't purged then the search history is there no matter what right yeah and there's nothing in the record to indicate what happened in the search history after so that she couldn't check up on what was going on more than it should anybody else out and that a jury could find that that was the reason for this rather than some effort to deal with the problem  s of not being told when the bulletproof vest fitting was going to be of a pay reduction that i understand you have a response to but that may or may not create a an issue of fact  and the worst one leaves but the pattern continues even if at a lower level why isn't that all part of the same hostile environment if in the fitzgerald case the one that this court decided to divide into phases that included one defendant and one individual who was discriminating against the plaintiffs in that case and the ruling there when when the phases were divided was phase one his the defendant's defendant's actions in that case were very sexual derogatory types that nature and the phase two actions were different so even though the same defendant we could see that they were different here the actions by the allegations against yost in phase one are far different than the allegations against the that's worse but there's also a continuing pattern i think the plaintiff would say of the drumbeat of these other things with the pornographic references with differential treatment of various why you know understanding that the allegations are special why i'm having trouble saying why we should have just a complete break or at least why that isn't a jury question whether you know the the other as a whole is that those issues in phase two or the allegations phase two like the bullet proof vest and things like that there is no proof that the conduct occurred because of her sex when you look at that they seem like situations that were myron infrequent and there so much time in between them that it's hard it's almost impossible to tie him back to it's impossible time back failure to be present when she was fitted when everyone was fitted for a bulletproof vest although she was given the information to be fitted for the the district court found was october sixteenth two thousand and seven was the three hundred day look back at that point and i think that's proper there's a little question with the heels nov fourteen question every prejudice or court ruling wrong i argued my papers that it should be november but they decided it was october i would understand that as you know well i mean i think the plaintiffs brief actually uses the november date but at the same time did not seem to me that  merck about these dates and when different things happened whatever that merckx is i didn't see anything that suggested that something happened between the october and the member date that would make it make a difference which date we use i agree you're argument is is very simple is that under the work sharing agreement forty two u s c two thousand the division of human rights was notified about the filing with the e e o c however that does always the right to file in the state court absolutely and that means there's no telling what is the critical day let's take the critical date as you had these are three years may twenty first two thousand and nine so that's that's the date we have focused on that is my understanding what allegedly happened after that against your client absolutely nothing my client retired from the village opinion poll but he came back as a was had no verbal contact with her whatsoever mind you village of pain opposes a small village after october sixteenth two thousand so yes i believe that's my understanding as far as the allegations are concerned yes there is the allegation is the notion is that he like walks his dog in the park where the park is supposed to be closed knowing that officer kimball was going to be on patrol at that time and would see him there and would then have to decide whether to issue in the summons or not or do something and then there's something that goes on where chief home eventual he says i'm not going to take any more reports about is that that's a yes that's my understanding mind you the plaintiff is armed my client is not armed as i was saying village opinion poses a very small village so coming into contact with mr yost who's a lifelong resident there sit in his car and with a camera and focus on her house once again yes those are the allegations but there's absolutely no proof that that occurred did the neighbors complain about this in their testimony to that effect not that i hostile environment complaint my argument would be that it would not factor in at all into the hostile work environment mr yost was hired as a consultant however there's unequivocal testimony from the chief home that they never consulted but he had a three year long obligation didn't he after he took the the buyout yes as if as a consultant in an ongoing relationship with a department they were entitled to they were paying him and they were entitled calling him during that full three year period isn't that right that is correct however he was never called on so he in essence was never part of the village opinion polls department he was never i think he had been there for thirty years before practice chief i think it was actually twenty seven years and they had three years so that he would hit the thirty year mark i would follow that it can't be part in either that it can't be attributed to the village i suppose that's your colleagues issue or that to the extent that he's sued under the new york law as an individual participant in this arrest meant that if he while him employed even if only as a consultant even if they don't ask him anything why isn't his behaviors still as directed to a member of the department potentially actionable as part of what an employee of the department or somebody who works for the department is being paid by the department is doing to her what is why is it just not count why is he just totally a civilian while he's on the payroll of the police department well but have nothing to do with her employment they're still both part of the department in a sense right yeah i don't disagree with that rationale however we need to look at the complaint and what the allegations were against shows and that was as an aider and abettor which argument is very clear you can't aid and abet your own conduct so i would i would fall back that yes that in theory that argument may make sense however according to the complaint it's not there but there is so you're saying the separate and and help me out with respect to the separate theory that he is liable as a supervisor is the issue just that that's not pled or is it also that he is no longer that whatever else he is he's no longer a supervisor during the secondary issue that as a consultant formerly the chief he had some kind of a supervisory relationship with some influence with the department with apparently that is what it would say that lanes is that employment discrimination no i would argue no under under these circumstances or even aiding and abetting implement this well how it is  alleged here in the complaint is that my client essentially aided and abetted his own conduct which i'd say was is improper the conduct of the police department in not doing anything in relationship to the complaints made against your client which are specify a little more for each well i'm trying to understand you're argument is there are no what are the things that you understand because i have trouble sometimes following it what are the things that you understand are being alleged that you contend rise to the level of issues factors that help sure yeah it does and in really it's key that i think the three hundred day look back period is key to that it's people for the title seven issues but also for the hostile work environment issues so i think there are maybe four things that are logically occurred during that three hundred a look back period one is the reduction in longevity pay that my argument is it's not material it's when you do the math it's a couple hundred dollars maybe plus there's a legitimate business decision for it was they missed a four year lapse and your dues for that time the second one was disciplined differently than male officers there was one counseling memorandum within the three hundred day look back period it was for a one car accident the plaintiff was in it was simply accounting memorandum no other discipline no doc days nothing else and not a material term a condition of employment third the pornographic addresses i think we addressed that at length but again i think that's immaterial within the three hundred day period of believe there was only the one allegation and it was around the time that she wrote the memorandum in a second memorandum was issued by chief helm at that time and again would argue there's no material change in the employee's terms of employment and the last one is this allegation about overtime pay and it's really a broad allegation that she felt she didn't get as much as is normal there's no real time frame other than  she she approximated that that that your honor not just colonial days but just over all that other people the implicit was other people are getting a lot of overtime and that's affecting their pay and not you and i don't i don't think that's implicit in a certainly not there may not have been over time available to it and that's something that's not shown in the record and she needs to show that other people received it over but the point of his not able to show that here nor she able to specifically show that she lost income i mean she's alleged you know i think i missed half but we don't have anything in the record to make that versus survey incorporated this court's decision in may this year indicating that the aider and abettor section two ninety six and six is to be construed broadly in new york court of appeals confirmed that on a said they're absolutely right they should have that they were correct in reducing your really it's based on longevity in the department because they mistakenly credited you with an earlier time period that you had worked for the department years before and there was a break in service and the attorney for the union says that's correct do you is there any evidence that would dispute that this was  adjustment in her pain i believe that that presents a crow question of fact and if you don't what what it what presents a question of fact what is the evidence that her own attorney was wrong about that the evidence is in the record it a fourteen through a believe it's four twenty which sets forth the pay rates and you compare that to the contract and you look at the  i she was in that tier for many years before the june of two thousand and eight and that discriminatory response to mr but you know there was this whole investigation that was provoked by her complaint that she was paid differentially that the investigation that leads to the release that was like at a difference of thirteen cents an hour that she complained about the worse of that apparently it was discovered that she was whatever the validity of those she was being credited with continuous service that she in fact did not have and the question is what is the evidence in the who testifies that this was in fact wrong that they reduced her her longevity where do we look for that i believe that that is in her contract we have to examine the contract and make our own determination well it's a question of fact judge what do you like me why is it a question of fact whether she had the continuous service that's required to put her in that here and why is it that it's on us now to examine the contract examine all the data when no one on your side of the table seems to have done that and for sent us with an explanation of why it is that this calculation was inaccurate i believe if you look at her pay record through the retirement system and i think she testified about that that they were only crediting her for twenty hours a week even though she was earning over forty hours a week so that tear reduction was based upon a look back and saying well she was only part time so then she's not entitled to that that benefit and then they reduced it that it cap coincidentally was her complaint by we're in your brief is there an explanation of that will wear in her testimony or anybody else's testimony is there something that gives us a guide or are we left to examine all  records for ourself and draw our own conclusions i believe that she testified about that in your deposition be happy to summarize it for the court thank you very much we have kept you will be on your time