work morning your honour's may please the court office represents the plaintiff steve captcha the third in this case and on this appeal briefly the plaintiff steve the third is now sixty years old he was employed by the town of east fishkill for forty years during the last thirty four years of his employment until the resolution which gives rise to this case he served in the protected civil service position of building and grounds supervisor he is appealing the just records dismissal on a twelve b six motion of his complaint alleging that he was constructively discharged in retaliation for having made a complaint of age discrimination and because of a discrimination on the basis of disability the focal point of the just records decision here was that the plaintiff the complaint failed to plaus that adverse employment action and his disability the thrust of our appeal i think the court has gained from our brief while the district court gave what i perceived to be minimal lip service to the letter of the law and the standard that's supposed november thirtieth two thousand and fifteen that's in all relevant respects correct just as a no i think that we in response to the motion it turned out that the complaint was actually filed in january of two thousand and fifteen but it is correct that it's a contention the only documentary evidence we have is that the town became aware of it in april of two thousand and fifteen issued a notice of right to sue in august two thousand and fifteen and right to sue expired  that the argument is they waited till that and and then they quickly moved on him to get rid of him as a supervisor in his department so how do we know the town knew about the right to sue letter expiration it you're lying in wait mark yes i know it's my line what argument i don't believe that that notice is in the record but i believe that generally they when the e e o c sends a notice of right resolution i guess is my question well given that there is no answer in this in this in this process we're only in motion to dismiss what was argued was that there is no evidence in the record that the town knew there was never a denial one way or the other there couldn't be because will find a lawyer to go to state court where frankly and i've been doing this for a few years where frankly there is no provision for attorney's fees and that is a hammer in these cases so yes there is a state look lame available but the likelihood of that happening  well that's their argument i think it's unclear to me in this in this in the circuit whether that actually is true that is their argument in any event we believe that the court while it spoke to the plausibility pleading standard really didn't adhere to the spirit of the standard to be applied in this circuit to a complaint number one plausibility plausibilities standard is not a probability standard number two i believe that the court ignored the fact that a discrimination complaint is subject to a lesser standard of review number three a discrimination complaint in this circuit not need not even allege a prima facia case although we believe that we case and for to us most important is that in order to prove and certainly to plead a claim of discrimination the plaintiff is entitle to identify bits and pieces  of evidence in this case allegations that together form a mosaic from which an inference of discrimination can be drawn and it's our position that here rather than looking at this complaint as a whole and assembling those bits and pieces and looking at the mosaic which we think we've pled the court decided to look at them individually in a vacuum and systematically discard each and first i want to just talk a little bit about the job action that we're that we're talking about here and that is the january twentieth two thousand and sixteen resolution which abolished all the jobs in plaintiff's department director directed we hire of all other people in his department by the highway superintendent all other labor well laborers and all motor equipment operators and those real hires were to be with with no change in salary and as the resolution says with no diminish ent solely as to our client as to mr capture the highway superintendent was authorized to recommend not authorized to hire to recommend rehiring of our client no that the people who were going to be rehired were supposed to be rehired as of i think it was january twelfth of two thousand and sixteen and go to the highway department the jan the sorry february twelfth and then as a our client was supposed to was supposed to be a recommendation by february twenty sixth two thousand and and sixteen can i tell you wife in the face of the resolution no but i can tell you why from the allegations of the complaint which is that they were going to negotiate with our client some job and we say an undefined job then he was told that if he did not accept an undefined job unspecified as to salary civil service status or whether the date of hire would his original date of hire would carry into the new job if he didn't accept that by february twenty sixth two thousand and sixteen he would be laid off or terminated and those the allegations in the complaint and that's what happened he concerned for the retirement issue and we said to the collective bargaining agreement which talks to certain rights that people who were hired prior to january one two thousand and seven had as opposed to rights that people who were hired after january two thousand two thousand and seven when they would have to contribute to their health and their retirement health insurance our client who had been injured who had had a traumatic brain injury who had all sorts of problems felt that he couldn't risk not having that lifetime free retirement benefit and that is what caused him to retire there was never a particular job offered to him there was never a job offered to him that told him what his civil service status was what his salary would be and as we also allege in the complaint the job that the only job that was actually authorized in other words the only recommendation that the highway superintendent can make in any old job was a job for which our client did not have a license and the town knew that a job that for which he might never have gotten a license because he did have problems of concentration learning function and they nevertheless from our point of view this is a militia situation they nevertheless only authorized that particular job and he felt he had no choice but to retire i  granted there were two causes of action federal cause of action and companion state cause of action asserted in the complaint the district court dismissed each of them the first pair of causes of action if you will read the nature of retaliation for a prior filing of an age discrimination complaint before the e e o c our position is that the complaint as pled even giving all favorable inferences to the plaintiff's doesn't give rise to even a minimal a minimal inference  did the reason that we argue that it's implausible is because the courts have typically looked at several aspects of our elements to establish this type of retaliation claim the plaintiff has has has he has conceded blowing out appeal that there's no direct evidence of retaliatory intent so that issue is not in play here so we then look at temporal proximity well we have between nine months and a year depending on the measure  if you were talking about just your fired something like that then the the the wait for a year before somebody says you're fired very strongly argues against the inference but here what was done was  the laboratory an elaborate restructuring the determination of one department a very elaborate thing that required to come consulting with lawyers and all kinds of things doesn't seem to me that a year is at all  two just as a matter of logical inference to draw the inference that it was motivated by by retaliation for the complaint when what they were doing was something that would have taken that long quite a bit of time to  and elaborate thing to terminations of a department and what to do with the employees and how to work it all out and the and the other workers were getting offered new jobs a guaranteed new jobs at the same or he's being treated differently that's it maybe have been on one page but it's an elaborate thing to think through and the structure and to do it even if i were your honor i think there is no allegation in the complaint or the record below that would indicate that the to action they did in january in retaliation for what had occurred a year before nothing occurs in that intervening period that's alleged in the complaint mr kopp check the plaintiff appellant was injured in the fall twenty fourteen he returned to supervisory position the complaint alleges without any limitation and there's no allegation that anything occurred in the interim period until january twenty sixth of of twenty sixteen isn't it a fair inference that the one page the one page that you talk about was not just written in the morning and then that all of a sudden likes of the thena sprung out of the head of zeus is it's there it just here is this one page certainly ron and i may have been under consideration and may have been under consideration for more than a month may have been under consideration for two months or six months or even a year but the reality is that not why isn't it a a plausible doesn't have to be was a bull is not a very high standard not not by virtue of reference to the passage of time itself i would say that the authorities in the circuit have held as little as two months renders the connection by virtue of time alone to be implausible so there has to be something else other than just the passage of time for what you're talking about if it's just for a thing like ok you're fired yes three months five months six months later very much diminishes the the likelihood that this would be  that this would be a retaliatory thing but but when it's something this complex as is is this is it's a fair inference that there was a good deal of planning went into this restructuring you're out of us sure i would agree with the characterization of the restructuring as complex it was a fairly small department the subordinates were classified as m e o o's mechanical equipment operators they had equivalent positions in the highway department so the transfer from buildings and grounds to highway was relatively seamless the issue and this question was raised on the apple these arguments well why why was the supervisor given an additional thirty days the reality is there was no equivalent position in that departments and there was going to be an additional thirty days allowed to work this out come up with an appropriate civil service position but we won't know that that could have occurred or will ever occur because the plaintiff appellant retired the day before this is to become effective as to him his job change would have changed dramatically he was a supervisor of the previous to par we don't we don't you have more vehicle operator like the other three workers honor i think you would not be an equivalent position and i think that's what's pled in the complaint our position is that we'll never know what the ultimate position would be that's what it's all to rise up front certainly but by the plaintiff electing to retire the day before the resolution became effective and and in fact allowing the negotiations to conclude we just won't know what position he ultimately could have obtained and as far as the the lying in wait argument if i can just circle back to the temporal proximity argument our position is that the supreme court case clark versus breeden i think is very clear on when this time clock begins to run or what activity can constitute protected activity and the issu november now i understand the plaintiff's arguments well you waited until until january because that was an opportune time for you to act with a district court recognized as well there was a passage of two additional months between the end of november and the end of january at that appellant doesn't account for if we were really just lying in wait we would have submitted the resolution the following month in december and we gave an additional thirty days and and stuck it out until february to continue the work out process  so in any event we don't feel the that there was a real opportune time to to act here in in in january in addition because the plaintiff those have recourse to state court action and we think recourse to action under section one thousand nine hundred three so even if the town were advised that is an assumption your honor raise that on questioning does the town know did the town not know it's not in the record but let's assume for the sake of argument the town did know and was advised by counsel surely would advise the town look you have no advantage to acting now you can still be sued so really the timing of it i think being tied to the expiry of the letter is not a plausible allegation in that respect i want to ask you about a different matter which the right to repleat and the plaintiff the record will reflect the client to repleat so the motion was after after the judge when the court indicated the judgment no your honor the the the the time line was that the all right the motion was made it was pending now rectory have an opinion and opinion a couple of years ago written by judge calibration i was on the panel which explicitly addressed exactly the same thing as the judge did here and said that it was it was illegal it was inappropriate i what was done here is i and if if i understand it correctly was that when the motion to dismiss under twelve b six was pending the district judge said to the plaintiff would you like to reply and the plaintiffs said said no i thought point that's correct then the judge later dismissed the complaint on that on that motion under twelve b six and essentially took the position you've had your right to reply you turned it down now this is exactly what was done in the in the in the lower life lower life finance case it's at seven ninety seven every third one sixty and we explained that at this was completely improper a plaintiff has no obligation to be put to the question of whether to repleat when the plaintiff doesn't know whether the court is going to grant the motion under twelve b six and if so why the plaintiff's position is this complaint we think it's sufficient so why should we were pleased when we filed a sufficient complaint just because the defendant has made a motion saying it's not sufficient we want to know what the court says and exactly the same thing was followed by the district judge in that case which we were told was an improper so i would think in this circumstance  if our court rules against sustains judgment the plaintiff should be entitled to repleat which is exactly what we ruled in in lorelai do you have something to say about that your honor i would say i would judge rules and says the complaint is insufficient because it fails to allege this or that sufficiently and the plaintiff knows what needs to be bolstered in an amended complaint yes the one that just left the gas well thank you honor if i may very briefly because i see my time is running over i would suggest that in the circumstances here are the plaintiff was not left to guess the court didn't sue a sponte on its own motion dismissed the complaint the plaintiff had the benefit of  our motion and our briefing doesn't know when and where it's going to rule granted however we've raised objections or deficiencies and we were talking about it when we rule was exactly like this the defendant made a motion to dismiss th complaint and the court said to the plaintiff ok there's this motion pending do you want to reply right so i guess my only suggestion would be in this particular case the plaintiffs could have accepted the invitation replay based upon the objections we assert we rule and then we may or may not have filed a motion as that's the amended complaint but you know i'm not going to disagree with the holding of the lorelei case i'm not familiar with it intimately i do agree with the court's characterization of the timeline as to what occurred here a motion was made plaintiff was permitted leave without a motion of his own to amend plaintiff declined and at this point plaintiff has not made any motion for leave to repleat or argue that they should be given such a such leave and on their