good morning and may it please the court jane that men from the new york city housing authority law department on behalf of the knights defendants apple e's since rivers has elected not to argue there are just a few issues that i would like to discuss briefly first the failure of the record evidence to support rivers claims as the district court correctly found and i just like to highlight some examples of this failure there is no evidence of personal involvement of any of the night  defendants in any alleged adverse employment action there is no evidence that any knight should defend it knew of rivers protected activities no evidence the chairman re a had notice of alleged retaliation against rivers for engaging in protected activity and in any event really did not have final policy making authority there is no evidence that rivers was denied the opportunity to work overtime it is under spewed it that rivers worked overtime it's how to make a houses and rivers conceded that he was offered overtime on the weekends but refused and there is no evidence that rivers was denied f m l a leave to care for his mother and it is undisputed the nights are approved intermittently for rivers second with respect to river's argument that the district court should have considered priest appeal ation conduct as background evidence i want to emphasize the language of the stipulation of settlement which rivers entered into voluntarily w represented by counsel and which contains a broad waiver of all rights doesn't mean that that material isn't relevant is background this isn't a case w stipulation specifically says that material will not be relevant is background it cannot be a basis of a claim now the problem with rivers is assertion there is with the district court stipulation of settlement is it is extremely broad and broad but it's not specific to the question of as some other cases and that if that's true your honor and i would just point out that i'm not aware of any statute or a regulation or case law that requires a specific language to be used to waive that particular right well accepted a stipulation generally is to settle case and that settles that case that doesn't mean that the events in that case didn't do her and that's what it means to use as background so to agree that they shouldn't be used as background it would be at least reasonable to require the parties to agree not to because the settlement is to settle that case it isn't to make what happened disappear but i don't think it germinating vickery's because the district court did say it looked at it is but yes your honor i would just point out some additional language in the stipulation that it explicitly resolved any and all claims that may have and using on timely actions to assess liability on a timely title seven claim ever says attempting to use evidence of conduct that was fully resolved in a settlement agreement to assess my billet i have another question and we know you're saying is fine but the district court said with the workers that the allegation of interference with the workers compensation claim  wrong because that must be brought under workers compensation law but all the cases or about there are cases in which a person has brought the worker's compensation claim and venn that is a worker's compensation right to recover they are not cases where it is said that he has done something else and in retaliation against that worker's compensation is being opposed there is nothing in the worker's compensation law this is what that must be brought there so i think the you're on it and just to respond to that we do point out in our brain if that in the district court made her exclusivity argument but that where benefits have alternately be given under the worker's compensation law of the courts have found that it is not an adverse employment action and that it isn't said de minimus because even though the claim was contested benefits were ultimately worded i would also just add that in this case the medical documentation showed that mr rivers injured his eye a swimming pool or off the job i also just want to point out that the corded in no well versus a little village of like success how that previously dismissed claims and evidence of those claims are properly excluded under federal rules of evidence for one and for two and here rivers did withdraw his petition with prejudice and i would also add that there were no settlements or waiver said issue in jude vs hamilton son strand or in morgan and morgan justice thomas made the observation that title seven does not bar an employee from using a prior on timely access background evidence so it clearly justice thomas was looking to the statute to title seven itself evidence one of those alleged pieces of background evidence is the determination of rivers from his business agent position here's an additional reason why that can properly be considered whether his background evidence or any other for any other reason the supreme court's decision finneran very lou in this court's decision in friends of vs the teamsters explicitly hold that the union had the right the unfettered right to terminate rivers from his business agent position even if the reason was because he opposed the reelection of mayor bloomberg or oppose the election of mr mr floyd case law is clear on that there is no basis for a claim so i don't see how it could possibly be for mr floyd for the union rivers was forced to concede in opposition to the summary judgment motions that night she had her absolutely nothing to do with that terminations and that the bloomberg administration had nothing to do with a termination so there was no there's no basis for conspiracy claim or considering that as a basis for conspiracy claim which really emphasizes another point here if you go through the complaint principal theme of the complaint and this is in many paragraphs of a complaint is that mr raya and mr floyd got together and concocted a coordinated course of action to retaliate against mr rivers who are the engagement in protected activity according to the complaint that started back in two thousand and seven and two thousand and eight when mr bloomberg mayor bloomberg and the union allegedly was not even employed by night until the middle of two thousand and nine it's five months after mr floyd was terminated years after these alleged terminations of knight's employees and when you look at the evidence  standing the allegations which is what the court did there is no distinction in the terminations of night your employees based upon whether they support or bloomberg or were kennedy thompson with it is supported floyd or opposed floyd there's no evidence that the union treated grievances differently based upon whether somebody supported floyd supported floyd or supported bloomberg or supported thompson or oppose them you go through the various is what the courts have done in all the critical mass cases in each of those cases the courts have done two things first they've gone incident by they've gone incident by incident for two purposes one to look at whether the alleged conduct could constitute an adverse employment action and then to look at the record and say does the record really substantiate that that's exactly what judgements that's merited here she fell found that some of the alleged events could be an adverse employment action they are of overtime denial of training denial of leaves assigning excessive work but then she looked at the record and she saw that there was nothing to substantiate that that conduct was attributable to her talents or a conspiracy which is why even if your argument would be even if your respectable workers compensation it still would not matter because that you'd have to find that link which he didn't find throughout the case direct and on the workers compensation issue judge calibers if there is no evidence whatsoever in the record that the union played any role in the granting or denial or opposition to or support for workers compensation claim or indeed with regard to grant or denial of overtime leaves training et and the reason why that's critical and i'm not trying to distance ourselves from niger because we think the entire ruling should be affirmed but without some evidence of actual union participation in the alleged adverse employment action here is no basis for finding nine hundred eighty three liability on the part of the private party union defendants thank you thank you