the next case on our calendar is a ratter gallagher and gallagher associates versus the city of new york the complaint demonstrate plausibility this is a complaint second amended complaint have a logical progression of issues it was highly detailed it was non conclusory and with respect to each and every cause of action stated there in we went back and and referenced the substance of allegations in the facts portion that supported each and every of the key causes of action every one of the causes of action is plausible and fact again these are non conclusory allegations are very detailed and very factual very fact specific so looking at a given over review and given the twaddle eunick ball standards we believe this is an absolutely appropriate complaint and frankly it's i imagine that the the allegations would be that it's not specifically played enough if we didn't specify all these things  there is nothing supports at this point that the complaint should have been the first of many complaints should have been thrown out or that the second amended complaint should have been denied without any discovery here we have a situation where there are very very specific allegations of gender discrimination during the time period during which the right to gallagher and gallagher associates was at h h c also there is very specific allegations as to act of  retaliation with respect to speech issues that she had and at the very least we should be entitled to our day in court to be able to flush out these allegations and to have an opportunity to demonstrate the these causes of action which are very very serious the court below only looked at one factor on futility and we in the very painstaking amended complaint you know here we have a pioneering female business that is shut down basically on issues of gender discrimination but the agreements that your client and here too provided that you either party made any time for no that's only one part of the tripartite with that vision that are just read to you apply to your client my argument is that it applies to the extent that it's not ambiguous but it is ambiguous because it's internally inconsistent the provide for two ways in which one can be terminated for any reason and or for cause and that if you're going to terminate for cause you have to abide by slightly different requirements why why would there be even simply being that you have to give if you're going to terminate because you have to give an opportunity to cure a breach why would there be a provision for kloepfer cause if you can terminate for any reason it doesn't make any sense it it does say it  and it but it's it's inconsistent within its own terms and it's written contra profer anthem analysis has to be applied here it's written by the defendants and they have the internal inconsistency within that clause and to do it on top of that importantly we've alleged and the court has to accept this as true the allegations that there's a tripartite contract arrangement here the defendants themselves have it knitted and acknowledged that the h h she was not a stranger to this contract between gallagher and dion tech and if they're not a stranger there is there are two different contracts there's the h h c dein tec contract which incorporates policies and procedures which provides for you cannot terminate contractors based upon gender and retaliatory reasons among a lot of other things i wasn't eligible to have a contract directly with that's right that's right but there is but as h h c has argued itself as it admitted there is a there is they are not a stranger to the contract that my client had that the contract that my client had with fine tech was really one of convenience dein tech is a is a large organization that can have the tide of the city so that they can pull in small sub contractors like my client again who has a pioneering female business there they're the h h c dein tech contract very specifically incorporates policies and procedures whereby contractors cannot be terminated based upon discriminatory motives such as gender such as retaliation which are very detailed and pleat well pled here and here we have besides the the one factor that was looked at by the court below which was this the affidavit with the vote taken which was absolutely disgusting and appalling there is many many allegations specified by paragraph chapter and verse as to actions that were taken that supported claims of gender discrimination here and especially under the new count that was provided in the second amended complaint the contract itself is not really the be all and end all under the human rights law if there is a whiff of gender discrimination in the allegation diane tech was not involved in determination and therefore that's that's ever extra evidence that that new york health and hospitals corporation understood that there was a relationship with gallagher  as true on its face with respect to this at this part of the stage of the the pleadings again like my client has a tripartite arrangement contra profer anthem analysis of the internally inconsistent clause requires that it be  in retaliatory animus here that should allow us to go forward and to file the second amended complaint and to be able to have an opportunity to flesh out these claims which we think are going to support our client's claims in the end thank you very much  properly dismissed the complaint for failure to state a claim gallagher associates was an independent subcontractor engaged by health and hospitals on an at will basis the agency's exercise of its right to terminate their services after an inspector general's report no reason right so there are two contacts at issue here one is between health and hospitals and dying tech guys or the other is between dying tech and gallagher associates and health and hospitals and it's contract the only contact it's a party to clearly retain the right to request replacement of some key sub contractor personnel and any time that it is deemed in the best interest of health and hospitals to do so in the event that it exercises that right the contract explicit least provides that shall immediately the sub contractor personnel so that's a very broad discretion given to health and hospitals to direct the contractor dying tech trim move any subcontractor personnel at health and hospitals discretion you then contract between dying tech and gallagher associates and there you have two potential ways in which either a dying tack or gallagher associates could terminate that contract once as at any time and for no reason by written notice the other is in case of a material breach of the contract between dying tech and gallagher associates and that's a specific contract it's in the record it has specific terms that the terminations cannot be based on a discriminatory amount of right you agree oh absolutely  absolutely even at will employees are protected against discriminatory an adverse absolutely so this plaintiff complains that she was discriminated against the basis of her gender and gives specific jury your honor i think actually examining the allegations as they are reveals that certainly the standard is fact sufficient to possibly give rise to an inference that the employer was motivated by discriminatory complaint in terminating gallagher associates and here we have a lot of allegations about female and male consultants who were not as serious he did with gallagher associates for example one of those consultants was terry coots who gallagher associates again was not a was not associated with gallagher  and the plaintiff alleges that she was treated badly and she was not liked by agency officials but the complaint also alleges that she was hired and promoted to a full time position as an employee over one of the defendants strenuous objections and that in fact you know she both that defends the defendant the both defendants who didn't like this female so called outsider were in fact reassigned to another project on this female outsiders request so you know yes she does allege that certain agency officials did not like certain consultants but to say that the agency had a pattern or practice which i suppose is the allegation of treating women worse than men that the other female was fired well i'm glad you brought that up your honor that was the defendant melissa weiss who allegedly said that she you know quote unquote celebrated this consultant's departure she was fired by health and hospitals after loretta lodged a complaint against her for this very behavior she yes that was an allegation of the complaint she was fired weeks after she celebrated the departure because there's so abrasion where short where exactly and she was also fired months before gallagher was terminated so the idea that her inappropriate behavior could have given rise to an inference of the people actually in charge of retaining gallagher or terminating gallagher is simply not it's not there on the face of this complaint the notorious dinner right well at the dinner the defendant who made that comment at the dinner which clearly was inappropriate was reassigned out of the epic project and all of this universe is about the epic project this goes to support the fact that there was some discriminatory animists in the divorce i don't think so your honor because that person was reassigned prior to lead no it alleges repeatedly that he had animus against gallagher associates i think it might allege that he had something to do with the complaint against them the lead to the i g report but this defendant made a vulgar comment about two female consultants neither of whom had to do with gallagher associates he was reassigned at the request of one of those female consultants so yes he seems to be someone that does not work well with his female colleagues but to say that that gives rise to an inference that health  hospitals agency fired gallagher or terminated gallagher associates because of gender animus that is not there on this complaint mind addressing the first amendment claim yes your honor this is a question of law for the court so it certainly can be decided on a motion to dismiss the plaintiff has failed to plead the baseline requirement of such a claim which is speech that is protected by the first amendment and is this court has made clear the first amendment doesn't constitutionalized an employee grievance just because that employee is employed by a public agency the speech needs to be made out of as a citizen rather than as a consultant or an employee and on a matter of public concern and here you know the survey responses were explicitly requested by health and hospitals to members of the ethic team the cover letter said if you're not working on the epic project you can ignore this email there were certainly given as consultants requesting feedback on the project not us citizens fork in my epic journey i'm not sure if i can go on you know people are conspiring against me and you know whatever merit or lack of merit those claims might have this is not about her as a citizen being a whistleblower this is about her saying i don't like the way i'm treated and i'm concerned about my future here why are you well it's you know it because it's an at will we didn't give a written reason but presumably it was because of the inspector general report go  direct in tech to terminate her and replace her for any reason that it deemed to be in its best interest any reason or any reason right exactly and in this case i think the record shows that it was almost  which substantiated findings that make misconduct including that gallagher had allowed her daughter to proctor i think exams taken by other of gallagher's relatives while signing a stipulation or a certification that she did not do so and then lied about it during the investigation and that's something that's in the report which is on the record and then also sent a number of confidential agency e mails to her personal e mail address including employee evaluations including employee test results even after a memo was sent to all consultants and employees asking them not to do the specific behavior so she was terminated after that and the report actually made the explicit recommendation to terminate her she actually was an open book open everything exam she proctored the exam as a volunteer and under eight c's policies a aunt and niece relationship is not a family relationship that's all alleged in the complaint and that's the basis of the supposed on is not a relation under h h c's policies as demonstrated in specifically alleged in the complaint that is not a family relationship but what about the marijuana tainted family relationship that is you could specifically invites emails to dr raj who is the head of h h c of complaints eight the e mail specifically has issues that are specific that are of public concern including issues about taxpayer waste of money that was being investigated should only be up to april first the elegy complaint talks about this exodus of employees that didn't happen until after the complaint was filed the fix was in here they wanted to create cause and the fact that they wanted to create caused by the way ghost of the issue of how the how the relationship was what was gonna go on about between the parties to show that they believe they have to have cause to terminate gallagher which is specifically alleged they didn't want this female or she was to competent and she was embarrassing them to competent females so they wanted to yes because they were they were highly if as is legit in the complaint they had no idea what they were doing they actually decided they weren't going to do the best practices of epic which would have saved about ten percent on the cost this is a one point four billion dollars project it would have saved the taxpayers millions and millions of dollars and they were too incompetent to do it the way to gallagher all throughout was doing during her job in a manner to comply and comport with epic requirements she's an expert at is a pioneering business woman who knew and understood this procedure well were no one else did more than all  exactly what she was hired for and she was very experienced very qualified as a pioneering woman she really this was at that the cutting edge and they knew exactly what her qualifications were when they brought her in and they they resented her and they were embarrassed by her because they could not get things done in a timely and efficient manner and then they retaliated against your why you have to wait were why would the fact that she was so competent reflect well on the people the fire it wouldn't reflect badly it wouldn't reflect well and it didn't reflect well because they weren't there was a large she was only one part of this whole project there are a lot of moving parts here only her part was being done timely and all the reports that are in the record show that she was on time doing things the way she was supposed to do reporting properly they actually changed to reports to reflect that she wasn't doing so well that's absolutely provable it's in a record they changed to reports without her permission to make themselves look better and her look worse  what's your theory that they went after her because she was too competent or they went after because she was a female she terry kreutz it's actually it's both really it with with letters and anonymous letters she got three anonymous letters and she was the threatening did threatening to destroy her and she just said i'm done she she's and that she wasn't who she reported it and h h c did nothing gara fal that's incredible animists and he was her supervisor and we allege that he was responsible one of the people responsible for creating this phony o i g complaint which led to a phony cost germination because that entire zero i g report