next calendar is when williams guzman otero and fulton versus the new york city housing authority local two thirty seven i am informed just this morning that new york city housing authority is on submission and i have increased the time they will go to two thirty seven in the both defendants and the defendants or the employer as well as the union that my clients belong to as an initial matter i have to admit in about twenty five years this was the most challenging gaze that walked into my office as a sole practitioner however i also feel that it is the most worth one of the most worthy cases that work then because we have in addition to my clients anywhere over that the relevant time period between two thousand and ten and till two thousand and sixteen to date and still ongoing as far as we're concerned my clients who have been performing the work of less there are helpers also known as plaster tenders in the private sector have been discounted in their salary or as they would feel classification of workers so everyone takes for granted that only workers in the competitive class under section forty four of the new york civil a civil  what at that were abused during discovery clearly state that only the controller of the city of new york can determine whether a certain scale is prevailing wages or not and sector for example you don't have to be a civil servant even as a plasterer to get the prevailing wages you could be appointed and that was considered by mr marson a at at a during discovery you can significantly in significant material as the part of the private sector you should be entitled to make that kind of money but once for appointed a plasterer helper then you are in the competitive class correct class you have to ultimately take an exam and then you are eligible for prevailing wages is that correct no your honor our position is as long as you do the same work or significantly a position yes that the law as far as as far as we're concerned yes your honor if you don't pass that exam even if you don't pass that exam you know if there is an exam that you're supposed to take right then you have to take the exam if you if you if you if you pass it the new place on the list and they can go and exhaust that list but if they don't have enough people who pass that they still can continue to hire an employee provisional people but you have to be there what you just described defines the comparative class that is there has to be an exam eventually and you have to pass it eventually correct if that's what the agency wants in this case what they decided to do as per their agreement of april ten twenty of april mind twenty ten was that there will be assessments given six months assessment  to the prevailing wages that that the private sector would be paying which was determined which you give me a citation to the contract that says if they pass the assessment they would be entitled to competitive mr floyd was the union president there is gents that it once they passed laws to assessment tests within the first year then they will be making the prevailing wages that the  why i say he also determined that the last third helper's also will get prevailing wages and there is no question that what mike lines there have been doing since at least four nine two thousand and ten is the equivalent of what the private sector has as as plaster helpers or plaster tenders the only reason your clients are not getting prevailing wage is because they haven't been recognized as plaster helpers is that it no we're not saying that we saying that at one point at one point the reason the record many documentations of old official document tensions that disparate treatment oh yes your honor what is your strongest evidence in that regard i have a few off from your honor and so what what happens is they treated the mason helpers more  then they did my clients we could you just point to a document or piece of evidence an affidavit that says this that was does that suggest there was discriminatory intent rosalee discriminatory intent because i understood that you're main argument was that the pay differential was because knight was discriminating against african american and hispanic workers right that is and all i saw and as judge  pooler tried to study the various classifications of workers to understand how the classifications and wage scales would have come out and so i'm asking you if there's anything other than the wage scale that suggests that the disparate treatment was because of discriminatory reasons well well your honor i believe that under mcdonnell douglas they have prove their case and i'll be more than happy to go through that discriminatory intentionality about this because i understood that you had disclaimed a disparate impact that you hadn't been arguing disparate impact and didn't do so until you eventually got the e e o c after this claim been brought if maybe i'm misunderstanding us you you have your own so so what happened here is under title seven as you know you have to go through the administration of proceedings th for a right to sue letter it has to be referred to washington d c and the justice department in washington d c has to approve the right to sue letter with regard to the agents have and that they have you know i've requested  they haven't done help and they still pending however they gave us the right to sue letter with regard to the union because they are not a governmental agency and i had no choice but to file at the lower court so i want to be sued for malpractise right to file it and i filed it and it is held in abeyance as i submit it in my brief pending what whatever the outcome here discrimination they are not required no but after assuming that you that you've made a prime facia case which opposing counsel do not concede assuming you made a prime facie case they come forward and they say there were enough people that passed the assessment and we did all we could but they were the same caretakers are not the same as plaster helpers and they explain why they know you are required under our burden shifting analysis to come forward and say this is pretext and they really were discriminating against the caretakers p i we saying that as a pretext to all reason they give in why because we feel that they speaking from both sides of their mouth remember there were two goals for that for that april twentieth ten agreement one is to get them added duties mended it added to this and that is that is not contested to get prevailing wages our position of course they contesting that and the other one is to reduce the time to become a e or plaster helpers fairly for seventeen blacks and seventeen hispanic individuals we also submitted based on personal knowledge by agents opponents one is a shop told me invited me to find out what exactly a plaster helper does from the field supervisor and that's exactly what i provided the court with and that would be mr la flor he's human is that caretakers mason helpers are to mason yes and what you will find most interesting your honor is when mr maher senate did the research and he did it based on the mason tenders collective bargaining agreement of i believe between two thousand and two and two thousand and five which continued you will see that the mason tenders in insect in the article for section four in the private sector actually do what plaster sorry your time has expired so let me sum up because you have reserved three minutes for about oh ok tell us what you want to know about your argument well what what i want kids that is cited by appellate union is more on point and that was second circuit from twenty sixteen i believe it's in footnote five of their of of their brief in that in that case trial there were five positions available they interviewed four men and one woman the district the district court found that there wasn't enough evidence for a pretext or prime my face sex discrimination this court reversed them saying that as we believe the district court took whatever issues affects parse them and did not job to argue for both themselves and to the best of your ability for all that we have now i just papers and of course we're taking those submissions so proceed agreement because there seems to be a fundamental misreading of that agreement in a few ways the first way is that that letter agreement does not provide for prevailing wages and it couldn't provide for prevailing rate wages for the plaintiffs because neither n the union have the ability to decide whether or not the plaintiffs or all caretakers get prevailing rate wages only the comptroller of the courage of the new york state controller has that right correct and is delegated has to do that correct basis he or she decides the title and therefore the status yes yes they look right and i believe in the record i'm not sure of the citation but the record does  have a letter from the comptroller's office that was sent to the union so back in two thousand and seven the union actually did ask for prevailing rate wages for plaintiffs which significantly undermines their duty of fair representation argument which is a requirement to prove discrimination against the union as you well know we did go to the comptroller's office in two thousand and seven and the comptroller said just because you call them class or helpers doesn't mean that they function as placer helpers in the private sector you have not which was true we hadn't and they didn't function as placer helpers in the private sector they did significant excuse me significantly different work so the second thing about the letter agreement is that it doesn't provide for a petition to that it doesn't provide for a petition to de cast to get plaintiffs prevailing rate wages that's not what it says from the no was required to do that well what we were supposed to do was to night to and the union the agreement was to make their best efforts to ask for a plaster helper title women which still would not have gotten plaintiffs prevailing rate wages it would have had them called plaster helper which is housing authority that's all it would have done because the control of it would still have to make that decision based on the function of the ten act and what is absent from the record is any admissible evidence as to what placer helpers in the private sector do the plaintiffs proffered a an affidavit to that effect of a person who is not qualified to talk about what class or helpers in the private sector do merely because he worked as a plaster helper we're not sure if he was a prevailing rate placer helper worked on public projects none of that in one thousand ninety has nothing to do with what placer helpers do in two thousand and eighteen so that's not admissible evidence so be the other gaping hole in the record is that we don't even you know plaintiffs say we do the same we do the same we do the same but we've never seen any evidence of what private sector class or helpers do so how could you possibly say that you didn't see the evidence upon which the controller could decide that the jobs were identical exactly exactly with respect to you know the duty of fair representation i think your honour's touched upon this a little bit there is absolutely no record evidence of race discrimination in this case by night or by the union half why is that barely because there is this just to sickle disparity between what mason tenders make in one thousand and what caretakers p make in one night doesn't make them the same and not only that the union did not get for mason tenders prevailing rate wages and did not give mason tenders prevailing wages mason tenders have them by the function of the civil service law as we discussed their competitive class employees they take an exam the caretaker speed do not provisional appointments would would not give plaintiffs  prevailing rate wages it would not make them a civil service title because they would have to they would be rank ordered in fitness and everybody else that took this plaster helper tests would be a rank too so they might not even get an appointment as a plaster helper in my chair making for this is the question i opposing counsel yes that everyone seems to take for granted the only workers in the competitive class under section forty four are entitled to prevailing wages is that correct i believe that is correct how do i find a citation to that belief your honor i don't have a citation for you for that  is just something that we know that's in the ether yes no again my understanding of the civil service laws just that when when you're in a competitive class and prevail and you get prevailing have to be in a competitive class yes but i don't know where that is i can't give you a citation offhand right now it's just some something that everyone knows it sounds like something that ever it's something that we've all taken for granted in a case that's exactly right yes but yes i can find to say tasted can i ask you within a week yeah you can convey this also to your niger colleagues absolutely send me a citation  ok thank you i will provide that for you that's not very i apologize for not having that so therefore you know it's not it's not it's not self evident from the record that there's any reference to that it's just like received writ from above  because all of us ok so the other thing sorry i just lost my place here ok so they're required to prove that the union committed a violation of the duty of fair representation and they say that  we committed that breach in three ways by not enforcing the letter agreement which i discussed the fundamental understanding of the letter agreement is the issue there by not treating similarly situated groups similarly which is also a problem for the reasons i discussed and for liability of the union is also proven absolutely which is why i can sort of speak tonight discrimination a little bit because that is part of our case there is there is no record evidence whatsoever of race discrimination here and yet most of the workers i don't know if it's one hundred percent of the workers in this class of caretaker p are african american or hispanic is this accidental how does that happen that must be some way how a hiring practices what my understanding is again of one just hiring practices is very very limited but from what i gather  frequently hires from people that live within for this particular job hires people that live in their properties and people that live in those properties tend to predominantly be of the same groups that caretakers additionally there are local people which is a good thing yes but then they don't appear to allow them or there's no way he laid to allow them to move up the scale to get better jobs and higher wages i would i would argue that that is not the case and as a matter of fact what the union did was provide them with an opportunity and a path to become plasters because we could not get them prevailing rate wages as placer helpers that was the purpose of this training program was to give a meaningful opportunity to people that were working as a caretaker piece to allow them to learn the skills to become plaster is better than a plaster helper because you're in charge and the the people that did take advantage of that i think mr did discuss there was some success there with with people that with succeeded in the training program took the civil service exam and became plasters so there is a path there's always a path to hell laster as actual plasters that was actually the purpose of the agreement was to create a training program because we couldn't get them the title immediately we wanted to find a way to get them a prevailing rate wage job and that's what we did we gave the training program to teach them to be plasterers to to reduce the amount of time it takes to become a plaster and some people did succeed in doing that so there absolutely is a path and we want nothing more if they had become plasters they then would be entitled to prove yes yes because they would they would have taken the exam they would be a rank ordered in terms of fitness and they would be hired by night to do plaster work in the time remaining which is very little can you affirm th exist plaster helper on the outside time to find that out so i know that night refers to them as placer help us but their civil service title is caretaker p so is there a civil service yes only in the private sector not in night that was right so in our care takers equivalent no that's what we're saying they're not equivalent because they don't do the same job and from the assessment they can go from here take actually because they're not plaster helpers because there is no such nice a title because the cast never gave permissions and i said i have that title and the comptroller never determine prevailing wage is applied to that title that's very helpful thank you i'm glad  this was a wonderful opportunity i thank you very much and i will get you that's right thank you you thank  although i really asked for factual material but of course counsel you can respond to anything i gave them a week and i'll give you ten days from today you have three minutes for  very quickly on see this is the misnomer counsel for the union said that the civil service for a plaster whole helper is only given in the private sector it doesn't make any sense in order for you to be to take a civil service just you have to be a governmental employee right after she said that it doesn't make sense is not necessarily dispositive know whether it's accurate right but it makes it an issue of fact it makes an issue of fact because they don't know like like you alluded to your honor it is no where there we just take it for granted and my clients need to make sure that they don't take them for granted any longer what is it that you think is that it accurate about my discussion with opposing counsel that the prevailing wages have nothing to do with any competitive exam for example the question i asked exactly and i and as i understand it opposing counsel said that yes it does it does not we all take it for granted but there are maybe it's in the prevailing wage law and the law the prevailing wage law what it is in labor law subsection to twenty twenty which is a prevailing in the private industry that's worth comes from it's the private industry which has the prevailing wages and what they do is if you do the same thing or significantly the same thing in all material respects then they want the public sector people but also get it so it doesn't matter whether you take a civil also you're on a very important opposing were all appointed provisionally i can tell you that one i did provisionally but they have to take the test they didn't take the test on a distinction between the civil service test and an internal assessment that would have allowed some subset possibly to qualify later for the plaster a prisoner is that right no that's not that's not correct your honor what happened is there were two goals one goal is that in order for them to get prevailing wages they have to get on the job training like most lawyers do  specialist all practitioners right on the job training and then take two intermittent assessments once after six months and once after twelve months if they pass those two assessments then they were supposed to be two thousand determination and let me just point out the exact page because i actually see it it refers to peer taker p throughout and then it says nitric agrees to use its best efforts to petition the city d casts to create a new plasters helper ha but they don't have it incorporates they never that and we see and what we're saying is it's almost going to be in april eight years when they go now though it so but you have to agree though that if they haven't created such a title it therefore doesn't exist not yet and so that's yeah but it doesn't exist but for the last seven plus years they've been doing the same work that the private sector plaster helpers are doing they mandated to do it they have no choice that's what the evidence shows that's what the commutative testimony so shows including but not limited to mr  one question to us your time has expired but we never turned to the different standard between the fed or on the federal claims and the state claims and the city claims  amended the anti discrimination made it more favorable then its counterpart of state and federal even if you didn't prevail on the federal claims you would argue that you still have a chance of prevail prevailing on the city claims and the district court did not do that and that's correct but a very very important your honor and i have it in my reply pre fund i believe in the opening brief as well like i stated it earlier and student pointed out to me i do have a pending title seven disparate impact that's different you don't have to show intentional discrimination and you can go just by statistics i do not want to have my clients foregone from at least pursuing that at the district court level because as i mentioned the debt to the standard is different that i believe much easier to prove than the the  other counterpart thank you thank you and i particularly thank you for the union for filling and for the missing cow so thank you both very interesting what a reserve decision