next case on our calendar is mcguire welsh versus house of the good shepherd council would step forward may please the court kathleen welsh served as the c s e chair at the house a good shepherd tilton school for twenty three years after she and perry was hired in two thousand and eleven it became common knowledge that she was to be terminated at that same time she made an inquiry to the plaintiff about when she was going to retire my client told her that she didn't plan on retiring for six or seven years it was also known that my client had certain roles and responsibilities with respect to being the chair of the committee on special education following those statements when ms perry became in charge my client was marginalized her job duties were changed without notice she was removed from her typical duties she received nasty phone calls her role was restricted in terms of who she could communicate with and homes she could not communicate with she was told not to investigate incidents on the bus that had to be reported to the school districts and  because of her age it was because of her age in the aggregate your honor because what the court did is it noted that the all of the factors have to be considered collectively and then it went ahead and action the corrective action plan there is only evidence even that she knew about it in fact she testifies that she did not know about it it was developed without the plaintiff if you take a look at  she wasn't even involved in the process to create the corrective action plan she's testified at one fifty two she was not even made aware of the requirement to complete the corrective action plan and then she was held responsible for its completion if you take a look at her earlier evaluation she was identified by mr williams as a strong advocate for children at the record six seventy and it was stated then in two thousand and eleven it's amazing she has not become totally overwhelmed the amount of work that was placed on her at that time then she was locked out of her job by perry she wasn't invited to sit in at all and the meetings wasn't sent to trainees if you take a look at eighty to ninety one it's clear that what happened was is they attended these meetings with the state they created a corrective action plan without her and then march or april of two thousand and thirteen said why haven't you gotten this done she couldn't comply if she didn't know about it  bryant that was reported recommendation and what they did is he took that's straight remark is he called it when are you going to retire remark and he said that a stray remark in the absence of other evidence ok that sure that could become a stray remark but collectively this occurs over this period of time once perry takes the position as her supervisor the get their case there was a deadlock they gave her counter the employee counseling the report recommendation by by magistrate judge phlox which was adopted by judge bryant talks about the fact that there was insubordination there was a long period of time there that this employee was not not compliant with anything you don't have that here in fact the record is completely absent of any meeting between ms perry and my client in order to counsel her and say you need to get this done or you need to do this and if you don't we're going to terminate your employment and it appears that they didn't even intend to terminate her employment because the first draft evaluation did not include that recommendation and it was sent to her post supposedly erroneous lee and it was over an eighteen month period get what case that decision talks about a stra remark in the absence of any other evidence and what you've got here is you've got this collection of circumstantial evidence i admit that there's no direct evidence it is circumstantial that's true but on the one hand put it is not i don't see how you can get her you offered that and i believe that the statements of the employees an agency of the employer are admissible under the federal rules and there are other  my client that that was a direct communication what she heard about her being terminated was through other employees but the court takes that that on the one hand it says well the  remark about when are you going to retire is too remote in time from her to terminations on the other hand her advocacy for the student that was unable to take the test who she communicated with mary palmer came back and reported to her from shannon perry no she can't take the test she was terminated immediately that they're after you explain to me a lawyer in that case sympathetic to this  law and perry had made a decision and then you remember the teacher came to my client and was very angry because the teacher had prepped the student for the test and she said it's not my decision you know perry won't let her take the test right that was missed perry's decision how is that an act of advocacy that somehow was protected no i think that mary palmer came to her and and said that she was going to take the morning your honor for from berkeley dame and representing the defendants in this case the court just addressing some of the arguments plaintiffs counsel just raised there is no dispute and she can't argue knowledge of the question actually so if it's unbelievable you say there is no dispute sufis it is because she says never knew about it your honor there are these two emails i think there's more eighty two eighty three in which is in this case e mails plaintiff and others inviting them to a meeting on january twenty fifth to review progress in the deposition of the size of the plaintive was she shown these e mails i don't think you're right i don't recall if she was that's one eighty two eighty three a january eleventh e mail shortly shortly after the meeting she says she was intentionally denied attendance was that e mail and then there's another that same day from defendant shannon perry sending plaintiff a copy of the corrective action plan within that corrective action plan are the test specifically assigned to plaintiff and others that plan to fail to do right your honor it's almost impossible for her to take the position she may have forgotten her deposition but it's almost impossible to take the position that she didn't know about this corrective action plan when the entire issue of whether it's not a question of whether she forgot it in the deposition so question of whether she was asked the question did you ask the question or did you decide to ask the question your honor i was there i did not take her deposition i honestly don't recall and have to look back to the rectory see if she was specifically asked whether she was asked or not i not not we're not we're not deciding the case we're just deciding whether it should go forward to a jury i understand your honor and i whether that's a disputed issue of fact i don't think that's a genuine issue of material fact that warrants a trial considering that's sure i also think or say you know i never got those emails or whatever but you have now would use e mails providing them with this information you say and you're saying that now that's that creates a burden on her she can't just rely on her blanket denials yes to say something as to why she doesn't know what the e mails purportedly told her i completely agree and then she has to take the next step to prove that whatever actions happened after that were the result of her age or her advocacy on behalf of disabled students and addressing her to that another argument you might have made but i haven't heard it is that setting aside the knowledge o knowledge of the corrective action she's still at these duties in connection with the plane so she may not have know that there was a plan but she was required to perform certain tasks that she did not do in the time that's exactly right and outline of those one of these be ip or i e reports problems or these particular students if not i said comes in right now we're in trouble fix these contact the utica school district the other local school districts fix these and get back to me no response ten days later she perry sent another email saying have you have you made these changes we're getting near the deadline here and again a plaintiff failed to do it which resulted in shannon perry other social workers and you took a school district team members having to race at the last minute to  these changes so that they can fax the corrective information corrected information to night said so those arguments are raised in the brief and her failure to even a part of the cut the problem was her lackadaisical approach even not even responding to the  statement when you plan to retire and i understand that this is the facts of this case the silly but what if a supervisor went to a person over forty so it's protected by  case law cited in our brief which supports a single strong remarks especially one like this which is two years prior just about two years prior to the date she was actually terminated and of itself would not be you know how old are you ok i do not believe that's enough your honor based on the case i said in our brief yeah i simply did stray remarks associate inquiries about a person's plan to retire has been the second circuit cases district court cases from new york saying that that alone is not enough what you're describing your honor that's the retaliation there was mention of the student who was denied the right to take a regents exam in the record and if i had the actual peach here a eighty  ninety seven and a one twenty two plaintiff a couple weeks before she's terminated sends an e mail to shannon perry and others saying this student is in jail and actually can't take the exam for that reason she's good she's released a few days later and  determines in her discretion that the students not the right frame of mind to take the test there's to to find in favor of plans for television claim you have to believe that the student on whose behalf she allegedly advocated was disabled and that the student was being discriminated against because of her disability you have to believe that her alleged communications with mary palmer richard gitano constitutive protected activity again these are communications with the decision makers  were aware of these communications there's no evidence of that and then you have to believe that she was terminated because she thought a student should be able to take a regents exam it just it defies logic the other organ i see my time's running short wholly inappropriate that case was decided a decade before the supreme court's decision in gross versus f b l financial services which as you know clarify that the causation standard under the a s but for rather than motivating factor this is true with respect to several cases the majority case of relied on by plaintiff in her reply brief which including back vs hastings holds v claims in this case yet again in reply she relies on cases almost entirely applying an outdated causation standard i see my time's up just one last comment if an affidavit like the one submitted by plaintiff in this case is all it takes to survive summary judgment it's going to be very difficult if not impossible for employers to be able to succeed on emotion  allegation and rebut it with the credible evidence in the record and i just don't think there is enough there as a district court found to survive summary judgment and get to a trial right thank you thank your  the plan so she gets an e mail that both references the existence of a plan and sends her a copy of it and as i understand it this is a plan that if not complied with could result in the school losing its state license so it's  small matter now your client as i said is a competent witness to what she has personal knowledge of but once she's confronted with something that provided her with notice doesn't she have to explain either that she didn't receive the e mail or something and i'm not sure i saw that what's the explanation or how can she persist in that claiming this is all a pretext because they're now saying she had to comply with the with requirements she was never told about when they come forward with the documents that show she was told about i'd have to consult the record to see how she responded to those specific e mails i under two thousand and thirteen two months before her terminations six weeks before the compliance plan if you look at the take a look at the corrective action plan there's only one item on that chart and that she was responsible for if you take a look at perry shannon perry's affirmation and think melhem wiki's affirmation again they had the meeting in december he gives you a list of everybody that was invited my clients not there she's the c n c chairperson if you look at the corrective action plan that was developed by h g s administrators with input from ny said he identifies the staff members including himself mr perry the school psychologist the supervising psychologist and teachers were invited but not my client developing she said to emails that tell her to do certain things that are related to the plan by a certain time your adversary says she not only doesn't do them she doesn't respond at all what's your response to that nine year old woman who had no experience and when he says that she said she says well i didn't fire zick maliki hired her well that's not true because you can see that she makes recommendations for hiring because she interviewed the new the replacement and made the recommendation for hire by he may sign off on it but she's the principal actor so she ships her explanation all over there that but for causation standard does not mean that defendants employers can manufacturer poor evaluations marginalize an employee target them over a period of a year and a half or two years and that and then complain they're not doing their job for notes where she writes that this was done that was done this was done and i know that there was a dispute about whether or not the inaccurate in from ation was coming from a secretary that she was held responsible for but i think the point is from the p perspective here in the appellant is that collectively this stinks and she knew it there's a tender that is appearing over a twenty three period of employment and if they wanted somebody who had experience and somebody who