good morning your honor is michael confusing on our behalf of the a palance thank you for your in the cases morning i'd like to start off by just focusing on a couple of things with the retaliate claim if i could and maybe go into the district court's opinion question here on appeal for the court is whether or not brown could vault over that final threshold that in jury find that essentially it was a bought for cause the desire to retaliate was a bar for cause the main things i think the district judge did wrong in the case earlier for example on page twenty five the judge talks about temporal proximity it's a fairly straightforward case in this regard you know the evidence shows that the did they did the survey and they made subsequent complaints of racial discrimination this was from all five of the original plaintiffs and i think there were some other members of the u n as the as the department that made them you know the defendants were aware of it now there's an issue first of all about whether or not the specific supervisor adams she was the one that actually did the adverse agence was she aware of it that's one of the things the judge says the judge said well the jury can't find it adams was aware of it but i think if you was given the internal memorandum about the investigation and was asked to provide employee files about it i think she was asked to provide employee files like h or said we have these complaints of racial discrimination and she was asked to employ to provide files from her employees back to h r about it the fact is adams herself doesn't really have to express and say i knew specifically that it was pl mission that you never learn no no i mean i don't understand cornell's position is and obviously would be a trial again hey adams didn't even know that it was plaintiff brown or plaintiffs met the complaint if this is not resolved by stipulation or otherwise  the evidence from which a jury could reasonably be found that she knew yes so again i think i think i tried to lay this out largely on page twenty of my original brief so if you look in early two thousand and one human resources communicated to miss adams that i had received the complaint about the anesthesiology department on page twenty of this my original  so that's all right your honor i want to keep going ok then she spoke with angela charter randi glinsky is part of this h r investigation and they asked miss adams to implied to provide employee files for the investigation that h r was going to conduct then the following year august two thousand and twelve adams learned that h r received an anonymous written complaint this was another complaint alleging race discrimination in the department but adams said wall she never learned who made the anonymous complaint the next year adams does not know whether an investigation follow the written anonymous complaint but again h r directed to implement recommendations to adams so she can improve jury could still draw from the anonymity of the complaint that she knew exactly who had come made these complaints i think actually your honor is that the crux of the argument you make not not really because the complaint was anonymous to apps adam says i didn't know made but jordan made the complaints ok the initial survey i believe was anonymous aren't you claiming the miss adams was the ultimate decision maker at least with respect to his ground she was so he here's here's what the evidence i think shows a jerk if on the initial survey was anonymous but eventually as the evidence shows the plaintiffs in this case including the appellant's drafted complaints to are they themselves personally met with each are so a chore knew who the who was complaining about ways discrimination it was an anonymous h r the issue is can the jury take that evidence and say well adams was asked to give employee files ok and asked to implement corrective procedures within her department to address race discrimination complaints could they find that adams knew exactly who made the complaints as a torrent and i fear i think that they can make that conclusion to turn to the so no no please how many people worked in this department that i'm supervised i talked a little bit about on the break to them looked like there was about twenty five to thirty judge how many were persons of color it looked like there were maybe about eight to ten and adams were laid who they were when she was asked their deposition so i don't as was aware of who these minorities were in the department you know this wasn't a five hundred he was known to h r or more than one more than one many i think it was the five plaintiffs that were originally in the case so that would include the three palettes that i have to thank you sure  to analyzing the effect of that affidavit because that maybe your most powerful argument least with respect to ms brown yeah no i understand that i think what the judge did was he looked at the at the affidavit and the deposition testimony and said well rusty it hurt her belief essentially that this was the fact this was the product the racial discrimination that that part of it was a such a leap without basis and should be excluded i don't think that's the germane part of a testimony the germane part is her testimony that in the two thousand and thirteen evaluator for brown that suddenly adams interjected herself into the process and it changed significantly and i'd i think this is one of the critical areas the judge erred in he said it wasn't a significant change it was significant because according to wristy if the jury believes her before in prior years you know they had gathered the recommendations from the from the people the doctors that brough work for and this two thousand and thirteen it was the same thing she got all positive reviews but then brown interjected and said no it can't just be about that and essentially the end result was the three point five number the same from one use the next day on i'm not sure if that was true with respect to brown so i think that was i think that was actually somebody else brown's actually was one of the ones that did go down it went down here it went down  so to answer your question there are no amount of time the wristy a testimony significant for the factual testimony about this was a change procedure that suddenly adams was a vast the directly in the process and directed wristy and you're basically you're making the evaluation lower than the fact that adam's problems with brown's administrative ability and that seems to be i mean if you eliminate from from  testimony the part where she is expressing her belief without any evidentiary basis that it was that it was based on retaliation or raise discriminatory but that the fact that the supervisor adam had problems with the administrative abilities of brown that these were reflected she saw to it that these were reflected in the evaluation and result in lower valuation that doesn't say anything about any illegitimate cause for the reason that well that i agree with your honor that it does it in that we're going at the jury the doc collusion but the fact is the evidence shows that because brown changed the protocol so significantly a jury court my name is ben stockman i represent pelleas cornell university and kristen adams in this matter pleasure to be here before you all today i'd like to just make one correction to the account of the record that my employees total of that staff between twenty and thirty were nonexempt employees the were not of employees nonexempt in other words hourly employees the relevance of that fact is simply that the appellant's in this case were nonexempt employees and for the purposes of the retaliation claim that their that was summarily dismissed below the protected activity the anonymous complaint or complaints in this matter were submitted to cornell h r and other executives within the higher university administrators president of the university the dean of wil just stated you cannot from this evidentiary record boiled down the anonymous complaint to eight or ten minorities that's not in the record question was what percentage of the employees supervised by adams were were minorities and and your your adversary gave an answer out of thirty and you're saying f statement made to us by your adversaries without basis in the record eight or ten there's no basis for that i'm saying that it's an imprecise statement of what the record actually reflects and i'll clarify what the record reflects is the question that was posed to kristin adams her deposition was can you identify minorities other than the plaintiffs in this case who work in the us these jaldi department off the top of her head she listed about four six additional they've construed that testimony that's all she said and the question wasn't how many minorities might have been behind this anonymous complaint the question was how many other minorities are there in the anesthesiologist apartment other than the three plaintiffs she identified four to six off the top for head and she said there  don't want to dismiss quarter testimony she identified four to six but her testimony was clear that that was off top or head and she didn't have a full picture in her mind and could identify all of them off top their head so that's where his numbers coming from adam testified that she did not know who made the complaint correct she testified there's no dispute the record about that and the the record is clear that the five plaintiffs initially went to the human resources department after the employee satisfaction survey was conducted and to be clear that satisfaction survey was not about whether there is race discrimination in the department it was about are you happy in your job and there were various questions were conducted by an outside consultant the typical workplace satisfaction survey eventually became a claim about race well to in the plaintiff's mind it did so they went to h r which was their right they the employees of color were being promoted at a greater rate than one that is correct your honor i want to make one clarification on that just so we can be clear on the record there is no evidence in the record that white employees were promoted in greater numbers overall in the department than minority employees the only record regarding percentages of of of promotions in the record is that for promotions that would have been promotions for the  llants or the plaintiffs in other words they were in level five compensation levels fox level six is what we're talking correct so for those that's to be the focus the correct and for those types of promotions at all relevant times eighty percent of those promotions went to minorities including the plaintiffs lisa cabrera who has not taken appeal despite judge atkins decision dismissing her claims and that's a massive fact they don't address it the district court to its credit didn't rely entirely on that i submit that this court could but judge can nevertheless went through every single various theory that they that the plaintiffs set forth and he correctly in my opinion stated that the complaint lacked clarity as to whether they were alleging that a failure to promote theory which contains a slightly different standard then your various disparate treatment theories that they he went through all of them there's a very large evidentiary record because there are five plaintiffs making all sorts of allegations about all sorts of things that that they frankly more educated on the  identified to try to make out their disparate treatment claims they all admitted under under testimony deposition that they knew essentially nothing about these compares they didn't know what their qualifications were they don't know when they were promoted they don't know why they were promoted they don't know who decided to promote them and they had simply their testimony essentially boiled down to this person was white and this person was promoted therefore discrimination judge can went through all of that evidence and in a meticulous opinion addressed all of these theories even though we had facts that eighty percent of the relevant promotions went to minorities adams promoted four of the five plaintiffs in this case now there's no dispute that the plaintiffs were frustrated with what they perceived to be stagnated careers they were promoted that is a good question your honor and i had from the plaintiff perspective that could be what that means i agree with you are so the self identified races of the five plaintiffs and we only have three appellants here but the of the eighty percent promotion so one was lisa compare hispanic one was maria kilian white you have to forgive me i'm going to forget the names of the others but there was a hispanic male and there were two there is no evidence in the record that kristen adams ever knew that any of the appellant's were behind the anonymous complaints in fact she didn't know until this lawsuit was filed to hide it  eckels credit he didn't simply rely on that legally dispositive issue alone he went through miss wristy as testimony and to give just a quick background on her her affidavit versus testimony her affidavit was produced during discovery was drafted by the lawyer who handled the case for the plaintiffs below she admitted it her deposition it was drafted by that lawyer doesn't that it doesn't matter your honor but i would argue that the content of that affidavit was clearly legal advocacy they were for some adjustment this and that i will move on or deposition testimony was the best evidence as to what information she has it's relevant to this case and she was asked what the basis was for her belief that there was discrimination or retaliation by kristen adams she said that essentially it was hearsay gossip by the plaintiff themselves that was her answer anything else you know so that is the basis for that is the true basis for there is there is a lot of the effect that affidavit drafted defense of  might be slightly overstating it in saying that there is no happens that that christina christina adams knew who who it was the issue is whether one can draw an inference from the timing from the fact that complaints against may briefly respond your honor yes so testified although she stated in an affidavit miss adams intervened and was outside protocols for that  ms brown's performance evaluation in fact mr receive a deposition testified that it was common practice for miss adams to review performance evaluations and to and to provide input into performance evaluations all the time she said miss adams had her hands on everything if there was any issue with it was that she was an overly present high level administrator she was involved in your fundamental point about the must affidavit i take it is that  to deem it admissible or best evidence all it says is that miss adams intervened and made sure that miss brown got a bad review and it's undisputed that miss brown had performance problems so  why is that not it was so i would say that the statement that miss adams insisted that miss brown's poor performance be reflected in a review is admissible evidence when mr  what what she was handed the rip the performance review at issue she was asked did you drive this route this performance of you she said yes so what what edits did kristen adams make to this performance review i don't know what edits they make identify a single edit in this performance review that chris now has made the only end judge i can notice that noted this the only edit that she pointed to was a christian adams told make sure to include that should brown needs to calendar her appointment and keep track of her faculty assignments because that was that that was the performance issue she was not keeping up with faculty assignments in fact they were the impression i'm not sure that i'm right that adams told rusty that the performance review should reflect more heavily the the administrative deficiencies in brown's performance th the good reviews that she got from faculty faculty interaction am i wrong you're not wrong that was what the affidavit said your honor the testimony was slightly different as i've described well here  i think it's important in summary judgment you know you have to view the evidence in the light most favorable to the plaintiff and there are definitely certain or humans that i think or know me that that essentially cite what their evidence they think their evidence is i mean it's not really really looking for absence of proof the one absence i think the court stuff we get served with and rightfully so as well how do we know that a jury could find that adams knew that it was my clients essentially that made these racial discrimination points thirty members comprise the nonexempt staff group in the anesthesiology department and then she named she said in december two thousand and twelve african american and other minorities employed in the department clue did and she named who they were an include the plaintiffs so i mean the want that many people to choose from the point is a plaintiff i'm sorry judge you african americans included these but that's not that's different from saying that that was the entire list agree totally agree yeah but but she was aware that my clients were among them and you know if she says there's thirty nonexempt staff that's not really a lot of people to choose from here's what i would say well the really  include place here's the bottom line you know retaliate jane claims or this right we have cases sometimes or somebody says hey i made a complaint and i was retaliated against and they came in show that they made the complaint or they can't show the defendant knew about it this isn't that kind of  honor when the plane of sat with each or people that was an anonymous at that point they knew exactly who was that was making racial discrimination complaints and that's significant the fact is that and the timing of suddenly when things changed i think