next case sound our calendar is mosul vs new york city health and hospitals thanks good morning may it please the court steven burke steen for the plaintiff appellants based on the discriminatory comments made by the woman who recommended the plaintiff's terminations the jury may find that the plaintiff was terminated because of his national origin in violation of federal and city law the district court claimed that those statements were in the record below and which he made his decision there in the record how did that happen it happened because its predecessor counsel for the plaintiff it wasn't me cited the comment but didn't cite the right exhibit but they were part of the record because they were part of the e complaint or that they were in the record they were in the record but they weren't cited precisely to the to the state was the district judge wrong when he said i'm not going to consider these because they're not the record yes because they were in the record they're in the record and if he considered them did he draw the right inferences based on that statement no if he considered them he would have to deny summary judgment because the statement was made by the woman who recommended the pla terminations for five months later and this court has said that if the decision maker makes a biased remark with respect to the plaintiff's terminations the jury may infer discriminatory intent this is more than a stray remark this is and this is through his new supervisor wall and wall then recommended his terminations and september so you're talking five months but temporal proximity is mostly relevant when you have circumstantial evidence this is direct evidence i know how to terminate this stupid egyptian guy he's the only egyptian there he's terminated based on natalie walls negative performance reviews that she signed off on and the jury can find that discrimination orman's reviews negative performances that were in the record prior to our time is all that's a little fuzzy because there was that he got four years of positive  and then he gets a negative review and february twenty third teen that was dated that he didn't see until may when natalie wall became the supervisor and the negative review in february twenty third team did not suggest that plaintiff's job was in jeopardy so you can get a negative review without necessarily getting fired and then not only wall becomes a supervisor and we get three negative reviews in a row that she signs off on and then she makes that comment about terminating him because he's egyptian and so you know this court has said in henry versus why if that if the plaintiff has direct evidence of discriminatory intent you don't have to show pretext all you have to show is that discrimination played a role in the decision so you have competing motives you have a discriminatory comment and then you have some negative performance reviews sudden downturn in performance evaluations which is what happened here can show discriminatory intent if you have biased remarks discords said that a dancer and that's the first negative reviews the one by isabel mcfarlane correct and the one before that was also by isabel mcfarland and she had given she had given exceeds expectations correct person went in went from exceeds expectations to needs improvement doesn't that undercut the argument that it was well influencing this well even if because wall wasn't there yet but one review is not enough to fire somebody after four years of positive reviews and then the person who replaces the february two thousand and thirteen reviewer makes a discriminatory comment and then you get negative reviews what we're talking about is competing inferences why was he fired was he fired because of the negative reviews was he fired because not only wall wanted to fire him because he's egyptian and to me this is a fairly clear case this is a direct evidence case a negative review doesn't completely undermine a direct evidence case when the direct evidence relates to the plaintiff's terminations and the person who makes the comment recommended the plaintiffs terminations so for these reasons the plaintiff has a claim under the federal law and under the city human rights law which we know has a more plaintiff friendly burden of proof thank you thank you counsel you have reserved some time for a battle as well good morning your honor julie steiner for a church see this court is held in weinstock vs the columbia university that it's not enough just to have some evidence you need sufficient evidence and all the evidence taken as a whole must support a rational inference of discrimination what we have here is as the plaintiff has pointed out a comment but when you look at the context of that comment in terms of all the evidence it of a rational jury could not is when you look back at his first initial challenge to his terminations which was almost immediately after he did not raise any kind of discrimination claim he said i don't like my my my  evaluations argument for the jury i don't believe so on your honor i again if you look at one after the other nothing was ever said he never once said i was discriminated against because of my national our engine until what we have here is his complaint then in his complaint then in his complaint or i should say is fifty six point one statement his attorney puts in some alleged contemporaneous notes there is absolutely no evidence to cation of these notes that proves that they were actually made at the time that these statements were made then then you have again the whole litany of the timeline of events that show that literally had issues with his performance as you pointed out your honor harlan and really had given him exceeds expectations but then he had a serious problem at a root cause analysis meeting where he left out some important information and mcfarlane then gave him after discussing with him and several other people the needs improvement evaluation then mcfarlane was replaced by wall and the same things the same pattern of behavior continued and so then walk gave him needs improvement things and similar things of that nature curt he was continually discussed his behavior was continually discussed with him he was given a proper formants improvement plan and he was then re evaluated as promised three months later and finally it was determined that his his poor performances poor relationship skills with other colleagues all warrant his his terminations and when you look at this one comment that amazingly appears later and never once earlier to the city human rights to his initial complaint his internal complaint to his his his evaluations it know what was going to stick to the state of it yes that was a again a year later so numerous opportunities to explain why do you think you were discriminated me why do you think you were terminated and each time he answers as i don't know i think it's maybe because i was a gyptian he never once testified and guess what miss wall said this i heard this through a closed door there's absolutely no context for it such that again the evidence taken as a whole no rational jury could find that it was only discriminate that it was discrimination and not his poor performance to be clear he made this sworn statement before the city commission of human rights and the state division of human rights shortly after he was fired it's wants to know what he asked  at the deposition why were you fired and indeed the he didn't say that give that statement at that point he wasn't asked why were you fired i went through the deposition i didn't actually see the question that you  have in these cases tell me what is the basis i didn't see it there was a lot of bad a lot there were talking over each other during deposition they got off track they came close but it never really happened so you know as far as you can there's there's nothing in his deposition to contradict that he heard the statement correct right correct and so you know this court has said that a sworn state division charge is the equivalent of an affidavit he did it twice and we had other statements too by the way there was something a wall seemed to be sort of not it not obsessed but preoccupied with the plaintiff's religion and his egyptian nationality she she mentioned to another colleague and in plaintiff's presence he has a different culture than we do and you know i don't want the context of that to be in there there was testimony on that in a deposition where the plain of talks about how it came up and it seems sort of gratuitous in the plane of testified you know this is a medical center why is she saying this why would that be relevant to the discussion so you know we don't just have the stupid egyptian comment which is enough for a jury trial but you have this culture of comment also by the by wall something is going on here with wall now what we heard from  corporation council was and that comment that second comment was addressed to a haitian which second comment about something that he's different correct correct but correct  so what we heard from defense counsel was a very good summation you know arguing well we have a comment but the comment doesn't override other evidence in the case but that's why we have jury trials we have competing motives now so am i correct that you're not appealing the age discrimination is that's correct that's correct thank you thank you thank you both the reserve decision