well here the next case johnson versus schmidt good morning you honors i'd like to reserve two minutes for rebuttal on may it please the court my name is josephine miller and i am here representing the appellant in this case cleveland johnson in his suit against his former employer which was the department of children and families as well as two individuals importantly mr johnson came to work for d c f which is the child protective services agency in connecticut as a result of filing a complaint of discrimination with the connecticut commission on human rights and opportunities you came to work in july of twenty ten and very shortly thereafter experienced a number of occasions where individuals in the training academy made complaints with regard to his performance i want to say first of all that the fact  johnson came to work as a result of this complaint is not the starting point that this court should look at in terms of the retaliation claim that he has alleged he's alleged both retaliation as well as race discrimination  this court has said in one case that opportunities to retaliate don't always happen immediately and we believe that that is what happened in this instance he was brought to work as a result of this complaint of discrimination but then what we see is a very strong temporal proximity to additional complaints that mr johnston made after he became employed very strong  in november of what was a bootleg who was coming he filed a complaint with the connecticut commission on human rights and opportunities while he was working with no before he was ever employed he filed a complaint of discrimination he was seeking to become employed as a social worker trainee and they disqualified him initially so we were it was based on his failure to get a job at this age that's correct that was the basis for the original charge they'd been conceded that they had violated the law and essentially brought him to work under a settlement but once he did become employed what we see is them beginning to create a paper trail for the purposes of finding a basis for terminating him in november of twenty ten approximately four months after johnson was employed he was given a written statement with regard to the assessment of his performance to that  notably not a single word was said with regard to any client complaints or any real complaints about his performance and that is important for this court to notice because later on mr johnson files a a a new complaint of discrimination within less than four weeks times we see them retroactively making claims that his performance was not up to par what is the evidence in the record that race was a motivating factor it is our position that there was a statement made by the area director malcolm blue who was one of the named individuals to the effect that mr johnson had gone to him to complain that he thought that he was about to be set up once again  court to the decision of the united states supreme court in the case call on calle versus sundowner systems where the court says you cannot categorically presume that just because a person is of the same race that they will not discriminate based upon for the discrepancy the position of the plaintiff is this that those into raga tories were an initial statement of the facts as he understood them to be and that he expected that upon further discovery namely his deposition being taken that there would be an amplification of what was said in the into raga tories pretty significant omission from the in iraq returning answers when you say i would not say that there is any direct contradiction and we've cited for the court some case law to that effect that there was not a direct contradiction but that the later statement was an amplification of what was earlier  said i think the court needs it goes to the weight of the evidence i think what a fraud or how when the the thing you leave out is the one statement that casts the whole exchange in a discriminatory idea your view i mean it's what i think that we have a tough argument i think with the fact finder we need to have him focus on the fact that we have both a discrimination complaint and a race excuse me retaliation complaint the court should keep in mind that this context of the statement coming from the director area director who ultimately signed the terminations letter was not an isolated comment because when it specifically to mr johnson in gauging in protected activity he had specifically gone to the manager to say hey this social worker who is named as a defendant was creating a false claim against mr johnson and she basically said to him i could get you in trouble because what she sought to do was have one of his clients make a complaint against him to say that she wanted to be removed from his caseload so what we have is mr this isn't somebody yes that's correct with the evidence to support what you just said about the evidence was the testimony of mr johnson himself that the client came to him and notified him that she had been threatened with having a neglect petition substantiated against her if she did not see to this request that she seek to be removed from mr johnson's case no so what we that she was in part told to make her stay no we did not help the client testify obviously for confidentiality reasons and i mean this is the woman who se notice of what you complaint the client she was told to send my client testified that that is what his client stated to him regarding the coworker ok that claim against the client went to mr blue and said i feel like i'm being set up for terminations it's in this context that he said to mr blue because i feel that i'm being set up i'm going to probably have to file a new complaint of discrimination against the agency that is when mr blue said to him are you threatening me obviously displaying hostility and  johnson for participating in protected activity he had every right to make this claim that's the retaliation part of the crime and it is our position that the retaliation claim is actually the far more significant claim made it's important for this court to note i think that as admitted by the defendant in their br client complaints were the most significant part of why they say that reverend johnson received poor ratings but what we have to look at is that in the very first evaluation that he received nov thirtieth of two thousand and ten not a single word was made known to him nothing was said to him nothing was in that written document to say anything about client complaints it was not that there were such come well we believe that their minds i gather agreed that they had made these complaints something else that you're arguing well we believe that there is sufficient basis for a jury to determine that the allegedly contemporaneous supervisor notes about this host of complaints is something that reasonable jurors could question the validity of that may not be being clear i thought in discovery some of these clients substantiated that they did indeed file complaints not not clients no we had the agency through the training supervisor who was mr johnson's immediate supervisor she testified that there were contemporaneous supervision you object sions and i would understand them to us and then deposing clients who are riding a big part in trying to pose i'm not in this instance because i know based upon past experience that there would be that kind of objection left with a record where there is no it miscible evidence that the complaints were urged by the defendant and that's your claim of retaliation no i would disagree with that you honor because we do have ms smith who we believe was acting as an agent of the employer who came to my client with regard to for example this this individual who she was said to have requested to make a complaint about mr johnson this point she said i can make trouble for you problem beg your pardon but hearsay problems now but that but the issue is this you have the social worker saying i can make trouble for you over this whole instance even have mr johnson going to higher management saying i believe i'm being set up and then he gets  threatened with further action adverse action against him when you have missed the blue saying are you threatening me simply because mr johnson said i think i'm going to have to file a new discrimination and please the court my name is assistant attorney general jennifer bennett and i represent the defendants in this matter the department of children and families charlotte and malcolm live your honors this court should affirm the district court's decision granting s three because the plaintiff failed to present any evidence giving rise to an entrance of discrimination nor did the plaintiff provide sufficient evidence to establish that d c s actions were not due to his deficient performance failed to present evidence to refute d c s legitimate nondiscriminatory reasons for all actions taken with regards to him second the district court properly granted summary judgment as to the retaliation claims for the same reasons the plaintiff again were a pretext for retaliation or that retaliation was the but for cause for the department's actions just to address a few of the points that were raised by my colleague the district court correctly concluded that it should not consider the addition in the plaintiff's affidavit of the word boy to the statement that was made allegedly made by mr blue the plaintiff was specifically ask tori's what was said to him and as in the appendix in quotations he quoted are you threatening me quote unquote the district court correctly concluded that any attempts to modify or add to that testimony by way of an affidavit after the close of evidence and closed discovery was not proper and did not consider that common even if i understand that you cannot contradict the state and you've made under oath in these circumstances but i'm not sure about amplification why isn't this properly considered in then with the recognition that you'd be able to try to impeach on the grounds that it wasn't disclosed at the time for the court to be consistent with interregnum as otherwise it really defeats the purpose of specific pointed questions that are asked in an interactive way under oath when the plaintiff answers the statement to reach this i mean i understand the district court thought this took the case out at the prime of facia stage but if i understood your argument you think that if the case were to go to the third step of mcdonnell douglas it would fail at that level just as the retaliation claim fails at that level right correct your honor even if this court were to determine that he gets past the prima facia case there is no evidence in the record to support that anything that was done was a pretext to submit to rebut the legitimate non discriminatory reasons even if the court did consider that one comment there is case on stray remarks as far as whether the actions taken and this goes to the retaliation claim the actions taken about the client those had been in progress well before the second series or a complaint was filed be the contemporaneous superville supervision notes of the plaintiff supervisor ms kerr brawl were very detailed and show that she spent a lot of time in these are on the record a lot of time meeting with him and recording the client complaints and contemporaneously keeping notes of all of these meetings which date i think even prior to the first memo he received in november of tw that point in time it was a settlement agreement whereby g c f denied any liability or that it had broken any laws and it was as standard settlement agreement language normally goes just to settle the complaint and move on from that so i just wanted to correct that statement as the record is clear the plaintiff did not surprise any admissible evidence to support either a prima facia case of discrimination or retaliation or to rebut the defendant's legitimate nondiscriminatory reasons for the actions that it took with regards to his employment if there are no further questions i will see the rest of my time i think you will  that the court has to look very carefully at the core knology of events after the plaintiff became employed we have him being evaluated four months in at which time not a word was said in that written evaluation with regard to client complaints which is the centerpiece of why defendants say that they graded him poorly and ultimately terminated him we then have defendants there is evidence in the record of the existence of client complaints true well let me just talk about that one of the complaints was one where mr johnson went to a client's home for purposes of case banishment there were  was evidence of other complaints us while right there was evidence after the fact there is a very is there evidence to in the record to raise a genuine issue of fact as to the existence of multiple client complaint we believe that there is what is that happened given the fact that this false complaint was solicited by one individual the fact that one of the alleged complaints had to do with to the evidence and that was solicited is a hearsay statement but there is there is there is your admissible evidence that raises a question of fact we also have the fact that the immediate supervisor of mr johnson only after the fact after the cia general complaint was filed and indeed after we were in litigation then said there are all these supervision notes one has to question the credibility of that supervisor when that information was never co mr johnson while he was being evaluated you also have the fact that some of the alleged complaints are the kind of matters that no social worker trainee could avoid for example there was one instance where mr johnson went to a and a client's home and was threatened physically with assault the person had a weapon he had to be removed from that case and a referral made to the police how could that be was he a train the point he was a trainee but how could that in good conscience be considered a client complain when he was physically threatened to the point that they had to call in the police those kinds of matters we believe a reasonable juror could question the credibility of why the defendant would use such matters as a basis for terminations especially in the context that those patients came within just a few weeks of him having filed a new complaint of discrimination thank you thank you will reserve decision in the last cases on submission