title seven failure to hire cases but not section one hundred and eighty one what is required under section one hundred and eighty one is a contractual relationship the defendant's actions interfere with in a discriminatory him this is a sufficiently is this a complaint that's got three can i ask that the complaint really tell us that i mean do we know that for instance that he was deprived of employment by virtue of being denied credentials at the us today or  with their other work at a security that he continued to perform that in the complaint your honor mr felder did say that he was only hired to do the two we ok and we infer from that that if you can't do that two weeks and he doesn't have employment any longer and you hear the that's correct your honor is what you're saying that this was a temporary part you know part of the hiring process well ultimately pay roll or who work for that this cannot be the last joint employer doctoring this to prevent employers from doing just this and to hold these employers accountable for discriminatory for a decision making rd there were sufficient facts led by mr felder at the pro se litigant so that when liberally construed it shows that prior to this incident there was bad press but the u s d a received based on the discrimination at the us open in the complaint that mr felder previously filed against there's a history of discrimination at the u so to speak if if he were a white employee who had raised his head sued them for discrimination no your honor we believe that b discrimination claim can be in addition to the retaliation i understand i understand that but you know  it's it seems to me there are tell you claim is much stronger right he's even got a statement from somebody at a j who says this is why they refuse to hire him is because of the lawsuit that he had filed but he worked there himself previous some serious occasions isn't that right so they didn't refuse to hire him for all those years because of his race  another question about the joint employer factors there are five of them i take it that they are not exclusive and they're also not all necessarily applicable in every case but i think  interesting in this in this case and i'm wondering what your thoughts are about it as far as the only factor that is visible here is that the u apparently was able to dictate whether mr felder was hired do we can we disregard the other four factors were would we have to look at or would he have to plead something about what would have happened if he had been hired as to some of those other factors or in a failure to hire case is it enough that the alleged joint employer controlled the hiring rather we believe that  become an employer just because it asked for the removal of one of the independent contractors employee or are you saying that isn't that your honor we believe it's enough in a failure to hire claim otherwise plaintiffs would not be would not be able to plead facts because they're not allowed access to the work so how can they know facts that go to discipline records in a role who would have directly supervised them so in a failure to hire claim we do believe that the  one he works for a sub contractor he's makes an application to a subcontractor and they say great we like you we hire you you can go to work for the u particular this is the only son according to the complaint this is the assignment for which he applied there was hiring being conducted for security guards for the u s open he applied for the job a j gave it and the s t a said you can't have it so did they not control the hiring for this job no no they did not your honor i would i would refer the court to you i th seemed at least as far as actually at least as far as title seven is concerned we'll get to nine hundred and eighty one in a moment but at least is type far as title seven is concerned they're not his employer they're not making any decision about employment and he would have no cause of action is the hiring and firing component of this particular control analysis there is a distinction between saying you can't work on my us any black security guards they would not be in violation of title seven because they're not a joint employer isn't that what you are saying to make it so if you're saying it's a well established blah blah blah but it is so well established that if they said that they would not be a joint employer and they would not be liable under title seven isn't that correct i'm not i i i i think  alleged if it works for if the argument you're making works for a retaliation claim which i think is very clearly pled here why wouldn't it work for any other title seven claim this is about whether they are an employer they can do anything if they're not an employer without violating title seven camping i i don't  i i i can't answer that question in terms of whether the well let's start with this they can retaliate they can say to a j if this is what they said don't send us anyone who was a party to the lawsuit against us that alleged racial discrimination that's exactly what's alleged here and is alleged quite explicitly in the complaint  you're saying they can do that because they are not is employer they can do that without title seven liability is that not what you are saying that that is not what i'm saying you're wrong i'm saying  that there is a reason to be drawn between us but the concept i'm asking you what is the consequence of that distinction being drawn and what you are asking us to say in this case is that there is no title seven claim because u s t a is not a joint employer because all they said was don't send us any one who participated in the race discrimination lawsuit they did not say you don't hire anybody for any assignment at any place else that has no relation to the u s who has participated in this lawsuit against us so long as they are only sent only saying don't send us anyone who complains about race discrimination they are not in violation of title seven is that not exactly what you at the us open realty but there is nothing that that has that could not continue working or hearing yes and so long excuse me so exactly what you saying is that as long as he could work for a j security in some other capacity the u s t a isn't titled to say you may not hire this man to work at our saying that you can't work for the director at all yes i understand that ok so the next question is assuming let's assume that you're right that this defeats proximity to draw an inference of retaliatory intent he's saying that at least by hearsay which surely is good enough to get you to discovery and get you past the pleading stage  that he was explicitly told that this was a big reason so i keep alive a lot some people have a long memory for things they want to retaliate for others don't i agree if there was an unexplained failure to hire and somebody claims oh this is in retaliation for something that happened years and years and years ago we wouldn't automatically assume that that's a plausible thing but if somebody says to you you're an employer who believes that revenge is a dish best cold you can wait to retaliate and i explicitly say to somebody we're not hiring you because you sued us many years ago but ha ha court believes that there's further clarification about the titles that in failure to hire claims we would be happy to replay back claim on remand out if there are no further questions at then we will rely on our submission matter under advisement thank your honor