remain on this case so that the court evaluates the plaintiff's sex discrimination claim which the district court did not entertain the conspiracy to discriminate against my clients on the basis of gender as essentially the plaintiff appellants here are complaining that state actors and private parties oh excuse me your honor i meant to ask you in advance memories are of ten minutes for rebuttal in this so you're going to take ten minutes on your affirmative yes ma'am rebuttal thank you judge essentially the plaintiffs complain that state actors and private parties conspired to deny them equal protection and i will admit your honor i came into this case after the magistrate judge issued his report and recommendation the complaint before the courts is a bit of an alphabet soup there's a lot in it i think if what we're what we're focusing on here is the portion of that alphabet soup that spells out sex discrimination what we have is a case where the plaintiffs are complaining that they were treated differently on the basis of mr p c o s gender that the plaintiff and her women and minority owned business were treated differently than similarly situated male contractors that that differential treatment was on the basis of mr p c o s gender and that she was harmed by that in violation of her right to equal protection what evidence that this was state action has pled and what evidence of actual sexual styria under the state act what evidence of conspiracy have you alleged in the even a plausible it ball way your honor the evidence of conspiracy that's been alleged by my predecessor in this case is pages and pages and pages of detailed discussion of alleged differential treatment adverse treatment of mr pease e o and the company that she was representing and there are it's pages of i can give you the for the first one chronological there are pages of differential treatment but what what specifics of conspiracy which brings in the government is what the communications between mr d mr smith and destroy iran or the communications to other contractors immediately after the award of the bid by mr smith about how they would be in touch and about how mr p c o doesn't like them much be communications back and forth between d and smith about conduct at various meetings which is couched in terms that it's our position would not have even entered their minds had it not been for mr p c o s gender they talk about her help me i guess i'm asking the same question as my colleague it's a long complaint eighty pages four hundred paragraphs and there are allegations there's definitely harsh criticism leveled against your client and d c c over this project and and the problems with it  statements d c c clearly underestimated the projects their statements you can only take about five percent of what your client says is truthful i'm having difficulty finding allegations that i would say speak to gender discrimination however what what her emotional state was it's our content and that this focus on mr p c o s emotional state and on certain conduct that they could denigrate in terms that people used to disparage women was evidence of their gender based animists and that the communications back and forth among the various parties about what they're doing and how they're planning to take the next step and how they're going to not let her bid again are evidence of a conspiracy if the focus is on on what was pleaded that shows gender discrimination as opposed to what was pleaded that shows state participation conspiracy so that it was a was it was a matter of  state action to the extent that you're talking about inferences pleated of gender discrimination the mcdonnell douglas formula very much favors you at this stage because the mcdonnell douglas formula is that very very little is needed until the defendant comes out with an explanation for the actions and at that point all the presumptions drop away but according to mcdonnell douglas as we've recently we re explained it in little littlejohn you need almost you need very very little you need only minimal support for the for the inference of discrimination until the defendant comes out so that so that when you are it when it's addressing twelve b six addressing the complaint a complaint doesn't need to satisfy it by the way complaints in other in any other area do but i thought the troublesome problem was the inferences of of state action as opposed to private action as to which the mcdon douglas wouldn't help you well your honor i think that the state action think the reason the district court reject the state action is that they perceive that the both the magistrate judge in the district judge took the position that any adverse state actions were reduced wrecked it against the principle of the that is to p c open structure and company which is a company owned by mr p c o s father and a partner this it's our contention that the hostility that was directed toward the this the principal contractor and my client her company which is called dream hope was there because of her gender this is a five foot tall inch woman no but you're not answering that i don't  question even if something is sufficient to get mcdonald douglas on was it sexually based you still have to say something about why this was a conspiracy with state and the fact that the district court did not go into that because it found the thing causally to distant which may or may not be right doesn't tell us anything about whether you have alleged a conspiracy with respect to this contractor and i'm sorry your honor i think that the precise focus of the complaint is on it well i shouldn't say precise because it is anything but precise and i think that the focus for my purposes of the complaint is on specific actions by state actors and the directed at my client and her company she was the public face of d p c oh construction she went to all of the meetings on behalf of p c l construction she at some point in in may of two thousand and thirteen i think it is decided to send a man construction meetings in hopes that that would get them to back off the animosity that was focused toward her at that point it seems they'd already made up their mind that they were getting rid of her and her father's company and her company but the point here your honor is that the state action that we're complaining about was directed at my client my client in her capacity as the public face of the of the entire contractor on the project and we're saying that state action was direct it wasn't about t notwithstanding the contractual relationship the argument that i made in the in the motion and the objections and in the in the objections and in our brief is that the the focus of the animosity by the state actors was toward my client and her company it's in the complaint iran i did ask judge to raci for an opportunity to amend if the if he sent it back he  obviously i never got that i would love to amend that complaint but i believe that we have given the court enough to survive twelve b six and we're asking for an opportunity judge today about the opportunity to amend the complaint he didn't i don't believe he addressed that your honor he you he did yes he did yes he did he said he already got one chance and he didn't think there was anything she could say that would fix it but was it was his decision based on futility or was it based on you had one chance and that is all the wind really normally gives i thought his argument was actually based more on the notion that we hadn't gotten there properly because we hadn't we hadn't raised the very question before the magistrate judge the first time out i think i couldn't tell where he was going with the other piece it was seemed a little offhand who did amend the  of the case was originally filed in the southern district of new york and was amended there your honor to tell you the truth i can't tell you the distinctions between the first complaint and the mental complaint they are both when you say got you had one chance that's what the judge is talking about is not the one chance is not the original complaint but and would you put one amended compare is there was an original complaint and an amended complaint both of those were filed in the southern district and then the whole thing got shipped to the western and it be amended complaint frankly i don't think does a heck of a lot to improve on the original complaint the amended complaint was designed to change w not about the issues that i'm with you any other questions before sit down thank you may please the court my name is william byrne and i'm representing erie canal harbor development corporation empire state development messrs d and smith with respect to the issue that came up at the end of of of council argument with concerning leave to amend judge wood did grant the plaintiff's leave to amend and also saying that quote i would not expect mr p t o to have another and then he went on to find a quote dismissal with prejudice is particularly appropriate whereas here play just complaint has been amended and there is no indication of additional fact that might lead to a viable complaint then in their objections the magistrate judge was commenting that the plaintiffs had not sought leave to amend the complaint a second time before learning that their complaint would be by the recommendation of the m j rejected and by the ruling of the district court rejected i mean that the time to ask to amend your complaint is when you find out it's not acceptable in its present form well they were responding to our motion to dismiss the complaint just what they were opposing your motion it is yes and imaginary time that one needs to worry about amending the complaint is not before not not not not not before you find out whether the court will will rule that it's inadequate i see where you headed they haven't asked for leave to amend until today until today not in their mayberry and they didn't have a never asked for leave to amend the complaint of following the district judges acceptance what i'd like to focus on first if i may is how this entire case has morphed from a conspiracy to drive mr p c o s father's company from the project conspiracy it's more from that into a totally different conspiracy now now the conspiracy is were driven by gender based animus against  so it is it's not just a technical pleading the whole nature of the case but the question is if pleading sex discrimination under mcdonnell douglas in our case is easy easy the question is is very enough of a pleading about conspiracy that can apply to that that's what we keep coming back to and  really what it hopes that you and your co counsel will will be addressing yes your honor if you if at pages fourteen to about twenty of our brief we point out how the documents they rely upon to support their gender based conspiracy and engineers report my law firm's report that the notice of intent to terminate her father's company itself none of them contains a syllable woman many of them there in the chart on page seventeen of our brief there's no suggestion what so ever of gender based antipathy toward suggestion of state do i understand you to be say that while there was evidence possibly possibly of conspiracy with the state with respect to the father's company and while there may or may not be allegations of sex discrimination by individuals there is no allegation of conspiracy with respect to seventy e mails in four memoranda and things like that that don't have a scintilla of gender based mentioning much less animus you can't say i say it's gender based because of my subjective interpretation that's not the law in this court that's not the law there's got to be evidence of gender based discrimination and then you determine whether it's serious but there's no evidence in any of the memoranda or any of the emails of any antipathy towards mr p c or her company let me see you you're saying that even if there is evidence of a conspiracy  do among various people and even if there is evidence that some of those did something which constituted wrongs of a sort be we can't simply of gender based animus and the state action that suppose allegiance was not directed at ms depi or her company the state action was directed at her father's company and he was the one running the project so i'm out of evidence the argument is that there are no allegations of sex based discrimination that there are general allegations about differential treatment other contractors were treated differently but no allegation the complaint that they nothing about whether women were in leadership positions in those companies it's really a rico complaint that morphed into a discrimination complaint and with respect to other contractors it's one other contractor who we didn't select the raise regarding no evidence of a conspiracy that involved at least the law firm and the law firm partner mr brennan dress most of that i was going to at least make a comment that thing is a gender neutral word and it's the only word in the mouth of philips lytle or mr brennan in the entire record and there's been significant discussion i'm certainly available to answer any additional questions your honour's may have regarding mr brennan and philip's lytle conduct but right now i'm in a position where if i said anything more i'd simply be repeating what he's already said missile amun has such little involvement with this case with the facts of this case that it's hard to even understand plaintiff opponents naming her as a defendant in this action with respect to to the allegations of gender based discrimination plaintiffs emphasize that it was de boy and smith all gentleman there are no allegations of any kind of gender based discrimination against my client ms layman there are no facts whether they're there in the in the complaint not in the complaint the first complaint the amended complaint there is nothing to plead against ms layman for any kind of gender based discrimination so consequently there was no conspiracy or she was not part of any conspiracy to deprive mr pease e o or dream quo of any constitutional right based on her gender it's just it's just not the the district court was was correct in dismissing the equal protection claim for lack of state action on behalf of mislay move because again her only involvement in this matter was an extremely cursory review of some documents related to dipping construction she was never asked to do anything with respect to dream call she never gave any  information or argument or opinion with respect to dream co or mr p z oh totally totally removed there was nothing involving us to look at some documents to give  about how the project was going right it was not a it was not an expert opinion this plaintiffs contend it was it was an opinion and she wasn't actually she wasn't even told what kind of opinion to give she was given a couple of documents she was it was told to her that the project was behind schedule and could she look at them and give her thoughts could she look at these documents and give her thoughts on what was going on again this related allegations in the complaint of discrimination or conspiracy to commit or conspiracy to violate the equal protection rights under the constitution again not to beat the dead horse and not to not to repeat where i may have just said there's just absolutely nothing in the record there's nothing in the first complaint there's nothing in the amended complaint there are no facts there are no there's nothing that can be brought forward to to warrant or justify or support an argument against missile eamonn that she in any way conspired to was a part of any state action to deprive mr and or her company dream call of any right under the constitution based on any gender discrimination ms muslim and complete and total involvement was those few documents based on a review of what the construction may or may not have done may or may not have been related to why the construction project was behind schedule she wasn't even told what conclusions they wanted her to come to it was just here are some documents look at them and let us know what what you think so there is nothing related to any kind of conspiracy to violate mister rights based on her gender a muslim man was properly well the lower court properly dismissed the complaint and declined to  they were a participant in a conspiracy for gender based discrimination there is no evidence that there was a conspiracy and the notion or i should say no allegations of a gender conspiracy and there is also even further a more attenuated position that my client participated in that conspiracy and two points i would like to emphasize for the first is that there was a granite substitution issue raised on appeal as being a basis for gender discrimination the appellate division of the state in new york found that the rejection of their granted this was a substitution was in fact that that could not be the basis for the dispy constructions breach of contract claim therefore to use that as a claim of a basis for conspiracy really is contrary to the whole notion of race judicata in this case and the same applies to the materials handling plant and the beneficial used to terminations again the appellate division of the state court found that it was appropriate not to permit that under the contracts if it was appropriate not to allow the construction to proceed with that on the contract that can't be a basis for gender discrimination the remainder of the five points made by liril in terms of their  their project review has not really been challenged other than to say they disagree with it that does not establish a pleading that my client was participating in a gender based discrimination plan  conspiracy by the state actors which i also agree with counsel that there was no general conspiracy there are no further questions i'll thank you continue to pursue this action in us district court plaintiffs will promptly move for permission to file an amended complaint setting forth their one nine hundred eighty three conspiracy claim etc etc we raised it in that your honor i am frankly did you then we did not your honor after after i will admit that after the magistrate after the district judge sustained the report and recommendation dismissed the case and ordered judgment entered i did not make a post judgment motion for permission to amend the complaint your honor i figured it would be futile and maybe i'm wrong and if i can be faulted for that i apologize to everyone but i don't know how to move to amend a complaint after a judgement when i thought the appropriate thing to do would be to have this court evaluate whether the complaint was properly dismissed obviously it we are going to move to amend the complaint it seemed to me given the amount of resources that had been expended in all directions on this case at all but why did you  move to file an amended complaint i see because it was an objection to the twelve b six dismissal so i figured the first thing to do if the judge let it survive would be to clean up the complaint but if the judge didn't let it survive what's the point of your point i'm sorry i missed that so so that's that's with respect to that point your honor with respect to the question of the conspiracy that the whole complaint poorly crafted as it is addresses a conspiracy the section one thousand nine hundred three cause of action which is brought against the rico defendants addresses the conspiracy with respect to gender base antipathy i will acknowledge that this is not the worst case this court has ever seen but the complaint has but i want to go back to vis question let's assume for a moment that the individual statements by individual defended are sufficient to get a mcdonnell douglas is a regional thing let's just assume that they're not very strong as you say that let's just assume the fact that there is lettuces who alleged a conspiracy with respect to rico feelings how suffice to say that there is a fact allege of a conspiracy to have these individuals when do that that you know let me just there's a conspiracy among certain people to do certain things or events which have nothing to do with sex discrimination at that point it's a conspiracy to violate rico and then some individuals in that conspiracy make comments that might be sexually  stresses that the actions taken by these defendants were taken because and the phrase that they use is she was a woman in a man's world a complaint that is based on b that is not based but motivated by arises out of these rico defendants hostility to my client might my personal human client as a woman who dared to come to the table in a man's world in a man's business and a stamp to to hold her own attempt to be treated as an equal participant and partner the whole point of the rico complaint talks about all the male stuff and everything else but the reason the explanation given for what is the reason these folks got together and did it there are numerous stressed references to they did this because she was a woman and they didn't want her at the table and your honor i think that that point this is this is the each one of these statements maybe even ambiguous or not they're not by all they're not hannis but taken together they express and attitude on the part of state actors who had the ability to award state contracts that is hostile to my client on the basis of her gender that is directed against her because she was a woman that focuses on her gender in a way that i contend they would not focus otherwise i'm  just understanding their record and making sure i get the chronology right the project experiences delays as well or alleged in the complaint and the general contractor the company  plaintiffs the plaintiff's father is terminated and then lawsuits and sued in state court d c c filed for actions and state court and the surety the surety is not a part yes right what do you know the status of this your honor to the best man to first of all i will i would like to point out that some of those cases were filed before the terminations but as far as i know the general contractor has lost each and every one of those cases in state supreme court and they are some of them are on appeal i think all of the appeals may be finished but but those cases are over and the general contractor has lost wanted to  point with respect to mr brennan there are actually two statements alleged one is the one that was cited by either mr brennan or mr bloomberg the other one is the comment that mr brennan made during the course of that state court litigation that all of this is rosander p c o s fault and that was on a one five two of the record that's in the in the complaint  your honors this is a case that never got the gender equal protection gender focused equal protection argument and the section  hundred conspiracy examined by the district court she never got a chance for discovery on those issues there's all kinds of records for volumes long of all kinds of stuff from the other case i think it's a smokescreen well maybe not a smokescreen but a whole lot of extraneous stuff to what i believe was in artfully pled in the original complaint this i believe is a complaint brought to seek redress for mistreatment of a woman in the construction industry on the basis of hers or her gender and that's what we're here to ask you to send back to the district court to allow her an opportunity to pursue it i don't think i need to tell this court whether by personal experience or by all of the cases that come before you how endemic gender base discrimination remains in our society and what we've got is a woman who suffered that at the hands of state actors administering a state funded project for lots of money the result is that she's out of a job with that company incidentally with respect to other complera tours among other discussions in the in the complaint is the fact that the very kinds of things that mr p t o proposed to do on her little piece of the inner harbor redevelopment site in terms of the disposal of the of the soil were permitted by the adjacent contractors also male dominated she was the only woman in the room she was the only woman on the project and they didn't like it and i have if the court has any other questions having none thank you thank you all well argued we'll taken under it