charles manual and it's may have please the court if there was ever an employment case that should not have been tried on paper i respectfully submit it is this one just take a look at what was submitted by transit in support of the motion they submitted no fewer than approximately four hundred reported statements of undisputed material facts with their motion for summary judgment my clients came back and not only responded chapter and verse deposition and declaration and documents to every single one of those but in each of those categories my clients came back with additional disputed facts pursuant to rule fifty six point one the m t a then came back in reply and cited responses to certain of the facts that we had put into dispute but not others and if you take a look at their brief the same thing occurs the a selected particular facts and matters that they thought would support their position but they left open the entire breadth of disputed facts that we had cited shapter unverse in our papers a simple review of the fifty six point one statement i submit and the supporting documentation will demonstrate why these cases must go to trial i read again last night a case cited by transit it was an opinion written by judge pooler and it's in the bernie case and i think that is very instruct some of the issues of fact here transit cited bernie for certain propositions but in each case they left out the sentence or the paragraph that followed what they quoted from judge cooler so let me take a closer look at bernie if i may and bernie it was stated that the employer's disregard or misjudgment of the plaintiff's job qualifications may undermine the credibility of the employer's stated justification for the employment decision here job qualifications are at issue trends it says that my clients may not testify alone to their job qualifications and to their performance ok although they don't simply give an opinion and the case cited by friends or refers to an opinion regarding drop all patients my clients state very very specifically what their qualifications were and what their performance was and it is all corroborated by other people who participated in performance reviews who attended seminars that my clients were involved in who were at every turn stating positive things about my clients it is a rare employment case indeed where the defendant cannot point to a single performance defect in any of the plaintiffs these individuals get a good story but if you have a reduction in force and that yes but yet you're a tragic circumstance for large numbers of people going to lose their jobs many of them are going to be qualified people just a question of whether other people are more qualified and and we are we are warned not to become a super person who office we're going to rank this person's qualifications we don't even know what these people do fact that there is a decision made by the employer that purportedly is based upon certain criteria does not mean that  be a closer review here we have pointed out two thing your honor number one these persons did not lose their jobs in the riff their jobs were taken from them before the ri typically weeks to months before the refrain kings were ever done you're talking about being transferred to other departments yes transferred and reviewed in other departments by people who had never dealt with them before they didn't actually lose their jobs they just suffered some what you would describe as adverse consequences their job functions were taken from them i think that really does mean having their jobs taken and losing their real jobs it was telling the peril how they were still on  payroll but what that shows your honor is that the riff is a pretext in this case in pristine form the riff simply became the way to show them to the door when they had already been moved out you're not denying that the defendants had a cut their costs are you i mean i know i know that you claim that it was due to mismanagement but be that as it may they were running at a deficit weren't they they report running a deficit but your honor we are so skeptical of everything that they have to say that there is nothing supporting that assertion of a deficit other than the specific false statement of an employee from human resources who said that there was a deficit caused by reduced real estate tax revenues we have demonstrated that that is an outright falsehood and it is proffered by someone who has no knowledge of the facts we cannot simply make the assumption oh it's a public agency we must take it as true not when we have seen misstatements galore as we have seen here not one we see in transits answering brief the assertion that this burden was shared by bus drivers and many other employees only to see in a case that was argued by mr dryden that in fact the very month that my employees receive their last paycheck the bus drivers and one hundred forty new ones were brought back into transit i don't trust them your honor this is an issue of fact as to whether this was a legitimate reduction in force as you say if the roof was a kind of scheme to do excluding weed out older workers then how can it have been that so many younger workers were dismissed at the same time on the basis of the same rankings and that's not really what i  many other workers were not dismissed as well that's that's not really what i'm what i'm saying your honor first of all i would point this out this case is not a case of disparate impact it's  disparate impact cases that the the numbers game becomes paramount where the assessment of numbers of employees in different categories becomes an issue and i'm aware that all of the judges on this panel have encountered that situation in the past this is a case of disparate treatment and the numbers game if you will does not apply in this case we could not did not and are not required to in this case assess the overall numbers proffered by transit but if you want to take a look at what they offered to you take a look at pages forty eight to forty nine of their brief they give you to see if we could do them a favor there are certain documents in the record that loosely call into one or two parts of this but there's nothing in the record to support it so why can we rely upon those figures and that's really not what our case is about it is very very possible it didn't employ or to decide t discovery and knew the the written portion of the motion below in the brief here on and we certainly disagree that we've been selective in presenting the facts we don't think that's our problem in this case but to to administrative staff meanwhile the affidavit aaron stern who was the the head of yes that's the administrative staff that that's distinct from say a bus driver yes that's the thing from the operating department in the capital program as well right those separate budgets right and all will be evaluated the entire agency including the office be right and the office of the president and they gave hard numbers at some point in time and what they did was they because the budget had been reduced they looked and targeted certain certain areas and they said your budget is now this you have this many people over budget you need to reduce your budget by that many people won't be did not give names they simply gave a hard number and it was left to the departments to sort that out so with respect to the pretext and the fact how would we be a lot easier to reach those numbers if you got rid of the people who made more money and with no clothes on correlate with people who are older if you know that's probably true judge there are probably a lot of ways to to run a riff and probably want to know more fair than the other because someone's going to get laid off and probably some good people as the people here were were laid off so even if there are higher paid employee that person male or responsibilities may be really terrific job plan so that the wrath itself was very subjective many of the categories were subject to the employer's  desire if it was to get rid of the older higher paid employees years of service in one of these was only given a multiplier of four when is the v countervailing view that simply because someone has a job for a long time doesn't mean they're the best qualified if you want to violate them based upon you know how they perform their job but i understand that and we're not micromanaging but someone decided what the multipliers were for all these different subjective or many subjective categories yes in and subways it was it was noonan pam noonan and some other people  took that republic and modified it for subways and they did wait categories in ways that they felt was was appropriate and it may be that the ways could have been different and maybe things would have worked out differently but some someone would have been terminated anyways because the numbers were hard and in some ways they were going to lose seventeen professional technical engineers and twelve hurdles it would have happened a matter what those weights were but but to the point that one one categor weighted less than another baby it may it may indicate that they don't value experience as an indicator of performance but it doesn't indicate that they day that age is a factor and and in some ways for example once the booklet was distributed it was all in a secret which they have a problem with if you look at who evaluated the individuals did the individuals who evaluated and then applied the criteria in the book did they did they do that and in a way that in some way reflected ajahn amiss and mr mann who argues that people who transferred to other departments and they were evaluated by people who didn't know them and therefore could not value them appropriately and would probably prefer to keep the people who know what's done in that department and therefore people who are set up for this and following up on would judge who are saying i'm not sure if the case here but if you if you if you rank subways miss miss kirkland had been an organizational development and it was new president howard roberts he organized he created workforce development he moved he moved laureate hoppen who is the vice president out of organization about somewhere else and he took the staff women workforce development in two thousand and eight miscue era's who is an operations training which at that time was under human resources operations training includes mandatory track twenty five employees and subways and they were moved to workforce development when prendergast came back and the budget was in three hundred fifty million going up to a billion he eliminated workforce development so at that point those employees needed a home in the organizational chart it wasn't a mystery they knew in the testimony shows that they knew in december when they read the memo to the president in his new there are people being laid off she saw the the station is coming to a building in brooklyn being laid off from here she knew this and so to find a home have to print a gas came in and they also knew that that work whatever it would be limited they had heard that and so eventually operations training was moved on the subways and this goodyear was had the same supervisor bush writer who turned didn't know what the score was going to be in comparison to anyone else because the employees being evaluated were all over the place no one knew no one knew that what the comparatives were said is no we're going to good score bad score so they did the best they could and with respect  it was an evaluation from two thousand and seven in the appendix of pastry forty six and her her valuation two thousand and four two thousand and seven was that she was going to assist in a print shop application that was expected to be completed by december thirty first two thousand and eight coders right they were preparing the application now so all this sounds like fact questions no these are never enlisted titled to tell her story to a jury and malik tell his story he's a fact questions you are arguing about affirm when i'm saying that if you look at her her job that she didn't know coding when she went over the internet technology group even she said even she said it was a step up they were doing web design she couldn't do that she took a course trial thank you it's thank you very much forward and said that she had underperformed and was untimely on the project it was the exact opposite the person who took her job shereen levy was subsequently behind on the project by one to two years deborah english was come was commented time and time again on her performance next issue i would like to point out a couple of things with respect to the reassignment of people it is not quite so much a matter of who was reviewing these individuals although in every single case it was not as per the provide in the guidelines the person who had most direct dealings with that with that particular plaintiff but it's not so much that as the fact that when they were moved into other groups the people who were scoring everyone else in those groups were not people who had any familiarity with my clients and who were applying different criteria when they scored those people prime example and kirkland moving from workforce development unbeknownst to them they did not know they had been reassign to what they call an artificial concocted group called subway clericals moved into that group they got school wars which were good solid school boards of about six thirty to six fifty on a scone a scale of eight  hundred if that were the s a t that would place with a ninety eight percent time but not in the group they were moved to if you take a look with a real re re re re didn't know they were not no they were not they were left with the grades that they had gotten for someone who identified heard of that top people in that group as a group of about fifty to twenty people three of those people got absolutely perfect scores in every single category except one  category where they did not get perfect scores with experience who terrorism kirkland with many years of experience at transit doing their jobs perfectly well showing up every day no blemish on their record etc etc etc get  very good scores all of a sudden from out of nowhere very inexperienced people people who have been there for a much shorter time are getting perfect scores across the board how can you possibly compare it i understand