mia pleased to court waterson for the helen issue news cases whether or not acts of course and intimidation during the course of a resolution process and internal resolution process can constitute axis of retaliation the facts in this case are fairly simple and fairly straightforward stick dating back as far as two thousand and three mr dickens had been subjected to discriminatory ridicule  horseplay and have been passed over because of his age at least that's what he had alleged but more particularly in two thousand and five april two thousand and five as part of this atmosphere of ridicule he was falsely accused of taking a knife or allegedly a botched boxcutter to a fellow employee that turned out to be completely false and in fact there was a letter written in spanish which made the allegation but when the letter was translated from spanish  english it said no such thing may no such mention of a knife or a box cutter and i'm sure you're going to translate it was it was translated but my client didn't have an op didn't have a copy of that contemporaneously at some point he did get a copy of it and it was clear that there was no you know box cutter a knife in any event critically at some point the accuser mr trinidad told my client in this is in our breeze is that he continued to be passed over unfortunately the court below didn't our timing position correct unfortunately court below did not find that and claimed that there wasn't enough evidence that he was actually passed over  in mr dickens affidavit he said he had continuously complained about being passed over and not being allowed to continue working as a bartender how can that be retaliation for something that happened at that meeting and if he's already been passed over and has been claim of being passed over for years what's what's the new thing that happened i agree on or the new thing was not necessarily his being passed over the new thing was for at least since two thousand and five he says he was continually passed over he was also subjected to discriminatory ridicule horseplay touching the bottom and whatnot but importantly the notion that he had taken a knife to somebody continued to be part of this atmosphere this was a meeting where finally the parties were going to get together mr trinidad was going to say no that didn't occur i was put up to this by your supervisor and  according to his later testimony that this my friend said and did happen right right so then he recants and says it didn't happen then there's a meeting and at that meeting the supervisor says  an intimidating manner said didn't you say this before and why is that retaliation isn't that what happens at a trial or hearing or some effort to get at what really occurred that the person is confronted with his prior inconsistent statement the meeting indeed shortly thereafter right in this context in this context i agree it typically a trial of cross examination net but in this particular context where it's on the job and where people are subjected to intimidation this gentleman didn't even get a chance to speak he didn't he didn't he didn't he didn't go on the record as it were and say by the way this didn't happen before he could even say anything the supervisor gessen his face in a intimidating physically intimidating manner and says didn't you write this and importantly trinidad response i don't recall that and how is that so he did get a chance to say something that in response i'm puzzled about is why is this retaliation how does this count as retaliation for a complaint if what happened is there is an argument about whether the complaint is valid well your honor and you know maybe it was decided wrong or i don't know what happens at the end of the hearing but why does that constitute retaliation going up and at why is that an adverse action against mr dickens we we  had to respectfully borrow and we are suggesting that this court of appeals consider this we did have to borrow from the new york city and i discrimination statute that talks about poor vision and intimidation in our position is we can't have a situation going forward if this court were to rule against us where there is intimidation at a a meeting of this sort the question of interference with a complaint as opposed to retaliate for a complaint raised in the district court it was raised in the briefing it was raised in a briefing as a form of retaliation and importantly the district court did not address that at all and then starts another reason why we think that this court is it would be a good place for this and how is there is there such a thing as an interference claim under title seven or the a d n a there is under the family and medical any cases that are in our brief other than a recitation to the new york city human rights code it's our position that looking at the context is this court can read that because we are concerned that going forward just for your honor for the act is concerned am i right that mr dickens didn't make any claims under the new york city law and he did they were dismissed they were dismissed and is that because he had taken these to the human rights commission and yes they were his be quoted from or is there it's correct your honor that's correct and again so that that provides in another important context here that we understand this procedurally but importantly began going forward should we have a situation where a person of ill some self of the internal resolution procedures the other acts of intimidation and that's ok i don't think that's ok if the court has no furthe it please the court the district court here aptly attempted to sort through the hodgepodge of allegations of age discrimination of racial discrimination of retaliation and construct as best it could a theory under which plaintiffs might possibly be articulate you know claim but even under the best of scenarios the district court concluded there was no claim to be found here on his decision for summary judgment and we  decision of the court was correct as to discrimination the court correctly found that there was no inference of racial or age bias that could be found in the record apparently that's all abandon our right i mean all is being argued here is this interference life or television issues i want to correct as to the the retaliation claim i think it's important to first of all try and separate out what's going on time wise here we're talking about things that happened over a period of ten or more years and as the district court correctly noted the gaps in time between these events strongly suggest that there's no retaliation going on for events that happened so far back in the past when we reach the point of november twenty third teen in the meeting i think the first thing to point out here is that the story that's bit that that wells up from the appellant is one that at bottom has no basis in fact what's being claimed here is there is intimidation based upon a recant thing of a story from a witness who was going to say all of these things i should point out first there is no affidavit or sworn testimony from mr trinidad in this case and would not be a trial because of discovery failures by the appellant which would lead the judge below to preclude him from putting in any witnesses other than mr dickinson itself therefore there is no possibility that mr trinidad a trial will do anything to say that there was a or anything else the only thing we have in the record is a supposed note by mr trinidad that has never been authenticated put in only under a declaration from appellants council with no authentication whatsoever which does not mention a box cutter or knife but does mention a threat by mr dickens to take someone outside and the point here is that the twenty thirteen meeting was simply about whether or not the two thousand  notation in the record that mr dickens voluntarily submitted to anger management counseling would be expunged from his record there was sufficient basis mr dickens was right i'm sorry what was an affidavit by evidence as to mr duncan statement would would be admissible but that doesn't make the case that he needs to make really recount the conduct that occurred right but that now the point the point as to the conduct is that first of all union representatives that is  at the meeting there's no allegation by the union representative by mr dickens of the time there's no appeal from from that decision as to improper conduct being taken moreover there is no evidence that would use less brought up earlier which is it may have had a chilling effect on what he was going to do in the future if you get threatened by your supervisor or someone else gets through an enemy to your present neck deter you from filing claims in the future of if so isn't that actionable as some kind of retaliation  discrimination you're i think that the case law on the circuit is fairly clear that in order for such an action to constitute in and of itself a violation it has to be so pervasive it has to be so chilling as to rise to the level of a purse a violation and i haven't seen in the case law of this circuit anything which suggests that the the act activity which is alleged by mr dickens here rises to that level but merely a questioning of a witness as to a supposed recantation moreover it's important to note that there is no evidence whatsoever of an adverse employment action by plaintiff appellants own admission the thing that he was not doing after and thirteen bartending is something that he hadn't done since two thousand and five and the only evidence on the record as to bartending was put in by the a pelleas in this case and that evidence is that first mr dickens was not certified to do bartending work under the procedures established in the collective bargaining agreement if he did any bartending work it would have been a violation of the collective bargaining agreement and the hotel's records show that he made thirty six dollars in denied an employment opportunity mr dickens was not eligible for the bartending work in the first place which goes to the mcdonnell douglas framework some was eligible for the position moreover there can be no causal connection here because if he could not get the bar tending work there couldn't be any connection between the supposed at retaliation and the supposed adverse employment  here we're talking about a complaint which alleges discrimination racial discrimination and a period of a policy of retaliation supposedly  commencing in two thousand and one and going on to two thousand and fourteen for different purposes and as switches as you as you go through the play and for mr dickens affidavit the question of whether it is credible at this point whether an inference can be drawn in twenty thirteen all of a sub mr mattoo says takes this retaliate to retaliate or an act when mr dickens has received all salary and benefits that were to be accorded to him of the collective bargaining agreement and when he was not denied any opportunity he was eligible for suggests to me that the fairest inference that can be drawn his record so there was a fact no retaliation that there was at best in a twenty thirty meeting an attempt to find out whether or not the record of two thousand and five eight years previously should be expunged and the hotel was in a position where it simply said on this record we can't expunge something that happened two thousand and eight years ago without sufficient evidence there's no reason to very clear that mr dickens had at least since two thousand and three continuously filed e e o c claims state division of human rights claims and internal claims and the november thirteen meeting was an attempt perhaps a final want to try to get some clarity in to try to in what was happening because by then he correctly had concluded that every anything internal wasn't working and this were unrelated but they are peer to come out of when he was passed over the first time and then there was a atmosphere of you know ridicule touching the buttocks joking and things of that sort and we continued that that was also related to an ongoing claim of age discrimination he complained about asia in fairly early but was not able to get any justice so again in that context of law these complaints of this long standing effort to get justice that's why this final meeting was very critical maybe i we we can't you know we can't figure out what would have happened after that but that may have been sufficient for mr dickens in that cont and mr trinidad didn't get an attempt to say on the record that this never occurred and so for that reason on these facts i think the court should look into this and conclude that this was intimidation and intimidation in this context does constitute an adverse action does constitute an act of retaliation i think your honour's thank you is to ours and just one not related specifically to this case but housekeeping detail  which would you be good enough please in due course but ideally sometime today just to double check with our clerk's office and make sure that the clerk's office here has your phone number ok thank you great thank you very much  thank you both and we'll reserve decision in this case