warning we sometimes forget if we do and jump in too early just go with the flow but we will try and give you a three minute the st cases killing of the city of new york and i believe we're ready to proceed ok good morning this is steven burke scene for the plaintiff appellant shelter lino the plaintiffs constructive to short to claim under the new york city human rights law should have been resolved by a jury it should not have been resolved by the district court or a motion judgment as a matter of law we have a threshold issue which is the legal standard for constructive discharge claims on the d or rights law since that issue is not settled the new york appellate courts  took place after the agency retaliated against point of filing the intersexual harassment charge the jury found on on the plaintiff's favor on the retaliation claim as well so if you're a credible testimony working any further for mr ali who had sexually harassed her six years and the district court in its post trial will be rulings essentially made a credibility assessment as to the  rivera vs rochester tennessee transportation authority which we cite in our reply brief the plane did not indicate that she was giving her oppression of what was told her about the ultimatum meeting she simply testified the way witnesses often testified i went to a meeting and this is what phoned me and if the jury credits that and they could then they could find that management was giving her a new choice but to leave the agency the district court really have a contrary decision from the state courts so i'm wondering whether there really is not enough ambiguity or complexity here to justify a certification well said but they didn't seem to address that issue or attempt to analyze the construct of the short standard under the more remedial statutory construction mandated by the city law but more recently last week the nd department sure but we don't know how it does that does that just makes sense that would be you know if i were going to prove you're not you're not arguing that the one that the proved that the minimal amount  something more because someone could continue to work in a hostile work environment and have a claim than today sure but i think the difference will be go then to leave to be compelled to reasonable the new york court of appeals were to ask me what should the difference be what should the jury charge look like i would say the language under title seven with intolerable work environment wouldn't apply under the city law or retaliation now that might be more than your routine hostile work environment but compelled to use the word compel that and i and i i think that's a fair assessment i'm not i'm not taking any kind of steps into what you're saying of your case you could make a claim under the more liberal construction that you couldn't under the federal construction sure under using that formulation reasonable employee would feel compelled on our facts the plaintiff has no choice but to leave we know that the harassment she suffered caused her to suffer post traumatic stress serious anxiety and she could not work for somebody again who had harassed her s allows you to prevail where as you could have prevailed or the harsher federal standard the city standard would be more relaxed than the federal standard which is very difficult to satisfy under this court's cases maybe only four or five cases out of the nd circuit the last twenty five years with somebody so far into motion the judgment is a matter of law and it's it's it's really a breaking point standard and the city lot in every circumstance we know this from the statutory construction that's kind of fi the statute in every circumstance the city law has to be interpreted differently than title seven in a more plain a way so it can't be the intolerable you know standard where you're almost literally pushed out of the workplace i agree it has to be something more enhanced than your typical sexual harassment case but i think we satisfy that here because in telling her she has to go back to the man who harassed her so you know if we that would be in the course would only requiring her to go back to ali would satisfy the federal standard i do believe it would satisfy the federal standard because she can't work for this guy anymore and if he's given the green light to harass her again because the court of appeals applies to federal standards we have enough to show constructive charge what i'm seeing now is the question of what the standard how was it ever come determined but why should we certify the question if you're saying it would make a difference because  alleging that satisfy the federal standard anyway because if the city standard is going to be different from the federal standard then it's going to affect the jury instruction and the jury may not be given the nearly insurmountable legal standard that applies to title seven it will be something else and that's the reason to me a court of appeal should hear this we can assume that she would win on the stand and i think she could but we can't assume she would but she has a better and let me ask you when your client testified about the other positions if you she was offered she said she indicated that she didn't think they were comparable did she discuss where is there evidence from the record that shows the fact of what those other jobs were and so that is not a jury could have decided whether they were comparable or not not with the level of specificity specificity that you would think probably so why was it the city's problem the didn't get to explore you had this was your case in chief well i would have thought that she would have gotten on the stand and testified that well this is really a clerical position it's not kind of the research work that i was doing with regard to minority businesses testified to the positions that one of the positions offered to her was a step down but i'm not seeing a lot of detail on from the offers of alternate employment that those were comparable or that were they were comparable and so therefore somehow they were contributed to the construct just one additional call got wrong in that respect leave the unit she was interested in a more permanent reassignment to another division within the agency schwartz testified that she would consider working in the at the agency she she denied that they gave her the opportunity to stay in the division and that the only thing anybody said to her was you have to go back to work for lee so there's an issue of the fact whether she was so rigid and that she wouldn't move elsewhere in the division or whether she was flexible and being willing to other opportunities offered yes and she said she was she was willing to consider moving elsewhere in the agency that she was not insisting that she remain in the division now there was testimony that from cro about the position that was offered to the plaintiff crouse did not have details about the nature of the positions she claims offered to the plane so a jury can find that number one point it was willing to move elsewhere in the division she was open that she reasonably thinks lee is going to resume the sexual harassment which probably would have and she really has no choice but to leap to bring in your time has expired did you want to use a more to recognize certification is not necessary or appropriate in this case where there is no contrary decision from state court and it would not be outcome determinative of uniform precedents as adopted the federal constructed district standard which requires that the employer deliberately created working conditions so intolerable difficult around pleasant that a reasonable person would feel compelled to resign and hear the plane to fail to establish or pale to prevent present sufficient evidence either deliberateness or intolerable and that no reasonable jury could conclude that the city was deliberately attempting to force her to quit or chose to alleged on toward advances stage our she received an immediate response she met with h r on multiple occasions to discuss her allegations that six other employees were interviewed but ultimately she believes these measures were inadequate she did not during the course of this investigation and i know and over her e mails that supported the finding at trial of sexual harassment so the investigation did not include she believes these measures were an adequate to address or concerns but that does not demonstrate a deliberate effort to make her work conditions so intolerable she'd be compelled to quit the other focus was on the changes to her work conditions and these all happened seven months before she resigned to have one more minute of your initial three thank you in november of two thousand and fourteen on page two a one of the record she said was the breaking point the culmination of everything on page two i'm nine this is when she alleges that mr lee assaulted her something that the jury found did not occur there was insufficient and then moved her workstation and made the other changes this court has repeatedly held the construct of just arch cannot be shown by the fact that employee was on here with the nature of assignments or the working conditions  the consideration and she focused on this conversation that she alleges occurred with cross and schwartz after the end of the iau investigation in this investigation she says she was told she had to return to italy or she had no place at the agency but as your honors have recognized she was offered opportunities to transfer other places she was offered a transfer to the waterfront permits division a transfer to the neighborhood development cites she disputes that either schwarz or kraus arranged interviews for her but nowhere in the record does she specifically dispute the positions have been identified or the transfer is have been offered and i believe that  your honor in that when the city council passed a law and when they made its management it didn't identify constructive just are just a claim that was too narrowly construed in a single out any of the cases  argument essentially is that where we have uniform state precedents here in the state courts have continued to adopt and apply the federal standard that it's not appropriate at this juncture for the for this court to certify an oath decision is not controlling precedents but i would also agree that that decision said that the standard should be whether the plaintiffs was subjected to an environment hostile enough to force or to quit because of some factor pr rather can be hostile enough to force the complainant to quit because of some factor prohibited by the human rights law so the commission seems to think that it is a different standard that makes a material difference so i guess i'm asking if you think we should discount with the human rights commission has to say that the new york city can write your own order i think that's what the new york city chairman rights commission said should be should not be discounted but i think it's the place for the state court in applying the new york city human rights law to determine whether or not that dictates a relaxation of the standard and today the uniform state precedents has concluded that it does not although they have noted that the contoured might be to cause of action for a cliff to construct a destroyed and the pieces that you're citing all apply the pre restoration act standard and the human rights commission seems to think that it's different you're saying to have proceeded to conclude that the federal standard remains appropriate for constructive discharge the recent case of the nd department the facts weren't sufficient didn't warrant proceeded with a federal standard although they have recognized that the conference may not be explicitly clear the standard is the standard adopted by the under the federal law and that's the standard that has been applied and although this case is just i'm sorry this case is just not a case where there is an absence of authoritative state court decisions it's not a case where the new york city human rights will that's correct we don't have a case and i didn't hear from a parent really a clear line as to what the more lenient standard would look like here although an acknowledgement that it does require think the most that i don't think they pound is actually suggesting or at least i didn't hear and perhaps you will respond that the complaints about her work assignment would be sufficient even under a more lenient standard having acknowledge that it has to be something more than is required for a hostile work environment here here there's nothing in this record that s s that a reasonable person in mr leno situation would have felt compelled to resign she had available to her union grievance measures available to her transfers that were offered article seventy eight proceedings as this court recognized and practiced petrus you know or an employee has within their power means to address the conditions they cannot demonstrate that they are compelled to resign  be fired here we have you know the jury would we would have to assume that the jury could credit the statements by swartz and kraus but all of the other evidence in the record essentially is to the contrary is that they that she could be forced to quit for that really under you you have if you have no future if you're mean not that you're going to be fired because you have civil service protection which just means you have no possibility of promotion or advancement or new work responsibilities or with that not be enough wouldn't it isn't the point of constructive discharge it's not an actual district doesn't require showing the person was going to be fired by the employer it shows that the person made the conditions so unpleasant that the person felt that they have to certainly around around or the court's precedents under the federal standard the lack of promotional availability or other things of that option absolutely not your honor if in fact there had been a finding of wrongdoing as in green where the chief of police have found that the employee that stolen items and engaged in duplicity or if there in fact we disliked proceedings going forward that would be an entirely different situation here the civil service protections obviously do not prevent somebody from being fired they only provide a layer of protection here where she had exclusively had positive employee evaluations where there was no ongoing definitely a proceeding or threat there of where there was no finding of wrongdoing or threat of a finding a bomb doing here it certainly it simply is not a case under which a reasonable person in between the situation would have felt that she was compelled to resign thank you ms paulson thank you very much we'll hear rebuttals i think a jury could defendants deny giving michelle to leno these ultimatums they were asked about a trial and they said absolutely not if they deny it making these statements to michelle how can they then say but if we made those statements here's why you would have made them and here's why you she would not have been compelled to resign the testimony that michele game on direct about these comments she did not testify and no one asked her if they were made in the context of other positions that were available to her she was told you have been to the agency with your complaint about harassment and if you don't return to work lee you have no place here that is enough to drive somebody from the workplace she could not work for somebody like this again we know what the record shows about what he did about the culture in that agency things that were said about her by other people why would a woman with her education go back to work at a place like this when she can find work elsewhere in the city l anything stands for the proposition that you can't force people to work in a work environment that is quite likely to be sexually hostile the issue about the surge was what about of the city law that she could leave why would somebody subject themselves to further sexual harassment which is really one woman when you can work someplace else these issues that we're all talking about just sound very factual and context the one who's been making their lives a living hell for the last six years why should she have to stay there i mean that does come a point when somebody is entitled to leave because the work environment the work environment is to no longer be