dismiss by the defendants two defendants fordham university and the office of civil rights will call them the government defendant it's an appeal take it from a twelve  motion to dismiss it is our position that was erroneous lee decided on a heightened standard of scrutiny and that at this stage of the proceedings the standard is the plausibility standard set out in tomboy and that mr pierce was but i ask you first about the office of civil rights was there anything left as to that had made a determination to and i have years later during the pendency of the motion to dismiss it's our position and also the determination was made by one of the named defendants that wasn't your contention before judge firm and you said all you wanted was a determination from the government and you got it so while it's one thing left that is true but it was a determination made during the litigation process by the name defendant which is a conflict of interest it wasn't a subjective review part of we had submitted which we didn't have at the time for your request which shows that the government defendant views the court documents to meet the determination when they were supposed to do an object of investigation back in two thousand and thirteen  it was being on timely made the actual information that the that the government used was not a proper investigation that was conducted by by o c r against the ford defendants would you make that claim to judge firman i didn't i did yes well we did say that they had been derelict in their duty it wasn't timely and we wanted a simple a proper determination not just any determination any determination just because in anticipation of this litigation  was not proper it was it wolf we we had a timely decision back in two thousand and thirteen and the government's offenses wouldn't even be here so i mean the the the very reasons for  including them was about having an untimely resolution to this matter after it was over and over and over again we were promised one there was many communications and i did make this  argument in the papers submission to judge foreman and also then after the fact after the litigation began then judge foreman i mean the o c r made a determination of course on favorable and against my client and because of the litigation process it's our contention that it's not a an objective determination it's subjective it's in retaliation the for this exact pending lawsuit and that we would contend that i'm not asking for evidence rights determination was in retaliation for your situation for why would they retaliate against you i think they retaliated because they were named in this  lawsuit and then just to to throw in a determination to get out of the lawsuit it's not proper and then yeah that's what you asked for you asked for a determination and you got a determination so that seems like the end of the story what information she was supposed to provide it was excessive medical doctor they wanted all her records it was it was broad and sort of attach all of her records to your motion no  that was in the motion to dismiss there were two men there were two leaves of absence there was one that was two thousand and twelve and one that was two thousand and thirteen it was our contention that she was treated differently she treated differently than that's what i'm not clear about ok well she was treated differently with that's one of our arguments from fordham you know who which student was she treated differently than who similarly situated to her you name to people in your ok in your papers but they seem like they filled out the paperwork they did not submit extensive medical and at this juncture either we didn't get to discovery as far as i understand it at this juncture they were not required to to submit excessive and overbroad medical and psychiatric med information but you think that you agree that the school's intitled to get to require a student to participate in a reentry process don't you if that is the school's policy it is but it depends on how the school implements the policy when the school implements a policy in a discriminatory manner no i don't agree but yes if the other the other information has come to light during this process is that ms peer's never told notified fordham that she was hospitalized so how they knew she was hospitalized and started asking for all she did was take a leave what other it was from medical family psychiatric at this point again at this juncture i don't i don't have the fordham records but it's suspect i don't have even knew she was hospitalized in a psychiatric  just let me address the issue of what was actually in the record below and that is that as your honour's are aware there were two students referenced in support of her disparate treatment claim which is the only claim that they made that she's made either in the second american plane or in the arguments presented to judge ferman there were two students the first student it's not clear from the complaint whether or not the student suffered from a medical as opposed to a mental impairment but what is clear is that that student was required to go through the reentry process and it's state i believe it's on page forty of the record the section from the complaint that says the student was required to go through the  it's page twenty one one of those to your honor and the second student was identified as having schizophrenia so presumably that student is in the same class protected class and answer to your questions as donnelly there's no group that they're comparing this student to because she's actually in the same class that plaintiff claims to be in so again there's no indication as to the second student that the second student who did go through several leaves of absence is and returns to the school was not required to go through the reactor process she doesn't plead that there was a difference in the treatment as well as regards the reentry process for student amber t so actually when you look at both student number one and student or two neither one of them suggest let alone plead that there was disparate treatment where the plaintive appellant would be was treated less favorable and persons in the other group so levy putting that aside there are a number of other aspects in which this claim really fails to fulfill the requirements of your task i thought i heard you say that this is the only claim but there was a retaliation claim before just for the and the retaliation claim really fails most fundamentally on a timeline basis is that the only protected activity which the district court found in the in the complaint was a for the filing of a complete of a complaint i believe with the office of civil rights the department of education that occurred in june subsequently re admitted the second incident occurred in april of twenty thirteen to at least two full months prior to her filing the complaint and the the appellant does not allege below in the complaint or in the district court that she informed fordham that she was going to be filing this complaint so there is no basis upon which she can claim that there should there was retaliation because there was no information allegedly provided to fordham either by the filing of the complaint itself or by a statement saying i'm about to file a complaint against you and them taking some retaliatory action that's proximate in time the only other possible fact in the record where she says that she raised a hipaa issue with the school in december of tw in conversation with some person at fordham nope no facts or pleaded to suggest that the person who that information was provided to had anything to do with the the decisions later and that is the decision that came after december twenty  was four months later when she was required to go through the reentry process and courts have found that delay of four months really lacks the temporal proximity of time which can lead to an inference of potential discriminant treatment so there's really no the reaction process was different because it didn't involve her having to produce medical records she voluntarily produced medical records as part of the appeal which is rather odd because she seems to obviously value privacy and clued in those records but most importantly doesn't allege that she provided those records to fordham and and the court needs to know she also doesn't say in the complaint that in that earlier situation where she started missing classes and ultimately had to withdraw from classes of fordham that she ever notified the school that she was doing so on the basis of medical necessity in fact i heard ms rizzoli argue it least in dealing with the second event that she never told the school that she had a mental problem she never which is really interesting because it flies in the face of the requirements of pleading an eighty eight claim is you're required as a plaintiff to plead that you are suffering from a disability which is affects a major life function and she doesn't believe that in this case nor does she say that she ever told that to fordham in fact she says somehow they found out about it but she doesn't plead it so she really doesn't fall within the class she also doesn't say that she told ford about it which is the second element of an a t m or rehabilitation act claim you have to the institution has to know about your disability what was in those i mean other and others a series of e mails back and forth yes between a pallant and a couple of different people at fordham yes this remind me what the subject of those words in the pleading the in the first instance the e mails were involved ms pierce communicating about her she had personal issues back in two thousand and twelve and emotional issues and also eviction issues and was losing her housing she claims that she communicated with his professor vincenzo corcoran in the complaint and so the ones i was thinking about were the ones that were  i know it was with the dean in the two thousand and thirteen right because as far as i understand the two thousand and twelve it's a little i'm a little unclear about why it's even in here because it does not seem to be the source of the complaint but what is that of the two south thousand and thirteen communications he says in no uncertain terms i'm not providing you with the forms i'm not providing you with the medical records i basically then demanding that you let me in with no disclosure of my medical condition beyond the note from dr melcher which really provides no meaningful information simply the dates on which she was hospitalized and the fact that he has seen her some one week after her discharge he does not situationally does not give any information about her diagnosis her prognosis her safety either to herself or to others or any information from which fordham could have gleaned the necessary information to make a determination that it was safe for her to return to the school she claims she said we call the doctor yeah but that's below that that's belied by it well there's nothing in the record to suggest that and these e mails directly contradict that because she says i'm not giving you any additional information and she demands to be allowed to come back to the school after that know was written she considered that to be enough information for the school and they should take it or leave it but importantly she references that when there was communication between the hospital columbia presbyterian i believe it was in dr melcher dr melcher refuse to speak to the hospital and provide information because she had not signed a hippo release form and releasing him to speak to the hospital and therefore her statement that she would have authorized him to speak to to fordham is undermined by her clear refusal to sign the consent forms and release the medical records or the medical information or to permit him to fill out the community provider form in the first place which were essentially directed at trying to get the information your honour's referring to she wouldn't allow her doctors to provide that information either in written form or to release them to speak to for them which is requires obviously a signed release form in order for that to be accomplished i believe that's all the time i have to turn to make you miss post gobblers and say your name may please the court proceedings gavel u s attorney's office on behalf of the government department at the issues on appeal concerning the government defense or really a very narrow point of pseudo c r and two of its attorneys in order to compel them to complete their investigation and issue determination on her administrative complaint against for them and they have now provided that determination once they did so there was no longer a case or controversy before the tissue court in the claims are properly dismissed  determination is not subject to judicial review in any event why did it take so long for the determination what the id tells of the investigation and the determination are not in the record because the government's arguments did not turn on what actually happened but wow but just to put the investigation in context o c r received the complaint in june two thousand and thirteen reached out to plaintiffs to gather more information about her allegations but there after o c r promptly began its investigation interviewing the plaintiffs her attorney numerous employees from fordham reviewing multiple pages of documents from both fordham and o c r ultimately culminating in a lengthy and detailed letter  finding or determination on her allegations in march of two thousand and sixteen so either then those who are taking its time to review the documents and conduct the interviews and or write a lengthy decision really there's no there's nothing there's no there's no there's nothing that's been i'm submitting the record about that issue or  also recognize that there is nothing in the statutes or guidelines regarding how c r is to handle complaints that would give a court and the law to apply in determining whether or not there was some violation of the a p a in the handling of the complaint so the district court do not have the evidence and it's not in the record as far as the details of why it took so long or whether this was something that was unusual but even if the court were to entertain an argument that not to reveal their names because we don't have permission at this moment one one i believe was a medical leave and the other was psychiatric when isn't this like the person assuming it was a psychiatric leave is in exactly the same position as your client she is that she isn't exactly the same position how ever back and she got in right she got back in your honor but she wasn't as far as i understand it she was required to submit the luminous excessive overboard medical information that's a question that i have for you why wouldn't she fill out this form ok because it because because it's just from looking at the record you supplied quite a bit of information in connection with your put in front of judge firman including a blog where your client is talking about her medical history so what's confusing to me is if she wants to get back into the school why couldn't you just use all that information that you're talking about everywhere else and fill out the form there on that information that my client chose to share getting psychiatric documents from a hospital is different it goes way back to your childhood because that's how they diagnose or whatever are you know without revealing there is information there from from her whole life what she chose to put on social media or send e mail was specific and limited to what she voluntarily waived ask everybody in her situation for the same thing correct that's not our position not all in the medical leave i know just two to go into that all she had to do is reregister for classes there was no there was nothing submitted you yourself say that the  school has an interest in sure that the student is ready to come back to school and if the school needs to make special accommodations for the student i mean you seem to concede that those are legitimate goals  those are legitimate closed calls when done with reasonableness and the community provider form i think that's the formula that you're speaking of to to waive your medical records was our position and so was ms pierce's back when she was dealing administratively with the school was that it was overbroad she was willing to let them call the doctor she was willing to to try to limit the information enough to get him back into school even though she didn't agree with it her goal was to get back into school she she wasn't doing this to just be  obstinate and not and cause a problem i mean she has significant debt she can't finish school because she actually has an eye been even officially withdrawn which they were supposed to do she has no documentation or was never received as far as we know that she was dismissed in any and in any way it's just she wasn't allowed to react there and so the procedure here is a little ambiguous as to why and you could see by the e mails it as collated but she was trying to communicate with the dean to even though she does say i'm not going to give you all this information i'm not filling out the form ok that but there was never a discussion she never had a meaning it was you know he never called her and he and i mean this is a vulnerable population this is you know a person with psychiatric disability there was no it was like fill out the form or not thing and that's not in our position at the moment is not how everyone else was treated i mean and that she was treated differently  it's not a consistent procedure and then as it went on and escalated and about them knowing or not knowing about the o c r complaint it's our position that they did know about the o c r complaint because o c r the procedure is has to notify the complete person the entity that you're complaining about so they did know in the four months temp proximity that may be too long or too and will reserve decision on this case