park good morning or good afternoon your honor in may it please the court my name is jonathan parker and i represent the although i represent the appellant this case is not about politics or ac this case is not about the dogs at union square nor about dogs generally this case is not about the elevators at union square excuse alleging is a temporary condition which will amount to a handicap under the fair housing act and i think that also draws to the fore the distinctions between the americans with disabilities act i and the fair housing act and in particular in the americans with disabilities act there is a substantial amount of time spent in the statute itself discussing precisely what a defendant in an americans with disabilities act case can obtain by way of medical records and what they can do with those records i and the fair housing act contains no analogous provision and so what we take that to mean is that a defendant in a fair housing act case is simply not entitle to question the existence of the condition itself and the case law that out there and i will grant you that the significant majority of it is it involves americans with disabilities act but let's take the supreme court case in brag the condition existed i think and in the framework that the supreme court sets up for determining whether an impairment is is actionable starts from the postulate that the condition exists it the in the cases cited by the parties all but one of the i like that the parties are the core of sume the existence of the condition itself and the one case that stands out as being different from the others is emerson first northern states powers which is  power which is a decision of the score of relief from twenty one and that case the defendant points to an exam performed by its own doctor saying that the point this test results were within the normal range and in that case although the point of wast this court affirmed the idea that that testimony was still not enough for the defendant to avoid summary judgment on the issue of disability in that case so they're just i don't think is a basis in the fair housing act for a defendant like union square or in the case law for a defendant in a housing act case like union square to comment and challenge whether or not the specific condition exists with that sad union square complained at the district court and here that we are centrally are saying that they're not entitled t and that's not true and there's a couple of ways that a defendant like union square can still defend the case even if i'm i'm correct and the first is let's say that mrs tracy had gone through a podiatrist to in this case had had her license suspended or vote that would be a basis potentially to challenge the existence of the condition by the same token it would have been we say in our briefing in both the opening and  would have been wholly proper for union square's after witness to opine that the mrs dri cease functioning did not rise to the level of substantial impairment by comparing her functioning to the functioning of average individuals in the general population and he doesn't do that in fact he admits that he was routine for the purpose of determining whether or not mrs druce he had a book condition with which her own treating  psychologist had diagnosed her and that is improper there was no basis in the law for that in there still is not in the score i would urge should not create  any rule that would allow a defendant in a fair housing act case to to put forward that defense absent some action from congress and again the differences between the with the americans with disabilities act allows and what the fair housing allows must mean something and the acts the extensive discussion of how and when an eighty eight defendant may obtain medical information compared to a nonexistent discussion  so i want to if that answers the court's question i want to turn to the section thirty six seventeen retaliation point and in this case we suggest that there are three elements committing well so the response to that question is the fact that these things were done at all is itself course of an ending to illustrate that point this is this association at the time of  litigation at the time of this trial had been in existence for fifteen or twenty years and had been involved in litigation in fact involving the jury sees in the past and never once in the history of that litigation had anything like for the  anything like this ever happened and union square points out it was at the time you know there were all of these lawsuits pending between the association and the jury sees but those lawsuits were filed in january of two thousand and fourteen this case the short answer to that question i think is probably no however i also think and union square i think makes that argument i think on some level it's disingenuous to say that a resident in this association is going to go over to the to the co the association certainly has an obligation to keep its owners and informed especially those owners ask but there are ways of doing it and that there are that the association has used in the past simply responding to inquiries by  counsel or through the twenty two point one disclosures there was absolutely no need to do the things that it did and i got to answer the second part of the question the do for the litigation updates themselves  qualify the relief that this was you asked for in a way which we think it was in intentionally misrepresented what had been asked for so for instance the litigation update say that mrs dr an elevator for her sole and exclusive use which is not the relief to have been prayed for in the complaint the complaint asked for a key so that you could ride an elevator down only not up or the posting of sign or the changing of the rules so when you put forth in writing an exposition of what the complaint is seeking that goes beyond that misrepresents the complaint that conduct those records show in either building the jury she of course live in the larger building with the two elevators and mrs tree song to the other and i believe i'm in my reply will time as i would like to reserve my remaining time for a bottle thank you certainly coun or the that came up at the meeting and may have twenty fifteen that went beyond the matter that went beyond what was contained in the public record via the filing of the lawsuit and if you look at the testimony in the evidence that actually was elicited at trial the plaintiff's primary concern she testified and the big what made it a big deal she said was that this this information about her came out during this may of twenty fifty meeting or through these litigation updates but the fact of the matter is and i think i actually in my brief i cited to a website where after the filing of this complaint you could google search the plaintiff in union square and this information would come up on the internet and i'd like to also set out that because  that these litigation updates went above and beyond simply uprising the association of what was going on with these lawsuits that the litigation updates were entered into evidence at trial and there was very  limited testimony about it primarily it was from the associations general counsel who testified that there was very basic information that the name the parties what was alleged  and whether the association was going to defend it so again and i think this ultimately goes to whether or not the conduct that's complained of could rise to the level of what is contemplated stated that they're not going to you're not always going to have to prove a thirty six or claim to establish a thirty six seventeen claim but i think that the thirty six seventeen still requires that the person who was exercising the right and thirty six seventeen refer specifically the rights of thirty six zero four that the person who is exercising the right was somebody who was intended to be protected by the f h a which means  in this case that the person has to actually be a member of a protected class and so in order to establish the thirty six seventeen claim that there has to at least in this case you did there was a possibility that you could have that you could have a thirty six seventeen claim but not a successful thirty six zero four claim because union square actually is one of the arguments that they made argued that this request was not actually did not and in that case the the plaintiffs could have established if she had met all of the other elements of the thirty six seventeen claim as this court has the wanted it done she could have established a thirty six seventeen claim without in fact being successful on the thirty six zero four plan but i think the problem with the thirty six seventy in this case that claim in this case was or at least what's at issue what the plaintiff is claiming is that she didn't have to prove that she was somebody who was intended to be protected under thirty six seventeen a part of a protected class and i think that that is how this court has understood the elements of a thirty six seventeen claim and has gone on to evaluate that in both block any similar saying even though those weren't specifically at issue in that case they would go on the court this court went on to say that the plaintiffs and block it was the plaintiffs clearly meet the first two elements and that they are those cases specifically provide for protecting the process and the second element which is that the plaintiff has to being exercise or enjoyment or fair housing rights but also require that there is someone who was intended to be in the class of persons intended to be protected by the f h a and i think that that's consistent with the policy considerations behind the f h a which again in this court's language not intended to turn every quarrel between neighbors into a federal litigation but it was intended to address access for housing for specific classes of individuals who have historically that the plaintiff is raising on appeal is saying that she didn't have to prove that she in fact had a handicap and saying she didn't do that whether or not she had a can cap was irrelevant and that she could for bringing to light discrimination and what the court this court has said is that the plaintiff doesn't have to actually be a member of the protected class they just have to have a good faith basis that the reason that their the adverse action was taken against them think that it's disputed that thirty six zero for the rights there are are targeted to individuals who are members of specifically specific classes of the f h a was intended to protect so the that it shall be unlawful to coerce intimidate threaten or interfere with any person in the exercise or enjoyment of any right granted or protected by section thirty six all for you that the court should look back  thirty six zero four where it says that it is it is illegal to discriminate against persons because of their handicap so again i don't think there is no good faith language anywhere  the your i would say that thirty six seventeen was meant to protect interference with people who are in fact covered under the f h a there is no language about good faith basis anywhere in thirty six seventeen either and handicap is defined as a person with an impairment that substantially effects one more major life activities not not for a person who in good faith believes that they  have had a parent that substantially affects what are more major life activities and the and again going back to the original policy behind the f h a which will limited and targeted toward access to housing for historically discriminate against classes it would make sense that thirty six seventeen would require the person to actually be a member of one of those classes in order to have a claim under the f h a otherwise there are other  state law tort and statutory avenues for which they could pursue such a claim if there's if the plaintiff is saying well i've been unfairly treated if that answers your honor i get with my remaining time i would like to address the second issue which would briefly which is whether or not the plaintiff whether or not the defendant is allowed to challenge the claims impairments at trial and i just want to be clear the specific allegation of error here was the objection of a trial that once the plaintiff's physician testified that she had an impairment that the defendant was therefore had to concede that part of the of the handicap provision that the plaintiff was required to prove i want to also highlight that there was dover motion in the district court that issue was raised for the first time in reply so i believe that the that this court will evaluate that issue as an abus discretion and the court didn't abuse its discretion in that regard there's not a single case cited by the plain for that i've been able to find that says a defendant cannot challenge the impairments portion of what defendant also had a physician who would disputed that impairments that was not enough that create an issue of fact that would be evidence that the jury could find that the that the everson plaintiff suffered from the impairment  same situation you have in this case where impairment is an issue you have multiple physicians testifying in the juror it's left to the jury to decide whether the particular impairment that the plaintiff had rose to a level of handicap so i would like to briefly go back to joe drovers question about the litigation updates in the meeting in point out that in the record there was also testimony from its patrick another resident about a meeting that occurred in april of twenty sixteen while this case was pending at which the board president stated that they had offered to resolve the dispute in court many many times with the jury sees in that in fact you miss the jury she disputes that that was a true statement and that they had ever offered dispute at all much less many many times and that conduct i think also goes beyond the pale of what's allowable for a condo association to do even in the face of litigation  next issue i want to touch on is this idea that we could have prevailed on the retaliation claim i happened to print this morning the jury instruction on the retaliation claim and it says element one this is jury she has a handicap so how in union square can argue that there would have been any avenue to our success in this case based on that instruction and given our objection to that particular portion of the instruction in the trial court is beyond me there would have been no way for us to prevail on that claim in the district court because of how the instruction was given in the instruction was was improper for all of the reasons that we've previously  conduct either because they themselves are handicapped or somebody from their advocating is handicapped and that is enough to to get to a jury and i would point out that union squares argument fails to explain how section thirty six seventeen has any meaning independent from section thirty six or for if they're correct the other thing that they fail to address is the difference in the language between thirty six zero for a and b and thirty six zero for after itself and one of the cases that they cite which is the rodriguez case from the second circuit looks at the differences between thirty six zero for a and b and thirty six all for c and points to the differences words because and on account of and based on in those words must mean something and they mean something here thank you comes up thank you very much the case taken under advisement