will hear argument next and more of the city of new york eighteen nine four seven  good morning judges i'm going to represent paula moore who's the appellant she believes that she was wrongfully terminated and she believes that she was terminated on the basis of her national origin and race and she believes that she set forth more than enough facts and evidence in the complaint in the second amended complaint american descent steeped in african american culture who says that she works for an agency that discriminates against african  american employee ease at higher levels and she attempts to give some examples of that so she says hey i was here for twenty five years then with with like in the same month  was terminated twenty five years later they say that i forfeit my own point in employment because i lived outside the state of outside the city of new york city you agree i take it that the job he held when she was terminated did have a residence you require yes absolutely but she wore it made it that she lived in england she did she did but you know i don't think that the the  the initial stage is where you make that determination about whether or not she has admitted or proffered enough information to show pretext for their given legitimate reason she did show preet pretext she said that another woman who happened to be african caribbean lived outside the city of new york and she named her by name that person's position was subject to residence you she did not in my position your honor is that that's evident shiri detail that should because that's a similarly situated argument and she's at the beginning she was able to say that she was able to name her she could only name her if she relied on the organizational chart which was attacked to my as part of my evidence in response to the city i could not have drafted the second in the complaint without relying on an organizational chart and by putting the names there i believe that that showed that i did rely in drafting the second in the complaint on the on the chart i did you how did you know just in connection with paragraph sixteen of the complaint that an associate staff that's where i got that from so the organizational chart doesn't show i mean it doesn't show what position missed nothing will gray had yeah i mean if you go to page one of six not in paragraph thirty six and thirty seven all you say all it says is one such employee who lived outside of the city of new york was nothing great a female of african and caribbean descent thirty seven who was not terminated but it doesn't say that there was a residency requirement associated with her doesn't even tell you what what she does but set that aside it does not say that there was a residency requirement associated with her job it's true but but the the plaintiff is saying that she the plaintiff is point out a few things one that they they leveled the requirement on her and also it's it's like we're what what is enough how how much is sufficient you know that at this beginning stage i don't know all that you know it's impossible to know even with the chart all of the need wants is of similarly situated which is why these cases oftentimes are decided at the summary judgment level when when people have had a chance to look at everything but but  determination being a pretext for discrimination was not right yes sir but i believe that by attaching an organizational chart even though it was a lapse of judgment on my part to not put in the written residency requirement in in the complaint that if you look at the at the org chart it shows that there they have the same civil service title so therefore they would have the same residency requirement now i was only able to name one comparative or for the living outside of new york city but for the part time work situation i was able to name two which are when when i say that plaintiff was replaced one by someone who is outside of her group that under littlejohn that is the minimum standard to show that kind of discrimination under this kind of comparative comparative theory and what we're really doing is arguing whether or not i'll know that you feel sets of these alleged that the latest qualified adequately yeah that's d issue here is by virtue of the fact that she didn't have she was not a resident of new york was she qualified for this job when she was qualified i think the presumption your honor is yes because she held the job at a c s for twenty five years at least eight or nine years of which she under the guidelines needed to be a cit resident of new york city nevertheless she says your honor this she didn't know that nobody ever asked her or told her anything and it wasn't until after she had put in these we quest for waivers  fact that leads me right into her letter in her letter the city argues it is not protected activity i strongly argue that it is because we're not just looking at and i think the latter is on page sixty seven judges were and we're not just looking at where she says oh i know my job was threaten and i'm discriminated against but she lays out the timeline which is basically saying to her supervisor defendant james you guys are trying to set me up to to terminate me the only reason that she would believe that they were trying to set her up to terminate her is so that they could replace her from someone who's outside of her group which they did and this is that in that's what the city was in in the doing jane certainly did know that this letter was all about discrimination so you your view is  nobody's going to ask you she's trying to do to tell the james and a long winded way that i'm being set up and when you talk about on an unfair employment practices under title seven the fact that she was asked for a hearing and was denied one can fairly be viewed as an unfair employment practice and she's and she's protesting  not notifying anyone as to the basis for that discrimination well she's saying my job is being threatened and i'm being discriminated against and then you have and then she tries to give the reader miss james a timeline of how she feels like she's been treated poorly being being set up because that's how she he says on him paragraph nine on top of requesting proof of my new york city residency the personal notice indicating the failure to establish and maintain city residents as harsh a result of forfeiture of employment and she's obviously like where is this coming from you know i she she's she's been caught off balance because she's been working there for years and years doing a good job nobody is never come to this until now until she won't accept the settlement offer may please the court jason anton for a pelleas plaintiff paula moore was fired because by her own admission she lacked an essential qualification for her position city residency a c s discovered plaintiff's true residency despite initial attempts to conceal it during a separate disciplinary proceeding and promptly took action plaintiff's claims of discrimination retaliation accordingly fail because she did not identify individuals subject to the same residency requirement who were treated differently and she neither plant protect residency requirement works is any particular agency that the presumption is a is a subject to the residency requirement the agency set forth several positions as designated hard to recruit or a variety of other exceptions that make them not subject to the residency requirement so for example at a c s as plaintiff herself alleged the caseworker of the child protective specialist position is exempt from the city residency requirement at a c s are also several several attorneys who are exempt from the residency requirement and it's that that's why you can't tell just by looking at a position alone whether or not that position is subject to the residency requirement now what point of could have done here is attempted to gain that information to get the good faith basis for her complaint the same way she learned about others who lived outside the city in the first place she was represented by counsel she had and she had an attempt to amend the complaint after judge sullivan identified the deficiency in her first amended complaint and still did not make the essential allegation based on information and belief or however she had to do it that there were others there who were subject to the same residency requirement who were not treated in the same fashion and that's why she's not qualified for the position and a c s did not acted in discriminatory fashion  getting in term her and it's appropriate for this court certainly to assess that issue here at the motion to dismiss stage i cite a couple of instances where the court has done so in my brief that's the shaw and new page case where there aren't allegations even to suggest to were subject to it in the first place but that's the key question and that's why this is without question a material aspect of whether they are similarly situated because the only way the qualification requirement could have been applied in a discriminatory fashion is whether it could have been applied to those comparatives in the first place whether they could have been fired by virtue of the fact that they did not live in the city of new york and also as i note in my brief had not worked for the city for two years and were living in a suburban new york county which would also make them exempt from the new york city residency requirement but even if the court were to go past it past this qualification issue i don't think plaintiff has even met the minimal burden of showing an inference of discrimination here not only because of the similarly situated issue but also because the various mistreatment that she alleges she doesn't allege that anyone else had similar conflicts of interest that were an issue she doesn't allege that the individuals who were demoted or terminated were not done that they were not done and it terminated for a reasonable reason they were terminated for a discriminatory reason so i think there are several allegation problems with the second amended complaint which again district court gave plaintiff an opportunity to replete that establish that she has not met the minimal requirements for moving to discovery  position in the first place which would be the only thing you would learn from the organizational chart itself and you know it in any event again looking at the organizational chart itself it does not indicate whether this new field grey was subject to the residency requirement it also doesn't indicate where she lived she may have lived outside the city again but in westchester or in nassau county which if she had worked for the city for two years would be sufficient with respect to the retaliation claim your honor and again it's two instances of protected activity alleged protected v but neither qualify the first with respect to rejecting the settlement agreement plaintiff herself alleges that it was because she wanted to clear her name not because she was acting or speaking out against protected discrimination and there's no causal connection here because there is no plausible basis for a c s to have known that she was she was engaging in protected activity and that they could retaliate for that protected activity with respect to the letter in particular as judged by a you pointed  out soley saying discrimination does not tie the letter to a protected characteristic that's what's necessary in order to render it protected activity and therefore again a c s could not have known that it was actually protected plaintiff was engaging in this case maybe there are other cases where context knows sure your honor there is no other context here and that's the issue and it's also important to remember that this letter post stated the notification of the residency compliance interview by a few days so it could not be that a c s retaliated for sending that letter because of the way the timeline works and for those reasons your honor we ask the court for thank you very much will