good morning your honor so i'm david abrams here on behalf of miss martinez and i respectfully submit the district court was incorrect in its decision on granting summ judgment against my client every speckly submit that the record shows that at a minimum there was an issue of fact as to all the elements she needed to show under the new york city human rights law and most importantly this because i have this eye condition yes your honor for one thing it wants the proof of that for one thing she sent a text message to the person that she worked underneath saying my i was acting up today and this is on the last day of work i was a coll i wasn't i wasn't a supervisor or someone who she worked underneath i would say the evidence shows that that person had enough authority over her that that person could be considered a supervisor she also test i was like last day before that and she also testified that some of the times that she was written up for coming to work late she mentioned that it was due to her condition and then of course the last piece of don't think so your honor and then the last thing of course is that the hospitals do records the records to show that when she grieved her discharge she advised them so that since it's after she's determined that that's correct your honor so it's it's our position that according to what she said and the evidence she's presented there's an issue of fact  as to whether the employer was on notice as to her condition and the need to accommodate her of course the other legal issue in the case is whether after she's just charged the posta terminations to have us even assume for the sake of argument that there's enough in the record to conclude that she informed the employer in some way based on it seems to me we have to be based solely on her statement at the depth of her deposition that she did and corroborated by anything else but let's assume that's not your client was offered an accommodation two different accommodations and she selected one and she never said that accommodation was insufficient so why isn't is the district court concluded that enough to resolve this case own or an accommodation has to be something that lets someone perform the job and here on the final incident where she was late to work a couple hours due to her condition just having a simple change in schedule would not have been enough she accepted it that's the point she accepted it didn't say no because i'm just going to i'm there are times when i just won't be able meet them and then she contacts not the people who she's dealing with who she previously don't know about the accommodation she contacts she should never contact the one person that she dealt with to ask should she offers an excuse the fact that she emails a colleague in such she's going to be late and doesn't sound like requesting accommodation of a person is the authority to give it to her and  we assume for the sake of argument that her deposition she miss reppert misremembered what she said at risk submit that given the statements at the prior warnings and the the text message and the post terminations message that sufficient to put the employer i notice in that she doesn't have to formally request and a thing what i was starting to say was there doesn't seem to be any dispute  that after she was discharged she made the employer aware of the reasons and i submit that under the city human rights law the post terminating grievance that's a term condition of privilege of employment  to which her rights attach and therefore it was wrong for the employer to deny that grievance i have nothing further to add in this as any other questions that hospital was aware that ms martinez suffered from this eye condition prior to the grievance that that mr abrams referred to the four individuals who were involved in the decision to terminate her all accommodate ms martinez's claim and then there are the problems of the fact that i think is your honor mentioned there is the phone call where she testified in her deposition oh i told them it was because of my i and the recording of a phone call says she didn't she testified that there she submitted doctors notes in doctor's letters they don't know if they were introduced in discovery by the plaintiff they don't exist in any of the medical records that we've taken in discovery and there's no record of any of them advance sinai and lastly she testified that her  e condition was treated for every flare up that she had for the last ten years by a doctor jackson and we submitted a hippo compliant authorization because the release of her records what we got back was a statement saying there is no such patient at this facility insubordination in her performance evaluations over seven or eight years they all mention were frequently mentioned absenteeism in the comments section she never mention the fact that this was because of her eye condition it simply is is sort of  illogical that over that long a period of time up to and including when she was told if you're absent one more time you'll be fired that she would not have told somebody in some document somewhere that she suffered from this i condition and there is not one person not one document on one medical record in this in this record that suggests that she suffered from this from this condition and then on that on the flip side the evidence that she introduced is is nothing more than sort of the self serving conclusion of testimony that sort of been rejected by this court on a number of occasions as being sufficient to avoid summary judgment as a matter of fact her testimony is so inconsistent at her deposition at one point when asked what did you tell your supervisors eye condition she said i don't remember i don't know that another point she says she did that testimony is so conflicting that if you look at the brief submitted by the plaintiff to this court and if you go back to the fifty six point one segment submitted to the district court there are virtually no citations to that part of the record what we have now is an affidavit that was submitted by the plaintiff that has a whole new version of what took place and even that is conclusion i think it's all in paragraph fifteen of her affidavit which is in the record that no reasonable juror could ever enter a verdict in favor of the plaintiff with with that evidence just briefly with regard to the accommodation as the court pointed out ms martinez was offered to accommodations to start time for choose originally scheduled to work the two for the need it offered her a thirty to four thirty or nine to five and shit this i think at the same time and she accepted the eight thirty to four and i think the purpose of it was they had given her a final warning at that point for absent for lateness i'm sorry and that when they sat with her to talk about the final warning they stay had a discussion with her about some way to avoid that problem so other than the fact that it's connected to the issuance of the final warning in the discussion of the final warning i think that's the reason it was done because at that point it was an attempt to save her from having this latest problem have her correct the lateness problem so i think that she should if they were they a fulfill their obligations to accommodate her and then last with regards to the the issue about her post terminations grievance well first the argument was in the court below that the somehow it applied to her because the statute uses the word persons but a number of cases including a case in the southern district of said that persons doesn't mean persons in the world at large it means employees and then confronted with that argument for the first time before this court we now have the argument that the oppos terminations grievances somehow a term and condition of employment and apart from the fact that the court should consider an argument raised with a first time on appeal the fact remains that there is no authority for that proposition and it's after the employment relationship is over and the statute only applies to you just to clarify and i checked and that argument was raised at the district court level that's point one it's it is in the record and i don't think it's part of the but it's in the district court dockets and second at three i mean excuse me it's not in the in that the enormously don't include the the the briefs from the lower court in the record so but if it would add that i respectfully submit my adversaries asking the court to resolve disputed issues of fact perhaps my client's testimony wasn't entirely consistent on what sort of notice she gave the employer but i submit there's enough in there that the jury could believe that she did in fact advise the employer of the reason why she was having some problems with work even if we agree with you as to i understand your argument that you're back evidence in the record unless i'm missing something she alerted the employer that the commendation wasn't fully sufficient and i'm not sure that you can raise in the post a termination grievance after the first time that i needed a different accommodation would respectfully submit that you know being disciplined for something and telling the employer will the reason why i did this thing that you're disciplining me for is because of my medical condition i submit that that's sufficient  yes it's not a specific well the earlier accommodation you gave me is not sufficient and it needs to we need to have an interactive process over but under the standards of the law i submit that that's enough thank you both for your arguments the court will