please the court new york is the largest employment market in the world new york city has been a leader in employment law for many many decades in fact passing an anti discrimination law for twenty years before the civil rights laws passed civil rights act excuse me and new york city has a right to pass a statute dictating that if you have severe diabetes and you know a little time extra time to get into work in the morning you can do so free from fear terminated because of your employment action claim as the first department has ruled in bennett which there can be no question is good law now that city council and the mayor have taken the extraordinary step of amending the statute to explicitly acknowledge bennett as good law to ban it the identification of the framework for evaluating the sufficiency of the evidence of discrimination cases does not in any way constitute an exception to the dash one three zero rule that all aspects of the c r all must be interpreted so as to accomplish the uniquely broader remedial purposes of the law in any event for us to create an exemption from the sweep of the restoration act for the most basic provision the city h r l that it's unlawful to discriminate when a perm impermissibly invade the legislative process profits and walling off from examination the doctrines that are appropriate shape the presentation and evaluation of evidence that discrimination has occurred would create just such an exemption so the fatal error in the court below is that instead of applying the lessened substantive standard required under the human rights law within the general analytical framework of mcdonnell douglas or alternatively the mixed motive the court below merely said i gave you the benefit of the doubt i gave you mixed motive that's good enough you cannot attack the sufficiency of the evidence as to causation and bennett the first department made explicit that the last stage of mcdonald don douglas the pretext bur  is lessened instead of having to prove the rationale is false and todo you know merely need to show that one of the many rationales thrown against the wall is false misleading or incomplete likewise in mixed motive under the city law whether we call it mixed motive or partial discrimination there is no initial threshold requiring that you have some sort of smoking gone or thick cloud of smoke whatever the nomenclature is and your honour's if you're looking for a narrower ground to overturn this case that's very easy and it's something that isn't addressed and in million or any of the cases cited in the opposition because this is the disability accommodation case and because the city law explicitly by statute allocates the burden of proof as to the reasonability of an accommodation it is an affirmative defense i the defendant instead of the element of plaintiff's claim and defendant didn't even plead it then evidence that was discarded in forrester one is insufficient to prove causation under mixed motive namely that plaintiff's disability related absence influenced a poor performance review which was then relied on in the in her to motion that's a direct line from her disability to her demotion the lower court said south pollo there is no per se on reasonable accommodation and that's because plaintiff doesn't have to show the accommodation was reasonable or that they could perform the job recently whether we think that's a good idea as a matter of writing statute instead the defendant has to prove it's unreasonable by the filling the affirmative defense that it would impose an undue hardship and so that evidence can be discarded for federal claims cannot under the city claims this argument was raised in the brief that really matter when whe there you're not doing the job well your honor because it rejects the reason it's relevant is that that is causation there are a lot of cases about the line between when do you need to accommodate employed by letting them come later absent you know so often and when does it you know tip the balance into your chronically absent it doesn't redound to whether you're qualified for the job it's whether the accommodation is reasonable or whether you can perform the job recently so that's why i think the burden shifting is relevant but my point in my question is to say that if you say the burden is on the defendant show that this was unreasonable why isn't that shown here because they didn't because it's an affirmative defense and they didn't even plead it and it would be improper to grant even if they did pleaded i think it would be improper to grant summary judgment on those grounds it's an affirmative defense the well i think they would need really overwhelming evidence and they need to show that as a matter of law under the city law that she was so chronically absent and frankly there's a big dispute a fact if you look back into the briefs and not the briefs the decision in forced or won as to how often was she absent because it's some point in time she is supposed to get there at eight and nine and there's something called flex time because it's twenty four hour coverage so it's not as simple as saying she had a specific time to come in and she had to be there if there is definitely a dispute of fact it's pretty muddy waters and here there's another ass little nugget of evidence that i think very clearly tips the balance which is that when plaintiff was demoted she made a complaint that it was discriminatory to h r and the person who demoted her the person who demoted or went to the head of h r said i'll take care of it no investigation was conducted instead the new motor just filed off a letter and said oh you want to reason here's why you were demoted and under the city law as bennett has said because the restoration act of two thousand and five from an ordinary civil statute aimed at compensating victims of discrimination into a quasi criminal statute aimed at deterring wrongdoing evidence of consciousness of guilt carries more weight under the city law and if you have nothing to hide why would you interfere with h r as traditional role in investigating a complaint why would you interview anybody why would you conduct move cabaret documents or conduct any sort of investigation at all that itself should also tipped the balance good morning your honor jacob helper and on behalf of cries then we ask the court respectfully to affirm the order of the district court granting summary judgment what i've heard so far today is the council want to do over there were three separate tribunals that consider the evidence the magistrate judge the district judge and another panel of the second circuit each of those tribunals considered a voluminous record and found there was absolutely no dispute of fact and that the evidence collectively and individually could not support any finding of discriminatory motivation or retaliatory motivation on behalf of corrosion that's already been decided it is not disputed now moving ahead to forrester to this case the court reviewed that reviewed the standards of the federal statute under the idea and the c h r l and determined that the finding that there was no evidence that could support discriminatory motivation a stopped any further claim because that was a necessary element of plaintiff's c h r all claims you go back half a step i remember correctly the number of absences that she record is that right it is it is disputed only an attorney colloquy your honor first of all that i understand your question i will answer it that doesn't matter for collateral at the district court already considered and plaintiff had a full and fair opportunity to present any such evidence that she wished on that subject but what judge karen fisted is reviewed the record looked at all of plaintiff's time cards because this wasn't he said she said she's punching in and punching out every day she has to report every time she's late for a specific reason including her diabetes and for f m las which she had and was using at that time review the record with a three day termination right about that i'm sorry your honor not review the record in regard to when she was terminated for three days the earlier termination he so your honor says some of that evidence was presented by plaintiffs in support of their claims of pretext and of mixed motives discrimination on the other issues but as in and of itself as a sole adverse action in forester one the district court did not review that however and forester to the district court did review the evidence related to that claim under the c h r l and again found that there was no evidence that could support a finding of discriminatory motivation that had been presented by plant i'm not clear that i understand how you respond to the contention that the standard is so different under the city law it because it's not your honor so the first thing is plaintiff has for the first time raised before this court an argument about affirmative defenses and what the standard is under the a d f a versus a city in the district court proposition that it wasn't raised in the briefing before this court your honor then discriminatory motivation and what we have is discriminatory motivation being a requirement under both statutes and that makes sense of course these are statutes to stop discrimination so we go through in our brief because identity of issue is required under collateral estoppel and under both federal law and the city law there is a requirement for discriminatory motivation under both laws plaintiff's position is under the city law you can never apply collateral estoppel because of the restoration act because of the liberal standard and there are certainly areas under the city law that are interpreted differently than under the federal law but one that is not is discriminatory motivation and why do we know that we know that because the standards themselves are the same and in our brief we compare them they are the same requirements under each portion of plaintiff's cla and we know that because the entire body of law before new york courts and these are all cases since the restoration act and since bennett the sole case you've heard about from plaintiff was decided they all find that not only can you apply collateral estoppel to city law claims based on prior federal decisions when the facts are relevant but that in fact the issue that it is appropriate is discriminatory motivation and we cited all these cases in our brief and in fact two recent cases that were just decided in the past few months that all apply this standard to city law if plaintiff was correct that couldn't happen but instead the new york courts are all applying it and they apply it to mixed motives claims in fact a manual one of the recent cases that we've located recently says that even in a bird shifting framework a finding of no discriminatory motivation can be applied to the mix motive claim under city law and that makes sense because if you look at the body of law under new york you still need to come forward with some affirmative evidence of discriminatory motivation by the employer if you cannot do that under summary judgment standard you simply cannot do that if there's no indicia of any discriminatory motivation was so ever now i could address the facts related to the allegations of chronic absenteeism but quite honestly the record is quite the luminous and they weren't really brief before this court what is important is that judge kara physis finding was that plaintiff was chronically absent for reasons absent from any sort of disability and that's the finding that needs to be applied through collateral estoppel if you even get your honor if i just lie to you i should be stripped of my ability to practice before the circuit but i didn't and it's on page thirty three thirty four of the brief and i take offense that opposing counsel has claimed that i didn't raise this issue in the brief the allocation of who has to bear the burden of reasonable compensation is absolutely raised on page thirty three of the brief but more importantly what you didn't hear in opposing counsel's presentation is an answer to judge valls question as to how is the standard different instead the answer is the standards the same really full decade after the restoration acts passed we're still saying the standard on the city law is the same it's not just ben and i'm relying on this is it correct that the  plaintiff must show the the conduct was headed scuba tory motivation oh of course otherwise it would give you a cause of action just because you fight that's the really the only element in an adverse employment action claim that's the whole ballgame your honor so if we're saying that's the same as under federal law we've just exempted adverse employment action claims from the sweep of the restoration act completely and that's why this case is deserving of hearing this is an important case that needs to vindicate important right and concerns an important principle of law and first department cases have explicitly articulated the lower standards under mcdonnell douglas or under mixed motive and those lowered standards go on addressed and in the decision and lo and in opposing counsel's brief what's happening here is people are putting their fingers in their ears and saying sure you change the law collateral stop the collateral stop the collateral estoppel the best case scenario for defendant is that the case is relied on in their brief wildly at variance with the other appellate authority like bennett like cattle a gross like watson it's at variance with judge forrest decision that's quoted below and judge press this decision quoted below about the distinctions between the laws there is a difference people in new york have a right to vote who they wanted to office and passed their own laws and that's what this case and so i would just ask your honour's to to to look at this case and to think about whether a summary order is appropriate or full of opinions appropriate with regardless of whether we win or lose it's an important case and there's a lot of there's a lot of gray area and chaos in this area of the law and i think a definitive answer from the second circuit is the thank you thank you very much