district court said that no rational jury can find that plaintiff was terminated from his position and that the only conclusion we can draw from his record is at the point of resigned his position and in doing so the dish a court resolved it disputed issues of my ask about the the application or the new york city human rights law and state law here i mean it just seems to be pretty substantial security that these laws don't provide nonresidents the positive action or discrimination pride of new york and so so why isn't that something we should take notice of the structure that issues that preliminarily wasn't i don't think that issue came up in this case so we didn't have the to be based in mississippi he worked only in afghanistan and was trained for that job in mississippi there's no indicate ation that mr ware ever set foot in new york in his life there the only new york connection i could find in the record perhaps you can help me out and more is that the parents holding company of the company for which he worked is headquartered in new york though incorporated in delaware but i didn't see any indication that anyone in new york knew that mr ware existed let alone took any action in connection with is terminations nor any other  discrimination against him or anything occurred in afghanistan so can you help me out i meant what i understand your waiver point and that may be enough to carry the day but it seems strange that we should apply a new york city ordinance under the facts that i just outlined ok your honour's summary of the new york connection sounds accurate to me although i haven't viewed that because i didn't anticipate that issue coming up today because it hasn't well it was raised i granted in a footnote in the other side's a brief and you did respond with the waiver point but you did not resist you had the opportunity to to respond i'm not blaming you but  you know that's that's those are the facts it was raised albeit in a footnote there is sounds like an argument that if they were serious about it it would not have been relegated to a footnote it would have been you know fully developed into a brief but since to show that the plaintiff resigned his position because he testified that he never resigned and a district court and an even without even with waiver the title seven this would not be applicable to the title seven claim of the retaliation c gertie says he quit during that conversation now there's some corroboration i guess because he made consistent statements right after but there's no other witness to that conversation and no other documentation of what happened it's not on tape or anything so it's really a one on one call is it correct it's purely testimonial the defendant does point to only what about what about the december nd e mail ok was just about to talk about that there was an email right into play that was fired in which jordy says this will confirm that you accept your resignation this is right after that contentious phone call plaintive says yes you will hear from my lawyer soon with the title resignation and it's end it's responding to the raise we accept your resignation yes that's all that and you're us well he didn't say yes period i reaffirm my decision to resign and he just you know that i don't think where's a decision to debate this issue he had just been fired totally bewildered at what happened because it didn't see it coming and he was a highly regarded employee so you fired and on the same day of the day after to say testified i think in his deposition that he was not sure how his employment ended so that seems to me to be not entirely consistent with the position that he was fired but that same line of testimony and deposition he said he never resigned again did not sure means you know even you know they're making an issue of it in his deposition that he doubted him yes mr bernstein he didn't he didn't say not being sure though is that after the fact when they didn't renew his visa and he couldn't get back to afghanistan then he realized he was fired something like that right that is that highlights the we all know what yes means the president clinton had a different view with that but nevertheless i think we all know what yes means he testified at deposition that he was not sure how i was  communicated with human resources saying that where resigned human resources said confirm it and he sent the email confirming it and then the records of the company show that they listed him as things you know be asli it is some corroboration that he told a consistent story from the beginning but i'm not sure that any of those things are even admissible in extended where's employment when where is contract of employment ended after where alleges he complained of discrimination on september  as there was a media she walked into his office according to both the testimony and deposition as he was hanging up the phone so he ed occurred immediately there was there was no there was no delay delay in that whatsoever so we also have the hostile work environment claim we have the question of waiver and the panel has addressed that and i would submit that it's not possible to waive this because it is a matter of due process and it is a matter of due process recognized by the supreme court of the united states there's a case phillips absence of any connection to a state here a city as a matter of due process that law cannot be applied and how is that a case mr besson in which the supreme court said  arguments that your due process rights are violated by the by a particular choice of law d is something that cannot be waived no they did not say it cannot be a way that was an issue that was it was raised and it was held there was a due process violation don't parties all the time d enter choice of law provisions that are then binding on them and indeed isn't it somewhat routine for us to find the parties don't address trace of law and then we say well they all cite new york law i guess that means they've agreed that new york law is binding and we need not address the trace law question well your honor in that supreme court case although the supreme court that used the word waive the supreme court did say two things one is the fact that that eight party chose this forum and participating in litigation does not matter otter and secondly  think they also said that the the choice of law doesn't matter either it's a question of is there are eight connection or a sufficient connection and this court has held that the new york city human rights law only applies to people who work in new york now on the hostile work environment claim i would like to point out that helen where in his own writing just less than a month before he is employment ended in employee comments to his evaluation of performance review wrote managing three thousand lines was it sure but i enjoyed it and with the help of my supply team got it running efficiently there was not a hint of dissatisfaction with his job let alone any sort of hostile work environment this is again where speaking contemporaneously even though where is now claiming on appeal that by then he already complained about discrimination a number of times i just don't think that that's credible and all is well as the district court judge said where highs in terms of the elements of hostile work environment is no concrete particulars and most importantly no comparatives i mean his compar white employees were treated better which white employees how were they treated better what happened there were fourteen months of discovery in this case fourteen months and he has come up with nothing other than his own conclusions saying that this is the way it is and essentially that's all i have we'll hear a rebuttal sure on the hostile environment it sounds like a credibility argument to me that that where may have expressed satisfaction in doing certain job responsibilit doesn't mean he was acting with the way things were going to work and he testified in various ways that this workplace was not hospitable to black employees and he said as such to the complaint of discrimination why how does it make sense then that mr gerardi would take a pretext to fire mr ware in retaliation for something he said in september when where could have just not renewed his employment back in november and didn't need if he was looking for pretexts to give an outstanding job of valuation so how does that make sense plea argue that the planet deserves to be fired now prior to that there was no way to justify the plaintiffs germination unless you just want to come in and say you're fired and that doesn't really work in the workplace you normally have some just occasionally you can rely on it may not fired because of this credit card business he said you quit welse that's supports our argument if he's going to lie about whether the plan of quit that sort september th you're discriminating against me and you hold me to different standards because of my race and a few months later plaintiff is fired and they lie about whether a plane of quit which is then cover because the unofficial reason to be exten arises the credit card misuse wasn't enough to fire somebody an h r only recommended a three day suspension and jar and where pays it back and so to the extent they're relying on the credit cards episode that's pretext to you know when we get into it mean if you say i didn't quit it means you didn't resign or how did he leave his job what happened it can only mean he was fired and you know these are issues for the jury and there is no compelling evidence on balance side of th