greenberger for the palin's the district court's decision here here should be reversed for two reasons first the wrongful termination claims were dismissed on a preclusion theory but even the district court recognized that the race and religion claims were never raised before the state court nonetheless dismissed them because it applied the clearly erroneous race judicata standard and also if you look at the facts here the state court never reached the nationality discrimination claims if we review right if we review the record and we concluded that no reasonable jury would find for your client on the merits we would be free to do that correct you would obviously be free to do that your honor that it would you know we would suggest that it be rebranded to the district court for consideration in the first instance but  there was a diverse department trial which all of this was explored he admitted to seven six or seven of these and of these charges and the one that's really serious was when he went to the for to speak to a prisoner on a personal matter using his authority of the police and then lied to the authorities at the prison that he was acting on behalf of interpol and  that was pretty pretty serious and was a basis it seems to me before concluding that there was a legitimate nondiscriminatory reason for this terminations based upon the police recommendation of the deputy commissioners recommendation but that the the prior recommendation that went went to commissioner kelly but the question your honor is is not whether they had grounds to terminate him the question is what was the motive what was commissioner kelly's motive when he chose to terminate him notwithstanding the fact that the hearing officer who hears many many of these cases thought terminations was not was not appropriate and i think the most powerful evidence in the summary judgment record which again the district court never reached but the most power powerful evidence is the comparative evidence because it shows how commissioner kelly chooses to exercise his discretion about whether to terminate or not terminate an officer found to have done misconduct and the closest compared or that they found that was terminated was a police officer who had actually hired a hit man to try to kill his ex wife that's a that's eight hundred twenty eight in the record and in comparison what we have is that another officer for existence an example this is in our reply brief footnote eleven is made forty six criminal visits despite his supervisor ordering him not to he multiple had on multiple occasions he had domestic violence incidents and he didn't inform the police of unusual occurrences and for him he wasn't terminated he just lost forty vacation days and we have another  forged a loan application and he made repeated visits to rikers again something he wasn't supposed to do and in that case the hearing officer suggested a forty five day penalty and kelly disagreed he lowered the pellet penalty and that's in general what the comparative evidence shows that kelly was never the one increasing the penalty he either stuck to the recommendation or actually repeatedly lowered it and so a jury is entitle to look at this comparative evidence and try to determine what was commissioners idea to spy on muslims and it's popular we have his and all of this is part of a something like thousand page or more summary judgment record which the district court has never looked at and if we were to try to address this issue we would be deciding a complex a summary judgment issue in the as a court of first instance basically that's correct your honor its orders are basis for arguing that there's a hostile work environment here on the locker or making slurs verbal slurs that make it very uncomfortable from a day for the person to work on a day to day basis isn't your hostile work environment simply the fact that there was an investigation going on a few things your honor first of all this is again a question that the district court never reached mr butt but answering your question i would agree that this is not a typical hostile work environment but what we have here is a pervasive investigation that lasted over four years that went into all aspects of his life and his family's life and especially under the new york city human rights law which has a three year statute of limitations which has a very broad vision of if there of commissioner kelly's possible bias there's no indication in this record that commissioner kelly personally directed this investigation to take place is that right that that's correct john doe so this would have to be evidence that this widespread investigation was itself undertaken for discriminatory reasons that's correct and i and i can tell you some of that evidence which again the district court didn't reach one of the most striking pieces of evidence is that the the city chose to reach out to the joint terrorism task force about this case even though commissioner kelly said the department policy is only to do so when there's a suspicion of terrorism there was nothing about this case that should have raised a suspicion of the right one but that i hear that they're just trying to figure out there was a very detailed investigation as there probably should have been if it was somehow wrong or even discriminatory to call up the joint terrorism task force and ask them do you have anything on mr abdul all well the answer was no and as far as i'm aware it was mr  ever even aware of this until later when litigate starts and and so on well he was aware how in the words how would reaching out and calling up the joint terrorism task force and saying you have anything on abdul or anything on good do for that matter have any impact at all on mr of gauls professional working environment a couple of things your honor first of all under the new york city human rights law it's not the question about whether it's per you know affecting his workplace environment it's whether he's being treated differently and it's on account of this is protected characteristic so i'm talking about how he's being treated differently he's going through this in depth investigation and part of our evidence that it was on account of that is the joint terrorism task force the other part is we have a direct statement of the type that's very rare in the state day and age that the reason that the supervising investigator contacted the joint terrorism task force what was in the back of her mind was his middle eastern status that's the type raised and applied the correct state law standard which is res necessarily decided that according to the district court said the point of could have breached these claims chose not to in their force but as in the claims  precluded and that that's claim preclusion and in our case law says you don't apply claim preclusion in this situation will certainly the court explicitly found that he had chosen to raise the national origin discrimination claim  civil rights claims are not precluded by the prior article seventy perceiving certainly as a general rule as a general matter absolutely yes and we moved based on collateral stoppel that's what we're arguing there may be there discrimination yes i understand we know that under state law so when an alphabet a factual allegation of discrimination is levied in article seventy a proceeding it's levied generally and it was here to persuade the court it's a fact that's levied to persuade the court that the penalty was disproportionate does that apply when it's raised in a footnote and when the city affirmatively argues in the article seventy eight proceeding that he didn't effectively raise this and so you shouldn't pay any attention to it a couple of a couple and then that and then the court doesn't allude to it a couple of responses to that if i could your honor the city me the same argument there that it is here which is that there is zero evidence of discrimination and also that there was a legitimate reason for the actions taken and so if the court the city didn't argue that it was improperly raised the city argued that it was unsupported something can be raised and decided without being affectively litigated the cases are very clear about that so but under the case law the fact that the court said that it was the penalty was not shocking and substance and that there was substantial evidence this court's decision in maggio for example and multiple other ones we cited in our brief that that's effectively in saying that it was rash substantial evidence is the same as saying it was an arbitrary and capricious it means it wasn't motivated by an improper purpose and also that the penalty wasn't disproportionate and the  argument he made was that this was discrimination based on his a gypsy anational origin that was one of several things that he said in the petition and in the submissions certainly the one that you allude to the only quote from brief was terminated because gyptian national origin must be rejected because he made no attempt to develop this argument cite the relevant standard a case worker or provide any evidence to substantiate this allegation to the extent he refers to his federal case in a footnote these conclusory statements are insufficient this sounds to me like inviting the court to disregard the argument as being insufficiently made first of all but secondly it's only about national origin right not about race or religion that his position jumbled all of these things together right so he said in his petition that he was profiled and investigated and scrutinized in or on orders of commissioner kelly that's an paragraph seventy eight of the position and he she jumbled all these things together in his brief at the hearing so his position was they treated me as a terrorist because my name is mohammed abdul and i'm from egypt and he didn't the surtees as distinct forms of discrimination i think that's what the district court was getting at certainly there can be no dispute that they explicitly made a pitch to the appellate division that the penalty was disproportionate because it was both racially motivated and motivated based on national  out in the district court and in our brief require showing that the municipal customer policy was the motivating force behind the activity and there's been no showing of that and by the way they deposed commissioner kelly and they asked him questions about his role or lack thereof and i be investigations and that was not included in the record because it was unhelpful to them so i don't question to simply whether the district court considered the longer a four y employee who has eleven substantiated disciplinary violations is not workplace harassment cautiously investigating why a police officer would pretend to be part of an interpol investigation and  merits of these things and it would seem to me that our job here primarily is to decide whether the district court erred in the reasons that it gave for dismissing this and not to be undertaking to and three and three years for the city claims right but also didn't correctly perceive what the hostile environment claimed included because it purports to include things the post dated the investigation itself now again that may be wrong too but as a matter of stature limitations in the district court just get this wrong what i'm suggesting your honor is that i will wholly fail to point to anything that could be construed as a continuing violation or an additional harassing act after the limitations period so the fact that district courts seem to focus on the investigation that and it's time for thirty two thousand and nine it doesn't refer to anything else but there is evidence in the record of later later events later facts which may or may not be discriminatory but the district court doesn't address them because there isn't and there's no way that they could be construed time limitation on the the original investigation so it had to be terminated just and there is actually an in negative or inverse relationship between the be investigation and the placement on disciplinary monitor and i would be investigation to determine whether these other things had occurred the criminal sociate in etc they determined that it had not and then they brought him up on disciplinary charges for all the other things right all of the other stuff that happens and then he was placed on monitoring and the integrity tests were about whether he properly documented encounters this is a person who had multiple issues about documenting each partner was in the one case in which they both jointly did the same thing if i'm would like to address that i'm glad you're on a raise that because that relates to some  mischaracterizations of the records that were first levied in the reply brief on appeal his partner had a parking ticket and he had unsubstantiated c r b allegations and chronic sickleave abdal also had unsubstantiated c r b allegations he also had chronic sickleave neither of those things were a basis for either of them to be disciplined or investigated and that's a factual argument and you're asking us to look at the record  i'm suggesting your honor that there's no greater indication of the weakness of the claim than the fact that it's been such a moving target across this appeal and that we end in the reply with a mischaracterization of the record and citation to a new yorker article that was published while the appeal w there is a presumptive first amendment right of public access the presumptive right presumptively here no because there is a protective order in place and so there it is the question is whether that that is legitimate  you have a protective order during the discovery i understand that but then it's not just about the discovery and the documents that privately go back and forth between each party as to which there is confidentiality now we have a district court and then we being asked to evaluate what would seem to the member of the public to be serious allegations whether they are or not depends on the record and that's adjudicated by the courts based on records that are now sealed and i'm having trouble understanding why that is justified now i understand certain redactions names of comparative years maybe even identifying specific information about comparative and so on but what what is the basis for saying that the public is not entitled to know about the facts of how the police disciplinary system works so couple of things  could in your own response that your honor certainly there's a way and that has to happen there's also a line that ever happened as bad as never happened if it didn't happen because the parties consented to this but now they don't consent anymore and now i'm not consenting we spontaneous addressed this question and we not as to what what happens in this court and whether it should be sealed or not only your honor but but but what i want to understand is what process do you propose should be in place for us to decide or to send back to the district court to decide which of these redactions are actually necessary because of some compelling ration now and which are not because it seems to me that that is the standard that is appropriate to to apply  documents that will form the bait have formed the basis for haps for the district court's decision will form the basis for our decision certainly we as we've said in our papers we believe that if this was raised at all it should be in the district court so it can be determined on a more granular level there's also of course law enforcement and other public interest privileges that come into play when you're looking at the entirety of an eye being that this is this maybe if i could just make it so and the summary judgment record i understand that that there's going to be a lot of material there and it may be appropriate for the district court to look at that in the first instance but the briefs that are filed in this court are my principal concern and there's a lot of blacked out stuff in there that i'm not sure i understand why it's blacked out i believe both sides blacked out the material that's cited to the sealed appendix in the case but that's circular you know it may be that again there's a lot of stuff in the sealed appendix and i don't think that this court is in a position to undertake a review again of a thousand pages of stuff and figure out line by line what should come out but it's a much more manageable task to look at the specific items that are in the briefs and decide what you think we should do now why shouldn't the parties go back and undertake a good faith effort to understand what really needs based on a compelling interest to be sealed about the briefs are redacted from the br dallas's about the record as a whole and i file as a whole so the city needs to have the opportunity to address that in context it doesn't anywhere you want in context out of context by reference to anything you think is appropriate but i'm asking you is there any reason why we should not order you and your adversary to sit down and negotiate in good faith about what needs to be redacted and what does not need to be redacted in the briefs and then submit under seal if you wish briefing to this court about what you disagree about and why i think your answer is you have no objection to engaging in such a process with counsel for the other side we have no all we're part of the privilege from our perspective has to do with the law enforcement and public safety privilege like that and you can then point that out you're just having a discussion with the other side about whether it's possible in the end your position might be it's not possible and it should go back to the district court but in the first instance it seems to me it's not a big deal to talk to the other side about whether any of the briefs filed in this court can be unretire acted or any portions that your honor i have certainly have not been authorized by my client to agree to anything you your honor first i was surprised to hear my adversary not be willing to concede that the district court applied the wrong standard it clearly applied the wrong standard plaintiffs could have properly raised all of these claims referring to the discrimination the disparate treatment based on race and religion claims before the article seventy eight court but chose not to so there really i don't think there can be any real dispute and turning to the national origin claims my adversary cites the penultimate sentence of our brief and the reason that in the article seventy eight the reason she does so is because it's a thirty nine page brief it's in the record and that's the only place in the brief there's really just two lines where there's any mention of national origin discrimination so it's not surprising that the city's position before the article seventy eight court decision like this to do in this case i think your honor should reverse on both of the procedural grounds and should remain for further proceedings  consistent and then these district court could take up the summary judgment on the marriage it could your honor and i did also just want to address very quickly the redaction issue i think it's actually appropriate for this court or not the district court to decide whether its own briefs are sealed i don't think that's appropriate in the district court and we're talking about one hundred thirty five lines this is something that the the city should be able to look at and have somebody look at those hundred thirty five lines as far as i can tell nobody has to date and and try to decide whether there's anything at that level of generality that's really privileged here i don't think there is i've read every one of those hundred thirty five lot of you know we actually we read the whole 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