we'll turn to billy barnes against the new york state division of human rights and beth israel medical  of mr barnes complaint in which she alleged that appellee a pelleas rather best israel medical center and new york state division of human rights of unlawful discrimination and retaliation under title seven of the civil rights act and under new york state human rights law is opposition that the dismissal as it pertains to best beth israel medical center should be reversed the southern district court dismissed a complaint as to best beth israel medical center on the grounds of collateral estoppel and that decision by the court was off of looking at the new york state division of human rights complaint the article seventy eight petition and a preorder meant statement to the appellate division there's opposition that newly discovered facts  application of collateral estoppel those facts being that a key eyewitness in the subject incident that happened at beth israel medical center was coerced and intimidated by a hospital instructed by beth israel in particular the security department not to contact any of the eye witnesses in the matter is not to approximately a year and a half ago when fate has it he ran into the  hospital wasn't your suit brought more than ninety days after the right to sue yes it was it was brought more ninety days why isn't that the end of the inquiry this was brought up in the in  southern district court and the judge there never ruled on it yet but it was more than ninety days after why why do we need to talk about anything else because at this point you know the court has express and whenever there's a pro se litigant we're supposed to view the the pleadings liberally also in this matter liberally is not going to change that it's out of t got you're right you're on a boat when we look at the context and how we came to be at the southern district court or there were a lot of complexities in this case that i don't think that we can impute to someone pro se matter or doesn't necessarily have the legal sophistication mr barnes initially father internal grievance or any authority for the proposition that because because it's a pro se litigant who is is not familiar with with the law and  not sophisticated that he has that he can file his his claim out of time yes the second circuit case the court upholds that to make reasonable allowance to protect pro se litigants from inadvertent forfeitures of their rights because of lack of legal legal training i believe that case is instructive in this context i mean it's there's a deal ninety four page ninety five any as discovery of new facts vitiate the collateral estoppel application in this matter what we look at the issues that were raised in the article seventy eight petition and the subsequent appeal of the fun of of the findings in that article seventy eight proceeding retaliation was never the issue of retaliation was never brought up in those cases but you could have brought it up and you can bring it  which includes both collateral estoppel entries both the newly discovered facts and the and the issue and the fact that we tally ation was not brought up in a prior forum to go hand in hand if my client was armed with the information that rather than speculation that indeed a hospital minister is someone in management who worse than a timid aide in a witness in that manner as to threaten that witness employment with the hospital but is that going to do with whether an action was taken against your client in a retaliatory because those will provide grounds for retaliation and the fact that was in his department reached out to this witness dr uli yang and coerced into to meet him to such a matter where his fellowship was at stake and all employments division i would like to actually address that if time permits in a new york state division of your rights complaint my client doesn't it doesn't even mention dr yearly young as a witness in that in surely brought his name up as a witness in the new york state division of human rights so once again based on a for going to based on a record i think it's clear that you know the issues and the newly discovered facts vitiate any argument that mr berndt and just gave i did not hear anything where he appeared to challenge that smith's all so i would just be very brief here today what is the issue that is involved when a claim and a plainti sticks or have you under the substantial evidence standard of review as to the isn't the issue whether whether the officials whose conduct is being article seventy eight what is the basis of an article seventy eight isn't it based on on on an improper conduct failure to do their duty by by a state official correct or either as to  the station rights law claim which has the same general cormack that in order to be a liable under that statute one has to be the employer of the plaintiff unless the court has any further questions i'll otherwise rest of my brief that there is some authority but it seems to me that there's a that there's a a misunderstanding with respect to what is it issue in order go seventy eight proceeding in article seventy eight proceeding concerns itself with whether there's been some sort of misconduct or failure to do the duty by the state officials who are called into question by the article seventy eight proceedings it's not my understanding that this is a proceeding which reviews whether the claimant has a claim against in this instance his employer beth israel so regardless of what the what the where the judges in the article seventy eight in the review proceeding may have said what's at issue in article seventy eight as i understand it and correct me if i'm wrong is not whether the plaintiff can prove a claim against his employer but the issue is whether the state officials at the state department of human rights have done something wrong of abuse their abuse their position or failed to do their duty and and a conclusion that they have not a conclusion that the claim against them in the article seventy eight proceeding is completely without merit doesn't say anything whatsoever to whether the plaintiff has evidence of whatever he's claiming discrimination retaliation so i would say why is that wrong that you are correct as far as you go but then leave off the final piece which is it is a determination by reviewing court that the state agency has done the right thing by handling the capricious saying that that there is absolutely no evidence of misconduct or failure of any kind to do their duty on the parts of state officials is not saying anything about the ability of the pla to to make a case of whatever is claiming discrimination but one can perfectly well say these officials of the state division division of human rights did everything f and they did there was no abuse of discretion no violation of their duty that's not saying anything about whether the plaintiffs can prove a case of discrimination well i would say two things in response to that this court regularly does the same thing when it reviews agency determinations like those of the national labor relations board so when you sit in review of a nationally relations board determination you're reviewing that determination under an arbitrary and capricious standard of review the second thing i would say and then that means that the n l r b has had to reach a reasonable conclusion as to whether a violation of the law has taken place that's the same that happens with the state division of human rights and its relationship to the state supreme court in the appe division the second thing i would say and perhaps the more important thing is this issue has been resolved by the supreme court in kraemer versus chemical construction company so in that case where it presented a case almost all for on all fours with this one factually the supreme court instructed that principles of collateral estoppel in race judicata require federal courts to give precludes of effect to state division of human rights determinations of no probable cause that have been reviewed by the state supreme court and in this case of held by the appellate division perced portman judge swain when she relied on that principle that well established principle to dismiss the complaint in this case was doing exactly what crime are required and there's a result of that alone that the dismissal should be upheld but as your honor correctly pointed out there's another completely separate  independent reason for dismissal in this case judge swain didn't rely on it but you are entitled to rely on it here because it appears on the face of the pleadings in the exhibits attached to the complaint and that is that it is well settled under title seven  the civil rights act that when a plaintiff wants to bring a federal court complaint alleging a violation of title seven of the civil rights act that plaintive has to bring that complaint in this court in federal court within ninety days of the of receipt of an of a notice of right to sue letter that comes from the equal employment opportunity commission and tells the litigant you've got ninety days to file your federal court complaint here there's no dispute that that notice of right to that something of a problem with us deciding something to distribute didn't go on oh well i raised it immediately so the first pleading that i filed right after the federal district court complaint was filed was one that raised that as well as the raise due to cut g collateral stop police use why the district judge didn't didn't didn't rule was there any discussion of it with the district judge as to why the that would reveal why the district judge preferred to go a different route there was no discussion about that there the the crime or decision is so well established it's thirty five years and so clear that this missiles required in circumstances like this that i think that that was simply enough for judge swain and it is enough for them or was a new york division of human rights case so it's right on line and right yes you're right your honor as i said it's squarely on all fours with this case it's not just another state agency it's the very state agency the new york state division of human rights that made the determination of no probable cause in this case and that number of probable cause determination is there is no probable cause to believe at beth israel medical center violated the new york state human rights law