accused and treated at the sexual predator by the defendants and it's an accusation that he in patently denies and want nothing better than to confront his accusers and in the course of the underlying litigation he groped in a number of proceedings to try to learn who the accuser was so that he could co predict st time of certain e mails sent on over an october th and october th of two thousand and seventeen thereafter shortly thereafter he made a preservation request for information was initially electronic information was initially told there was none and learned on january th two thousand and eighteen that there may have been but it was destroyed he filed there after a pro se complaint before the new york human rights division he tried to file it on august rd two thousand and eighteen and nothing happened  for the longest period of time so he filed then while a p p piece of paper had been filed and apparently mislaid a federal claim on october thirty in october rather of two thousand and eighteen using mandatory language that a complaint shall be filed in any of the regional offices so we take the position that the district court erred in dismissing under the election of remedy dr and that in fact mr sullum admitted into the federal courts st by operation of the commission don't rule is intentions may well have been to got to the human rights division st but when they lost mislaid or otherwise failed to communicate with them about its filing he felt that he had no option but to turn to federal court so he did our view is that he did a lot and did plenty in his efforts to ascertain the identity of jane doe and the dismissal caught him by surprise claim that there was that res judicata is a political in this case that i would ask the court to pay specific attention and peculiar particular attention to the human rights division decision on this case said which is in the appendix at page eighty dollars realizing this one of the issues in this case is going to be the failure to disclose or otherwise interview or otherwise get a statement under oath that anything wrong from the alleged complainants of the human rights division says i'm not going to take  other allegations made against him but he done no more than produce a conclusory allegation what more could he have done we suggest and then deny to be engaged in misconduct of any kind for the human rights division to be as coyer as it was in with respect to amendments and that liberal and that civil rights complaints are to be construed liberally in this instance he sought to amend mr solomon did by occluding among other things a title to claim that asserted that in the wake of his mother's death its appearance was unkempt as a jewish man who neither shave nor cut its hair at that point can you any any turn to the store and the store lee acted to the man that appeared to be for them in ways that amounted to what we will refer to as disparate impact rather than intentional discrimination it appears to be an open question of law whether disparate impact can support a claim of religious discrimination in a title to context we would like the opportunity to present a color record on that below so that we can pursue that claim as to the duty of care claim that we made we recognize the impact of the new york state decision and that so eliminating the distinction between invitees life and trespassers but in this instance we believe that whole foods was under of an affirmative obligation to assure that people walking into a store were the target  frankly of what amounted to at the time something like mass hysteria it's one thing to say that women have historically been the subject of sexual misconduct it's another thing to say we need to we're going to believe the woman and we're going to take no steps senselessly in this court and in the new york courts he sought the st administrative remedy through the human rights division when that division failed for reasons that are unknown to act in a timely manner on his complaint he could went to the federal court to initiate an action before the statute of limitations was blown people he had every reason to expect that in the federal action the identity of the young woman would get there if she is young would be would we would be made be made known to him if not to the rule twenty six disclosure asian under title to civil rights based on gender to human rights violations back to title two civil rights claims based on the legion to a chance to amend the complaint of certain new cause of action from sex discrimination to discrimination based on religion or a novel argument the latest being argued on reply for the st time to start of packed today this court hearing three issues as it relates to the appellate the application of the election of remedies doctrine as it applies to human  binding that the plaintiff elected to file a claim before the new york state division of human rights chose to prosecute that claim and wait for a decision never withdrawn yet to assert it in federal case in the federal case new york executive law two hundred and ninety seven cannot be knowing that it was dismissed in opposition plaintiff argued that he should be allowed to allege title seven and title to the surprise tax based on again never moved to men to allege human rights violations in the interim plaintiff admits that the new york state division of human rights decision was never peeled an article seventy proceeding was never filed that was in appendix one hundred and fifty seven dollars despite this plaintiff takes issue with which is when the claim was submitted and argues no jurisdiction ignoring that no time to preserve this argument plaintiff's argument that the complaint was filed in the member two thousand and eighteen august two thousand and eighteen the date of the decision and therefore somehow this incident actually takes priority not raise human rights claims in fact plaintive in his opposition was to amend to allege title seven title two civil rights allegations the opposition was filed after the new york state division for human rights decisions finally for plaintiff fail to peel the decision of new york state division of human like simply plaintiffs elected to prosecute it going before the new york state division of human rights elected not to withdraw the coins you also elected not to peel the decision something he had as upright yet today argument that he was not afforded due process and trying to hearsay was used is baseless indeed the court in new york did not consider that argument as full rank hearsay new york state division human rights found no probable cause based on  occasion conclusively established that the complainant was a known customer whom by his own calculation frequent it responded a one thousand times while he was male and you know it and that he was spoken to by the store manager and the police because others made allegations against him there is absolutely no evidence beyond the complaints conclusion reallocation to support that the respondent issued a notice of trust that's discriminate against the complainant because of the sex and or here the district court correctly help set the that the plaintiff has barred as a matter of law from pursuing human rights violation claims and got a court as he found terribly elected to prosecute claims before the new york state division of human rights and not appealing turning to the civil rights claims in his brief plaintive argues he was discriminated based on his religion while similarily argued that it was due to the need to movements which would speak to his sex rather than his religion sex is not covered under title to the civil while liberal construction is applied plaintiffs are still required to plead essential element for discrimination under title two of the civil rights act mainly he does not claim that he was upright the use of enjoyment of a place of public accommodation in or admits that the issuance of the trust best letter all of the complaints made by the several customers which were not about his religion but about inappropriate standards he made to the customers just like the court in grey versus white house had a specific policy that negatively impacted the customer of the jewish race this argument is raised the st time in plaintiff's reply papers and the only possibility that is if it's allowed to proceed maybe he could you i would like to ask you at the time that she sought to amend his complaint by alleging religious discrimination under title two what was the history of the previous amendments to the complaint and as a result of previous amendments to the complete what was the standard by which a district court was the standard for a district court decision as to whether primarily to the to the jane doe allegations and when he did that he did rage raised title two arguments as well as religious discrimination and then he moved to amend it  again where after we filed our nd motion to add additional arguments to the religious discrimination the judge when he looked at the complete the motions and the motion to amend he based it on whether or not the a cause of action on the title to that it is such a cause of action would be viewed kyle and he was correct on that issue because if you look at the nd amended complaint which i believe i cited to the record it's  says well you know i was at the time i was uncapped because i was mourning my mother doesn't know had anything that would even give rise to a potential claim that some way somehow does the original some have played an persuasive but there's nothing alleged in his complaint that would permit the defendant to know his religion but i'm wondering whether whether in view of the previous amendments to the complaint i thought i wrote it down my apologies but it's just part of the record and essentially it's it's it's addressed to david doesn't references last name when the issues are trust us brother didn't know who he was other than c so the fact that h correct once once once the interactions once he reached out to the manager then he would have learned then he would have learned his name yes but at the time of the times i don't think he was exaggerating he was a very he was regular people knew him and dave in the store there were few incidences that gave rise to that gave rise to  approaching dave at the time in fact plaintiff himself admits to new york state division right the police that of customer coke we saw on him because of something he may have that something he communicated to the customer so they knew him as date that's all they knew him that he did not know his left knee so when when they served him with a trust pass letter he had actually entered the store and once he they knew who he was once again to the store they handed him the l acknowledged knowing the true solomon was jewish before the new york human rights division there has yet to be any credible explanation in this case about why it was so difficult for mr solomon to get an answer why videos that might have provided some of these claims were destroyed case a rose a phantom proceeding before the new york human rights division that was apparently lost a rush to the court to get something in to stop the statute of limitations from running what we got was going on in new york we don't think it was too much to ask for an amendment as t claims that somehow were barred by the new york state ruling council or persons section two hundred and ninety seven of the administrative regulations that the department is required to issue its probable cause finding or lack thereof within one hundred and eighty defendant's favor is astounding to us two additional and quick points under the new york state regulations governing human rights division general counsel has no what's called ready to accept a complaint is roll it statutorily defined as  serving as general counsel i think the the agency was embarrassed by its losing this complaint and agreed to relate the document back to that initial filing or reasons we don't know we've never been given an account we think that under hogan the hogan decision we pled enough and there's enough in this complaint to give us the benefit of the relationship that doctrine mr solomon cannot be faulted doing for lacking or for not process is filing a federal complaint is expectation that rule twenty six dollars of the federal rules of civil procedure would be ignored and would be honored and not ignored it's filing to enroll the tories in discovery requests all suggest that under hogan he done enough  so for all of these reasons we do request that that the case be remanded is that began you know mr solomon believes he's been labeled the world's a sexual predator and he has groped to understand why and we don't think that it is asking this court eat or the district court for too much for the opportunity for him to confront his accuser thank you thank you st to titus just live on in the question nothing more thank you thank you thank you