will turn to the next can no longer says police commissioner judgment in this case should be reversed because a reasonable jury could find that if muhammad abdulla from egypt were instead michael anderson from australia and was found to have improperly attempted to visit an australian  detention to help out an australian friend of his defendants would not have subjected him to an intrusive four year internal probe investigated him as a potential terrorist and fired him from the n y p d just as all the most relevant compared officers did not endure such treatment on this record a reasonable jury could believe he suffered that fayed because he is an arab american egyptian born muslim and the district court here incorrectly found that mr abdel failed to make out a prim gain access to some well any minute well he did not admit to that it was it's a disputed question of fact whether he ever made the statement that was attributed to him that he was from interpol that's something that one of the correction officers testified about and was contradicted by his own partner but you don't you don't dispute that he committed misconduct that he committed violations we don't dispute and in fact he pleaded guilty to several of the specifications that he was charged with including making this in a visit without proper authorization but again it's very important i think to recall here that the question in this case is not whether the n y p d was n y p d was justified in imposing discipline on him it's not even whether in the abstract someone you'd think it was reasonable to fire him the question is whether the consequences he suffered would have been less harsh but for his protective characteristics i think of any examples in the record one australian or someone else who is not a b it's undisputed was a white american born catholic that's at page one thousand six hundred and one of the record this is someone who visited incarcerated criminal forty six times without authorization he was ordered to stop by his supervisor he disobeyed that instruction he kept going he was involved in five domestic disputes with the same person all of which required police response and he concealed all of that from the n y p d now defendant's position is that this is as a matter of law dissimilar misconduct and the principal reason they give for this is because it didn't involve dishonesty or deception but in fact i think it's important here that he was stephen b was too large under the same patrol gu section as mr abdul and as this court has said many times the relevant consideration when considering whether a comparative is sufficiently similar is whether they're subject to the same workplace standards you know it seems to me that it seems to me that you harm your case by by the emphasis you give to the comparative evidence because to to make a case of discrimination that can go it that can go to the fact finder it is not subject to the summary judgment all one needs to do is have sufficient evidence that there would make it reasonable for a fact finding her to conclude that there was discrimination and it seems to me that there is plenty of that evidence here but you harm your case by harping on the comparative evidence which you claim helps your case it really doesn't because you're comparing are not are not great comparatives for you the the nature of the the nature of the offense of going to visit a girlfriend in prison a bunch of times is very different from what happened in your case or at least arguably so and the more you put emphasis on the on the justification for your comparative evidence it seems to me you're with the weaker your case seems to be whereas if you put the focus on simply whether there is evidence in the case that could reasonably support a fact finder and finding that the fact that he was a gyptian there arab or muslim or whatever influenced the the police in the in the amount of discipline enforced that the case then looks looks very different a few responses your honor st of all i think of course simply agree with you that the record is cases where we have deep decision maker the supervisor from the i the investigation testifying to the fact mr outlaw was from the middle east was on her mind when she decided to approach the investigation the way she did including by treating it as a terrorism  the joint terrorism task force and the district court completely failed to consider that statement defendants response to it is that while they would prefer to credit her testimony that she would have done the same thing anyway even if you were of a different nationality  jury question that should never have been resolved in summary judge and we also have commissioner kelly testifying in his deposition that the joint terrorism task force was consulted because of the nexus with egypt again an explicit connection between his treatment and his national investigation just to rule that out quickly which they did and and and then any other question i had this can you address the whole question of the legitimate nondiscriminatory guilty on two more was acquitted on two and then was was was was sanctioned based upon that at least and kunda and as as being the the the reason for whatever action was question about you know what the connection between the way the investigation was conducted and whether these terrorism related inquiries were legitimate at some early point i think the record is clear that they were not there was no allegation ever of any association between anyone involved and any terrorists or any sort of terrorist plot anything like that and the i v investigation here remember the corruption charge was downgraded in the i v file on july  thousand and eight after the exhaustive search for any associations between mr god do and mr out the all six months later in january two thousand and nine the record shows i he is contacting p h s get information about his travel about his family history they're running his sister and his mother through terrorist databases and watch lists they're contacting the intelligence division they're looking at their financial records and you know the very fact that the joint terrorism task force was contacted at all there's no because of the way defendants deviated from ordinary and justified procedures and that's joe the question is not the question is not at all whether the police department was justified and in the exacting the the the extent the discipline that they did as opposed to some lesser extent the question is whether whether there is enough evidence to raise a jury question being influenced by national aren't exactly right your honor and in fact in this case n prosecutors and the hearing officer both recommended penalties short of terminations and commissioner kelly who in every other case was always going either accepting the recommendation or downgrading a penalty recommended by the hearing officer this is the one case in which he said i and non terminations sanction at the end like even those isn't what it really amounts to is essentially a probationary period where in name you are terminated but it's suspended pending at one year or whatever probationary period but that's considered to be very much distinct from actually being separated from the department what it really is is essentially a certain amount of time where if you get in trouble again you'll be fired and that's what he was you know what w recommended by the departmental prosecutors here and the hearing officer and you know kelly was the one who stepped in and said you know that's not good enough the only other person who is subjected to  certainly the reason my client brought a lawsuit is because he was fired i mean we certainly do think that the pre term ation conduct was discriminatory but yes the the the obviously you know the firing is the most you know the starkest raise of the case he received you know the the hearing officers summary of the testimony all of those documents in this case clearly were replete with references to mr egyptian to the fact that these terrorism inquiries for conduct did that was you know a subject that was covered in quite extensive detail during the disciplinary trial and i don't think there's any dispute that all of the information from that proceeding and the recommendations of the prosecutors which contain as you'll see in the memos from the c e o at page one hundred and ten of the record and elsewhere there are these editor's notes that say you know by the way we consulted with the joint terrorism task force and the department of homeland security we searched to see if he had links with the ago mentioned you a moment just a little bit prior to judge walker's question you said something about judge kelly used having having having stated something which you didn't mention in answer to judge walker what was that and you mentioned a few minutes ago not just the stuff that was shown to or or that was presented to the commissioner but something that he said well he did say in his deposition that the reason that for example the joint terrorism had committed serious criminal misconduct evincing moral turpitude and in fact as we know in this case unlike in stephen b s case where the criminal association allegation was substantiated in this case it was unsubstantiated there was no dispute that there was insufficient evidence to bring criminal charges which was not the case for example with the imperator jose t who was guilty of mortgage fraud you know many of the comparatives did contrary to defendant's arguments clearly morning may please the court demonstrating an abuse of power conferred upon him as an officer after he declined to leave a force with busted retirement benefits he was terminated upon the recommendation of the panel the district court discrimination case i mean if it can be one way of demonstrating discrimination but it doesn't have to be doesn't have to be true that any and that people can be victims of discrimination without there being disparate treatment  comparing them to any other person with the claim that their conduct was similar look at the question is whether the evidence could reasonably support a fact finders finding that there was abdullah was digging to say because he was alleged to have been involved in a thirty million dollars fraud scheme and what that amount of money that would be that would require the consultation of a terrorism a drug dealer or or or stealing from a stealing from a from a place where there had been a firing appreciate the up to something like that they don't they don't do any terrorist i mean one can expect that they would not do any terrorism investigation because they would just be no reason to this is misconduct doesn't media and the connection to terrorism and so you just then and you have some explanation well it was because of this or because of that and it was only to grieve mentions but i mean this is why is that not evidence that his national origin and his religion possibly is either what it one of the two were influencing the police department but i just i've never seen a case with this amount of evidence where where where summary judgment would be would be affirmed because this is this is this is really it may be discredited maybe you should win at the end there's no question if it just doesn't seem like the cold for response to investigate terrorism just because an officer has committed some misconduct has misused his credentials for example  the fact that there's a legitimate reason that that's something that you argue to the jury at the point is that there is no evidence contradicting that so there's no other evidence for the jury to extract from which to extrapolate a bust doesn't a reasonable line of any other than the speculation brought forward by the appellant i mean he doesn't he doesn't show that this was outside of regular i eighty procedures or that this is not done and other disclosed all we have as investigators testimony that this was done here and it was done for this legitimate reason and so for that reason there actually commissioner kelly is the is the decision maker here but actually what the decision he made here st one is chair something called a police commissioner's committee and this is a panel made up of three high level individuals in the n y p d and they actually the ones who recommended that this conduct was serious enough to warrant separation from the forest so again they put in front of commissioner kelly a plea deal which for his a recommendation of separate from the adjudicative process at my p d and us as these are individuals who work under the commissioner and then they make our recommendation to commissioner kelly what she then accepted on this point so instance where commissioner kelly downgraded a a suggested penalty for another officer muslims of a muslim background so again that there is not enough in this record to take these quote even in combination to justify terminations so i think it's you know it's telling that defendants want to say that mr outlaws firing was neutral because it relied on this hearing officers findings on his credibility determinations and findings of guilt but yet there's no explanation for why if you know kelly was just completely neutrally relying on what the hearing officer said why he deviated from the recommended penalty again an unexplained procedural wreck procedural irregularity here on the point of the three person committee recommendation i just want to point out you can see it one hundred and fifteen of the joint appendix that commissioner kelly had already rejected at this point i think actually two years earlier a negotiated pretrial settlement and insisted upon a complete separation so i think a jury could clearly surmise that he was the one who really was insisting on firing her long before he received anyone else's recommendation it does it doesn't matter what does it really matter whether it's the commissioner himself or or or or the committee that that operates under him i mean europe is a liability liability doesn't turn on whether the weather whether commissioner kelly himself was acting in a discriminatory fashion that's true to the extent that for example the title seven claim is against the employer not against an individual i do think the fact that commissioner kelly is the one who has these to wreck statements on this pattern evidence that helps but commissioner has to commit the commissioner's statements to the extent that they were publicized they could be presumed to influence those who operate under commissioner kelly and while commissioner kelly well evidence of commissioner kelly is discrimination may be helpful to your case it's not essential to your case that's true your honor the last point i would just make is that several of the other  patrol guide section about conduct for additional prejudicial to good order that includes jasmine kyi who ran on authorized search of n y p d computers to find information about her brother who is being investigated i think it's hard to imagine a clear abuse of position she was charged departmental paperwork all of these people were just like mr oppal all accused of abusing their position and dishonest way none of them was fired they also all conducted many authorized inmate visits and it's ultimately for a jury court has said many times to make the final determination of whether these comparatives are sufficiently similarly situated for their conduct for their treatment to be material to just for treatment or e that's and it's pervasive and i don't sense that this doesn't seem to be the case well it may not be the typical hostile work environment case your honor but i think particularly focusing on the new york city human rights claim which doesn't require severe and pervasive harassment it only requires nontrivial differences in treatment that's a separate analysis that the district court was required to conduct in which defendants effectively conceded did not their alternative basis for affirming is as your honor suggested that he wasn't subjectively aware of the discriminatory conduct but i just think that's simply not true mr outlaw was interviewed as part of the ib investigation in two thousand and nine he testified that it left him with the distinct impression and can't be right i don't think that that's exactly the claim your honor respectfully i think what this what the claim is is that these investigations and monitoring went so far outside the bounds of anything that could conceivably have been rationally related to what he was charged with particularly when they were still investigating suppose a terrorist ties you know his sister and parents six months after they had downgraded their own investigation away from the criminal association in taking away the corruption does it nat hostile work environment but if they can show that it's unusually intrusive and if they were treated differently because of their national origin as we submit a jury could reasonably find here at least under the new york city human rights law that would raise a difference in treatment that would give rise to discrimination claims so for example if the jury found here that i would not have conducted their investigation for as long they wouldn't have made the same terrorism inquiries they wouldn't have you know done the same kind of investigation that they did egyptian which is a fact that essentially the investigator and commissioner kelly conceded that would be a difference in treatment explained because of national origin which the new york city you know you're saying that you're saying that that that he became aware of the fact of the fact of the investigations of his family and his sister and so on for terrorism and that he that he he he h