well here the next case not tosk a vs city of new york just wait another moment until the courtroom finishes clari new york the district court improperly applied the standard on summary judgment the court resolve disputes an inference is in the city's favor analyzed evidence pima piecemeal not as a whole and ignored blatant disability  goannas testimony or protests in a mosque which is i think what the crux of your case is on the on the emotion claims concern and then i think you're arguing that she was also responsible for where the devotion is boiled down to two to two situations is that correct one time when she first met him and he was i think he's has to speak a certain way it is his method of communication is different from a hearing person because of obvious hearing problem and also his use hearing aids and the fact that in order to understand a person he has to look at them and read their lips as as as he's as they're speaking is that right and she  sheep sheep she's he says or it's in the in the case i guess that she stared at him as a result of the situation that's partially correct your honor but it was more than two incidents the first incident and this is very clearly laid out in our reply brief the first incident is the first time she met mr natonski she sat near him and was staring at his ears the other incidents was when he said i need to close the door because i can't hear you misbah go to would shake her head roll her eyes and on other occasions mr natonski is common with people with his speech disability has to enunciate very clearly and misbegotten was telling him speed up you need to speak faster we're never going to get through everything we have to get through he would explain after she took he told her her about his speech impediment his hearing impairment at one point right yes and then her testimony about her reaction to that an incredibly denies ever knowing that mr natasa he had a speech hearing disability he wore hearing aids even defendant commissioner of d i y mark peters says yes he knew about the speech disability it was apparent  obvious to everyone else in the record that just goes to go to is guilty state of mind that she so implausibly says i never knew about it and incredibly after the demotion we point to an e mail where misbegotten helped the subordinate of hers edit an email encouraging that subordinate to tell mr natonski i don't know what if anything mr gota knows about your hearing disability so this is a supervisor who went out of her way to manipulate lower employees to deceive mr natonski so a jury really needs to consider the way and manner in which missing a misbegotten acted towards mr natonski even in light of what the city a reorganization and we're confident that on this record a jury a rational trier fat can find that the the overwhelming decision was based on the animus towards mr natonski that big began in the very beginning of the how many people peter's would be a move on when he takes you up he couldn't answer that question i mean that seems to me a key element of your unhappy with him were there any problems with the meetings in mr peters testimony is in fact a reading of to  see me nothing to worry about and told him that you lawns evaluations are flaky she's trying to throw people under the bus and you're going to keep one of your director positions now misbah go to denies that he had gotten  unlike you lawn got a merit increase in two awards now the city points out that well one of the awards everyone got but mr natonski was only one of three people in the entire agency that got the award for going above and beyond and in fact mis even admits in an e mail that the division of h r was severely understaffed and mr natonski was wearing two hats and even miss pagoda in her testimony said it was apparent to me that the h r and budget may twentieth says a reorganization and the mr natonski complaint and said this is you know improper and illegitimate and i was singled out and he was referring to his disability and when he was told it was reorganization when he challenged it she wrote to an employee in a completely different agency and said i'm thinking of confirming to mr natonski that this was a reorganization what do you think now if it was peter's decision or even a legitimate business decision by misbah go to she would need the help of someone outside of her agency to tell him what to say and it was only after the lawsuit was filed that mr peter suddenly had this vivid recollection of frustrations had a meaning which is disputed because he reason shifted yes and the city says the reasons are inconsistent but as we point out in the reply we're saying they shifted from just a reorganization to now was you're a poor performer but that was never told to natonski organization and this is kind of a softball for you we are going as a shooting where the where the two people were appointed for the two jobs budget in which the other human resources  two different titles so he was doing the work of two people and both the people put into those positions or assuming those duties were non disabled the district court actually correctly the reason was poor performance i could see perhaps a demotion out of that out of the out of both of those positions and maybe to the lower one that he he got but if the reason is reorganization then and his performance was not the performance was not the reason that logically and with think he would get one of the two positions yes absolutely honor and then the pay cut was over fifty percent he was making around one hundred twenty nine thousand and he went down to the sixty's and mr go to blames that on another a city administrator but  finish up and just point out that the reorganization and this court going back to cronin for many years you cannot file a the civil rights of an employee just because there is a reorganization and that's what the city is just relying on this magic wand  if you look at who was harmed mr natasa he was the only person that had a huge pay cut or a pay cut at all and a demotion the only other person is victor all those who was an older black man and he was given the dignity of allowing to find a new position and he was so high up that it's apples and oranges comparing him to mr natonski that's doing daily budget so we think that the reorganization cannot mask what how miss to go to obviously felt towards mr eighty eight it should be but for cause ation not yes and we believe that the district court wrongly found that it should be soley but if you look at the rehabilitation  or law that has soley particular in the in the employment context so we're not entirely sure what silly means but it seems to be a way of saying if there's a scintilla of evidence that it could have been any other reason but disability he loses and we say that seven ninety four d of the rehabilitation act says that the standards from a t a i applied to determine if there's a violation in the employment context of the rehabilitation act and but for should have been applied in the court applied mean only but it's an anomaly anomaly in the employment context and the whole idea was to have a v a in rehab cases viewed together and analyzed together and by having two distinct causal standards which isn't supported by the clear face of the rehabilitation act and seventy seven ninety four d you end up with two completely different laws and courts are struggling even in this circuit in the district court to apply the differences and we're asking this court to find that there is no difference there's no actual holding this circuit on this question is there no we didn't find it because even the city relies on parker which was from about two thousand i believe and it's in the briefs that court did not directly try to square section seven ninety four d to explain how that section should be construed with the soli which seems to be just the preamble to the beginning of the statute and section eight but if you look at the much more specific section of d it says very clearly the standards of the eighty eight apply for a violation so a violation can only be found if you are determining causation so clearly it seems to me that yes that it's that so he can be for maybe if someone wants to go into a restaurant or worse get some public benefit but when you're in the plymouth context you go for the more specific part of the statute which clearly says apply the eighty eight eighty eight so it's very clear that  was on the basis of and i don't know what on the basis of beans you know there's there's this interpretation russians here serious interpretation questions which are novel to this court yes and we point out our brief shows that several high level employees including the tosk his immediate supervisor were either reassigned or let go as part of this reorganization and the record shows that this was because the new commissioner and his new chief of staff wanted to revamp the agency and that there was no performance issue no your honor i mean i think the two are related when there's a reorganization and employees are highly valued they're kept on or put in similar positions when they're not highly valued i mean it always plays into a reorganization the assessment usually i'm saying they're not mutually exclusive and they are you know they are related to each other so here we have undisputedly an issue fact as to whether his performance was pour or whether that was pretax because just before this reorganization he was making had gotten good evaluations was making one hundred twenty not in the context of this case your honor the previous performance evaluations were under reason jury couldn't take the fifty percent cut in pay and putting him into a cubicle twenty one there where that was noisy could not construe that  adjusted and with regards the cubicle again mr no talk you requested another cubicle and he was moved to another cubicle so you know yes it is difficult to be reassigned to a lower level position but it's a logical step that someone who is no goto is staring at him and that she she raised her voice and said to him i'm speaking to you why aren't you responding to me according to his own accounts these were before these these things happened before he ever disclosed to her that he had a hearing disability in response to organization so the most analogous is mr new talks his immediate supervisor and throughout the record you can see that both of these individuals were sort of assessed together by peter's and pagoda and found to be lacking and miss and was offered a position at a different agency that would have been a twenty percent reduction in salary she chose not to take that and went and therefore you know she didn't actually have a reduction in salary but that was the offer that was made at the government she left yes another individual was the first deputy commissioner which is you know a higher position and he was not offered a different position he was given a limited period of time before he had to leave  and he did leave and these things as not only peter's but also the previous commissioner gil hearn both testified this is common when one when when there's an administration change when there's a new commissioner it's understood are going to understand when she chose not to take the reduced salary position that was suggested to her and the record also shows that peters says that when he brought into go to as his chief of staff he wanted  revamp the agency with a particular eye to the administrative branch and both of them believed that the h r and budget functions in particular needed reorganization first because they thought it was inappropriate for one person to be handling both portfolios but also because on the evidence you know the record shows that they believe that the forms that were being used were outdated and confusing and there was a lot of work to be done as your honor noted at the first meeting with peters and it's undisputed that there was at least one meeting they were unable to answer basic questions about how many vacancies there were in the agency how many people he would be able to hire this is you need to be expected that at the first meeting with a new commissioner this would be would be the queries and it's understandable under those  walked away from that meeting feeling that these individuals were not competent and that's of course a subjective assessment of the feminist position has been that made the decision correct your honor and it 's not an issue of whether it was his decision you know one of the and so first of all your honor you know plaintiffs agreed in their local fifty six point one statement below that peters he was the ultimate decision maker and that he had an independent reason you know regardless of what consultations conference before he made that decision but he says that he discussed it with pagoda but he also says that he was frustrated with not toss his performance and i'll just point out quickly that a lot of the evidence regarding made that decision is outside of the record it was filed as a supplemental appendix with a motion to supplement the record and there's simply no basis to allow that motion  award for going above and beyond the call of duty which is only given to three people is it your position that that is in missile would be admissible at trial no your honor that would be admissible you could be particular circumstantial evidence that the purported new performance problems are pretext not in the context of this case your honor where there was a massive change at the agency after twelve years a new commissioner came in and multiple people were either moved around or let go and the fact that a previous commissioner and it's not suddenly your honor he had problems with his immediate supervisor even under the previous administration commissioner kill her and  you know testify that she thought he was a good enough reasonable accommodation i mean whether the polls point to performance issues are affected by the failure to reasonably accommodate his disability quoting for example being a little more patient with responding to emails mr natonski said he had difficulty responding to emails while he was in meetings there is simply no suggestion that she was talking about responding to emails while he was in meetings he suggested that if a matter was urgent people could contact his secretary that her towards him from the first time she ever met him you know i mean to the extent that she said that she obviously reassessed but there is nothing else in the record that supports that view we have thank you just picking up where we left off here at the end how do you square spread your wings with everything else in the case and the simple answer is when you're a supervisor and you're not telling the truth and you don't have a genuine reason to demote someone your story goes all over the place and i think that's for the jury to consider now the claim was who's the decision maker there's the c's still trying to argue that it was really peters but the city has already conceded in their briefs in the documentation that the decision was determined by pagoda and peters approved it so as is your honour's we're just discussing we don't know what happened in that meeting between go and peters but it appears construed in mr natasa favor that it was were directly asked what did you talk about but there ichi we believe and i think a jury could find that each covering for the other person in a deposition transcript page that's outside the record i'm asking to supplement to was asked was mr peters involved and she said i believe so yes so she's hedging why would you hedge about whether he's even involved if now you're claiming it was his decision so we think that's rather odd and so they wouldn't tell us really or testify to what was discussed mr peters would only answer in his deposition that misbah go to was doing the day to day management of this and it was determined by her and he ultimately approved it so he said therefore it's my decision which we think is really just semantics and it was clearly misspoke otis decision even if you look at what mr peters said and that's just a matter of an agency formality that the top person in an criticised mr natasa performance until mr natonski went to the commissioner rose kill her and said miss you one has these rules like i have to come to work at ten o'clock i can't come in earlier in the day and i don't diligent disciplined employee he came in earlier no extra pay he would come in very early in the morning and you on said she had about five subordinates and she said just mr natasa he has to come in at ten o'clock i mean it's just unheard of that an employer says you have to come in later when they come in earlier and the reason mr natonski came in earlier is because he's hearing impaired he needs to organize and settle himself for the day because he performs at a high level but he has to work that much harder than normally able individuals so just out of sheer animosity towards mr natonski is disability she said guess what you can't come in an eight thirty you've got have to come in at ten am when i come in and there was no justification at all for that i mean the only thing would be to harm someone with a disability and when natonski challenge her in an e mail she said it's a procedural needs of the organization or something like that and she was articulate why are you essentially punishing me and making every day of my life more difficult by forcing me to come in later when i came in early with no pay and we think a jury's going to be highly persuaded for them and it's appropriate for a jury to hear that thank you thank you very much