it please the court my name is angel and sonu castro the rd appearing on behalf of the appellant venus the net in the hopes of overturning a premature decision to dismiss her case allegations and that some of her allegations like merit completely st i would like to address the collateral stoplight and when i'm reaching there it's consider that this case was removed from a new york state court and placed into a federal court under the theory doctrine and to prevent forum shopping and the like the federal courts should treat cases removed from state court as if as the state court would treat those cases so it becomes an issue of substantial versus procedural law if it's found to be a procedural matter then the federal court rules would hold but if it's a substantial matter as it is here where the parties behavior is implicated then the state court method of handling it should hold but even before we reach there in order for state claims were dismissed without prejudice because the federal claims were denied and the lower court declined to take supplements with your section of the state cl inappropriate where the court was sitting on the versity jurisdiction and the case was removed from state court so under the c p l are the behaviors of the party where the part of the defense or the never raise that in their motion so here the appellant had no opportunity to argue against clara stop now we can go forward and see the sufficiency of the allegations when considering this if this is the of the state allegations here the court should have been given the appellant in the most favorable inferences with regard to her facts well the fact there some are more that she was an ag will employ about whether she actually tested positive for cocaine and alcohol while the test results from qwest once put assad were  all but even if that there even if there was some mistake made let's assume that there is a question of fact as to whether it is a mistake how does that connect to a plausible claim of disability or gender discrimination given that the employer was notified that she tested positive for alcohol and cocaine while while in the job yes so the employer was notified of this and mr instantly confessed and the record in the case that she asked for a recess and asked and puts forward some possible basis and here i believe the lower court kind of conflated and the defendants and or a she she did say that that may have been a possible reason but she also at the same time alleged that the test results were completely inaccurate and she was not intoxicated in the night use substances that would result in those positive test results so that another question of fact that would have prevented the motions of this mess further i'm sorry want to talk about the disability while the complaint does  her disability was related to infertility and excessive nosebleeds while we do maintain that those would be sufficient as a disability under the statute we would also say that there's talk because drug yes exactly and that's that's where i'm going so the reason why they asked for the drug test is because they saw these nosebleeds and they thought that that may have been drug use or result of drug use or something to affect so they asked for the drug test so that leads us to believe that there was a perception of a disability which may have been a drug or alcohol addiction  you tell me are you agreeing that by failing to make any arguments about quest in your blue brief would you agree that you've waived any arguments on appeal with respect to quest with respect to question how we can see that ok thank  proceed on the issue preclusion or collateral estoppel to a spontaneous she has the right to do that by applying federal law the underlying decision that she that was the basis for preclusion was a federal decision determined under federal law the fact that the case was ultimately brought back to judge or is already based on diversity jurisdiction and after she declined to exercise supplemental jurisdiction over those state and city claims in what we'll call s doesn't change the analysis of her ability to make a determination that collateral estoppel apply just as this court of course has the ability to determine the propriety of this missile based on the record that's before it really if you think is the more straightforward basis in your view that you should win and i guess my question is on the collateral estoppel question do you believe that this corner of the supreme court simpler argument to simply raise that fact we believed it was very clear that her miss that state and city claims had to be dismissed for the same reasons that her federal claims had been dismissed which is that they were not plausibly they did not cross the line in any of the accounts from from being conceivable to plausible which is the standard and so we thought it was a simpler argument dismissed she reached an alternative determination that it did not meet the standard the basic pleading standards under twamley and under general statutes and it does not and i would just point out i mean the than it did not admit to using the cocaine they solution because her complaint is very clear in paragraph sixty four and sixty five which are in the record that she did use a cocaine base solution she went into great detail  about the fact that she had a prescription allegedly from a doctor in the united states to fulfill a prescription for nosebleeds in the dominican republic and two and that she did fill that prescription and i think she said that she applied it to her nose seven times i think the record shows that the prescription was for cocaine and i think the complaint describes the condom was known to miss stand it when she when she took that solution point there's some talk about whether or not there should have been an accommodation for bloody nose there's nothing in the record to suggest that mr and it was drug tested because she had a bloody nose  but even if she was chosen for a test because of some condition you know in her nose the fact remains that she tested positive for cocaine and alcohol which is a fact that was frequently she said that she needed accommodation or if she had said that she had frequent nosebleeds there could have been an accommodation process but accommodation is not something that's done retroactively after the fact and i can assure you that an a dation for nosebleeds would not have been to take a dominican prescribed cocaine solution in your nose while you were flying for delta airlines so we think it's a fairly straightforward case for should have been placed in rehabilitation as part of this process which we've addressed in the papers but there's one point that i think we addressed in the papers that i thought i'd raise which is rehabilitation is not something that's a punishment of course rehabilitation is designed to help people who have medical conditions related to addictions rehabilitate themselves missed it and i do believe judge has already reached this conclusion correctly has never stated that she is disabled because of an addiction in fact she stated very clearly the opposite she states that she has no addiction and that she was using cocaine because of this bloody nose which showed at best very questionable judgment to use a cocaine solution to stop a bloody nose while you were flying on a flight as did the choice of drinking before she went on the flight so a combination would not have been putting her into a real dilatation program it's not pennis penance excuse me for testing positive you know going to rehab at this as that because that's a slap you know because you did something wrong you go into rehab as a medical condition has waived all claims as to my client i'm certainly happy to answer questions explain why there was no negligence but barring that i have nothing else to say and it's long if it's clear on the record that there is no case against my client thank policy that employees that had drug issues were permitted to attend the rehab and after successful completion of the rehab program they would be considered for reinstate complaint that she was prescribed those drugs for those issues but i think there's a question of fact if she's you were prescribed cocaine i believe so yes just didn't have it during that flight in that like a flight lack the information it would be the defendant or that would have that information with regard to the other employees that may have been similarly situated that may have had a drug issue that completed rehab and that were reinstated under this well known policy that was not questioned so thus it would be premature to dismiss based on that without some level of discovery there's no further questions for us ok thank you all and we'll take it under advisement that's the last case on the calendar today so i will ask the c