corporation this court said that the relevance of discriminatory remarks doesn't depend on the offensiveness but their tendency to show the decision maker was motivated by assumptions or attitudes relating to the protected class i was in two thousand and seven in this case judge moore do after remained from this court consider the evidence he said as a whole and made the same similar finding that the plaintiff had failed to show sufficient evidence of issues of fact as to whether or not plaintiff was discriminated against on the basis of her gender the district court relied on the case of nugent versus st luke's roosevelt hospital in that case that which was a hostile work environment in a retaliatory hostile work environment case the issue of pretext was not considered they didn't get beyond the prime of patient case the court here in the on the remaining made a finding that there was insufficient evidence of pretext we submit that there is more than sufficient evidence of pre and issues of material fact as to whether or not sonia datsun was discriminated against on the basis of her gender the evidence includes the statements by the decision makers recording women in the department calling them names and if that if it is comparisons between race and gender discrimination if you take the gender of discriminatory remarks and supplant them with racist remarks i think that brings the point home that the statements by these defendants regarding women in the department and by the way in the context of taking adverse action against other female officers in the department that that becomes directly relevant and is circumstantial evidence of discriminatory intent that motivating factor whether they were motivated by her gender is also illustrated by the fact that there were male officers who were given far less discipline posing as there is a difference one sergeants give that order to c s those captains give orders to c s o's that's by corporation counsel during my client's arbitration perceiving there was a real respect to the courtesy is a subject of the rules and regulations of the department a one twenty seven referring to a commanding officer my client had a commanding officer officer is in the title of her job community service officer there also a reference to the standard of conduct for police officers which is what she was charged with she was not charged with violating a standard of conduct for community service officers she was charged with the the defendants have also complained that that there is this distinction was similarly situated because of the fourth department appellate division decision that made that finding but in that case the defendant said well the distinction between the male officers in sonia dotson is that her conduct was off duty the male officers conduct was on duty so then you have this shifting explanation as to why these are there ordination finding is not reclusive and you don't make an argument as to whether did it didn't occur but it's a it's admissible under our case subject to subject to the discretion of the court is it not so if you went to trial you'd be able to set was that she was found not to have been insubordinate by an arbitrator and i'm seeing cases that go both ways on that now there's an analysis as to the you know how how fair the proceeding was whether people were to call witnesses accept but but there was a proceeding in the eye where the how that ruling goes or not but it's struck me that the district court concluded that there was not disputed that there was insubordination and yet your animas you never get to the compared to ours if indeed it wasn't if it wasn't the case then the discriminatory comments by the individuals even though they were extended out of time might be relevant with regard to the fact that they decided to record is replete with all kinds of examples including the falsity of the charge the disparate treatment the post hoc rationalisations the overt bias towards women the unusually harsh penalty is admitted by the defendants kleist statements in his job don't hire any more females i've got enough problems in the context of taking those adverse actions i see have run out of time if you won't you where you some of good morning your honor may please the court i'm kristen smith corporation counsel for the city of syracuse and i want to address some of the things we've discussed already here today with respect to the arbitration award the evidence in the record is  we would we would submit is an undisputed that she gauged in the conduct she has admitted in the record it is disputed she says that she didn't yell and that she didn't curse and she has another witness is that she didn't curse you have an arbitrator's finding that she she was more than a sion is a conclusion it's not a fact right she was not she was not disciplined for cursing she was disciplined for not following an order and she admitted in the record that three times being called told to stop the conversation and sit down she didn't do that and she also admitted in the record that she yelled so out and i believe his work is potentially admissible in a jury trial as to the finding of not being insubordinate the arbitrator said that she actually did sit down within a reasonable period of time i haven't looked at that issue close enough that would say whether it would be admissible or not i did last night and it is many of the cases you cite are cases where there is a requirement of but more motivation for vi action but in this area i don't believe it is booked for it can be one part of the motivation and isn't that relevant to this issue which you have been discussing as to whether it is potentially pretextual that is very may have been of a reasons  for this but if gender was one of the motives then you that is enough to survive is and i agree that some of the cases were eight cases that would be that tomasky is an important case here and what could that case says is that the more remote bleak remarks are in relation to the adverse action the less probative they are and here i would say that all of the remarks are both remote and oblique in terms of the general i explained to me will be i actually had to google that yesterday his remarks are pretty dramatic with respect to to gender i mean the remarks about women are mighty direct now they may be remote that's a different question but the bleak kind of troubled me i mean pretty darn direct well the way i read i think it's actually aided by the henry case where you look at who made the remark when they made the remark that the content and the context so in terms of context that's a critical point these both were made you know we both agree it was remote in time but were were about entirely different circumstances had nothing to do with this particular plaintiff or this particular employment decision i would say that because they happened so long ago for it one was four years before this event another was what might be motivating somebody with respect to women i mean when we were more through your show direct again the fact that one who was before even the long before him when you get this over one after and then allow that to become evidence for all time that any time these officers interact with a woman that they will have to you know basically get an automatic pass to a trial because you know once they make that remark it sticks with them forever so that's why i think that there is this test of remote in a bleak in the context in the timing and all those things it serves a purpose and i think that purpose should eliminate you know the consideration of those remarks here i'd like to address the  the situation of police officer versus click community service officer since you raise the question these these two groups let you know like plaintiff acknowledged there was a decision in the you know i know not it doesn't bind you but you know the fourth department did decide with these particular parties that these two types of employees are not similarly situated and significantly they're both governed by labor contracts two different labor contracts want to see a cia employee plaintiff the police officers are part of the p yes i very much like to answer that and i think is the particular insubordination rule is in the rules and regs that are political to both groups however you can't understate the significance of these labor contracts in the procedures that are required to be followed under them they very very much lou in its influences how discipline is meted out there certain past practices with respect to police officers that might not apply to community service officers there they're just treated very differently civilians versus  i don't want to can see they're treated differently but you have to view them differently because they are they fall under these different labor contracts would one think this would be a more serious violation for and officer lesser penalty i suppose but i think a lot of the the actual i'm just no asking about to be extent the two were not identically situated in respect to vs which is what you were arguing which violation would you think would require a more grievous penalty and off duty action by a non uniformed as against on duty  your uniform i think that would really depend on the context of the particular area her if i may there's one other point i'd like to address the plaintiff raised in our brief regarding trying to create a nexus between the very i would say remote complaints or the remote statements and the employment action she points to the demeaning the alleged demeaning way that she was treated i just want to point out that that is not gender specific in any way that i don't think it should be viewed as evidence of gender discriminatory conduct because people are demeaning to each other at work for any number of reasons there's nothing or any number of  that are simply not covered by our law and you can be a very nasty employer but and that may be a state action but it isn't a federal one that's exactly my point and so i don't think that supplies th i don't have anything else if you'd have no further questions i'll get you some of your time back from the first argument thank you and you have a question we'll hear your  if you the remarks by kleist were not separate in time or contacts from my client if the record it a one seventy eight kleist comments came after a news article about lawsuit when he said oh great another female and sweeney stated the broads can't work together so then again sweeney directs to another coworker to take notes on sonia's conduct that's it a one hundred eighty four to one eighty five that in of itself the fact that they're taking notes about her they're listening in on her phone calls they're reporting back to one another that shows disparate treatment as well there is no evidence in the record that there is any other basis for treating her like that so you can't say that the statements that are discriminatory toward women do not give rise to this inference of discrimination and to be honest i don't know where this nexus contact the test of a nexus comes from that was you relied upon by the district court other than they were looking for some kind of a smoking gun where they could say well because he didn't say you're just a bitch at the time that they charged her than that there is no nexus between the discriminatory attitude that the supervisors have and the treatment that they gave her and that's the other thing the treatment that is focused on by the district court and by defense counsel is my client's treatments towards her supervisors it's not the way that you look at it you look at it what was does the supervisors treatments towards her they left her crying at one point they did the this kind of surreptitious saying they treated her demeaning really yes like a dog according to a witness now is that because they just didn't like her or is it because she's a woman or is that the court has decided it wasn't because she brought a lawsuit or complained about her not her fee that's been eliminated out of the out of the the context of the situation so what is it that they're offering as an explanation for this treatment is that she was bad but that's not what we're looking in terms of the conduct here we're looking at how she was treated what did the defendants do to her and was that treatment motivated by her gender look at c s o harrington now he's not even a police officer he's another c s o a male he got counseling and a written reprimand from lawful access to a computer that's at the record of a two forty sexual harassment allegations finding of sexual harassment by a police officer what was the remedy the penalty that he suffered counseling so the values that are exposed by this conduct i think is relevant