at this time in terms of the day calendar and we'll hear boone miller versus the city of new york decision to to basically dismiss the complaint it's entirety on twelve be a rule twelve b six we have a number of issues with the court's decision basically did not i guess market did not view the pleadings in a light most favorable to the plaintive which is typically the standard that is required under the law specifically there are factual questions surrounding the stipulation of settlement agreement that could be found on appendix pages forty three forty one to forty three if i remember correctly forty actually forty three to forty five and what we're arguing is that the stipulation the settlement agreement that's being presented to the court specifically does not reflect what my client had actually received and part of that has to do with the chain of events that were listed in the complaint itself specifically my client only received one stipulation a settlement agreement and that stipulation of settlement agreement was dated on march twelfth  pleaded in the complaint mr yang also received the settlement agreement so my client received a settlement agreement that offered him an eight percent increase should work into december thirty first two thousand and fifteen and at the same time mr yang received  settlement agreement that offered him a twelve percent increase my client rejected his initial and only settlement agreement based on misty the settlement agreement that mr human had that offered him twelve percent out right now the city has presented another document that insinuates that my client received the same settlement agreement which is not the case my client never received the settlement agreement just be the complaint referred to the settlement agreements it that well the exchange between the unions lawyer and the office of labor relations are guarding the the grievances basically that my client received the sec because offered the same agreement as mr yang but he was he was only offered the first one and he never was offered again and if you look at the email chain there's no proof that my client was offered another cell agreement all sides email chain and he's not see seen in the email chain there's no occurred before your client filed any kind of administrative complaint and so therefore i don't see how it could be a basis for your retaliation claim given so far as it's relied on as evidence of discrimination is in the timing of it outside the three hundred days for an e o c filing you have a timeliness problem there so you so i see twin problems even without getting to their claim that there was an equal offer well the first to make sure and understood both questions the lying on this to support your claim that you were your client was retaliated that's what i'm focusing on not exactly we're relying on the fact that my client that mr ewing was offered a stipulation a settlement within i guess maybe weeks at best misunderstood my client saw that mr yang was being offered twelve percent and he was being offered eight percent conditions upon him retiring that's what prompted him to fall with the e e o c initially filed a grievance with m on june in june of two thousand and fifteen so you were within the statutory time period at that point and then after that and there actually two dates on the stipulation of settlement agreement that the city offers again objecting to it because it is sing it implies that my client had an opportunity to have a stipulation of settlement that mr young had and to be clear misting received a lump sum payment for all the out of title work that he performed which my point also continues to perform and he also has received the increase my clients never received either one and to be clear and i don't think that the complaint really articulate actually has standing to to act to follow a grievance so mr ewing or my client would not be able to follow agreements on this level in their individual capacity if so union would be the party that they would resolve this with so if it was determined they either one or both were working out of title then they should have been compensated for that work but that never happened there is a deviation from the standard practice here age even under the relatively forgiving played in standard for employment discrimination cases the complaint fails we'll start with the issue of the documents that the court considered here is what the plaintiff raised here today you  in this aspect of it centers around the negotiations and settlement offers that were made to plaintiff and to mr yang particularly he alleges that the offers were were different to the extent that the negotiations and offers that were available are the basis of the complaint these documents eliminate in the offers in the negotiation are integral to the complaint moreover they argument that the objection is the challenge as to either the authenticity or mike lee the fact of delivery of the document that you remind yes your honor though not there's a bit of confusion on that point i think and that the confuse yes and that sent to his union representative to the extent at that point the city had to properly communicated the offer to the to the representative form the plaintiff and it's that individual's responsibility to convey to his client to the extent that that break down that there was a breakdown in that communication that can't be attributed to the city so even to the extent that we take seriously the plaintiff's claim that he never received the offer his attorney his union representative plainly did receive the offer as evidenced by the e mail communication and again it's not the city's fault that it wasn't communicated to him moving to the next point on this issue the consideration of those documents was not preserved below they were moreover even in this court the plaintiffs didn't object to the consideration of those documents in its in his opening brief it wasn't until his reply brief that this issue was brought before the court an argument raised in reply brief for the first time is not properly for the court finally one last point on this is that the plaintiff is taking a inconsistent position as how these as to whether these documents ought to be considered even across the different portions of the argument on the one hand plaintiffs are using that these documents ought not be considered that they are outside the record but they don't form any part of a complaint on the other hand plaintiff is arguing that the existence of these documents in the existence of the second settlement offer that mr yang accepted is somehow evidence of retaliation against plaint and that sense point was trying to have it both ways to allow the documents to be considered where he proceeded to help him but disallow them from consideration when he is the most harmful the argument is doesn't hold water on any level both as a matter of merits as a matter of procedure or as a matter of internal consistency and so for that reason the documents are properly considered and do in fact indicate that the that the claims fail  appeal has now morphed into well mr yang has been paid in because he agreed to the settlement offer whereas the plaintiff has not been paid there's no allegation that he agreed to the settlement the city is under no obligation so the eight percent pay raise that he received up to that point wouldn't be clawed back he would retain that money and his salary would revert would revert to the previous level moving forward i'd like to touch on the city's arguments that were raised firstly the the fact that there's this dispute between the city and my client about the stipulation of settlement agreements in of itself reflects the problem with having a motion to dismiss at this juncture there is clearly a factual dispute surrounding a cause of action in the case against contrary to the city's representation there was a clear a clear adverse action when it came to the settlement agreement specifically with my client it's clear that he would receive the eight percent increase as until he worked as long as he worked until december thirty first two thousand and fifteen if he did not retire he went back to his prior salary m didn't go back to his part salary after december thirty first two thousand and fifteen so clearly there's no question the way the stipulation itself agreements were drafted mr yang settlement agreement did not have a date certain for him to retire or anything else he got he received in our version of the facts a twelve percent increase out right now this other document that the city has minute it represents perhaps mr yang being able to follow another grievance but we are arguing that my client everyman had the opportunity to consider the second offer my client was only offered the  mishal eight percent increase or retire by december thirty first or go back to your original salary and that was it missed again did not have a condition upon receiving the  grievance and not my clients which although they were considered should be considered as one rather than separately that is argument and out of retaliation because he had complained we believe that the city basically decided to resolve missed being and give him the out of title money that he earned and not give my client the out of town of mahmoudiya he also were and again it had nothing to do with whether or not he greed to anything once it was determined that they had worked out of title he was entitle to those monies it had nothing to do with an agreement that had there been an increase in his salary going forward perhaps that was something they could have negotiated as far as to the