around in the carit that appellant's had brought a title seven action the st time around that is not the case as pointed out in our brief as noted by the district court judge in show intentional discrimination which this court you know a lot of people would bring one lawsuit on the same set of facts yes but we couldn't because it is in our case we need that we needed to bring it  union it was i believe in september of one the sixteen that's like two years after the st lawsuit right yes but the union wasn't brought in  later in the amendment but it was after after that the st lawsuit was filed under the nd circuit precedent it you can have a new lawsuit even if it's as a result of the same even if it was continuous conduct there based on the same allegations as the prior plain right yes your honor but were allowed because the statue allows it that's why congress passed that law in two thousand and nine to allow such claims and the nd circuit as well as the supreme court in the lois case which you cited indicated that we you know my clients can do that doesn't that doesn't the act cover only compensation decisions made by employers and in this case you've sued the union yeah but but but as you recall your honor from one it was the union that contracted with the employer and it was the union that influenced and the substance of the facts of the collection of facts that are relying on is the same you you can't bring successive actions even if there are sometimes related administrative requirements in that case and in those cases you're on they dealt with the retaliation claims and the nd circuit is is very clear as far as retaliation claims once you bring a discriminatory claim and there is a retaliation as a result of that you can always add it without having to go and administratively exhausted and i believe that that is a very important distinction also you're saying that rule applies only with respect to subsequent retaliation claims is that right that is my amendments to the complaint and may bring glitter suits to those claims that later our role is and it is our position that since the each and every time my clients received the improper payment because of the discriminatory impact that they were subjected to that they could have brought a new claim that's where they brought that claim you're not saying if you get twelve paychecks one a month in the course of a year you can bring twelve lawsuits no but the statue of limitation runs everything or only up to three lawsuits right now and you're promising a th one i think well your honor it's because the law allows it and congress said that we can do it and the nd circuit thank you and your time's expired you have three minutes frank rebuttal we'll hear from is ho please the court good morning i'm alexander howell i represent local two hundred and thirty seven international brotherhood of teamsters i also represented the teamsters in the prior suit so i'm quite familiar with all of i just want to start by highlighting that does not specifically preclude the suit under a kata when set of members union members bring a lawsuit against the union they must prove the duty of fair representation the underlying allegations  that the appellant's make and when one are exactly the same as in when to when it comes to the duty of fair representation issue i highlight this specifically in my brief in and you can see it for yourself  joint appendix forty it's in my brief at page twenty two in when two appellant say that the union tacitly engaged in and or encourage discriminatory conduct in its handling of appellants complaints and to disguise the union's tacit discriminatory pattern or practice the subject minority appellants were designated the misclassified title of caretakers that allegation is identical in when one and and you can see that for yourself so that matter h nine months after the close of discovery to file their ego see charge they sued the union in two thousand and fifteen brought the union into the lawsuit in two thousand and fifteen we could not think of a reason why so much time went by before an ego see charge was filed and taken to its logical extreme as as your honor pointed out the appellant's could sue us over and over and over again for the same conduct the other thing i just want to point out is is the relief that they're seeking i exactly the same they're seeking relief for the same time period so it's not just from the time period of when to there they want to go all the way back to two thousand and ten and all that time has already been litigated so even if it's true which i don't believe it is that a continuing course of conduct will permit them to sue us again which i don't think is the case even if it were the relief they're seeking is exactly the same is there any circumstance in which the lead better act would help your adversary where there's a stench limitations issue and this kind of claim is pursued i never want to help my happ perhaps if there were some and this is where the statue would tolerate it or as if there were some new allegation and actually new allegation a new violation of the duty of fair representation that didn't occur in two thousand and seven or two thousand and ten at the be a new breach of the i mean you have the same duty representation would you you will the union always has the same duty of representatives but i think in the facts in this case let's just say there is a new contract and i believe there was a new one in ten and there's there's always a new one the actual breach that they were talking about occurred in two thousand and seven when the union went to the comptroller his office to attempt to get them prevailing wage and then agreed to these expanded duties that's that's really what precipitates in their view what precipitates the violation of the duty of fair representation and that already occurred so even if there were a new contract it would be a continuation of the same alleged wrong because what happened from their perspective is it's the addition of those duties that make them comparable to placer helpers in the private sector so it would say it wouldn't matter because the new contract isn't the thing that they're arguing is violated it's the fact that we agree back in two thousand and seven you seem to be arguing then that the discrimination can get in in one contract if it's a challenge to and then even if new people join the union then you may just have to live with the  and occurred so it's really from their perspective this occurred in two thousand and seven so every new contract is really a continuation of the same thing because they're still doing the same duties and those duties were  new contract has the same thing because because it was determined that there was no breach of the duty a fair representation in two thousand and seven when this when this discrepancy this alleged discrepancy  breached is the fact that they agreed to a contract with a housing authority the contract stated that they will be considered to be plasterer helpers and that they should and then this court had dispelled any any issues with regard as to whether my clients were entitle to prevailing wages this court and when one said that they would be entitled to it because the union as well as the employer at the time were claiming that because there were well were arguing that the union has continued up legation to make sure that the client specially in light of the decision when one to make sure that they get paid the prevailing wages as plus their help other than restrain a kind of what's to stop you from bringing when thirty four and five if your theory is that this is a continuing course of conduct it seems like you're leaving the door open or you'd like the door turn open for a unlimited number of lawsuits no your honor the difference is when one was brought under a different theory of the discrimination it was disparate treatment this one is brought under disparate pleadings if there is eventually a decision based on the merits that there was not disparate impact discrimination then they can come back again and again and again just to reassure the score but because the standard is different and the proof is different we believe that they should be entitled to proceed under their lilly ledbetter fair pay act disparate impact  you're saying as long as there's a new theory even if the facts haven't changed you can bring a new suit is that what you say well if there has if it hasn't been decided with regard to that because the court didn't have  chance to address it then yes the reason that went to was brought is because we had to exhaust through the e e o c the title seven thank you very much i think you have the arguments will reserve decision thank you