and walked for the city of new york for a number of years and we're here on a number of issues three issues i think we've laid them out fully you know in our brief and the first i the first ones they were posted but he didn't bother to do it because he believed that it was a fixed job but that doesn't doesn't give him a ri environment that such may be relevant but how was this earlier evidence relevant it is relevant because this is the same path of not allowing an indian to advance within the sim unit and use the son to know who was the head of the unit at the time of this promotions was involved in the any actions that we're taking you know against mr patel or the indians now if  you look at it and combine it with the manner in which which ones were filled been placed in temper i have a question with respect to the new york city human rights law if we do not agree with you on the federal claims we review a federal crime says different that if we do not agree with you federal claims but agreed with you on the new york city human rights law wouldn't be appropriate thing be not to remain but to dismiss that without prejudice to have you bring in vet in state court well that is that is one one one option if if we get rid of all the federal claims and the only thing that is left there isn't that you gave no response to the defendant's contention that it's been forfeited because you failed to raise it well he didn't respond but we rested below we did we did mention it what they're saying is that we did not brief it city of new york received was saying about the positions what happened is that there were actually five in this litigation originally i think he's abandoned i think there were six in total i think he had banned he's abandoned three most of them were post the ones he's abandoned were certainly posted there's no dispute that the executive director for space and design position was posted as to the other two those are really more like not positions in the first case the position that mr  a provisional civil service position it was designed to be a temporary position and then the second the first position that musical ours for the executive assistant for special projects was really additional duties she took on in addition to the duties she had then it wasn't really a new job it was additional duties but just the fact that those two work not we don't have evidence of postings for those but we explained as i just explained why they were not but just the fact of a posting or a non posting by itself does not excuse the plaintiffs all that the fact of anon posting does is to excuse the initial requirement that he has to show that he applied with the district court said here was was very important which is that this is a situation where mr patel didn't apply for years for jobs he just never applied for job with respect to his evidence of discrimination of pretexts here he doesn't offer anything really to connect this to his race he says that he was more qualified but that's his unsupported his own belief that is not enough he tries to point to what he believes are discrepancies i just said the posting really wasn't a discrepancy whatsoever he points to some things about documents and how there weren't documents but again he we put in the records we had explaining why each person the matters the judge press didn't consider did they speak to discrimination against race with respect to so they might be sufficient question with respect to some of the things you're i think that as as you suggested before they're not relevant what's really happening is he's trying to get use that stuff those things those things he could have brought litigation about but never did he's really complaining in two thousand and twelve about two thousand and six things my reading of the case law on the background evidence is that in the cases where this court's applied to particular the duke case that was a situation where there was continued acts of discrimination that all flowed from one big thing that happened which was i think the earlier cases first well there's no case that i've seen that background evidence by itself can be the only thing to raise an inference of discrimination that seems to be the only thing he really is offering here that has any talk i hear it it's not i think it's not as clear that there was a discrimination contributory act here he was demoted his belief in his testimony was that it was because of race discrimination we have presented documents are contemporaneous documents from the time showing basically that at that time there was a reorganization of that division there he was demoted for performance issues that is all those are that's everything that we've offered and to suggest that that evidence can all come in and be the reason why he has raised tribal issues to pretext there would be too many issues for the quarter for the jury to consider that basically be litigating the time o claims rather than the claims that are at issue which are limited to the failure to promote and i believe that he's only raised the background with respect to the failure to promote and not the retaliation claims one which is from the motion to dismiss stage and the others which you just basically say what the standard is this court found that that's not enough that's all he's done as if he did know and i would say that what the district court did here was proper and this court has found many times even after my heloc that if you analyze you can basically analyze the different statutes together whereas here the record establishes is a matter of law that discrimination played no role in the actions what we've laid out in our brief is i understand that your honor i understand i'm not binding precedent but it's analysis that other panels of this court have have taken in the past but we our position is that in our view there is no difference because the things that he's raising that really do not have a connection to his race are not enough to various tribal issues a fact as to pretext under any of the laws but such as but he is raising here if your honour's would like i could address the other two issues the motion to dismiss the retaliation claim  the district court found the two good performance evaluations immediately changed a very good or not adverse employment actions and to the extent that he's talked about this written it meant he his own testimony shows it was a reasonable foresman a preexisting policy it and then the fact that it was raised when that is done becomes an outside influence that's a little unusual i mean here he had the influence which came in and raised and i wonder whether and i don't know how much that has to do with that but he did have investigations he had other people come in and his testimony was basically he went to them and he said i'm not happy with it and they changed it immediately even if i think that they were nervous about it or they were afraid of something happening they didn't do anything to him because there was no alternate effect on him at all it was that ok we will raise it to the very good and if your honour's have no further questions we will address on something that's the reserve two bringing in a complaint of his commission if you're used to having good very good and all of a sudden you bring a lawsuit and you complain and you're given you what you think that under the supreme court decision which again judge prescot didn't