afternoon your honor my name is sandra parker i represent the appellant and we're appealing the decision of the district court which dismissed in its entirety all of appellants claims of discrimination under section one hundred and eighty three and her claims of discrimination under the new york city human rights will excuse me we believe that the district court incorrectly treated the allegations and the claims alleged in the st amended complaint as rising or falling based state meant made by the head of  beverly's department concerning african americans and caribbean americans beverly's case does not rise or fall based on those comments  the st amended complaint contained ample allegation concerning the fact that the defendant subjected her to materially adverse action the materially adverse action to which beverly was subjected to standing alone without the remarks concerning african americans and caribbean  americans were sufficient to meet the test of adverse action at the pleading stage in response to the  dismiss pursuant to rule twelve b six there materially adverse and three respects st they interfered with dr beverly's ability to perform her duties they disadvantaged  to beverly and they significantly diminished her responsibility among the conduct to which she was subjected to which we submit were materially adverse are the denial of an assistant the two tier reporting requirement that she was subjected to be excluded from meetings concerning projects on which sign to perform being excluded from staff meetings being excluded from communication with other managers in the department the denial of a raise and a promotion the demand that she resign her subsequent the nation and following that disparaging her to prospective employers still for that reason we even know that the district court was in error when it concluded that the heavily was not subject to materially adverse action by the defendants the next area which we believe the district court committed error dealt with the inference of discrimination and in this case beverly relied on the miller really situated test to meet this prong of her complaint now with regard to the similarly situated test that's generally a case specific test and not all factors are important list of some of the conduct in which they engaged and so with regard to the conduct that i've listed the factors that are important are on the fact that she reported to the same manager she was in the same department and the individuals with whom she compared herself had the same title or position and we believe that we met that test but the court differed in regard to that issue in that relief at the pleading stage to identify the experience the educational background and other factors which were not relevant to the type of conduct that she was alleging was discriminatory certainly the educational background or the work experience of the caucasian managers who held the same title as babbly who are not subject to the same treatment that i just described was not read was not relevant to any of that treatment but evilly was subjected to the treatment that i just described their respective of the education ariens and job responsibilities they played no role in that now with regard to beverly retaliation claims you had a minute left i'm sorry the respondent said vance new arguments that are not that were not presented below which part should ignore with regard to the recal haitian claim  indicated that in fact there were certain facts and information that we could supplement with regard to any deficiencies that there might have been in the st amended complaint and to appeal and cure those deficiencies with regard to the new york city human rights coin since it's a lower threshold since we have  have indicated or demonstrated that she does really does alleged viable claims of discrimination  retaliation and having met the section one hundred and eighty three dollars level we believe it follows that under the lower or less stringent standard of the new york city human rights  the severe and pervasive standard applicable to the federal coined do not does not apply to the new york city human rights going finally with regard to the mon el claim  s advance new and novel arguments that were not advanced at the district court level such as the defend individual defendants were not final policy makers or that dr bubbly fate to fail to show that they ratified her manager's conduct we believe that the court should not entertain those new arguments correct your honor sir i believe that both sides operated under the assumption and the incorrect assumption that the dismissal by the district court was would not prejudice and i believe in a decision that came down in december september i believe perhaps the district court did indicate to make clear that it was not without that it was without prejudice and that indeed it would permit appeal but given the posture of the case particularly since in the reconsideration decision judge drama specifically indicated he would a resolution of the appeal before any steps would be taken at least that's my reading of of of the reconsideration decision he would await resolution of the appeal  i don't disagree that it it it's it's it's just it's not a stray remark what i disagreed with in terms of the decision below is that  rose or foul based on those remarks and what we try to argue on this appeal or or indicate is that putting aside whether they're stray remarks or not putting aside those remarks there is ample evidence there is ample their applications in the st amended complaint of material the adverse action and in addition to that we cited a case i don't have the specific cite here coming out of the nd circuit which says straight remarks alone are not sufficient but stray remarks when coupled with other indices of discriminatory or and it is no allegation that this remark was made by a decision maker yet so well her manager was the one who made the decision to create the two tier system he was the decision maker with regard to most of the adverse action to which she was subjected to it may be in my implicit in that decision yes because there was no there was it did not address the issue at all it dismissed the case and closed out the file and though in this case it's titled you win and heads you win right that is you can't lose the c p u on this on your theory big lal if you do not prevail then somehow you have a right to go back to judge r correct that if you do not prevail before you them believe that you're entitled to go back to this your court and ask for an amendment of your compliance where you can as it if you look at her briefing on appeal at no point does there really claim that terminations was discriminatory she identifies it as the basis for retaliation claim and  where the party in that case had separate sections where they identified what the district court's ruling was and i think pretty clearly disagreed with  just to clarify one issue as i understand the district court's reconsideration decision he wasn't saying that beverly definitely had a right to reply he said that he would entertain a motion on that and that sentence would of course have an opportunity to respond and explain why that would be futile and i think one ground in particular would be that  i i feel to be in an unusual posture in that i think by all accounts based on the arguments advance from the other side as well they assume that it was with prejudice and it was not until the motion for reconsideration was filed and after a decision was rendered that we discovered that so it is an complaint as alleged viable claims which should not have been dismissed at the pleading stage and or alternatively if there are any deficiencies with respect to we if we proceed on the assumption that this is a judgment with president you have any objection well i i i wouldn't put it in terms of an objection but i would say that it would be prefer both it was treated as a judgment without prejudice so that  would be permitted to cure any decision sees that exists with bigart to the st amended complaint in that our our goal in terms of pursuing the appeal is to provide dr beverly with an opportunity to present her claims present facts and circumstances which support it she based on the assumption that it was a dismissal with prejudice she felt that she was deprived at that opportunity and that that is the main goal so perhaps i'm dancing around it but i  complaint we believe that we can come forward with additional facts and circumstances in that area in addition to that i would point your honor indices of discriminatory i must such as what exactly was done and we believe that if given the opportunity to do so we can articulate in more