frame the situation before you number one is that for his more than twenty five years as a smith barney morgan stanley smith barney employee mr blount was the only african american among thirty plus financial advisors in the firm's santa clara office secondly on the very first occasion that he met him jim niels mr blends new supervisor told him in his office that he should not make complaints to human resources or anyone else should make complaints only to him that if he didn't like it he could see alternative employment and when mr blount questioned him further he ordered him to get out of my office now before going further i would like to up point out like reflect  i'm going to put it politely hardline attitude but i'm not sure that that makes out an employment discrimination case because hard ass bosses are hard ass bosses and there's nothing there that suggests discrimination was or his attitude had anything to do with your client's race well you're right or you wouldn't expect a manager of a modern corporation to be much more explicit than that regarding his hostility to the fact that an african american employee policies anything having to do with the african american element guy's a jerk or lots of jerks in that industry and mr bland is african american and sue what what's the is there any evidence that he didn't express the same hard ass attitude to all the other brokers in the office i'm sorry but i'm going to have to push back on that you know we live in a society or any evidence that he expressed any different attitude to anybody else in the office that's a yes or no question the answer is no we may draw different for instance from that but i'm questioning you know as to why there's any evidence there was one other and i take it the answer is no the answer is yes ok what is it that's what i'm asking for there is one other financial advisor of a minority race who worked in that office that was mr graham who is suspect mr graham in his declaration reports consistent behavior by mr nielsen in refusing to allow mr graham to do the things that would be necessary to grow his business mr graham quick because of that this is a case where there are a thousand cuts without answers the question i if you recall what that question was us me your honor and i i suppose fair interpretation of your question is whether there are any explicit statements by mr niels reflecting racial bias and the answer to that question is no and in particular i was asking is there evidence in treating other people differently and what you just told me is the trees somebody else the same treated the same as he treated mr blount right discriminating he may be a jerk as everybody he may be but morgan stanley apparently thought he was a an effective enough manager to maintain his employment for at least five years in that position and there is no doubt in the record that his treatment of mr blount in every situation where he had an ability to assist mr blount or not assist mr blount in growing his income he always chose the opposite i think the record makes clear that a financial advisor at morgan stanley smith barney success depends on a number of factors besides his or her own efforts and a lot of those factors have to do with management support mr blount points out that his record of receiving accounts from departed financial advisors had a very negative impact on his income mr blount reports that the level of staff support that he received had a very negative effect on his income particularly the withdrawal of a customer service administrator who was helpful to him and her being replaced by one who was not only not helpful to mister blount from his perspective but was viewed as not helpful or effective by at least two of the three other financial advisors for miss for whom miss eden's worked perhaps though most tellingly and i think this is important was mr nielsen's consistent rejection of persons who mr blo suggested be hired whom he could then partner with which again the record shows as one of the ways in which a financial advisor can improve his or her income and that wasn't least one of those persons actually hired one person was hired initially and lasted for about three weeks that's true but i think one of the sharpest factual interchanges in the case has to do with the hiring of steve parker who is a white gentleman apply for work receives a phone call from mr nielsen invited to come in for an interview in the course of the interview mr nielsen says well you'll do fine here even propose a salary for mr parker as mr parker leaves the interview he says to mr nielsen oh by the way i'm a jesse blount's former brother in law a couple of weeks later when mr parker calls to find out when it is that he should begin work nielson says i'm sorry i've changed my mind about hiring you it seems clear in these interchanges that if you are the right race or if you are rightly connected at m s s be morgan stanley is a pretty easy place to find work if you are connected to jesse black it's almost impossible even mr benjamin who had been a former financial advisor at morgan stanley smith barney wanted to come back and disclosed to mr nielsen that when he mr benjamin had previously been there he had worked with mr blair  mr benjamin is then rejected and why is he rejected he's rejected because of a supposed to ten year rule which prohibits the return of a former financial advisor who has been gone for less than ten years now no one else at morgan stanley smith barney knew anything about such a rule but it seemed that any pretext would be a sufficient grounds on mr nielsen's part to reject  blount's efforts to work with people or to reject people who wanted to work for or with mr blount i would like to point out that twice in the last several months this court has emphasised the relatively low burden that is required to overcome summary judgement in a case of this kind both and france versus johnson seven ninety five f third eleven seventy which was issued in august and negro versus sears roebuck and company seven eighty four and third four ninety five which was issued in april the court pointed out that in the face of evidence like the evidence in this case where the motivation of the actors becomes the key issue in determining whether there was discrimination or retaliation  those are the types of issues that cannot be decided on the paper that need to be decided on the basis of what the call this court has called a searching inquiry but i just  demonstrate pretext is either to show that those reasons are not the actual reasons right or that the reasons are really the bias of the decision maker we think we have established the bias of mr nielsen towards mr blair up and that therefore the reasons that have been manufactured as justifications for each of those decisions can be called into question i mean there's no doubt that employee like morgan stanley can come up with a reason well we rejected mr benjamin because of the ten year rule well if there is no ten year rule there's no proof that mr nielsen didn't actually believe there was a ten year going to do more than say we think it's pretax you need to be able to show something that that would allow the court to conclude there's at least a factual dispute and that it might be pretext and that's i'm struggling to understand what the evidence of pretext i other than the conclusion we think it's pretty well again we think that mr nielsen's initial behavior towards mr blount demonstrated his added to towards mr bl prone to complain about about racism those are attitudes and i agree with judge clifton that it might just be because mr nelson is a jerk but how can a court decide on paper whether mr nielsen's comments represent his tendency towards jerkiness or whether they tend to represent his racial biases those are few hard evidence for example that that he accepted suggestions of people to become employees of morgan stanley who had similar obstacles to their being hired but he accepted those suggestions and hired those people if the people the person suggesting them was was white but he rejected them if it came from someone who was black that would be evidence for well your honor i believe the fact that he excepted the employment application of mr parker until he learned that mr parker had an association with mr blount is that sort of evidence the fact that he made up a rule which didn't exist to reject the reemployment of mr benjamin who had been a successful financial advisor in the past is evidence of pretext the fact that he told mr blount that he could no longer employ a an intern to assist him in trade shows and didn't advise mr blount that an option that he had would have been to pay that in turn salary himself in order to maintain her services all are susceptible of two interpretations but this is not simply speculation these are facts in the record which may or may not show bias and i just i'm not sure exactly how to say this but you know racism and implicit bias are alive and well in a society where a justice of the supreme court feels empowered to comment about the supposed lack of intelligence of black scientists and mathematicians without thinking that that's a bigoted remark you cannot ignore the context in which these decisions have been made and i'd like to reserve the in this case a very experienced trial judge judge bryer correctly applied the legal standards to the particular facts here there is nothing remarkable about those facts that would justify reversing judge briars decision because the evidence here contrary to mr blount's counsel's characterizations is a handful of trivial actions not racially motivated or retaliatory adverse actions and i want to talk first about those allegedly adverse actions such as not taking mr blount to lunch a twenty five year financial advisor or of changing his c his client service associate assignment after he had complained about her and she had complained about him for at least a year and a half these actions did not materially affect mr blount's compensation or the terms conditions or privileges of his employment that's the standard under federal law for whether an action is a disk is it is an adverse action for a claim of discrimination the actions based on the record would not have discouraged a reasonable person under the circumstances from complaining about discrimination that's the standard under federal law as i i'm sure you know having watched arguments on wednesday for a claim of retaliation and these actions were not reasonably likely to adversely and materially affect mr blount's job performance or opportunity for advancement in his career under any of these tests that i just reciting for whether an action is adverse for purposes of a race discrimination or retaliation claim under federal law under california law the evidence does not support reasonably concluding not just concluding but reasonably conclude that any of the actions mr blount addresses in this appeal are adverse well that the nature of this business is a compensation for flows directly from your accounts and how much you have one of the one had to do with the reassignment of counts for departing brokers and if in fact mr blount is disadvantaged not receiving those assignments is compensations affected as an adverse employment activity it could be but one that issue is not before this court on appeal that's an issue the judge bryer decided on summary judgment based on the evidence that was presented in the record on summary judgment that was not presented in the papers on appeal in this case so i'd be happy to address what the evidence showed but it's that he based based on something in the record yes there was evidence submitted that show that mr but the way that the account distribution system works at morgan stanley is at the time period in question was that accounts were distributer redistributed to financial advisors in the office based on a formula a formula by the way that had been approved by judge henderson in the northern district of california as part of a settlement of the  and under that formula based on a number of factors each financial advisor is assigned what's called a power ranking and that's a combination of how many revenues they've generated in the prior month how many assets they have in their management how many new accounts they bring in those sorts of things all the merit based factors based on the the number that's assigned is the power ranking for each particular month and then the accounts when when a financial advisor leaves and goes to a competitor so that their accounts are centrally in play the counts are distributed automatically biased by the system with some exceptions allowed for in the rules based on the power ranking one two three four five six seven eight nine ten depending on where mr blount's power ranking was in a particular month when a financial advisor left the evidence showed he was treated no differently than any other financial advisor in the office on one or two circumstances the financial advisors who departed had so few accounts their ten twelve accounts something like that they were redistributed they were relatively junior financial advisors that they never got far enough down the list to mr blount whose power ranking at the time was something like fifteen to eighteen or whatever was they didn't receive any redistributed accounts but nor did anybody else who was far far enough down the list so therefore judge priories the correct conclusion that there was no adverse action as to these account distribution mr mr bonds counsel also talked about that mr blount was the only african american financial advisor in the santa clara office actually from he was in the san jose office he's in the right county but that the evidence does not support that the evidence is that mr nielsen hired and there were other financial issues and other african american financial advisors in the office at the time and in fact in the records mr ponce testimony that those people were treated just favorably because they didn't comply which seems to completely undermine his claim of discrimination when mr blount first complained to mr nielsen let's make sure we understand the timeline on that and what the context was for that complaint mr blount had complained in the spring or so of two thousand and seven not or so it was april or may of two thousand and seven that his he h had not been replaced quickly enough and he complained about that not to mr nielsen or not to ms list but to his former manager who is still the manager mr williams then mr williams left some of the sales leads that he had were missing any thought another financial advisor had stolen that's what the record is as to what mr blount's complaint was to mr nielsen to which mr nielsen allegedly said don't go to h r come to me don't ever do that again then there are no allegedly adverse actions for the next to yours so if mr blount's claim is that somehow that that mr neilson was referred was demonstrating retaliatory motive or discriminatory intent or motive through that conduct wouldn't you think that that the situation would not be dormant for two years and there's nothing that he complains about for the next two years and then he starts complaining about well the first heard their complaints there are notes in the record to that effect there's back and forth on that again for a year and a half where they cannot get the situation resolved to anybody's satisfaction either mr blount or ms koch and therefore after conferring with ms koch they they determine that that the decision the right decision to make for business reasons is let's switch the c s a and let's not just switch mr blount to anybody the record reflects that mr blount had worked with ms eat koch was hired for several months that he had nothing but good things to say about her he praised her performance and therefore ms hughes was a logical person to whom to switch mr bland and then when you look at the level of support that he received based on the objective measure that morgan stanley used for assigning client service associates to financial advisors there's a threshold number one point five million dollars in revenue and that's to try to balance out the workload for the  so you have you could have one financial advisor with one point five million dollars in revenue or you could have five museums initially had four finding out when the switch occurred in october two thousand and ten had four financial advisors with one point seven million dollars in revenue slightly above the threshold that included mr blodgett shortly after that one of the financial advisors ms but got switched away and then later mr graham left or got to the point where ms evens was supporting two financial advisors including mr bl with the lowest or the second lowest total revenues in the branch meaning she had under that system objective lea more capacity to help and than any other or most other financial c s a's in the branch how is that discriminatory or unfair to mr blount he was not treated any differently than any financial advisor in the office in fact in many cases he was treated more favorably let's talk about the example of the people that mr nielsen supposedly rejected because of mr blount's race first as your honor pointed out the very first person that mr blount suggested mr nielsen interviewed and hired as mccarthy with the others there's no evidence in the record as you pointed out that other financial advisors had candidates come for first of all let me take a step back mr blount during this entire time period had the ability like all the other financial advisors in the office to partner with incumbent morgan stanley financial advisors meaning people who are already works there was no restriction on that just like every other financial advisor if he could partner with f a's he could partner with financial advisor trainees and in fact as the record reflects he did do that in two thousand and twelve after mr nielsen hired ms barrows and mr nielsen approved the partnership and any of it mr blount instead of choosing to partner with existing financial advisors because in his words it's in the record it would not have been synergistic to do so he asked mr nielsen please go out and hire somebody for me to partner with mr neilson contrary to what counsel said in terms of  blount when he was destroyed to do that you think he would have said no i'm not going to do that instead mr nielsen said ok i'll interview the candidates that you provide me and he did you interviewed ms mccarthy he offered her a job he hired or can control the fact that she left and then he interviewed several more candidates acquaintances that mr blount presented to mr benjamin mr du mr parker ms pres i won't go into the details  legitimate business reasons for declining all of those people but i do want to say one thing about mr parker and that is that counsel committed some significant facts that are in the record about what happened in that conversation with mr parker between the time that the record says least according mr parker mr nielsen said you'll do fine and then mr parker later said by the way mr blount is my ex brother in law and that is in between that time both mr parker and mr neilson testified to this mr nielsen said i want you to talk to somebody else i want you to talk to mr gamble and who is a financial advisor in this office and the reason that mr nielsen did that and mr parker acknowledged this was to get a second opinion the record on that is unrefuted and that's why judge bryer reached the correct conclusion that these were completely legitimate business of citizens by mr nielsen and morgan stanley smith barney nor by the way is there any evidence in somehow suffered financially or somehow suffered in the terms and conditions of his employment because of not being able to go to a lunch or not having his c s a issues res like every other financial advisor in the office who had an intern having his interned terminated after excuse me ten months and that is it hasn't been linked to any decline in mr blount's compensation in fact he can't point to a single client in the record there's nothing in the record on this and there isn't anything in the record of a single client that he lost because of any of these allegedly adverse actions he can't point to a single dollar that he lost now he says my income declined in two thousand  and two thousand and eleven that's factually that's correct but he also said and it did slightly he also said my income declined as compared to my peers and mr blount had self selected nine other financial advisors to which to compare himself and purposes me of this argument will assume that that's a fair comparison whether those people actually were similar in a material way is a different issue but let's just look at the numbers for those people for that time period several of the other financial advisors of those ten had their income decline at the same time the same years that mr blount and in fact in the in two thousand and twelve when mr blount income increased some of those financial advisor still had their income decreased in two thousand and ten which as you may recall we were still in the midst of a recession eight of the ten financial it and the financial markets were in pretty dire straits still mr blount had at eight of the ten financial advisors including mr blount had their income declined every year he was ranked fifth out of ten so he never changed in comparison to the other nine financial advisors counsel i'm curious to take a step back in this case i understand there with and the meeting with the this type of case considering how long he's worked in the parties involved what we are i am curious if there are been any thought of going back to mediation on a case like this or is it just both barrels and we're go not quite sure how to answer your question your honor but i would just say this i i'm not i wouldn't be optimistic about the chances of success and therefore or here and with that i see i'm out of time so i'd like to i would just like to respond briefly to some of the issues raised by counsel the discussion of the relationship of mr blount's income to those of his peers not self selected  there's no critique about the analysis that we did except in argument but not on the facts it's on page twenty two of our opening brief you know robert graham and i urge you to again review his declaration at pages two forty nine to two fifty one of the record he testifies as to how mr nielsen suggested that he was dumb he also said that he was disadvantaged by the same change of c s a's that mr blount complained of and in fact mr graham made one step further he said he felt so discouraged by nielsen's treatment of him that he left the company when miss koch was removed as his advisor as to whether there are other african american financial advisors the record is without contradiction that mr blount was the other find only african american financial advisor that's at page two sixty four mr black and mr blair did complain about racial discrimination in the end of she's me in mid two thousand and six the end of two thousand and seven that's at pages two sixty five through to sixty eight of the  record the fact that there were no complaints for two years after that is simply explained by the fact that mr blount was required to waive any complaints of discrimination predating march two thousand a compliant door landing in the form of a narrow slab of concrete that's in the record on page twenty six if the court would like to look at the photograph it's attached in the record this page one forty one of that condition damages for what happened that day because defendant along court enterprises in response to her lawsuit and during the pendency of the lawsuit widened the sidewalk size of the landing that she encountered correct that was the only barrier that ms hernandez has encountered personally she has not encountered any other b areas because she could not t but twice the first time it was found in response to the motion for summary judgment and when miss from and thus attempted to bring the issue of damages in reserve it presented to the encountering barriers that have been remediated counsel i have a question for you that the your opposing counsel makes a lot of the fact that there was this stipulation dismiss and i have to say it was very confusing trying to figure out what actually happened in this case i understand the issue presented i have some questions for opposing counsel there's the gro case in the itin case i the legal issue i understand but like just some clarification on call how we got there there is the stipulation in this case and who who drafted the stipulation to dismiss was not a joint effort yes it was because as i read that stipulation and i'm referring to  there's the word of the use claims claims from eleven and are dismissed what what what is your reading your understanding from the stipulation what claims are being dismissed is it the various legal theories is it the size is it hernandez has encountered because obviously she could not use the landing so by the time the court and the opposing counsel kind of generally referred to it as a the size and the size was what the only barrier the miss hernandez complained about in the one that she personally encountered and so for you to prevail before us if i'm correct you have to convince us that the district court granted  with you all the way i see why you say that what puzzles me is why doesn't the stipulation simply say that we are dismissing eleven and as it applies to the slope the court granted summary judgment on eleven and as to the size why if it said that then i don't think we would be in this kind of alice in wonderland situation that we're in right now as to what this all means i wish it was more specific  what i'll call about whether you can get damages when that when the a d h issue's been remediated are you aware of any state law cases that would help us on this issue quota for his civil rights act and does not require that's what the court found there's no requirement of any intentional discrimination in that situation so i think what is the your best case for state law would be the months and case yes ok this determination was not supported by the state of the law the both the district court and along close spent a lot of time on the issue of requests for the cleric to relief but there was one in the district court concluded that the unruh action loses because there's been remediate let's say we disagree with that what what's the next step in this case what do we do well the only other attempted to gain access to the convenience store to purchase something sweet but was unable to get inside because there was insufficient maneuvering space on the narrow sidewalk floating fronting the entrance and the court does not have any further questions i would like to save some time for the rebuttal you a thank good morning your honors me please the court i make in childress or represent the defendant in this case blago enterprises i don't want to waste the court's time kind of regurgitating what i've i understand your position why is that you believe that the claim for statutory damages is out of the case because of this court's prior rowlings which have held that when a barrier is removed and therefore moot the state law claim is also mooted you say based on this court's decision what decision that is the if to be honest i don't understand that if the damage injunctive relief i doesn't speak to the state law claim for damages right but you can't get your damages on your state law claiming to use first find that there was a state law violation and it or there's that finding was made and your client fixed the problem afterwards that doesn't mean there hadn't been a violation at the time the barrier was encountered well there doesn't there there wasn't a finding that that there would be i mean your client doesn't seem likely to contest that your client realized there was a problem and change this change that remove the barrier but that might be to be contested but i'm not sure how how fixing the problem later means the injury wasn't suffered in the first instance and i don't think the oliver case says that it should there's not an eighty eight claim any more granted the a da provides for injunctive relief but the un will act provides for damages statutory damages and why does that claim go away because that claim is dependent on their first being a finding of an a p a violation and why can where the court finds at the a b a claim is mooted the court need not determine whether there was an actual violation that doesn't need to for eighty eight purposes but can for state law damages claim purposes been the the fact that a problem is fixed doesn't mean that it didn't exist at the time the barrier was encountered by plaintive so i don't understand the logic of saying that claim is moot give me the logic separate from the cases which i haven't found to say what you're saying they're saying what's the logic in saying the barrier that she encountered for which he's entitled to a plane for statutory damages the fact that it was removed later how does that change the fact that she encountered it when she tried to enter the store the logic is at the  only provides for injunctive relief not damages why it's assumed that the legislature intended that the that the purpose of the a d a s to add these restrictions is to have businesses actually provide for statutory damages correct your honor so what suggests the legislature meant to say ok we're providing for statutory damages but your liability goes away if you later fix the problem isn't that what you're now advocating that is what i'm advocating because that has been that's how these cases have been treated and that has been the law that it uses because the cases you've cited me don't speak to under a act damages they speak to injunctive relief that it's perfectly natural to say there's no longer a claim for injunctive relief of the problems been fixed but it doesn't explain why there's not a claim for statutory damages for having encountered the barrier in the first place the way we get there is because the is that your position correct i gotta tell you i have a hard time seeing there because the district court failed to identify this is a true as an issue for fact or rather is an issue for trial the trial at that point was limited included both the slope and the dimensions of the entrance landing were left for trial so both her eighty eight claims and her damages claims under unruh were left for trial well i look at what the district court said and it seemed to that the size of the lending issue was considered alive at that point your summary judgment plaintiff requested that the court include involvement in within the language of paragraph and which was not proper because the slope was off so paragraph the plaintiff the plaintiff was the one that arc that demanded in the court agreed that by proper landy and that included the slope and the dimension was clearly still open i think i've correctly with you there but what tells us that the landing size issue is open because when i see the the court saying in its pretrial order number one when the pla tried to bring back its argument that there had been a violation prior to remediation the order says it is aug twenty three order this court granted defendant's motion for summary judgment with respect to the claims based on thirty eight remediated barriers in doing so the court dismissed plain his claims based on those barriers this dismissal expressly applied to plate of state and of other federal and state claims plaintiff's attempts to revive the state claims  it seems to me that the district court is is closing the door and saying that door is shut with regard to a state claim with regard to the remediated barriers do you read that differently that the court it was saying that and the only barrier that  have or scott received damages for was a barrier that she personally encountered and that was the landing barrier so the thirty eight other claims that had been that the judge granted defended summary judgment on dead we're not there landing barrier it isn't the problem the problem seems to be that that statement in the pretrial orders actually inconsistent with the with the judge's actual finding in the aug twenty three order which which says explicitly eleven and alleging lack of quote proper sixty by sixty door landings unquote at the accessible entrance the court denies both parties motions for s and then at the final sentence of that paragraph with respect to the door landing there's a travel issue as to the slope of the landing so you you go to that that's what you rely on is that it and then you suggest that that then you settled that or that was stipulated away in the in the stipulation but the pretrial order somewhat inconsistent with that because it seems to split eleven and into two parts the slope and the  when what i understood the judge to be the district court to be addressing in its pretrial order what was was what appeared to both me and i believe the district court to be an attempt by the plaintiff to try to receive statutory damages under unruh for the remediate all of the other remediated barriers that were still not left for trial at that time and although i think the the judges but the district court's best argument or best way of addressing this would have said you wouldn't be entitled to those damages for those barriers anyway because you didn't personally encounter them well there's no discussion of that in the order but let's just focus on the one that was personally encountered by word is the district court say that claim is gone the and what explanation is given for the district court saying that a claim is going to destroy court never said that those claims are gone th right but the court had been found to put up with respect to bury them that entrance landing barrier which the court found included both the the dimensions and the slope the court denied both parties summary judgments as to that barrier because the court that i cannot find that this is a proper sixty inch by sixty inch landing because we have this issue regarding the slope so both issues are still left for trial the court denied and it's clear from the court's m s j order that the paragraph eleven end was still left for a trial and the counsel to jump in but you are thirty which is the very end of the district court's order in summary judgment and looking at lines ten and eleven the judge writes with respect to the door landing there was a tribal issue as to the slope of the landing not as to size and slope just slope so how can we say size and slope are still alive when he or she has just slope but in the previously in the order to see it discussed that the entrance landing barrier paragraph eleven and that faction that allegation contained in the complain addresses both the sixty inch planting and the slow but that's in terms of notice to the parties that's different as a summary judgment of what went when she's talking about eleven and in that context it was political on notice that these two types of claims are our lives and the answer was she found yes then as i read this she's then saying with respect to the door landing the only thing left is the slope size has been remediated now is whether her legal analysis of the unruh act was correct is something we have to decide but i don't see how you get around that sentence on page thirty of the excerpts of record i think that the court was saying in paragraph three of the order that the entire the entire paragraph eleven and is left for trial and the reason is because there is still an issue regarding the slope i think i know for the court that nowhere else in the order just the court grant summary judgment on the dimensions of the light landing entrance to two defendant so the deflation to dismiss the only claim that we're here for today i don't know you think you think that they just i totally blew i don't know if it was a mistake on their part i don't know if it  was an attempt to avoid going to trial on it and trying to get damages kind of through the back door by appealing this decision and with that you know i don't know what i really don't know when i saw it and they presented the stipulation to me and asked me to sign it i was completely perplexed has no other questions i will step down thank you thank you element and the only paragraph in the complaint that states this is the barrier that mr hernandez personally encountered all the allegations in paragraph eleven refer to barriers that were subsequently discovered in was what happened then initially there was a sign inspection and the expert found additional barriers which were incorporated in the end i mean that complained and the paragraph loven after that happened polanco addressed those violations and then the process that was and you barrier created which was a slope of eleven and and that was the remaining yes you that was dismissed and that