is that in reaching that conclusion relying purely on the pleading stage the court simply ignored the facts that had been reduced during the course of discovery that established that indeed the plaintiff himself same kind of analysis that i'm suggesting here namely looked at what the initial complaint stated then determined how the discovery came out and it established that the testimony circuit cases in ours are going to or others are gets that stand for that proposition that there's no foundation in fact and is determined after the complaint was filed then we could well this is the harris case that did talk about the standard for determining whether a case is unfounded or frivolous from the outset and there's also of course the more recent supreme court case that lays out the standard fox  that there will be evidence to support that and in our case the evidence was clear from his own deposition i'm sure that's true like to focus on that if i could use what in his deposition indicated that he knew that jim sullivan hadn't been treated differently well he i knew he testified in his deposition i believe it would be excerpts of records pages one eighty eight through one ninety one and forward this and that's the key extract here he testified  that he was he knew that there was a meeting with the chief executive officer who's the business manager russ burrows in which the question of two individuals himself and the caucasian mr sullivan was raised as to how they would be reimbursed for expenses incurred when they travel to the headquarters in northern california and mr sullivan's case he came in from utah and mccoy's case obviously he came in from hawaii and those discussions that came about in which both of them were told the union can no longer reimburse you for those expenses lodging below and the like when you have to come over to the headquarters area in order to discharge your duties as officer in charge then there were the meeting continued with mr of oil which mr of joyce said well i don't want to be coming over here all of this time i've had a recent granddaughter i want to spend more time in the islands i don't want to be coming here to california like mr  other officers in charge of the court are required to do so now what about this so called prearranged aspect were how does that fit there's no evidence of prearranged  there is evidence of is that the officers had been talking about how can we justify these kind of reimbursements of expenses then there was discussion about as long as mr moholi is not coming over here to california or in order to do those dut testified that he thought it was prearranged that he'd have to change jobs and get less money the only discussion at that point would be the smaller amount of money would it be one hundred thousand or one hundred fifteen thousand something like that whether whether  the union agrees or worse prearrangement wasn't there testimony by him that he thought it had been prearranged did testify that he thought there'd been some kind of discussion and pre arrangements of the change in his position the question is does that show the intent to discriminate or was that based upon a legitimate nondiscriminatory reason you say you're trying to litigate the case again the question that we have is what did he understand at the time and in particular at the time of filing the complaint is it established that he knew that he had not been treated differently i don't know if you're hearing an echo i do sorry about that i tended to reserve some time on of this was working at the well but so far i haven't seen anything and your brief certainly doesn't discuss this anything that indicates that he knew that he had not been treated differently than mr sullivan well we focus officer i respectfully disagree with the court's analysis i searched your brief for solomon and i sure didn't find much other than the factual description so and unless you can establish for my purposes that he knew that he had not been treated differently from sullivan then i don't check off the premise of your argument which is that he knew when he filed the complaint that it wasn't true i would direct the court then to the concise statement of facts that was cited at the excerpts of record one sixty six and th of the final point zero that's at the time that he abandoned his his climate summary judgment and you're trying to argue that he knew from the beginning when he filed the complaint that he did not have a factual basis for a claim and so telling me that he learned after discovery by the time of summary because of the change in job classification and position that he agreed upon the final point i just wouldn't which would have been the same arrangement with the other person from utah that's correct your honor and i missed m acknowledge that he knew that he could have continued in that higher paid position if he would agreed to come to california and discharge the duties that were expected of him as the officer in charge instead he agreed to this arrangement to this issue about whether or not the mr sullivan was treated differently than my client and as the court pointed out in his deposition he indicated that as far as he understood i mean there were there were series of things that they did between december of two thousand and nine and the summer of two thousand and ten only one of which was this issue about him having his salary reduced and as he testified in on page twenty two of our brief he sullivan was similarly situated and was not required to relocate or have a salary reduced i don't understand the relationship between his belief that there was position a salary was reduced where he didn't have to visit the mainland well after after discovery in the case it was determined that we didn't have a viable position to proceed on in s outset he understood mr sullivan really refused to relocate but his salary was not reduced there was no prearrangement to reduce his salary there was no reduction at all but with regard mahoney the hawaiian they had already decided that his salary would be reduced and then it was just a matter of him meeting with mr burgess to determine how much of a read the production that was going to be  reflected in the deposition testimony so i'm just wondering what it was that was based on i mean obviously was in the complaint but the just deposition testimony doesn't reflect that at the outset he knew th your successor counsel so i'm not faulting however but really it's not very common for a party to be questioned by his own turning at a deposition is it so if if he didn't talk about something it's because the other counsel didn't ask him  just one point given the forty five seconds that i did actually reserve you if you're honest the relocation is a misnomer neither of those two individuals were ever required or us to relocate what they were us to do is to travel to california to  what happened to both of them that prompted all of this in part was the decision by the organization that they could no longer reimburse either one of them for the expenses incurred while traveling that was applied across the board and so then when mr mccloy chose to accept the special representative position he no longer had to come to california in order to do those so it's not a question relocation it's a question of how much time you're going to spend in that northern