well here the first case christian obviously simon who is in two thousand and it was based on a test of literally sexual activity and it appears to me that well the case is clear to me that it actually carved out a group of people based on their sexual activity that do not get protection under title seven but title seven the spirit of it is about skills not who you sleep with not who you love i can't reconcile and i don't think the circuit court can do is the same to reconcile simonton with lawrence versus texas in two thousand and three three years later that said wait a minute we can't put people in jail because of who they're sleeping with sexual activity and can you can you prevent now if simonton is not over no your honor and you're calling vacated it's doesn't make sense considering even the e e o c is a bold one case which gives us plenty of information and i'll let the e e o c handle that in her argument it doesn't reconcile with the latest stereotyping claim as i read the district courts have said that that wasn't adequately pled the district court did say it was not adequately pled i don't want to abandon the sexual stereotyping claim at all no i don't i would definitely focus on the sexual orientation claim here today because a simonton i can't i need to get past that and i think the circuit has to as well th as you know of different theories one that says that discrimination on the basis of sexual orientation treats employees less favorably because of their sex and is thus discrimination a second says that discrimination on the basis of sexual orientation treats employees less favorably based on sex of their associates so she  no relationships and thus is sex sexual discrimination i can then there's a third that says this is discrimination on the basis of stereotypes is there one of these two these think embraces one into which would be and like and i apologize if i have now mispronounce it says the problem here is the target is the sex so the  test would be but for the sex of the employer employee and will take number two and the sex of who he is so she ate with that they are being discriminated in this manner which again my position is violates the spirit of title seven because it's not about sex per se that the sexual activity it's about skills so it doesn't matter who you sleep with last night as long as your skills are good because when we go into well i'll stick with the question it's a but for the sex of the employee and but for the person he's so she hates with and it's the same as your honour's in hong kong where this court resolved racial discrimination orientation discrimination is of necessity sex discrimination because of sex for the purposes of title seven is is that in my understanding the argument that in all cases of sexual orientation discrimination that discrimination is of necessity discrimination on because of sex because a sex is the first thing that is targeted you know that i just raise my hand as an illustration the left hand here is o employee he is not heterosexual and that's why i'm here today it's to protect the people that happen to not be heterosexual because simonton only protects people that are heterosexual so here's our employee who's not heterosexual here's or employer harassed or whatever we want to call them and he's saying a male that's a first thing you say and then we'll bounce back to here and his mind starts calculating saying that men should be with women but because he has a picture of his husband on the desk i want him out i'm going to harass and i'm going to do what simonton warned us in the beginning of its case be careful because we're going to tell you facts and we're not going to tell you all the facts something so reprehensible you're not going to like what you read and then we read about the pictures and the lewdness and w simonton went through that led him to a heart attack even yawners when i read the hundred tenth congressional record it was all about skill nobody was talking about sacks or who you love it it's all about skill and it also said and i'll get back to simonton in his heart attack in the reprehensible facts that this court warned us to you read this it also says they also say on that floor in the hundred tenth record nobody should be afraid for their life when they go to work simonton amistad many people probably who knows who's committing suicide well maybe they are all these people jumping  george washington bridge because they can't keep their jobs aggression on record with respect to sex he has is not is not very extensive at the time of the passage of  that of that law indeed as you know it was proposed which makes this acts as a way of defeating the whole measure and it didn't happen but the measure the measure pas but the legislative history is quite quite sparse which may in part explain why for a very long time rightly or wrongly circuit courts and the e e o c were of the respect let me correct you reading it first of all there's a lot of fallacies the first thing i did when i got this case when i was writing my brief i said someone get me that congressional record because we read it and you just happened to repeat what i would say is a fallacy senator smith from virginia did not bring it up as a joke in fact he says i'm very serious let's add sex and they had a debate with the female senators as well and another male senators i'm sorry i'm a kung congresspersons congressmen and women and it wasn't a joke but for some reason i'd say it was a joke and i'm just saying that this legislative history itself is sparse ours which is not to say that your position is not defensible not saying that at all just trying to get a sense of you know how we got there and often go beyond the principle evil to cover reasonably comparable evils and that and your position would be that sexual orientation discrimination would be that kind of c yes it would be covered because you know in all and a lot of the supreme court cases tell us it's better to go general you know go abroad and protect because that's that's a title seven is a protection statute to protect them ploys based on skill again and not you also have a pricewaterhouse yes your honor could you explain how pricewaterhouse pricewaterhouse was the woman who was too manly she happened to be i think she was heterosexual actually but she was too manly and pricewaterhouse of course as sexual stereotyping gets protection and then this court after simonton came up with in dawson versus bumblebee bumble sexual stereotyping let's not blur the lines let's not bootstrapped homosexuality the sexual stereotyping your honor of course the lines are blurred how can you possibly say a heterosexual female like pricewaterhouse who's somewhat manly aggressive whatever gets protection because she's a sexual but the same woman would not get protection if she was a lesbian it's the winds do blur so why carve them out it blurs for a reason because we're all men and women first and foremost matthew christian is a man christiansen is a man he doesn't meet people and say hello my name is matthew christiansen i'm a gay man he didn't put that on his job application either and we also don't have on our passports or our licenses male female yes straight were men and women first and foremost in the purposes skills were here for skills and title seven is there an argument to be made that sexual orientation is in fact just a form of sexual stereotyping and therefore if it's on the coverage of titles of  on house help you with that or any of the other supreme court decisions out of the way i see the sexual stereotyping thing is really just social norms social graces that's actually you know how i see it i don't personally in my mind believe that we should have a sexual stereotypes thing i still say that if i had the stand that's your thought but supreme court has said it's sexual stereotyping is covered under title seven so my question to you is is there an argument to be made a sexual orientation is just a of sexual stereotyping sexual orientation yes your honor i would say sexual orientation is a form of it because they're saying even in dawson that it's so blurred they can't segregate sexual stereotyping from the homosexuality so why not take that group and keep it together and say if sexual stereotyping if  you're heterosexual or homosexual you get sexual stereotyping in my mind your honor i'm sorry i can't reconcile that it's it shouldn't exist if you're a sexual stereotype because you're a it's heterosexual female act the male you get the protection but if you're a homo sexual female you don't get the protection that it means to you it's blurred do that on its own but that's one way but even apart from that you're continuing to argue that under all precedent there was enough here you're enough allegations of sexual stereotyping that the district court erred in  that the plaintiffs the supervisor was saying the plaintiffs exhibition of behavior quote was stereotypically inappropriate for men the supervisor acted against him on that basis this muscle beach poster there may be a the incidents in the complaint are alleged to have occurred between two thousand and eleven and two thousand and thirteen and then there is that facebook post in september two thousand and fourteen you're arguing that sufficient to bring this within the continuing wrote them letters and said enough already you know it's bad enough when he was going through and being you know called all these names and accused of having aids in this and that but now you have him up and you know with his legs in the air in that bikini shot on the poster taken down they wouldn't take it down they wouldn't take them which was more of their kind of it's in your face there you go we're going to keep making fun of you it took us to write to the e e o c which was well within three hundred days so so for it was discovered if we were wrong about the poster if after the e e o c got involved that the poster went down january twenty fifth thing it was on facebook how does it connect would be your your thought process and the law is the last action could connect to the previous acts and of course it does because it was a sexual it has him in this i say it i brief many times the sissy position the bottom the proof all of these sexual denigrations that mr c was using against him now we have them in that poster and your honour's up make it one further point clear the complaint also has attached three certifications a three game males in employees of that and every one of them certified that yes as a gay male that is definitely the position of a gay man in the sexual position argument as to what discriminatory act is with regard to that post it is the fact that the company refused to take it down or refused to order the supervisor to take it down as opposed to the paulson of the act no the posting of the act oh yes the posting of the act but the discovery of it and that is the law upon discovery which matthew discovered it in twenty fourteen and we wrote them so it goes further and then they refused and you know the act went further than they refused to take it down for another four months when we explain this is connected to all the sexual discriminat the sexual orientation discrimination that you've been putting matt through for years please take the stand he does i question to you with regard to the post and as that was posted on the private facebook page of the supervisor are we to assume that the employer knew about it and therefore had an obligation to ordered a supervisor to take it down or is the argument really as to the employer that they can't be liable until a demand is made for its removal and even so are we saying that an employee who post on his personal facebook page that the employer is therefore liable because they did something outside of the work and does that sever the connection between the act posting it by the employee outside the workplace and make it this similar or not connected sufficiently to all of that discriminatory conduct that happened in the workplace that is a lot of questions your honor thank you and what i will tell you is factually again in the four corners of the complaint that poster wasn't on his private facebook alone what he did is he tagged hundreds of people including mr christiansen's accounts who weren't even employees of the company they were the counts that he service like state farm you know that he was managing and other people it wasn't private it was very public and it went beyond the work to embarrass him and mr christianson at the time and we explain it he put matthew's name on it too but  never got notice of it facebook didn't have time getting at the time notifications i can't stand facebook i try to stay away from it but you know this is what he matthew did not know that poster was up until he discovered it in september twenty four teen which back out it is really directed at what is the employer's responsibility if an employee outside of the workplace is engaging in conduct that is harassing to an employee are you arguing that they have liability because the employer is policy speaks to the employees conduct outside the workplace on social media w employers policy did and we that the handbook told them that they weren't allowed to do that anyhow they shouldn't put work related things or anything about the employees on social media but again discovered in two thousand and fourteen from your the way you're a chick you landing the theory today it could have been two thousand and twenty or two thousand and twenty five and you'd still say it was a continuing violation and that seems to me to do a claim under title seven and in the normal course the court of appeals doesn't decide this kind of issue it's the district court as it gets the first crack at it and they didn't because it wasn't raised in the district court and i explained that in my appeal and in my i reply brief it was never raised so i guess my point is that if we get to that point it might be he want to know are you in support of your out a giant hole in the definition of sex and we don't think that has turned out to be very workable or is it legally support that you're asking us to change just by way of context is a position that was a position that the e e o c itself had not disagreed with yes it is that's correct your honor but we recognize that the legal landscape has changed and the understanding of sex and sex orientation has evolved over time and so it's appropriate that we also evolve our definition and make it a compas sexual orientation and baldwin laid out three as the court mentioned baldwin laid out three theories under sexual orientation would be considered sex discrimination the pricewaterhouse exterior typing the whole come association with their e and then pure and simple disparate treatment where the employer treat someone different really than someone else who is essentially identical except for for example the sex of the individual spouse in practice what is your interpretation look like due to plaintiff's need to plea one or more of these three particular theories or do they just have to plead employment discrimination based on sexual orientation i think if they plead discrimination based on sex and or discrimination based on sexual orientation that you do it because under the supreme court's case and i think it's called switzer or something like that you don't have to plead a theory you just have to plead facts that support a theory of seeming there are sufficient facts to support coverage that's all you have to have i think the court asked whether there are whether sex stereotyping is always equal to sexual orientation and i think that's a we think that the underlying theory understanding of sex stereotyping as the highly panel said before that decision was vacated at the quintessential sex stereotyping is opposite that's attraction none will be attracted to men to women and women will be attracted to men so basically under price waterhouse's sex stereotyping theory sexual orientation discrimination is we're not asking for a particular type of deference at all your honor we think that plaintiffs mention edelman we hope that the court will go there and say well you know she's decision it's correct it's not that it's a reasonable interpretation of the of the hole in the statute it's the right interpretation of the statute we hope the court will find it persuasive for that reason we don't need we're not asking for the court to decide any particular level of deference to the decision it's a correct reading of the statute in our view in our view all three of those provision of the theory sort of boil down to the same thing which is that the employer if the employer is taking sex into account that sex discrimination and employer can't take sex into account i mean she's made the employer unnecessarily take sex into account when  discriminates based on sexual orientation because you can't have the sexual orientation the person is defined by the senate by their own sex and the sex of the person that they're attracted to so and under price waterhouse you an employer is prohibited from consider taking sex into account so the employer is prohibited from discriminating based on sexual orientation in the brief a couple of times that that discrimination on the basis of sexual orientation is necessarily sex discrimination and today you said that sexual stereotyping yes is almost invariably or all cases sexual orientation discrimination is discrimination because of sex and maybe it's the focus of what if the discrimination has i am discriminating against people  discriminates against against or which i guess all sort of folks goes back to loving versus virginia you if an employer discriminates and says i'm discriminating against black people who are married to white people i'm discriminate against white people who are describing who are married to black people i'm discriminating against native americans who are married to hispanics because i don't believe in inter racial marriage that is discrimination based on race it's even though you're treating everyone equally it's disco era what do you do you're taking race into account and you can't do that under title seven and on the stereotyping perience on the assassination off you're right well i think they cause they all mile down to the employer is not permitted to take a protected characteristic into account in making employment decisions  do things for all kinds of reasons and we just don't know what they are and i thought it was interesting that this morning i thought you know there are three appellate decisions holding that transgender discrimination is covered by title seven it's discrimination based on sex and congress hasn't done anything with that either so and that's been since two thousand so i think you know congress is in acting on this it's just we don't know why it hasn't maybe it's because the statute as as it's currently should be understood covers sexual orientation there's no need for additional legislation and sometimes even if there is there is a statutory proposal it's lodged in with a bill that has other elements to it that where members of congress may vote against that larger provision exactly even if they have no problem with that particular provision having to do with sexual orientation exactly or that and we don't know complained for the first time about being harassed in june of two thousand and thirteen he complained about only one person does this in seattle the company immediately made mr since you gotta get up and publicly apologize to everybody the president of the company got up and gave a speech that they would not tolerate this behavior that was in june july of two thousand and thirteen there have been no complaints after that we're now in two thousand and seventeen there hasn't been a single other complaint the plate that was still at the company working just fine with the cincy out has been gone through two since two thousand started the company yet and the other one there was a wrong email address so they never got that demand when it finally came up later they did have the person take it down but using defamation analogy which we use in terms of the single publication rule there defamation cases including trouble pronouncing this call your ski which is a new york state supreme court case in which there was a demand for retraction and the court said no the single publication rule in new york under new york law very clear here has planned hostile work environment point based on the conduct that happened prior to twenty thirty is it your argument that this muscle beach post or if hosted by an employee against your policy does not continue that harassment it was there's no dispute about the fact that it was posted in two thousand and eleven regardless of when it's posted assuming that appellant only learned of it in twenty fourteen and therefore it's within the statutary time period the statute of limitations time period is it your argument that the post stand of that muscle beach poster when discovered by appellant doesn't continue the harassment two thousand and eleven going to be in a harass an act to this employee if he doesn't know of it doesn't it make sense that he learned of it in twenty fourteen it's harass into him that it's arguably a continuation i don't believe that it matters when he discovered it yes i totally agree it's not harassing to him until he finds out about it but it's not an act that the defendant can be held responsible for within the statute of limitation is continuing policy of discrimination and i don't see what how it's a continuing policy well to you just agree that that muscle beach pollster and everything that it represents is sufficient is active or ask me if you look at the poster but that's not the point here it's been alleged to be and we're not in here argue about that however that poster was a invitation to a happy hour it is emitted in the comp there is an e mail in which that post again was an invitation to the whole agency to a happy hour there's no dispute that he knew of it when it was circulated in the office the question is really does that act your employee post and that poster subsequent to the circulation post at the same time circulate regardless of when it's posted except in the allegations of appellant is true as were required to do this is a motion to dismiss if in fact he didn't discover it until twenty fourteen and you agree that the conduct is similar to the prior conduct why has that part of the continuing violation here i would say it's exactly the same thing as a single publication rule on the defamation if the person discovers a defamatory article a year after it was written the statute of limitations has run he discovers it for the first time it's causing him harm at that time but that family tori article went on without question under new york state said it applies the same way the single publication rule applies to something posted on the internet and doesn't matter when it's discovered an act that will help be responsible for current two thousand and eleven now just to be clear as i understand it noted earlier with respect to the time our arguments there are there are two that you are making the continuing violation and the equitable tolling and i asked to both the district court did not resolve those those issues and so if we were to get to this point and get beyond the title seven issue as to continu violation and equitable tolling the normal course would be to remand to the district court for its its consideration of those issues you say with respect to the equitable tolling issue you say that the district court this is on so the district court didn't resolve equitable tolling didn't resolve continuing violation why shouldn't i just go back to the district court if we get past the title seven first let me say that absolutely positively we raised this issue below it's on page eleven of our brief on the motion to dismiss and is all you know are required the question is whether the district court address i understand that you raised that well that was said that we didn't and i want to be clear about that is you are is no better and better than i this court can just affirm on the on any basis that was raised below if you decide to do so and decided you don't want to tackle the big issue of overturn clearly where she stood on that even though ultimately she did dismiss that on the basis of on other grounds and she didn't address it as the title seven because she dismissed it obviously on the basis of the second circuit precedent so she didn't reach it on title seven but the facts aren't equitable tolling would be the same for both of the both of the issues so i suppose yes you could be remanded back we feel pretty comfortable that as to where the district court would come out on that  improper to weigh competing allegations at the motion to dismiss stage without giving the plaintiff an opportunity to present evidence about why he was impaired despite the competing facts  equitable tolling come right out of the complaint the fact that he worked productively that whole time was promoted that he actually did complain within the company during that period of time all that's right out of a complaint you can't create mendocino has disputed facts you can't create disputed facts by think things after that you say afterwards they got a a a letter analysis from a doctor in two thousand and fifteen which basically proves that you can get paid doctor to say anything that he was an able to complain for psychological reasons but during the very time that he actually did complain so i think the difference there between our case and the other ones that she cited as the court said was that these facts come straight out of the complaint and you can rely on nothing more than the facts in the complaint to see that there's no equitable tolling here under either statute under title seven or under   no no sorry same problem in reverse a lot of people around here so my name's regard struve and i represent josee in seattle and i just want to start off by i read what you your brief you incorporate the defendant's brief from the seventh circuit its case correct yes and that brief i use that title seven does not prohibit sexual orientation discrimination yes my question to you is this if discriminating against an interracial couple is racial discrimination under holcombe why wouldn't this discriminating against a same sex couple also the sex discrimination well i would respond to that by saying that in this complaint i don't think there is any allegation on the face of the complaint that mr christianson was involved in a relationship or sociate it was somebody else of his sex that's just doesn't matter i think it does because it's not in the complaint if you're making an association will claim in a race case that you are being discriminated against because you're married to someone of an opposite race you would probably have to put that in the complaint and i don't think that that allegation exists in this case in this compelling you put it this way do you object to applying sure because i don't think that is something that exists or was alleged in this complaint and i haven't given it as much thought as necessary i do want to point out though because something that's getting lost in the shuffle and that shouldn't be lost in the shuffle is that in this case there are five alleged acts three of the alleged acts are depictions and if you look at these depictions and i dispute that the muscle beach poster is related on a continuing violation theory other four alleged acts that occurred over a two to three year period by the way which would never satisfy severe a pervasive test if you ever look at that but when you look at these depictions which are three of the five acts that are alleged here are they silly yes do they belong in a work place maybe not but are these depictions pictures that attack or say negative things about sexual orientation or sex stereotyping no they don't even muscled beach if you look at it it's it's a it's a childish thing where there's a bunch of people and they just took heads and put them on other people's heads now they make a big deal that mr christensen's head was put a body of a woman but other men were put on bodies of women too it's just it's a woman who's laying on her back with her legs up in the air the other man in the picture was put on a woman whose arms are around the i didn't find it offensive or that i did however everything depends on context and the context of this muscle beach picture is clearly not intended to discriminate against any group it's not circumstances that isn't something that creates a hostile work in my i believe that what you said is not accurate that it was continuing the pit depictions are in the record and if you look at the depictions you look at ok so there's nothing sexual or sexual orientation or anything about even arguably about the first two and yes there is a penis in the third one but it doesn't appear to be related to sexual orientation and if anything as the district court said it depicts mr mr christianson has more as may have skill and in all these pictures and it's not an attack on sexual orientation just because it is childish and is something that should pricewaterhouse and why doesn't the probation pricewaterhouse as prohibition on the basis of state sex stereotypes prohibit discrimination on the basis of sexual orientation in your view well price waterhouse is miss lask said dealt with masculinity and femininity with a woman who wasn't wearing makeup and who wasn't dressing up as what people thought a woman should dress up as and is that something that can be distinguished from sexual orientation yes it is and if you look at masculine and d m femininity it can be something that's viewed as different i also since my time's up do want to point out one other thing is different but doesn't mean that it can't be viewed as covered by price waterhouse it the courts have not as of now how you choose to view it is going to be up to this court but as of now the court's precedents hasn't hasn't viewed it that way  comparable evil and it is alternately the provisions of our laws rather than the principle concerns of our legislators by which we are governed my response to that is that as i said in m brief i think it's disgraceful and offensive that congress hasn't acted to correct this hole in the law but congress is well aware of the hole in the law and congress has not acted to correct  despite numerous attempts to do so and i think this court previously and other courts have chosen not to ignore the fact that that hasn't been passed again i can't say how strongly i personally feel that that law should be trying to pass it and they don't pass at the a da is a perfect example e eighty eight was a hole in the law and congress fixed it and i also just want to mention one more thing about this lots of reasons there are lots of reasons that explain  congressional inaction it's not necessarily opposition it's the point is it's sometimes hard to make the case one way or the other definitively i understand the question is going back to the formulation on call statutory provisions often go beyond the principle evil to cover reasonably comparable evils and whether discrimination on the basis of sexual orientation is one of those comparable  evils i agree with justice scalia's position that laws should address comparable evils it'll be up to this court to decide whether or not that's the case but quite frankly i don't think this is the right case for that you have five acts here that occurred over a three year well outside the statute of limitations and as to facebook i'm hearing you say that is a matter of we're going to or potations think it is comparable i think you're hearing me try to avoid answering the question your honor i think grateful for an answer can you ask it's wearily and i'll do my best and you said that you agreed with justice scalia's formulation that statutory prohibitions often go beyond the principle evil to cover reasonable reasonably comparable evils do you think that discrimination on the basis of sexual orientation is such a comparable evil i think that it's an evil and i think that it shouldn't exist that's my response you're saying it is accountable saying that i think it's an evil evil and that it shouldn't exist and that unfortunately those you disagree with if i say that you are saying that it is a car you think it is a comparable evil and i missed it in your position i'm not sure i'm not sure i don't i don't think it should exist in the law and i think it should be remedied remedy  through the legislative process now but i do want to mention discrimination does not fall within the text of title seven that discrimination is were all wrong that it's not within the text of the statute it's recognized sexual stereotyping as a claim and your adversary said this morning that she's not abandoned a sexual stereotyping claim the district court found that it was an adequately plan but i'm not sure that the court was right about that could you address that if i would like to address that because that again goes back to this concept of though there are a lot of allegations in the complaint the district court did a very good job of taking my complaint and boiling it down to its essence which was that there are a number of depictions all of which are in the record and that there were two comments now the comments i don't even know you know that they relate to that depiction which goes back i guess to the continuing violation theory but again the comments don't relate to sex stereotyping nobody said that mr christianson was feminine or anything that relates to sex stereotyping in any way with respect to him and the depictions don't show him as feminine except in the muscle beach photo which if you look at it in context and look at the district court flat out said or basically said i don't want to find the way that i've been finding but it would be logically disingenuous for me to find otherwise when i look at the totality of the circumstances and the totality of the ations and when you look at the totality of what the few things that were allegedly done despite a lot of things being thrown at the wall here which the district court did a good job out there all outside of the statute of limitations they're all unconnected and as to face book i'd like to point out that miss left set a lot of things up here that i just looked at the complaint again to confirm that i don't see the stuff about tagging or not tagging alleged in the complaint and what i also don't see alleged in the complaint is that mr christiansen asked mr c n c auto to remove it from facebook that's not alleged in the complaint so i don't know how you hold the company responsible for somebody posting something on facebook and somebody else seeing it allegedly for the first time years later and the employee was never asked directly to take it down from facebook according to what i think i read in the complaint and i was just looking at it now so maybe something's buried somewhere that i didn't see but i did look in the section that related to facebook and i don't see those allegations in there thank you you have three minutes in rebuttal has anybody noticed that the firm that was just standing here talking was the same firm that argued for simonton back in two thousand today they're taking a completely different position that they're arguing against what they argued for in simonton that doesn't mean anything well i just wanted to respond to the anyone could pay a doctor to say anything that was in our style that's not what happened sometimes maybe anyone can stick to the substance sticking to the substance your honour's the statute of limitations again is the discovery as i said and it's upon discovery we stick with that the judge in the lower court was as the justice judge noted it was a there was two things on timeliness one was on the disability thing which i gave the law that the courts shouldn't they can't act as medical doctors you can't that's an issue fact today were here on the four corners the lower court never decided on the sachem limitations and it was not argued below because he's gay all of those things happen oh i have a lot of time left ok so going back to does the court have any questions for me oh that then i would ask this court please to revisit simonton and vacated because that's what was withholding the lower court from going forward the judge looked at everything and did find the sexual animus and would have gone in our favor if she states she knew we were beyond our precedent are you are you are you arguing that there is something in the action that would give us an authority to revisit simonton or are you just saying you hope in the course of time this court has revisit that precedent you know i said in my brief i took a bit of a stretch and i said the simonton case actually involved a public worker was a it was a public case under two thousand either is two sections public and private so now that we ha much precedence more than anybody could say in this simonton case this court has to look at the agency that is authorized and organized to protect title seven that's telling us simon shouldn't happen in the public sector it certainly could extend to the private sector so simonton might not even be law according to what i just took that to four but i will say that according to the e e o c is baldwin case it really doesn't stand thank you thank you thank you all for your good arguments the court will reserve decision