deciding that mr patten failed to exhaust his administrative romany to jump right into this mr patten back in two thousand and twelve i'm sorry two thousand and fourteen filed a claim the e e o c this happened on may it whether mr patten had a disability and whether he requested for an assistant assistance with that disability mr patten cited he stated in that form that he request he had a disability it was stuttering it was related to noise sensitivity as well as his excitement he also stated that he requested for assistance with his employer at the time of he was a contract employed at work that jacobs but he worked for talisay he were he stated in his intake questionnaire that he acts for assistance and assistance was not provided for him the same day he filed  a charge with the o c on may seventh of two thousand and fourteen and that charts he checked the box of the discrimination disability and he stated the brief made a brief statement of the nature of those charges later on september thirtieth two thousand and fourteen mr patten filed an amended chart and that charge sheet attached and in a mendham of specific allegations that led to his descript discrimination claim in that discrimination claim he alleges he alleged facts of an anti discrimination based on harassment and he also elicited facts about noise in the employer's jacobson tallis and failure to accommodate he didn't use that language but he talked about the noise he talked about the request to stop the noise and he also talked about the anti harassment allegations you know that we argue that the court err for finding that mr patten failed to exhaust as a ministry of remedy based on his father's looking at the total interested in following the claim then check this box but by no means this means you're filing the charts the second box states if you are filing a charge check this box and you are giving notice you use knowledge knowledge that you giving notice to the employee's mr patten check the second box we believe that is pertinent in this case because that requests was to for that e o see to take action the jerk prudent states that when you're looking at the actual complaint the charge often times you can look beyond the four corners of that chart where asking for the court based on the how to work a case to look behind the four corners of the chart and also look at the intake questionnaire however if we do focus on the charge we axed the court to focus on the amended charge and which mr patten specifically stated in his attachment he requested for no he had he made noise much to it and so we rely on the how to work a case and we want to remind the court that the court has to take a liberal liberally construed whether or not that there was a failure to accommodate and look disabilities stuttering correct yes sir and stuttering actually had no effect on the job that he was doing is that correct that's actually not correct ok how did how did start to rain have an effect on the did that affect his ability to perform the job i thought he got good marks as an employee all along yet it is true that the employer stated that he did well mr patent resiliency should not be considered in this case because despite his ability to do well he was affected at his job the transcript really reflects that there were times when mr patten could not even make it so work he averaged forty hours then it was time for many work twenty hours then he just say you know i can't work in a loud place so i need complete and quiet to be able to do my work did he ever related to the fact that it it made history were it made it very clear on multiple occasions you don't own one instance the issue with that is this is a private meeting there's no witnesses to say who said what timothy is saying what he disclosed to employers the employees are saying something different we contest that that is a genuine issue of material fact it's in dispute the credibility of who wants what is the issue student issue material that mr patten disclosed at or himself testified in a deposition and stated that this was a private meeting on three separate occasions it lasts about anywhere from ten to twenty minutes mr patten stated during that meeting he's mr pattens perception people talking machines running on people talking in the scenes running there also some of the would explain it as it was more than requested simply to be removed to another look at another location another work site all or another floor where it wasn't as noisy what was the difference between the floors i mean different work on all of what as well as today he was sick he was working in a big group and not an individual office yes that's correct and did other persons performance same work that he have hand happy to do any of the accommodation that he be put in to a private office to avoid an hour is not necessarily a private i'm sorry may have been a state not necessarily a private office but a quiet a work area that worked every could have been that they would consider sending him to another job location so perhaps doing even another job and at that point that communication ceased so mr mr patten or was making diligent efforts to request for an accommodation and willing to consent that there were tiles pretty much throughout the entire time that jacobs as well as tellers and employees somewhat did not take too much of a count has nothing to do with my disability and i'm complaining and yes i will point to the record there are times where he was specifically talk about his exactly which would exacerbate his started he made that clear he made it clear about questionnaire being appropriate where there's a question of timing as to whether or not they complained that actually timely filed a charge with the that case is not what is going on secondly in that case of this city exhaustion plaintiff didn't bring it up but it does appear that the fence arc it stands alone and not very clearly it holding that subject matter is no subject matter jurisdiction where it sits alston has not been properly attended and that is the case here and that is why the or court found that exhaustion was a problem for the failure to accommodate time nowhere in the charge is there any reference to a failure to accommodate client yes the box disabilities checked and then the charge goes  harassment based on disability so there's never any notice to the defendant well he claimed it started it was his disability until the complaint came out in wh is anxiety that's right that's what he's asking to be accommodating he's not asking them to accommodate his stuttering because some far as i can see the starter needs no accommodation the performer's job because it has nervous well if he did say the noise is making him nervous and we will assume that for the sake of this argument he is not impressing upon jacobs the fact that this is a disability for which he needs accommodation to anxiety which in turn increases doughtery is that the problem here yes europe that is a problem because we are defenseless and lack of knowledge and that is when he asked for a problem we have to your own we've had that very bronzed in the design and stock i mean i can understand that quite well as be accommodated and as it was he complained about the noise and we addressed it in fact mr guillory the department head made trips up to the floor to say what was going on and his  colleague says twenty five percent of the people wearing earplugs or noise canceling headphones pay of which he himself a and this is a cute film and it's going to be noisy from time to time  environment directed to his disability study understand that well there was some references that he made that there was mocking of him and as to help him because of his disability and he asks this is a hostile work in force and i'm asking you to do something about it if he had but as i understand it there's no question that you had a program that was set out so that in about it had been complained about it cost the working could make complaints to management and addressed and he never made that complaint is that that's absolutely correct your honor but he never did complain and asked for any sort of commendation regarding hostile environment we never heard jacobs never heard of any of these claims but until after he was no longer working there and the minute we received any information about that we instituted investigation and it's from that investigation that any facts in this case arose  deposition of anybody to shore up a hostile environment case and he merely makes allegations that are backed up by the name of somebody who said something a day that was said so we're left helpless with these general allegations as the lower court found that don't specifically invoke this claim of hostile environment no or horizon and moreover there was no adverse employment action here that hey we've asked them before that in deposition and he had every opportunity to present the one to the lower court he never did we acknowledge the lower court did not make its ruling on the lack of an adverse employment action but this court can and it doesn't have to of course but it certainly is the law and we have been asked to come and defend this case without any reference to an adverse employment action at any time quieter area and he didn't associate it with anxiety with hostility over the disability thank you thank you much walk the lantern will hear from you a complaint and they investigated the player to accommodate accommodate didn't not based on the charge that we receive them and that's our argument at that argument that that claim was not in the charge and judging as you mention the plaintiff failed to connect the dots in that intake questionnaire will constitute a chart of discrimination i think if you look at the facts of this case the standard basically says that if you could check box to not disability standard that's the plaintiff position if you checkbox to it indicates a request for agency action but in this case if you look at the facts although he checkbox to his subsequent conduct in following an amended charge that doesn't include a at another facility or another job outside of jacobs he was offered that possibility he'd been rejected that possibility of job reassigning at the time he rejected this is all for which is march two thousand and thirteen he began to describe his complaints of noise as some form of harassment being targeted for from a prior employer he was asked whether or not he wanted to follow a formal charge of discrimination he indicated that he wanted to he was given information to call a ch e mail and says here's the information to contact a jar you need to call them specifically here's the number now after this day there's no dispute that he did not call h r after may twenty eighth two thousand and thirteen and there's no dispute that he did not because he concluded that they failed to give him a new job however he didn't follow his e e o c charge until may seventh two thousand and fourteen some three hundred forty four days later so clearly his claim is only timely in his reply on appeal he's argue that the continuing violations doctrine is a political he's wrong for three reasons first reason is that the fifth circuit underwent houser and under hinson clearly recognize reason number two the continuing violations doctrine applies to conduct or discriminatory conduct that manifests itself over time well there's nothing hidden about this situation he may request he was offered a job position or  possibility of a job position he rejected that offer and then he failed to communicate with the client they're out there he's in with the house and they're after the third reason is that we're continuing violations doctrine he must show that there was a series of related ads with one of those related asked currin within the limitations but it's not it's not disputed that he did not request an accommodation during the limitations period so he cannot make that argument as there's no related act occurred within the limitations period his brief seems to imply that the mere continuation of the denial back in twenty thirty between twenty twelve and twenty thirteen before the limitations period is equivalent to that continuation of of equivalent to related acts but that's not what the case law holds under mack and messer the mere perpetuation of discriminatory of the effects of discriminatory decisions are not related acts so therefore the continued violation on those question of whether there was an investigation of the c tell us a and as well as taken so making the claim that they were prejudiced by lack of notice however there was no full blown investigation of this case the investigation was short circuited by mr pattens requests after the time period had elapsed that when the c confirmed that they would not investigate the entire case within a certain time period a law about so the argument that there was there was a lack of notice should not from failure on the because this was not a process where the mr patten circumvented the e e o c to get to court it's just there was no the complaints he made about the noise i understand the court's concern about connecting the dots mr pat initially has a stutter condition mr pat and made it clear to bo employers he starters the noise causes his exotic exotic causes him the starter even more the starter causes hoops more exotic it was a vicious cycle and he's trying to articulate that employee halfway if the employee is not fully articulate in his grief but he's trying to provide information to the employer at some point when does the employee it is incumbent upon the employer to make a good faith effort and address his grievances i will point to the numerous periods and we cited in our brief and which mr patten sat down with telus and employees to attempt to articulate trying to ask and same precisely what his problem was they failed to do that i want to address to three meetings i want to make strong emphasis on three meetings with mr patten as having a conversation private conversation with the department manager manager jacobs this department manager testified that he had a starter problem mr penn is starter and he's anxious on three different occasions in that meet that meeting his last and anywhere from ten to twenty minutes and he's trying to articulate he's trying to collect connect the dots he's telling them the noise is causing him to start a more because of his  the automobile accident was directly related to a panic panic attack in which he was under the executive he was on his way to north carolina his whole because he just experienced of a mountain  and a domino effect of diggs idea that he was experiencing at his job in which the employees were not addressed so he's on his way to north carolina he gets he has a panic attack because of this exact and he gets into a the injuries to him to his wreck to the extent of his sound we do contain that and we also consent that most importantly there are liable for his and inability to go back to work which is an extended amount of time he's under the doctor's care now who are not allowing him to go back to work because of his choice of his injuries he suffered an automobile accident his physical as well as his mental issues that were exacerbate