to st like to address the issue that the district court erred in finding that mr weatherley did not exhausted administrative remedies with regard to his disability discrimination in retaliation claims court cases for the prosecution the charges that only mention disability discrimination do not exhaust accommodation claims because the latter cannot be reasonably expected to grow out of the former judge and this better i and so as i was saying those two cases publish the proposition that charges that only mention disability discrimination claims do not exhaust accommodation claims because the latter cannot be true that we expect to grow out of the former but in both of those cases the plaintiff simply alleged discrimination and not mention the more nuanced reasonable compensation claim the result combination can be kind of seen as a subset of disability discrimination claims the case the claim the case here as far as count concerned the other way around because mr weatherley charge expressly included the subset of failure to accommodate the district court somehow use those cases to find that his charges precluded the general discrimination claim not just does not bind can not be unintended consequence of the amended of the administrative process counsel one of the problem i'm having with your argument is when you specifically when the charge specifically for a particular respect to other claims that this is not an instance in which you have a certain plain statement of the facts figure out what the claims are this is a situation in which the charge is actually backed up by a certain claim to not either does that make it a different case we would argue and shannon versus ford motor company ironically ford motor company says the court should not use title seven administrative procedures as a trap for i'm wary pro se still rights plaintiffs and that mere vagueness in a pro se claim should not sound the death knell for be expected to grow out of a charge of discrimination and so if a if a plaintiff is saying that he was fired took time off and the time off was due to disability and then he got fired for taking that time off then he can be reasonably expected to grow out of thousand and seventeen charge which is appendix page one hundred and ninety eight dollars he stated that he gave for his restrictions for his disability ford told him his restrictions need to be more specific and the medical wouldn't accept them because he would not given those restrictions a disability cause and take a day off that he would get a doctor's note for told him to be covered and ford told him that even though he was covered they were charging women a wall absent without leave and because of that he was fired these are all related to scoliosis and again relying on the michelson restrictions and then after giving lip service to those expressed allegations perplexingly concluded other than generally discussing his disability and then he was charged a half day and he was terminal because of it the charge was not discussed or addresses disability or specific allegation of retaliation for the prior charge that somehow precludes a retaliation claim for requesting accommodation again we would argue that surprisingly pleasant specificity on a plaintiff must demonstrate the employer either knew or showed a reckless disregard for the matter whether its conduct was prohibited by the statute and the court for both make much of the idea that mr weatherley used the word willful and various other points of the m said well we don't have to make the allegations willfulness because this is an affirmative defense and it doesn't appear on the face of the complaint itself but the statute has run in other words you haven't proved their case against yourself which is required before the case can be dismissed so i'm wondering if that's not really the better way of looking at the problem absolutely your honor and you read my mind i was getting to the issue and then back to court and jesse potter said the peterson farms importantly the potter court emmeline's as a foreigner decision and saying the dismissal was only proper in that case because the complaint expressly ruled out tolling the statue of patience an argument here would be that  ford motor company i think it makes sense to start with the willfulness issue and i'd like to address judge arnold's question about how to think about how to deal with  barred so then we have to ask is there something in the complaint to make as think that the longer statute of limitations applies and i think just before we get to the specific allegations in this case i think it's important to limitations like there is in this case you can never raise a statute of limitations argument on a motion to dismiss because there will always be some theoretical possibility that the place that could raise it later in the case and that's said that because there was nothing in the that suggested that equitable tolling was appropriate the district court had a appropriately dismissed those claims on a motion to dismiss and this court affirmed and i think in the context of this specific statute it's not this court it's the stick circuit but there is a case dismissing claims on the basis of the statute of limitations defense specifically because none of the allegations in the  rule is that you can never raise a statute of limitations defense when there is the possibility of exception to that defense applying even though nothing in the complaint suggests that then i think there would be cases you know published cases saying that over and over again and that's just not consistent with the cases that we found that to allow for this kind of dismissal so it's a turning to the specific allegations that the place of alleges support willfulness in this case the plaintiff identified thirteen allegations this is that pages eighteen to nineteen of the opening very plain to think show willful that and i think if you drill down into these allegations and you'll find that they simply do not state that the plaintiffs did not allege willfulness towards these two counts but did with respect to count three through eleven is simply to say that it just provides further evidence that the plaintiff in this case did not actually have allegations that could support willfulness that's in addition to the fact that you know these allegations are insufficient and that the plane that had the opportunity to seek leave to amend after the motion to dismiss was filed because the time for doing so had run so we just think all that taken together suggest that there just aren't allegations that could support a claim or could even raise the possibility of willfulness deficient to arrive in motion to dismiss but i would like to quickly go through the allegations that the plaintiff identified before turning to exhaustion so four of the allegations that the plaintiff identifies are legal conclusions like the allegation of willfulness would have been for example and paragraph sixty the plaintiff does the suspension and june sixty four where the plaintiff alleges that ordered failed to make quote good faith efforts to establish policies and failed to quote properly train its employees there's no factual content to tease allegations and they're similar to the kinds of allegations that the supreme court has described as deficient because their naked assertion and to avoid a further factual and hand put differently there is nothing in the amended complaint to say why or acted  and with respect to the june th teen termination and all that does is that most raise the possibility of a violation which this court has that is not sufficient to allege willfulness because there has to be something different between an so turning to the exhaustion issues we think that judge straw says question two opposing counsel get the issue in this case exactly right which is that the two charges filed here fall into the category of charges that this court has described as highly specific and that any reasonable or i may try and gauge our loyalty or ford reading these two charges would take the plaintiff at his word about what kinds of like to raise based on the charge is the claim that he was discriminated against on the basis of his disability when he was terminated that is that he was terminated because of his disability that's not responded failed to reasonably accommodate my disability because these two claims are the only claims that he expressed raised the court can then ask well is the disability discrimination claim like or reasonably related to those planes and the answer to that question in this case is no that's because this court explained in people that he element of a discriminatory and tenant claim like this just below the discrimination claim is intent and there's nothing in these allegations beaks to intent and might put either the agency or board on notice that even though the plaintiff didn't say he was raising a disability discrimination claim that's what he was trying to do and you can see that in the contrast between the allegations with respect to the race discrimination claim and which the place a clearly attempts to allege that his wife coworkers were treated differently than he was which is the type of allegation that speaks to intent with respect to race discrimination claim there is no similar allegations with respect to the disability discrimination claim the plaintiff theory of the case appears to be as long as i raise some type of claim related to disability if i have exhausted any type of claim related to disability and that's not consistent with the court's decision in people and it's also not consistent with the th circuit decision in green which  for retaliation then the allegations that make up the narrative portion of the charge start with the protected activity that forms the basis of the retaliation claim i filed a charge of discrimination related to my team terminations and the complaint with various actions that the plaintiff thinks were retaliatory for example there was a delay in my insurance and the other claims that follow the plaintiff's done up his claim again and bold attack by sentence and isolation isn't consistent with how those words appear in the charge and if you look at the charges a whole which is how a reasonable agency employee or toward what you would see that they clearly both in form and substance lay out a story of retaliation and the reason one reason we know that the agency would have read it that way which is which is the test for exhaustion sort of what a reasonable investigation would have taken into account is that  thirty one dollars where you have the notice from the mc h r to board which check only the retaliation box so there's not any evidence either in terms of leading the charge reasonably or in terms of the documents that the ringback actually sent to or to give it notice of the claim that the agency thought there was a reasonable addition disability discrimination claim in this charge and this court has read charges when there are specific to be specific for example in the williams case the court said this charge was highly specific and even though the complainant was pro se before the agency in that case the court held her to the specific claim of discrimination and that she was  she was raising there the same thing occurred in the bainbridge case in which the court said you know even though the place to mention that he was fired after raising a discrimination claim based on association and his only touch the box for discrimination and the like claim that he had expressed we raised was that claim so when a charge is as specific as the charges in this case the court has held that the twain that the plaintiff later seeks to raise in court are not exhausted so we would which we would argue is crucial and ultimately underscores that whether for the conduct of willful is ultimately a conclusion reserved for the finder of fact after the creation of a full record