your honors in this case which is an appeal of a dismissal of and a matter before the district court that originated in the e e o c makes two arguments in support of this the first argument is that the charge although not signed until january i'm sorry until it was not signed on january twenty fifth two thousand and eight it was signed thirteen days later i february seventh the wait was  the meaning of forty two u s c at two thousand and five and twenty nine us section six twenty six thank you and we rely very heavily in our brief and obviously in the case on the holloway case that expresses how we view the supreme court case that acknowledged that the word charge is somewhat in big us and that the e e o c questionnaire could be considered a charge if filled out in such a way that it conveyed to the e e o c or request to take remedial action so even if we assume that the questionnaire is a charge mr john temple is from the questionnaire checks one box age doesn't doesn't check on national origin only hint about national origin is the names of the people who are your client claims are treated differently how how how do you get the assume for the sake of this discussion right here that we accepted that the charge that the questionnaire was a charging document and your age discrimination calling made it under the wire how does your national origin claim survive that the statute you're i think there's two reasons or two ways that it absolutely thousand one there is a reference in the initial charge as to the national origin of the other two gentlemen that my client claims were given preference over him of their indian descent was an indian company owned by and in the issue of national origin so clearly that the o c had it in there yeah ok but that had to well in order for that to be in the charge of the we'd have to accept mean if you're relying on the questionnaire to separate and apart from equitable tolling standing on its own would you knowledge that it doesn't invoke national i would absolutely knowledge your honor that the with regard to the national origin claim the equitable tolling argument really more applies to that because that i think is less clear in the questionnaire in my mind and what was presented prior to the february seventh day i would absolutely acknowledge that the other powers to include other claims that they believe or are we cynical or for reform or form the basis of discrimination they're not limited surely to the caucus of the intake questionnaire in terms of framing the the actual issues and again the underlying reason for the sea is to make sure that employees are dealt with fairly and so there's given somewhat broad powers when it comes to those particular issues so from from my perspective your honor my answer to your question is that that also an important source of mechanism and they were thinking about it in my sent back to right now i mean i misspoke i when i met was that the purpose of the sea is obviously to help employees who are the subject of discrimination or subject to discrimination and they have broad powers to expand the claims beyond a questionnaire if they believe that there's a basis for and what i'm saying is even though the charges filed on the seventh are signed on the seventh and that became one that they they believed was also a viable  that would that would be a significant change in the regulatory structure wouldn't i think it would i and i and i think that again this isn't particularly a statute of limitations like fog of a lawsuit is especially with patients  reasonably within the scope of the complaints original charges and if a reasonable investigation by the e e o c would have encompassed a new claim when you when you say if they're reasonably within the scope of the original claim that kind takes us back to the questionnaire but i take your argument can you talk about acquittal towing for militia how do you we should we seem to have construed this pretty narrowly that it takes genuinely extraordinary circumstances certain factual findings without hearing without testimony as to who was telling the truth about the germans or the rescheduling of the day and i just think that the purpose of what the statute is there for to protect employees a which and i dispute the e e o c his recollection of what actually happened we have a factual dispute there clearly it indicates that on january fourteenth before the date he was supposed to be there he called to reschedule and they gave him the february i think everybody agrees that the e e o c is that they don't have a dog in the fight so to speak there are we would hope they are and i think both sides seem to agree they are dispassionate they're just trying to do their job and they've got a regular orderly way of doing business and they're regularly orderly way of doing business for this person was to know things contemporaneously in his contemporaneous notes show that your client called your client asked for the delay your client got the delay and and and the burden of proof for laying the foundation for equal tolling is on your client so we've got contemporaneous records from an unbiased third party that shows he's the one that made the before an answer was even filed told me six motions to dismiss on the issue of timeliness which were both denied by the same judge and i don't think the facts really changed other than he got a portion of a deposition and a note and said ok and i don't think that that's reasonable if you're basing on if he was basing his decision on a factual determination like i just had one other thing on this when the questionnaire was filed you say that the questionnaire operate charge itself and then that was well within three hundred days of this it happened sometimes and you may i don't know if this is the field you work in but this it happens sometimes there's a questionnaire filed there's then a meeting at the end of the meeting the employee says you know what i don't have a case and there's never a charge does that happen yes or absolutely that happens it happens on many occasion i'm not saying it does it i think what i laid out in our brief is the the efforts my client made to put his case before the sea hired an attorney in the midst of it that attorney sent a letter to his side there was a charge number if you have the facts i don't need to repeat them sure but they'd knowledge receipt of the charge and that they were going to defend it he was never once a mention about it ever and i think that that's important to the argument that's all thank that the supreme court laid out how we were to qualify as a chart and i can have you look at that questionnaire for just a moment and look at the last page it's page sixty in the appendix and if you look  the second sentence there when this for excuse in this form constitutes the only time we written statement of allegations of employment discrimination the commission will will consistent with when hundred seventy five thousand questionnaires are filed annually less than half of those actually come charges ok so this one trying to ask you is not general statistics but what is it in the questionnaire that you think makes it constitutes a charge it's that it can be treated as a charge right and you would have expected them to treat this as a charge in that you know that it would instantly be a charged the ordinary course of things is to have an that's a that's an issue of what is the scope of the claim that can be presented here what's the scope of the time declining as opposed to whether charges actually of age discrimination has actually been submitted so one hundred just a question of assuming national origin claim aren't are or should be dismissed one they want to go into a questionnaire and they all occurred more than three hundred days before he filed it a questionnaire but i would like to point out that the what the pointed  six should be enough and the supreme court stated it and i know you don't mind i'll cover the case that partition operations into effect congressional intent the agency require some mechanism separate information requests come in force and request understand this region to be saying that all questionnaires or if so facto charges i understand the positions of this questionnaire is a charge that tells you a make an age discrimination claim i was terminated for not attending school to other people with the same position as vice pres of business development were not were not fired and and you know i guess i'm not i'm not hearing the other side make some broad all of those years or charges claim but that this is enough but assume that it is enough perhaps you could describe why your arguments about all of this or are not waived as as has been argued cured and not to mention that the filing tell me fine of a charge is a prerequisite to bring an action federal court and therefore we think the appropriate venue for raising that defense is in federal court and that's all we did subject to discrimination as early as two thousand but that he consulted an attorney in two thousand and six that he was told multiple times that he was too old to be promoted in two thousand and six and yet he waits eight months after he was terminated to first contact the happens but i want to be clear i mean i was how would your assertions of discrimination with respect to promotions and unequal pay be timely because our position your honor is that his request to be promoted existed up until the time that he was terminated but he had been constantly contacting this to verify their discreet their discreet age one when promotions are made harder not now because they they claim they have left a position open he want to be considered for and he believes he was the most client worked for for over twenty years he knew the company very well that's why he felt he believed that he was best trained in place to be the sales manager when that group came into a c n c and so it is highly charged eight hundred days was the date that they said they got a message from my client to reschedule january fourteenth with the date my client spoke to them to reschedule which was eleven days before the required day and they were he was given a day to feb seventh i just want to make that clear i don't know if it any difference through honest but can you can you respond to the general statement as well as made that he he felt he was being discriminated against for years and years and years and and he doesn't follow source until after his termination and then eight months after his determination and how are his questionnaire it's not something that should have poked the equitable sympathies of the court is sort of her pitches  scienter stand what what's your response to that was my response is it's a relevant as to its laws the complainant the plaintiff in this case it's a brought his claims to the proper authorities within the timeframes allowed by law which is what our argument is if you can't be held responsible you can't be blamed for not going the first month he was terminated employees get shocked if they're terminated they don't they don't know what to do start looking for work maybe you're going to find a job right away and you don't need to sue the employer when he got to eight or nine months he didn't have a job at his age i think that's when he realized he better do something so i don't think that that argument carries any weight when it comes to blaming my client and i don't think my client should be blamed and i'm not blaming the e e o c they have a very difficult position they handle thousands of people a month i know because we deal with them but in this situation i think it's my argument is still that it's irrelevant or as to who's cancelled what they all did this in good faith they believe they were