clock thank you this case involves appellant's claims for enduring several years of sexual harassment by her supervisor the appellee filed for summary judgment arguing that mero had not timely filed her ios eboli charge within three hundred days of the last sexual harassment event and on the merits of the appellant sexual harassment claim the trial court granted first when the district court dismissed the plaintiff's case it failed to consider exceptions to the title seven administrative requirement second under the title seven continuing violation doctrine was remeron has shown that she timely filed a charge within three hundred days and third that ms remarriages state law claims were timely filed because they relate back to her original complaint relating to the administrative exception  there are i'm going to ask you some questions here are regarding your title seven claim and whether you made those allegations within the three hundred day time period you just referenced from the last alleged unlawful employment practice as is required under the statute so let's go through the dates if you don't mind you filed your e e o c charge on december thirtieth two thousand and thirteen yes three hundred days prior to that is march occurred over several years without providing from what i could see any other detail and so i'm just curious and question is is it a bartsch your claims that you didn't specifically plead that mr korea isolated your client in the fields in a way that was related to sexual harassment in the specific period that we're looking at sexual harassment event of events of sack of isolation they did occur over a three year period and when we came to this march fifth day it is correct that there is nothing in the record specifically regarding a violation that occurred between march fifth and april april third however this is a continuing violation because the hostile work environment continued right up to the point when ms romero complained to the h r manager at carlton plants when she when miss romero really reported the sexual harassment she said to sequence the human resources manager i won't work with that man anymore fire me give me my last check i won't work with him anymore that indicates that that hostile work environment has continued right up to that point so that she did file within the three hundred days and even if that isn't the position that this court adopts the case should be remanded  employment practice and i'm just trying to figure out isn't the alleged isolation by mr creel very different than the other allegations of sexual proposition i guess that were referred to and that mr rimmer alleged occurred prior it seems like these two types of actions maybe sufficiently distinct i don't know and that's why i'm asking this question that they should not be considered the same type of employment actions or how are they not so distinct and have we ever held that isolation is similar to propositions  to answer your last question first i'm not aware of any authority although i we would be happy to go back and try to address that specific question  if we can find something for you but the following up on my yes ali question you of course have an obligation to describe in some detail what allegedly happened and i think part of what at least i'm struggling with is that are summers specific but out of the time period but the rest of them are quite vague quite general do they meet the standard here they do meet the standard we do describe in our bri in our reply brief is that where you have to make the allegations we didn't make the allegation that we had exhausted our administrative remedies and then we made the allegations that that the sexual harassment events occurred up to that point that you know however for how i'm sorry i'm going to try to get to your question a little more directly and say that yes it is true that there is not an allegation in the complaint that says on this date between march third march fifth than april third on this date this thing happened but what miss romero did testify to in her deposition is that the isolation happened frequently and she should have the opportunity if if she needs to go back in amend her complaint to make that specific allegation she should have the opportunity to do that or be have this case remain and so she has the opportunity to testify at trial but there's two issues here one is whether or not she was specifically alleged sufficiently and secondly whether or not isolation is sufficiently similar to the other acts to be considered one work place that is demonstrated again by mr meros testimony at deposition that she was very afraid of mr korea oh because he isolated her and put her in a position where he could come and sexually harass her i'd like it in specific lee what she testified to is that very frequently he very frequently separated from my male workmates and then she testified that she was afraid of him that's it s c r seven through eight counseling and with respect you're talking about  talking about what she said in her deposition which you said in your privacy but again we get back to the complaint that's where the allegations have to be made and i have another question i just get to this because as this is an important one to me  would that relate back if you are allowed to substitute a new defendant would that relate back it would relate back and that's exactly what fifteen c one c allows and this court has not specifically said we allow relation back to apply to an entirely new defend it so you added you're asking us to make new law on that and what do you do with crapsey describes the supreme court case allow relation back when you have a new party substitute yes it does there is nothing in on what basis where in property does it say that i don't think that the cup c court specifically said that case i'm looking for some authority that says we can do that i mean it's a two step process if you don't substitute the correct defendant you've got nothing because that one doesn't have any employees but if we allow that and have a case  that fifteen she says you can do that then you have a problem with the timing of my colleagues talk to you about how does the new defendant how to out of those allegations relate back to what you had before over just like their newly served so how can it relate back it can relate back to because the newly added party understood that the plaintiff had made a mistake and that's why crapsey stands for and if there's a mistake however the added party is no probably from in this case at least it is clear that it seems that called implants knew that there had been a mistake but i think to answer your question a little more directly there is nothing that in fifteen c one  that prohibits an added defendant or an added new party and in craps the they change the defendant they dismiss dismissed one defendant and changed it for another but that does shouldn't matter whether somebody is new a defendant a new party is added or whether they are changed because if there's a mistake it's just as likely that there was a mistake regarding the party that you've sued and both in the case makes more sense than dismissing one for you to be successful you have to both be able to substitute the new defendant and that that new defendant's actions have to relate maybe your honor we would be interested in mediation that has not happened but we're always interested in mediation i would like to respond to that the the actions of the employer in this case really were not supportive of a sexual harassment victim we review that in our brief but i wonder the point that out good morning may it please the court my name is trisha olson and i'm here today on behalf of carlton plant the appellee and i would like to first address the conversation regarding isolation and the three hundred days i'd like to point out that the term isolation was first used in this romero's reply brief if you look at the joint statement of agreed facts in the excerpt of record page sixty five it was that mr creole made her work separate from her co workers if you look at the complaint there is nothing even about separation eps excerpt of record page eighty paragraph twelve it alleges unwelcome sexual advances including sexual comments invitations of a sexual nature an unwanted sexual touching which has nothing to do with the alleged separation and then in plaintiff's own words at the supplemental excerpt of record page seven in her deposition she complained that he would separate her from her coworkers when she was talking with them so that isolation claim is is something with all the cases that she cites an article she cites it's really misleading and that it tends to apply that maybe sexual harassment happened because of the separation or that there was opportunity for harassment but there are no such facts and she has not alleged any such facts let me ask you about your argument in your brief was remember arrow and not naming error in not naming the proper carlton party rule really operate similarly here we would be talking about equitable exceptions but they operate to help a plaintive who has made a mistake of identity and misnamed the defendant and they operate to help that plaintiffs by allowing the plaintiffs substitute the correct defend it for the incorrect defended and he or she did not seek it it seems that were were carlton plants and carlton nursery share the same owner and place of business the usual that the owner i think is barge or the attorney for the parties did not know in fact that i was pursuing employment claims against the carlton and no not can contending a lack of knowledge but what were contending is there's no way carlton plants could have thought there was a mistake when in the court below she sought to sue both carlton plants and carlton nursery and she now says on appeal for the first time i made a mistake but in the lower court she asserted several different legal theories against carlton nursery and that included a piercing the corporate veil integrated enterprise alter ego doctrine and then when she lost all of those theories she now says in front of this court for the first time i made a mistake i never meant to name carlton nursery only ever meant to name carlton plants so there wasn't a mistake and equable exceptions and relation back both require that there be a mistake to correct so at trial from the record  once it was clear who had the employee she still kept the other party and there was an attempt to pierce the corporate veil and separate as if you had two defendants right correct so allows allows a substitution and even talks about mistakes of identity where you may know the identities of two different parties and then you choose mistakenly to subi instead of but here that's not what she did she chose to sue both her employer and her non employer and claim that she was entitled to seek damages against both the record indicate that initially she sued the one without employees correct and then she wanted to add the other one court but as she concedes she didn't bring carlton plants in within ninety days as required after the bully right to sue letter so carlton plants was brought in after the ninety day mark so she concedes that the only way to proceed against carlton plants on this state law claim is for violation back and she hasn't cited any cases that would permit addition of a party as opposed to substitution of a party and i wanted to just briefly address the four cases that she did cite  just because looks like we're been going on to a relation back turned talked about that already and you argue that federal rule procedure can see only allows for a party to be substituted it seems like that's what you're saying and not with marketing agent that was named instead of the actual cruise line and so they allowed substitution they replaced the cruise line for the marketing agent and then it went on to discuss mistake the rest of the case dealt with the viewpoint of mistake the plaintiffs versus the defendants i guess i'm just trying from what your authority is to say or to argue that party can only be substituted and not add ok your honor that the authority for that would be the are looks like the federal rules of the d n c would allow relation back when the defendant knew or should have known that the action was being broad against a book for ro ero's a mistake for the mistake and that's crucial and so that's what your focus yes crapsey heart focuses on the fact that there has to be a mistake and after discussing mistake it goes on to talk about the difference between a mistake and a deliberate choice and that's the language in craps where they talk about the difference between knowing the identity between party a and party b and mistakenly suing party b instead of a whereas he or she knew the identity of an employer and a non employer and chose to see both of them so there was no mistake so in from your perspective once there was a substitution she had to drop the mistakenly named party but she didn't do that she kept the party presumably for the exceptions on page twenty except your record page twenty the district court looks for any allegations of mistake or any facts that would indicate mistake or confusion and found that there was not and with respect to the other cases that she does cite that would she argues allow addition as opposed to substitution none of those assist in this case the first one is a ninth circuit case craig versus united states from  nine and that case specifically states that the issue of whether a party can be added under f r c p fifteen was not being decided so it can't be precedent the second case she cites is a two thousand and seventeen unpublished decision it's and in that case it was not a title seven it was a bankruptcy fraud case and the party that was allowed to bring be brought in was the individual owner of the correctly named bankrupt corporation so there was a principal agent relationship there an individual joint liability relationship there and she has already conceded on page sixteen of the reply brief there's no drawing liability between carlton nursery and carlton plants the other two cases that she joseph first is a law in motor sports that's a seventh circuit case however it's a substitution case it's not an addition case it dealt with misnaming of a law in corp instead of a law on ink and the plaintiff was allowed to swap a law on incur a long corp and then the last case that she cites is an unpublished sixth circuit district court decision and it was first of all that court noted that they were against all of the other district courts in that case in allowing addition second it wasn't a title seven case it was a product liability case and the party to be brought in was jointly liable with the other product manufacturer so again it's distinguishable because there is no joint liability between carlton nursery and carlton plants the same would be true on the cases that she cites for addition with respect to equitable exceptions she cites four different cases that she as allow edition of a defendant as opposed to substitution and those cases ninth circuit cases were sosa chung and bernstein and tonio those first three cases chong and bernstein all dealt with a plaintiff who correctly named to the employer but then failed to name principals and agents of the employer who were also jointly liable so they were allowed to correct that mistake by bringing in the individual principals and agents and that's when title seven allowed individual liability it no longer does so that principal agent relationship doesn't work here also i should note that each of the three plaintiffs in those three cases did not have assistance of counsel in making their charges and here plaintiffs did and courts are typically more likely to apply equitable exceptions when there was not assistance of counsel the last case she cites it tonio versus ward's cove there there were two different entities but again it was a mistake and substitution case so it was an umbrella corporation or joint venture that owns several different cannery employers and it was a class action and some of the plaintiff employees named the d we find ourselves here now that you did have if you will but correct party added the other one was not removed with respect to the correct party do you contend that under a fifteen c that was not permissible correct ok yes if it had been permissible would there any authority for the relation back doctor in this case is there any of the if it fifteen she did permit  an addition in this case correct party what do we do with the relation back if you would that would relate back is there any authority for that for the new party i'm not aware of any authority that allow new party to be brought in ok so from your perspective under fifteen c they had no authority to bring in the correct party and even if they had it the action would relate back and therefore have a time in this problem they didn't have yes they didn't have any authority to add in the incorrect party a simple mistake correct which the restricted read was that it has to be a strategic decision when there are several legal theories argued to the district court as to why you should be able to pursue carlton nursery for a mistake and the district court actually spent a better half of its opinion addressing all of those and ultimately finding that there was no legal theory for carlton nursery to be liable for the first time on appeal that is now what she is trying to reframe her action as but in the court below she tried to sue both purposely tried to sue both and claim that she was entitled to damages from both of the rule because the only allows substituting change if it doesn't change but i'm not aware of any any case other than the four that are distinguishable that has allowed an addition as opposed to a substitution change has almost always been interpreted to mean substitution and i think that's really because the rule is meant to correct a mistake that's why the rule exists if you look at the if you look at the one nine hundred ninety one committee notes you see that it was it was meant for cases such as a mistaken identity or a misnomer and that's not what we have in this case so a substitution would be a correct remedy for a mistake i think not thank you can't you very much so you have a little bit of rebuttal time and i see you're from pendleton that's where i was regarding the issue of the four or five exceptions that the ninth circuit has recognized carlton plants has really only argued one of those and that is the one that ms romero did not argue which is the exception for parties that are substantially identical we do not counsel your opponent indicate that is and she's saying argue one so that's ok you didn't dismiss the other party you went ahead and tried to pierce the corporate veil and so on so that's not a mistake it's a strategy right no it was not a strategy that i did you leave it was a mistake because ms romero wanted to sue her employer and that's who she thought she had sued but she kept and kept her and kept that employer as she thought in when you knew that somebody else was involved and that's because there is no obligation for her to dismiss that other party until she determines that they're not the correct party or that there might be joint liability and in crop skee the court was very specific about delay the the plate or the plaintiff in that case did not add or change substitute the new party for months i think it was nine months after she became aware and the court said that was ok but we decided to go ahead and added a new party and proceed and now we have determined that carlton nursery does not have joint liability with cotton plants but and so so then right now what you just said at the end seemed to sound like a strategy instead of a mistake so i'm sorry what you just said here at the end that we decided in two way that that's a strategy and not only i want to you only after we were we received the answer from the defendant that said we are not your employer from carlton nursery and in that answer carlton plants asserted affirmative defenses they went through the entire point out they went through the entire boley one year of interviews and boy itself still issue its decision in the name of carlton nursery because carlton nursery never made any effort to inform anybody that there had been a mistake and there was a chance to do that long before this occurred