subsequently retired misho then adopted the brief and i was retained just about a month ago for today's purposes so this is an employment discrimination case that arises out of mrs hose a complaint to the e e o c and subsequent suit that her employer united right to what i think is the heart of the matter it's when does the forty five days begin and under kosky and defend its argument that forty five days begins at the employment action whether that's the hiring the firing or  hose case being made to return to regular duty and i think to distinguish mccoskey the first issue is that with cost he does not address twenty nine c f r sixteen fourteen which is the agency's regulation at issue in our so to quote that case the time period for filing a complaint of discrimination begins to run when the facts that would support a charge of discrimination would have been apparent to a similarly situated person with a reasonably prudent regard for his rights and that case has been cited in a variety of district court cases unfortunately i didn't bring any washington cases today there is a montana case which i will quote that case again a district court case christianson v alvarez thirty one f subsecond seven eight seven decided in one thousand nine hundred nine which states quote it is not reasonable to expect the employee to file a discrimination claim when no discrimination can be perceived and so i think that's the rule now in the ninth circuit and i think that's consistent also with what i've asked this court to consider which is how the e e o c handles these cases and they've published documents in guidance to make sure that this rule is followed consistently and followed correctly and what the e e o c has said is quote the time limitation is not triggered until a complainant reasonably suspects discrimination has occurred a further state of commission will look at what if anything a complaint has learned between the date of the plaintiff to become where the plaintiff became aware of the possibility of discrimination when she learned that coworkers of hers who were similarly situated but who do not look like her who were treated differently what do you mean in that context by similarly situated i mean that they had they had suffered injuries as misho did they were on limited duty as misho was but then misho was told that there's a rule you have to return to full duty after one year of limited duty that rule was not applied to her coworkers who were caucasian all right so is there such a rule when your rule is there is such a rule i'm not aware of a rule that exists within the postal service if there is it was not the purported reason that made so supervisor gave her when her supervisor returned her to full duty and it was only later that of course is in the complaint but i mean supervisor said what then she had to return to full duty because she'd been on limited duty for one year all right just so her cases for timely filing is based upon an allegation that the supervisor told her she had to return to duty within one year and no it's based on fact it later after she was returned to full duty she found out that other people who were similarly situated were treated differently and allowed to remain on limited duty for longer than one year but i mean because if so your case depends on the postal service having a rule that you have to return to duty when one hears the word of the pentagon well i think it depends on the fact that if we treat the complete allegations in the complaint is true which i think we have to misho discovered compared to people who are similarly situated who were not treated the same as her when they were allowed to remain on limited duty and if the facts turn out that those people were not similarly situated that they had different issues and medical diagnosis or  assessments different from her then that might be a summary judgment motion but it's not correct to do it at this stage i agree it would be problematic for misho certainly but not at this stage well you see for me it's still difficult complaint yet yes but but then you say that there is no one year limit you lose no what i am saying is that it's when misho found out that other people were treated differently than her and that treated for forty people but the treated differently depends upon whether or not there is a one year rule what you're saying she was held to the one year rule but the other people weren't i think if i the rule is the purported reason whether or not there is a rule i think is beyond the point i think what which is it issue is that it's certain people were not treated the that would support our position that she was not treated fairly in the trial court but i think for these purposes i'm still a no no but your allegation here she was treated differently because there is a one year rule and the other people were held to it that's what this seems to allege paragraph eighteen of the complaint well i that she was not treated she became aware of the possibility of discrimination in august of two thousand and thirteen that's when she found out about coworkers who were treated differently than she was and it would be our position based on a complaint they were similar so what do you mean by treated differently so even if there's not a literal one year rule what you mean is she was treated differently by her employer supervisor who either it was in forcing a rule that exists or was creating a rule that doesn't exist but created the rule to the detriment of ms ho and never used such a fake rule against similarly situated people yes or exactly that that context when you use the term similarly situated you mean with the same kind of injury at least same kind of injury in the sense that you know the time off of work required to recover would be roughly the same as your client's right certainly an injury injury that would be comparable in terms of its limitations with respect the ability to do the full service duty yes or when you think you're going to let some much to the end of your time but we'll make sure you get a chance to respond th it please the court james cox appearing on behalf of the postmaster general the district court correctly held the plaintiff's claims were barred because she missed the statute of limitations by at least six months i think it's important at the outside to clarify the two legal issues that are which is that an equitable tolling case or is that a sort of nonnegotiable statutory or rule based to in case you don't i can't say for sure i haven't looked at the case recently so i can't answer that with any  lot of cases no help from the briefs in terms of finding the years i was supposed to read but i didn't read the boyd case from the description i got it doesn't sound like it's an equitable tolling case but maybe it is when you're are the one point i would stress is the issue of the a crew of a claim versus the issue of whether an equitable defense applies to told the statute of limitations but how do you know you have a claim until you see something that triggers in your mind oh i triggers the claim the fact that you received an adverse employment action in the employment contests means that means that you have suffered an injury so if i'm an african american and i apply for a job and i'm turned down but i'm given the reason that i don't have the necessary qualifications and somebody is hired who has the same or less qualifications than me but i don't find out about it until six months or a year and a half later and there's some sort of sure that said i had to file my claim within ninety days i'm out of luck not necessarily your honor the claim accrued when that plaintiffs are that employee did not receive the position but then the question of equitable tolling applies and that's when the court's human decision comes into play in the standard for tolling which is two two elements due diligence and vital information so it's a very fact specific issue as to whether the facts to see whether it applies not motion to dismiss granted well in this case your honor the plaintiff did not raise the equitable tolling argument below and that the government was prevented then from being able to show its summary judgment why or in a motion to dismiss if it could be done based on the pleadings why the defense did not apply and in this case the plaintiff never used the words equitable tolling in the district court never cited the c f r regarding equitable tolling never provided the legal standard for equitable tolling and in fact didn't did not even provide all the facts necessary to establish an equitable tolling defense the plaintiff's argument was only that the claim did not accrue to she reasonably suspected a discriminatory motive and that is not the case under the case but even if the point of patent way that and she did in this case  equitable tolling would still not apply because going back to judge last next hypothetical the question then becomes what is the point of shown about their due diligence in trying to determine how much assume for a moment the word equitable told ferries equitable tolling had been used in the district court i understand it was not but assume for a moment the argument isn't waived you're now saying that she's not alleged enough in the complaint which is a different argument well how much does he have to allege in the complaint she alleges that she was told she had to come back because more than a year and a lapsed she then learned later that three non asian employees who had not fired filed previously o c complain moving past the issue of waiver which would be the government's first interest and that but moving to that issue what she failed to plead is that that evidence that she claims she found over six months after the statue of limitations expired that that was not available to her during the statutory period and that she made efforts to try to determine that in for well it depends on how strictly you read rule eight and i mean how much detail does she need to put into the complaint i understand we're opposed to ball world but we're also in a world in which we've got some nonet ball cases leatherman and so on i mean this is a rule a pleading question the year now after where you are even if she didn't plead it she should have provided that in response to the government's motion to dismiss  necessarily pled in the complaint but at least give the government some opportunity to say well but the issue is little governess motion to dismiss was based on the complaint you're saying she had to read she should redraft of the complaint then because this isn't will be six motion right yes right and she could have chosen that option but the government needed some way to know that the plaintiff is claiming that the statute of limitations should have been told oh you probably suspected that anyway but let me think question did did the question come up during would this judge to see me the plaintiff had opportunity she could move for reconsideration she could have put this in her briefing that requested opportunity for alito and so well what i think our case law is if the complaint can be amended these circumstances are susceptible to an amendment that would you know to cure the problem and you know we pick up with judge fletcher saying we're not criticizing the trial judge chief judge mosman he was not given much in the way of law or in one of these arguments were made in front of him so you know you can start from the proposition that misho didn't have affective representation in presenting her issue to the court but as judge the sheema says even if we do a dismissal it's often with leave to to file an amended complaint or something in the order that signals to the plaintiff there's not enough here but you should have an opportunity to plead what you need to plead and we're looking at it and saying well maybe she didn't get the opportunity that she deserves to at least try to prove her claim or plead what she needs to for her complaint well judge i think one thing i would point out is this dismissal was not with prejudice the the judgment  did not state whether it was with or without prejudice which under rule forty one means it was without prejudice so plaintiffs certainly had the opportunity to to file a new new claim which might have had its own statute of limitations but at no point in time did the plaintiff ask request for leave to a man so the judge the trial judge was not aware that the plaintiff would would seek to allege this new legal defense and going back to judge fletcher's question about what's missing here there is information that's missing here that that the trial judge did not have in the government did not have regarding the a political bill of the of an equitable tolling defense and that information is information about why this  evidence about these alleged compared was not available to the plaintiff earlier in other words did the more favorable treatment to them occur so recently that it wasn't available to the plaintiff and the government could have shown point that these compared as were they was the information accessible to the plaintiff during the statutory time period and we just don't know that and mr cox you may well win your case but i don't think it's going to be  allegations in the complaint not the you don't test whether playing should have made a more diligent investigation on to all the things do you but i'm this issue once the statue of limitations is not met your honor the plaintiff bears the burden of showing that this  understand that but the question is on a tro be six motion why should she just be thrown out of court without you know have given the opportunity to to make make those showing that you are the government would contend that she had the opportunity to make that argument and that she weighed the defense by failing to do so well look at paragraph eighteen of the complaint who are not sufficient to raise the issue of equitable toil tolling what's missing from that you are i see the amount of time if i could go ahead and respond to the question you within the statutory type period two to obtain vital information necessary to her claim made i thought i would agree that it's a fact that goes to the defense but then she never raised the defense and she never provided the remaining facts that would have established the defense ok let me ask a different question but it goes in a sense to waiver the area i've read the papers that were filing district court and i've read the papers that were filed in front of us and i confess it didn't take my real long to read any of that stuff because  this argument would you like an opportunity for supplemental briefing because the reason we have now isn't very good i would welcome that opportunity here ok and on the question of waiver of equitable tolling as an argument i recognize that equitable tolling was not that phrase was not used in any of the papers filed in the district court nor was it be used in the briefing file before us by the plaint even though the arguments not included there are facts that are missing here that the plaintiffs did not set out no i understand ok thank you ron thank you response at this point it's probably foolish for me to add anything additional judge i would just also throw out the possibility that first of all some of this evidence may not have existed within the forty five day time period it may have accrued at a later date and then also i think i would just ask the court to consider the consequences of adopting the defendant's position such that people would be required if they want to reasonably secure their rights they would have to make a complaint every time something happened regardless if they had any reason at all to believe it was that that would be something to resolve in district court judge and i think would have to do with with whether or not this information was available what information was given to her as a reason for why she was returned to full duty and the ability of individual to determine what every other coworker was was doing and what their personal health circumstances were etc ok and on the question of supplemental briefing unless you get an order from us no supplemental briefing they're ok thanks to the thank you thank both side for your arguments the case of whole versus it's now donahue submitted for decision thank you