correct and the conclusion was that you failed to meet the non frivolous standard correct correct so why don't you direct your attention to why you think that within rap what is that in terms of what your client claims happened to him satisfies the test that's required here or constructive demotion well i don't think judge price i don't think the issue here is i think it's allegations are like an asian american and a hostile working or there's no doubt that that's been considered by the by george you need that it was a discrimination claim as well as hostile it will be more and this is very could be proven just basically i look at it and i think the courts here has looked at it as well as made america book type motion to dismiss if there is an allegation here that could be proven then it has to go according to garcia to the next states that if we get into that mixture of merits and merits jurisdiction that it should go to the zero there and i think it's pretty consistent with the courts here you know wait and measure and that reason we feel that at least that question be reversed because she judged more strong did in fact way and determined by a preponderance of the evidence skinner which is exactly what was said and should not is not given an office just on the merits and a situation in which somebody is not given an office as a result of a racially discriminatory enema that the first one might not cause somebody to resign i mean if somebody if all of these things happened to somebody just on the merits they seem to be you know the sort of the ordinary vicissitudes of the workplace if these things happened because this person was an asian american and they were trying to discriminate against them it's quite another thing in terms of whether his resignation was voluntary don't you agree isn't that part of a discrimination claim which over i don't see how you can take that position i don't see how you can scrub out the discrimination aspect of it of this and determine whether it's voluntary or involuntary can i just get clarification on what the discrimination allegations were for example was it is it clear that he was arguing not just i think this should be remedied because all of this was happening to me because i was a minority or what whatever the category is vs was he at was he actually alleging that the reason this was involuntary the reason that i was forced to relocate and take the other position is because they were creating a hostile work environment and they were discriminating against have your position basically is that the fact that he was not given an office or a telephone and that he did another good working relationship with suggestion that this was irrelevant but you're saying there's no such allegation this allegation that exists that anything like that yet another important or the allegation that the on the right question would be i think in judge dykes hypothetical match to whether or not quickly after that to know his mind made up his decision was final is that one who was also noted that for the first time a lot of these claims are being bought his attention and he never had an opportunity to remedy that this point where we are she stated or the second sentence although the poem alleged discrimination based on his status as an asian american in his appeal ok then she says he did not provide any evidence of