i understand that everyone is here except for want to turning on one of the cases we'll see if he gets here in the meantime we will proceed with the first case harasser says harbor freight tools may please the court my name is jason engle signing this case may look like a hard one for you to reverse but let me explain why you should this is a case between innocent individual and  tortfeasor and normally with filing a discrimination charge of the e e o c in the state of new york you are given three hundred days to file those discrimination charges however in november of two thousand and twelve the innocent individual the appellant was told by the sea or was communicated with told by communication with the aussie that he had three years to file his discrimination charge now the burden has to either fall on the decision of this court on the innocent individual or of the t this individual is i don't i don't believe a courtroom wants to discourage people with similar claims to thousands of innocent individual of the appellant the burden should fall told who told him and when he no to raise a question of fact there are many courts who have held which have held it third party statements of that sort do not toll so may be that that that is not enough but even assuming that it does is what your client did enough under the rules to raise a material question  specific one it doesn't say who told him when and what so that even assuming what he's uncertain involve law that if somebody said yes the c person told him that he had three hundred days if that would be enough is what your client submitted you know i mean we you know you're saying we should be sympathetic i am sympathetic but i got to have enough data you save if your client has raised the question i agree with you but judge spat of the lower court he he ruled on he decided on a summary judgment was not the motion that was made by a  appellee made a motion a motion to dismiss but in a motion of summary judgment the court must give the nonmoving party which is the appellant the view in the most favorable this case didn't even reach discovery if if it had reached discovery completely discovery and then the corded ruled on a summary judgment motion that's a different story but this case didn't even reach unfortunately subject to  the question is do this court wants i believe once individuals who suffer from religious discrimination and discrimination to bring their claims before this court of justice there's no doubt about that the question is has this person brought still that we can say that he has raised a material question of and it's that that you know it isn't enough for somebody just to say very deeply somebody told me that i had plenty of that just isn't what the case has to be something more definite or some clear reason why he couldn't do that and that's what i don't believe the court wants to tell individuals in the public of that their situation must follow within certain after the third time now but i don't i see you still have to comply with the rules and you still have to comply with the time limitations he believed he was complying with the rules because he was informed that he had three years to file his claim if i charges if if the court wants individuals to feel like they're there are limited to only certain circumstances in which they can bring these claims  individuals when they already feel discouraged by the emotional or other suffering that they might have suffered from the disk discrimination they might have been subject to thank you save some time from a bottle yes we'll hear from the other side affidavit legally sufficient the answer is very simple no wholeheartedly no the affidavit the mr perot submitted in this case says that on some unspecified date he spoke with an unnamed individual whose title he doesn't know or i should say doesn't know he didn't put it before the court and that they told him that he had three years to file a discrimination complaint when my experience is that everybody knows otherwise but notwithstanding that the legal issue is summed up in this court's decision inside vs rockefeller university it says quote so i has not provided any evidence such as the name of the representative or the date on which she spoke with the representative to corroborate her assertion that an e o c representative gave her eroni as information period close quote it's the same issue that has occurred here and in the psyche of the court found that the point had not sustained her burden to demonstrate the tolling was appropriate here we have a similar affidavit similarly big and not only is it vague but it also flies in the face of undisputed facts  mr president he says well these are allegations made by the appellee no they're not mr pres subject to a deposition twice during the period he claims he was incapacitated and he testified about his conversations with the c and at no point does his testimony match up with the affidavit he now submit so in addition to the problem of his affidavit being insufficient it's also contrary to his own party statements and it can't be credited you can't receive a favorable inference when you have inconsistent statements on the record in addition i would really like to just point out the burden here was always on the pla make out the toll that tolling was appropriate burn doesn't fall on harbor freight or a defendant to establish that they shouldn't have to worry about equitable so no doubt about that but the question remains is is an in other cases there have been instances where a plaintiff has submitted for instance a draft of the complaint that was submitted some communication some corroboration that this conversation  voters more but the anyway that's a different just to come back to there's also there's two elements here not just whether or not there existed extraordinary circumstances which is the affidavit issue there is also  issue of whether or not mr pres was reasonably diligent in pursuing his claims and here this is an issue that the district court glossed over is not the the correct term but did not address and they didn't judge that didn't address it because  concluded on the first element that the plaintiff can't win but if this court were to go the other way the record is clear that mr pres was not reasonably diligent during this period of time this nearly three years he pursued another action appear to court conferences was deposed twice and he testified that he took one trape testify that he took eight trips to spain during the period of time when he says he was in bed and on able to pursue his discrimination claim i also know that mr mr zack's office is his lawyer in both cases so when he says that he only retained a lawyer at a particular date was unable to pursue his comes that's just not consistent with the the transcript shows that the appellant was asked if he meant if he told the e e o c about any specific charges but it doesn't necessarily  disagree with the claim that the opponent is making that he spoke about how much time he would have to make charges and he charges so i don't think about lee has addressed th issue and furthermore like as i previously said i believe the court doesn't want to tell individuals that they have to fall into a certain perfect type of behavior and yes wal the appellant a had a second start of the second case prior to his injuries after starting those cases he suffered injuries now he may still be passionate and desire to see the further and it's of the claims he has raised but that doesn't that doesn't require him to do everything to do everything i think it's it's asking for injured individuals to do more than they're possibly capable of doing and i don't believe the court wants to send that message to individuals when they suffer for him from injuries and they have any other instance of behavior or any other action going on in their life no no life is perfect and no situation is perfect and the appellant astride the best of his ability to comply with the information he was told or communicated with