granted the motion this united states the on air finding that it was most what the case in ancyl versus paris is starting to drop out just a bit maybe a few whose coat moved closer to the microphone that might help cases of hicks waiters and told robinson they all deal with situations where you have individuals who have been presented claims to the district court that did not house through the e e o c process and we could  i would agree with you your honor i mean in looking back over and preparing for today's argument this as you saw in mr simcoe matter he is claiming and brought a claim of retaliation in the district court initial charge alleged violation of yeah now isn't that different though are those two things very different in respect to what sections of the law they're dealing the sea at st about the fact that he's trying to build a job he's told that he can't have that job because he can't hear his return to his former job and the subject to comments from his boss telling him you know what if you can't hear you're disabled you shouldn't be here well that foreshadows is eventual firing or sec but his original charge that he filed with disability discrimination failure to accommodate correct situations and different people i mean everything was different with respect to his his discharge versus the original discrimination the people facts isn't part of the point that these things need to be filed officially  yes and the but the issue with the retaliation if you do not find that the letter is a charge the issue with the retaliation in its relation to the eighty eight dollars claim is that but for the a claim there wouldn't be because it's retaliation where i'm going with this is that these facts are based upon you know unlike waiters where you had a claim of retaliation that occurred beginning in  and she filed suit in the district court after thirty months passes and then it's a different equal different time the case is held that the you know waiters is not out of line there are now in that case the initial claim was retaliation there was no retaliation at the time when the initial filing happened in simcoe simcoe in two thousand and thirteen was filing based on the discrimination rate well so so the fact that it's it's a years later that a retaliation claim is made and the fact that the terminations is made actually a couple i think if i got my facts right it's a couple years later and it's by different people in a different department doesn't that all go to the point that you're talking about two significantly different things and you just can't sweep it all up together and say it was you know it's like the reg use us it was all in there it's in there it wasn't in here right it wasn't in there and that's the problem that  is being alleged by us still how do you get past if we're doing it on a case by case basis as our case law tells us and as the morgan case seems to back up from the supreme court how do you get from a disability discrimination charge to a timely and an appropriate retaliation c in action at that freights and that's a that's a problem but it's a problem for you right not a problem for us thiel that's they don't they sit on it and arguably should have sat on it but they should not you know be damaged by what the o c did fail to do and in hicks he wanted to add a claim of sexual discrimination he said i thought it was amended i tried to  but here we are if we were to apply that it would have to be whether reasonable investigation of the disability discrimination claim whatever in this and it really really what yeah you do need to focus on that remember letter which wasn't raised in the district court which is a big problem in hicks when they said we don't have any evidence of what you know she would have done well the o c guide says it prioritizes retaliation it will tell the respondent that it's possible that the claim will be broadened and are limited based upon the issue with the the scope of the investigation and where if they would have come from the initial charge in like the nack no that's a yes no wait you hear stories like that the question that we're trying to get you to answer is why should we even listening to this argument the district court it was not made to the district court we've got pretty clear law which says if you don't make an argument to the district court you don't get to make it to us for the st time it looks from my read of the record that this was not raised in the district court in the arguments for should it what's your basis for saying look either it was a forfeit it or you should ignore the for  address it can we address it i think that you can address it because of the fact that i think it's legal i have it noted as on pentax six the court comes out and says it doesn't constitute a charge the court is in this record here yes the district court here on appendix page six it in its opinion comes out and says it does not constitute charges making the legal conclusion that subject to plenary review spontaneous you didn't raise it we still have the issue that even if the district court gratuitously commented on something just belt and suspenders because if we were to on appeal to d it's addressed by the e e o c in their briefing oh well yeah and the court is explicit in saying and the and simcoe does not contend otherwise that's the that's the language that got us a little bit hung up how was the district how is the how is the district courts you know whether it's a charge or not if you don't even bring up an argument you don't mean it was in the district court's view uncontested how is that a finding investigation i should say is unreviewable when the when the test we've made we've set up for exhaustion depends upon the scope of the investigation right meaning that the the whole determination of whether or not something has been exhausted properly d includes of the question well is this something which would reasonably have come up in the scope of that investigation so don't we have to be able to look at the  district court has to be able to look at the scope of the investigation to make that exhaustion inquiry so to it does need to look at the scope of the investigation but the the issue that i had with it was that the precedent that were using here it does not provide for any sort of limitations on there's a presumption of regularity in an investigation and there are you know are very little throughout the true enough but how does that answer the question i mean you took out you took a position which is this record can't look at it and then as a secondary position you said even if you could properly look at it this was within the scope it was ok i'm just asking on that st point i don't see how that can be i don't see it can be the case that the court can't look at the scope it's got to look at the scope otherwise under the tests we've set up for how you determine whether there's exhaustion you you couldn't you couldn't apply the test right well i think it goes back to my one of my national points your honor which was the way this which that said was objective it was applied it every case where someone's bringing a claim that was not passed through the e e o c process and here just like there is the case of i believe it's mac limited and in my brief i analogize to that and go back to that in reference to an investigation for them to or for a district court to say well it's too broad and which it did hear because it said you know there's there's cases where we found two women you write it there are cases where it's so are you saying that that door only swings one way or the there's power to look at this scope of the investigation say  to limited e e o c you were too limited but it's never allowed to say looking at the same investigation that was too broad just as i understand the decisions with regard to limitations  court is in those cases looking at what the e e o c was required to under statute or regulation and they didn't do it right and they tell you this instance and i say this is it is they're saying you didn't look at this and you could have looked at it because it would reasonabl included and unearthed the later destruction retaliation is that your position yes it is because i think when the s c would pick up the file and looked at it they would have contacted simcoe let's assume that he didn't fired yet had they come in expeditiously they would not have been reached right i have to agree with you just rikki and in fact i know that in my brief where i said this is a unique circumstance where i as a story i let the you see continue on with this investigation i didn't ask for a right to sue letter i let them go on there is no time limit for what they do and how they do it and in doing that more events occurred to happen and then we ask him is coleman nd question that inaction produces greater investigatory scope we don't we do nothing and then other stuff happens and we can say well things have changed now and fourteen he writes the he's he's saying look i believe this is a retaliation but it gets really agitated and they don't do anything with it it's not a it's not a question of whether you did something wrong or didn't do something wrong it's a question of your argument is yeah that's right and i'm i'm assuming that's the going to be v o c is position and i'm curious to hear ms coleman's defense of that position if that is their position  develop and to bring in things that would not have been within the scope of their original investigation on in fact to be a serious serious thousands and thousands and thousands of charges every year really only obligated to investigate all of them  morgan run afoul of the very statutory requirements for what charges are to contain and what they're supposed to be i mean this is a statement on the bottom of a multi page letter and u s st court said that what constitutes a charge must be interpreted really very liberally especially because so many charges are initiated by pro se individuals although the charge has to do  requirements that it be in writing but it has to request the e e o c to act and that request can be implicit you're it's not just a sentence at the bottom of a very long letter actually there were five different references to this in action can produce a wider scope of investigation that's what it comes down to right because if the o c had acted timely it would've been acting strictly on a disability discrimination charge and there would not have been any retaliation charge she deal with as he wasn't fired so a couple years later right well respectfully in terms of he or she acting timely we don't have the time limitation for how long our investigations are so you have two years as an extra here you know that's a stretch actually well you know waiters waiters is the only precedents from this court in which there is an actual investigation as opposed to a hypothetical investigation it is true that in all of the cases the court has talked about the scope of the reasonable investigation language but has only that in cases when it's talking about a hypothetical investigation that did before they've been implicit or explicit whether this is something related whether it would naturally have come up and the answer is i guess in this instance your answer is well not only naturally would come up it did come up that's that's your point it came up and it came up and we're allowed to look at it because we're not under any time constraints but i understood their correctly well it came not only did it come up but the employer was able to respond on the merits and we invited conciliation so literally every single purpose of the charge filing requirement was satisfied here on life only talk about a hypothetical investigation let me ask you  you make the equitable tolling argument when mr simcoe hasn't well i think that although this court rarely uses it it does have discretion to consider an argument raised by an amicus we have not briefed whether that is what you should do we're all for any of this argument because i think it's compelling and because we are here is the e e o c saying we made a mistake we should have helped him convert this into a charge we that is our doesn't look like this to me but and nobody's arguing to me that it is and then that there was side doesn't get to come in do they and say well you said something about it so it's wide open now even though nobody argued the merits so i certainly understand your concern circuit in the th circuit they were wrong and should walk away from the pursue a rule why should we walk away from the case by case rules that that those other circuits was the more correct one after mor asked about market in our view those courts mis read it more again is about not allowing a party to revive a stale claim it's about a statute of limitations all martin addresses conduct that occurred prior to the filing of an initial charge on doubt that the charging party white house and should have raised at that time but deceit and so to allow the party to raise that prior conduct later is an end run around a statute of limitations is different from what we're talking about here which is charged conduct that is occurring during the course of an e t s the investigation we can look at it they can contact the e s c investigator there's no end run around anything the briefs the plaintiff or the forfeiture is been argued at length and we understand the point now can you address the merits assume that we got past forfeiture for some reason we saw you know the district court looked at it and spoke to it in off well and formalities have been satisfied when we know the statutory from realities only one possibly that especially when we interpret as liberal he said we have to the only one which which might prevent this from becoming a charge we've already dressed that verification does not prevent it the regular let's not mistake in the regulations they specifically quote a church is sufficient when the committee she receives from the person making the church written statement sufficiently  precise to identify the parties and describe generally be actual practices complained the statement which i just quoted few a moment ago well i mean why doesn't it satisfy every one of those things  was a certain some kind of retaliation just making clear on the record that your your argument depends upon that november th charge quote letter not being a charge right right right he didn't treat it as a charge we were not we're not sure in allegation and i well it's not just look not just you can absolutely fairly read when he says anybody looking at this would see its retaliation as a statement that it's not just that it's no longer in his mind just about this ability it's about retaliation but leave that aside for a nd let's assume that we thought well we can't look at the november th letter speak to the argument that this is all still part of the original there doesn't have to be exhausted because it's it's maybe not if it's per say but that it's within the scope of this investigation go ahead use your case knock yourself out rd circuit user please make a case analysis if you want in this case this retaliation claim came up in the course is not whether it ultimately came to light but whether it was fairly within the scope of the original charge or the end best barely within the scope of the investigation that would have a risk and therefrom and you're acting in it that it would be fairly  delay that you know created a problem here we're five hundred days passes and this should not be able to proceed because of that in hicks this court recognized that a civil suit will lie even when the o c s failed to give the defendant notice of a charge or as even a failed attempt to reconcile the parties simcoe did what best he  reach you by phone but i have some questions on the latest investigator on your case i have some questions i need you to respond to at that point things finally started to heat up and the sea reached out every one of these acts that you complain of at least in the title seven realm right so it's not directly on point but it's pretty analogous constitutes an independent act in the clock starts again now you can characterize that as miss coleman houses just simply a statement about the statue of limitations why is there isn't also a statement about you should look at these things individually and not as just it's all in there together but these are individual acts to be paid attention to individually well i think if take morgan from its facts that it was looking back on an issue d of continuing violation or argument he was trying to stretch back into the past before any investigation occurred for any charge was even filed to try to bring in acts that were outside the three hundred and eight limit or the one hundred and eighty day limit within the statute that's a sin if if the court were to adopt morgan i don't think that our current president that we're dealing with here would for survive morgan if that was the case that i believe i believe you're correct on yeah but at the same time our trust that is saying look at what the scope of the charges in the investigation and the purpose of the seas process is  to allow someone like simcoe who is at this time unrepresented to present his problem to the s c enlist their help and have them look at this if he is unaware about the fact that there's a law that prohibits retaliation or what retaliate looks like or that it even occurred to him then he would be completely kept from making that claim but if the  finds an investigation it should be allowed to be pursued but in this case simcoe did recognize it as retaliation he alerted them and he waited for a response and he waited for action he thought this case is open i should give him an update in january of two thousand and sixteen that i just mentioned a few moments ago it's an amended charge kept in that same number and they issued a reasonable cost finding the as you did saying that there is retaliation here but we did not find more attorneys who willing to concede things that need to be conceded make life a lot easier and a lot more just in a whole lot of cases and thank you very much everybody in what they better