questionnaire was filed well within the three hundred days of the identified president of the us and that's adequate notice and so we were dismissed based on those two reasons so that is really why we filed the hildebrand's charge of discrimination if you look at the instructions on the form the first thing a party has to do is to name the employer and then it says if there are more than two employers list under the particulars below and if you look under the particulars below paragraph one he starts by stating i started my employment with the county of allegheny and i worked in the district attorney's office i think if you look at the if you go back to the questionnaire mr hildebrand also attached a pretty lengthy he was not represented at that time he attached a pretty lengthy statement as to his as to his charges in clearly in that statement it also indicated that he was employed and paid by the county of allegheny so he put on the questionnaire didn't he allegheny county district attorney he did put out one line yes in a one line he did that could be some notice that he considered allegheny county his boy yes exactly and what he also attached the questionnaire which is in the in the appendix is a lengthy statement where he does delve into less employment than that he w and the lincoln hospital right so and and and lincoln hospital is mentioned in the intake questionnaire right and allegheny county is not like but the proper parties are mentioned in the chart well based on what you've just asked is do we can look to the charge we should be only looking to the intake questionnaires that's correct the intake questionnaire you know the issue here is i think notice is the broader question is did allegheny county through the filing of the questionnaire have noticed and i believe the record does show that they did have  a s office yes and i believe if you if you look at the documents on file you will on record you will see that his employment his dual employment  one of the more important points is that he was paid by the county he wasn't paid the district attorney's office did not issue a pay check for mr hildebrand for his detective work it was the county that issued the paycheck so  there is that the record clearly shows that there is a clear closeness and that he was duly employed by by both anatase if there's no further questions on that there is the other issue of the one nine hundred eighty three claim you know one of the things that interests me most in this case is whether an eighty eight plane can be brought under nine hundred eighty three yes yes and that is a question that there is a circuit courts  honor well and why not anymore because the one yeah right it's actually that i think it's the madigan case was dismissed after oral argument by the supreme court for being improviden case also with a nine hundred eighty three claim and the difference between levanted in the seventh circuit and the other circuits is that live in the decision seven circuit came after the supreme court fitzgerald vs barnstaple school committee case that's a supreme court case where isn't in fitzgerald the supreme court determined wasn't eighty eight it was title nine but when they did a comparison of can you have a title nine case also with a nine hundred eighty three case they determined that you could because what they were looking for were things like were the protections and in the act in that case title nine the same protections particular standard that the supreme court had issued and said now with the eighty e a a there are different protections being offered than what is offered under the one nine hundred eighty three and so the argument is is that after fitzgerald versus barnstaple that there is a different standard and the question is does the a t a i provide different it could be more narrow it could be broader protections and argument is  that's right and that is the issue that the district court found that we did not plead enough in terms of persistency of the behavior or  employees by name that were forced out under the plan there was an admission on the part of his employers that they had forced out older employees the complaint is  full of allegations of you know that the older employees could not act as the taxes that they didn't have the modern skills computer skills to engage in an adequate detective work  that basis and with that i'm out of time so himself out of court so i think you could still talk about it in the context of is the amended complaint standing alone sufficient seems like it is under rule ninety and then talk about was the plaintiff out of court by catching the charge and if i because the charge we all seem to agree is not timely but i think the response is no because there's nothing inconsistent in concluding that the charge which was filed january eleventh two thousand and twelve that that was a charge was on a form five charge  criteria and also concluding that the intake questionnaire filed in december first constituted a charge under holloway and we all agree that it was timely so i don't see that there is a judicial mission a contradiction that needs to be resolved but even if this court for some questionnaire does that mean that you have filed that you're correct because sometimes a point of will fill out an intake questionnaire doesn't meet the criteria and the most important thing the agency has done since the hall was a decision is to add those two boxes at the end of the questionnaire and that helps the plaints of the we call them a potential charging party you know if you check back when we won't treat it as a charge but if you check box two and you tell us you want us iraq rising up to act and you know that we're going to notify your employer within ten days of the charge then we treat that as a charge do you think your questionnaire could be a little more clear on i don't you know i guess in saying that you may not this may not be considered filing for you mean you may prefer that questionnaire retreat a little more but i can tell you personally because i i worked on this if you took a long time to get even to the boxes and we hope that that was a good way to capture because many people come to us and what they complain about is not something that we can help a draft and then they face retaliation because if it is a charge we must send notice within ten days so ideally we'd like people to come into the office to sit down and talk with them about it before we make something into a appear that will be interpreting this inconsistent with you know just theoretically why you know todd lee is asking for more specificity here it would seem you know to follow the nine  it was only the district attorney if you look at what plaintiff included as an attachment to the amended complaint the charge of discrimination there is a space on this form for two employers to be listed names and addresses telephone numbers all contact information it says on this form that we need this information in order to notify the employer that you are charging them with discrimination and for the e e o c to label them as a respondent entity it's not allegheny county allegheny county was not a party to the e e o c proceeding and it was not because mr held a brand never let the e e o c know that he was making a charge against allegheny county yes we didn't know he was informed it was not there is no evidence that allegheny county was informed it was not in any way the right to sue letter it was sent to the solicitor for allegheny county that route for reasons that remain a mystery because allegheny county was not a party to the proceeding and nothing the district attorney's office a separate entity yes they are and this is a under pennsylvania it is a row office and so it has a completely elected its own elected official they do their own hiring their own firing allegheny county itself has no involvement with him whatsoever there are some things such as because it is a row office many times at people that are employed by the district attorney will argue that there is an dual employment situation and this might be getting a little far afield of where we are but just so the court understands it's actually what happens is that allegheny county does distribute paychecks and things along that line but has no involvement in any of the inner doesn't that would i be whether certain thing for the district attorney that would probably be set through the state with regard to their budget that allegheny county has no involvement in fact with most of the roll offices and i would say maybe with all of them that a lot of that is outside allegheny county is controlled but i do believe that money issues that there is county money involved but in terms of determining the employment situation of district attorney people such as mr held different allegheny county is entirely out of it now i think going back to dr i'm just wondering in terms of whether there's some sort of agency relationship it's not alleged ok if we look at the pleadings the mr hildebrand never made some of a long the lines as that notifying the district attorney's office for the e e o c matter suffices to notify allegheny county now there because under the notice requirements in the exhaustion requirements there are certain exceptions that the courts have recognized and none of those would apply here because mr helder brain has attempted to avail himself of that he is relying upon the argument that he's satisfies the pleading requirements by simply saying i have exhausted all administrative remedies in making that statement however he is only relying upon the of berman that he made which is a legal conclusion in his complaint is amended complaint but he's a asking this court to an ignore the actual attachment he made to the amended complaint which is the charge of discrimination and when you look at the facts in the charge of discrimination allegheny county was not responded and was not involved question that charge should not be part of our consideration the charge should be part of your consideration and even if you do look at the end take questionnaire it doesn't change the result has to allegheny county in this case because allegheny county was not part of the charge y should be out altogether but it requires us not to consider the job right there are a number of ways that the court gets to the ultimate conclusion that allegheny county is not properly in this case and one of them is the way that the court is just now addressed which is since it was not even if this court goes so far as to say that you can rely upon an intake questionnaire in some instances you still have to look at the intake questionnaire and say if it if it puts the if it actually in this case included allegheny county which it didn't and then you go to the charge of discrimination which also didn't include allegheny county so regardless of whether these issues upon the questionnaire versus the to the e e o c proceeding and it wasn't further if you look at the intake questionnaire he does represent that he had assistance of counsel i also add that is unless the court has additional questions a exhaustion issue i know i'm nearing the end of time but questions have been raised about the one thousand nine hundred three matter as judge roth had mentioned that there is this issue that overwhelmingly the circuit courts have found that the eighty eight is the exclusive remedy for nations for nation there is this one outlier circuit the seventh circuit one thing that counsel for mr holdren stated in its brief was that this would be an issue of first impression for the third circuit however it is not in the two thousand and ten decision in this court of rock rock rock reese's malory it is cited in the brief in the counties brief two thousand and ten the court did individuals and there's no cause of action therefore on appeal that left open the issue with the court allow a eighty a case to proceed it is i believe not but it is from this court and it is of interest to the court and i would sit submit to the court that the rationale that was listen that decision it again knowledge the other circuit courts that have all no further questions that i have simply submit that allegheny county relies upon the arguments that are presented in its brief thank you so much rely upon the intake questionnaire i did not get involved did not get involved in the time when this argument until the amended complaint was filed the helping had argued essentially that they had not been named in the chart when they attach to charge it was very clear that the charge was untimely a incorporated the charge into the complaint it was clear that it was untimely at that point i filed my time on this argument based on the amended complaint nothing that happens in the initial complaint has any effect on the d a s charges of on time and has then after they head filed the complaint they didn't m their duty at that point was to tell him that they filed an intake complaint that the e e o c so many days ago they know exactly what the judge wanted they didn't answer it they simply gave him a charge initial argument based on the charge and they would i wasted allegheny county taxpayers money in allowing me to make an argument based on a charge and then waiting to come up to this court to argue that judge  shouldn't have done that they were dilatory they were under the way and asked me if they should be allowed to consider that intake questionnaire the difference between general pleading and particular pleading and in there they say that nine b does not excuse the particularity required under rul to understand the timing of the different issues being raised in my experience with pleading and conditions preceding my complaints of have all had basically the same general language that yes plaintiff has exhausted his administrative remedy is correct the district attorney's office did not raise an issue of timeliness in response to the initial complaint we got the opinion back from the district from the district court us to the first in the first motions set of motions to dismiss and we responded in kind that issue the only issue as to the pleading identified by dr schwab it was then in response to our amended complaint that both parties looked at the charge and said oh there's a tireless issue and so of course we we added the questionnaire so we don't think that the pleading rolls down they don't preclude what happened and certainly it doesn't preclude the you know the situation of nine see taking taking the day when it comes to how you should