ok if you come up to the podium and we can hear you on the microphone i would like to focus this morning on and i'm sure because the microphone didn't pick it up could you state again your name for the  what we're looking at is a mistake by the court regarding the last act of discrimination it's clear from the e c dash one form that he was mr chen was terminated on november for termination claim anywhere it is complaint his complaint was for constructive discharge and failure to accommodate i think the attorney should have carted around for termination thing you know let's assume the attorney let's assume it's implicit yes as i understand it the record score is that he was terminated because he didn't return to work he may have been ill treated before he left work conti she's kind of the goddess of sexual harassment laws she's written extensively she just says on sexual harassment law and the workplace and the practice and her latest cheat is which left work yes never returned yes so it's hard to see that the violation could continue with respect to mr cho while he wasn't there he was claiming about inhospitable workplace conditions and  accommodate and he got injured and left work and so what how could how could there be a continuing violation under this circumstance where he didn't go back to the workplace that's the exact question the way that of a country explains this is when harassment results and a tangible employment action you can bring in their harassment and the reason this works here is you cannot tell it from the original trial briefs that the former attorney did but what you look at and what should have been like that and which was never looked at under and a motion for true fifty sixty should have been requested to see whether or not their employees who were out on worker's comp were also terminated while they were on but we're dealing with we're dealing with a record that we have and so the the question is is there any evidence at all in this record that the determination which occurred because mr truong declined to return to work they said if you don't return within some period of time w we also move for reconsideration let me ask you one other question yes with respect to the legit bad conduct that took place before he left work you do agree that  say it this way that by bringing in the charge of the original sexual orientation discrimination and if the court by doing an equitable tolling would agree to read and allow more discovery then his case would definitely be alive because what happens in these kind of cases in my experience i've been doing this over thirty years is why it's a very close community it's very small in a lot of ways and we have something called the coconut wireless so i think in discovery we would have found out if i would have been the tranny in that case that probably am to her section and my brief when a supervisor has him put in any way then the employer is liable but of course we don't have discovery on that cases that seem to indicate that mr johns situation is not strong enough just looking at it as far as having a probate attorney friend who told him not to file a case regarding discrimination wait until you're finished with your work because then he had a completely brand new lawyer who filed the come fame that you saw which was somewhat an adequate to say the least and then he stuck with the buyer who only does for closures and this lawyer if you i don't know if you went through the entire record but this was his brief it was three pages it was amazing i've never seen anything like it in my life and he even put down the wrong date of the chairman nation he used the date of the october twenty fourth letter rather than doing that effective date of the termination so of course the judge made an error in the facts because attorney argued the wrong facts and that cheney even drafted the declaration it's what reply brief page five or let's let's hear from the other side and while you're here and we'll give you a chance respond hundred eighty three claim i think it's pretty clear based on the record mr chung had every opportunity to present to judge watson a constitutional right a federal right that somehow was deprived no evidence in the record so i  constructive discharge when mr chung left work that would be time barred if this were a claim about wrong terminations it would not be time or it wouldn't but there would be a question of whether or not the so it would be within the three hundred day well i don't think that you can well the three hundred days only relevant with respect to the federal discrimination charge right so that was a federal discrimination charge i was discriminatorily discharged it to the extent that you can look at the november at the garrick about a november eleventh if you nov two thousand and eleven letter which made his resignation effective november give me the care now of you know what it says so but my point is if if there were a or argument on the summary judgment motion i think judge watson had indicated and i think if you look at the transcript which is part of the record just was and had indicated assuming that i can allow you to assert amend or complain to allege certain of the summer i think in part it was brought up at some point during the in the district court after all cases removed i believe so i believe it was race well it wasn't race formally by way of the motion to amend it was raised only during  about you know why and leave command with a wrongful termination claim mentioned during that discussion the only wrongful termination possibility was in connection with upon our claim which is the wro no where in the record in terms of the evaluation process that mr chang had under i had undergone does he complain at all about sex sex orientation gender stereotype disability any of the pathetic classifications douglas factors you don't even get into protective classifications because it was time work so i think based on that i don't know i think there's no issues of fact there no one disputed much just assume for a second that a complaint asserted that the october twenty four letter was an act of discrimination something to complain asserted that could be there was i'm looking at the letter and it says was going to return to work anyway so effectively he was resigned and he admitted that on the motion for summary judgment so i think that on those undisputed facts i don't think the october two thousand and eleven letter otherwise return to work otherwise you could be deemed resigned as of november two thousand and eleven can form the basis of a timely discrimination claim or well for termination claim i think that so you're looking at the  granting summary judgment let's take a look at the motion for reconsideration for the first time that's when they raise your quibble tolling issue that's when the receipt of the continuing well isn't theory i don't think a motion for reconsideration when you could have raised those issues  it was probably raise on the rule of fifty nine motion so i think on that basis just what's uncertain to not abuse is discretion in to dying reconsideration you know you can't blame council and i think the cases that we we  outlined in our brief don't blame council of for the the inability to assert time we claims that is a remedy that you don't look at the city the employer for that's a revenue that's someplace  else i think i would suggest that based on the clear record mr chung's own admissions the documents that there are before the courts that there was nothing that just wasn't good that that aired as a matter of law on the motor for some adjustment without he uses this question on the dial of the recall so on that basis i would urge the court to affirm the decision ok thank you when you put a minute on the clock if you like a minute to respond your honor i think it should be clear that if the complaint was amended upon our claim could have been added to the complaint because what happened here was in fact the i c a did not come down with  he wasn't fired well while on worker's car for sick it was still on workers compensation your honor because they said that the labor board made a decision and september but if you look at the record you'll see that the i c a did not issue it wrote to them on october thirty first explaining they cannot fire him because there is still an appeal going on and that appeal was at the i c a and that decision did not come out until two thousand and fourteen but you agree that at least prior counsel told judge watson that you were not asserting a partner yes that was part of the problem and as far as going back to work if you've been harassed under harassment law if  honor that's a hard thing for us to do when council in front of the district judge says i don't have one i'm not asserting one for us now to send it back saying the judge turned and not allowing your second amendment complaint to be filed to assert a claim of counsel and right in decision to ask him to not return to work was based on previous harassment ok to ask you one of the question we're going to record what i find a letter of october thirty first i can get it for you know just tell me was it a