waldron who certainly had a cause of action because of actually gauging in a protective activity of its coverage throughout the the a b a and all the other types of anti discrimination statute he protested front of the house reading gas and things of that nature of his allegations or he contends that he was told not to hire someone like that wasn't what the put the business wanted happen from time to time so once that lawsuit was was filed waldron charge was still at the e e o c so his target sitting there ego see  rule twenty four actually rule rule twenty four gives you the right to if you have a just fishable interest in the in the controversy before the court or or a claim for relief before the court you have a right to join correct so outsiders to a lawsuit right mr waldron would have been an outsider to the lawsuit between ego c and j c wings correct how did they join the lawsuit under rule twenty question of law fact so that we we've already decided maybe i should ask it this way i've read each of the cases in your brief on rule twenty that involve jointer in all of those cases involve one of two things it's either to part the parties to the lawsuit try to the outsider or the court because it's necessary indispensable can join an outsider but if the outsider wants to join the lawsuit they do that under rule twenty four dollars not rule twenty one dollars i understand that we don't believe because it came out the the mandatory prerequisite for the e e o c to get into the gates in the st place is the charge that waldron filed so there's a little bit different than a situation that you may you may be described because i don't think you take into consideration it in order for the controversy to get before before the court there has to be need to see charges filed we're the ones that did that so we need to i don't i'm not going to concede that word outside i believe we're a catalyst to organise a catalyst to this in this case because does your motion to joining does that count to satisfy your right so i do believe it does satisfied i think one of the causes that we'll be we alleged it was a same you know nucleus of operative facts all the things required they knew the witness or they knew what the claim was so there's no need to address your question directly judge allowed i believe that because you asked me on the th day it clearly gives them fair notice so you had your jointer motion filed by the day yet and you believe that it's a place holder for a complaint a very unusual occurrence and i'm not i'm just telling you arguing that the facts these types of things happen all the time the e e o c will do is call the director charge file the suit and the person will always intervene or joint either one what's different in this case which is different is that the e e o c initiated litigation on wild card on behalf of other people i'm not standing before this court saying it's never happened before but i am standing before the court saying in my thirty two years i've not seen it doesn't mean it didn't happen it's unusual there's very little case law if any on a situation as opposed to the to intervene to separate jointer and intervention joinder do we have jurisdiction at this point to consider the joinder argument or do we need to wait until there is a final judgment in the underlying case and then you will appeal from that that you were denied the right to join so i that's my next question do you have any but that's not a hindrance for your intervention appeal as it no i don't believe i don't believe it is you know i think i'm going to think the best way to argue illustrate the problem that we have in this case is that we have a situation where as i said the same transaction and there's there's there's no i don't at last as you can tell right now well for a while there was no no guidance no opinion it was just a straight you know plain dismissal or denial of our order to come into the case to intervene early in that don't i'm not saying i'm just trying to figure out that we don't have any reason why the court denied the motion for intervention or snow there's no reason and and as we see it to will it make some sense to deny it if it was time barred right because by the time the intervention motion was filed the ninety days had run by over a year solicitor so i could understand the authorities that were relying on so we don't have any cases that say rule twenty motions to join satisfy the ninety day clock they would apply to the e e o c right to let them wear another record so do we have any cases that say you can file rule twenty four intervention motion after the ninety days of have run i one week at the time and venture or any time before what would have happened is it would have gone back because you in the civil cover sheet they asked you for related cases and things like that it would have gotten back there anyway up the separate cases would have ended back in judgment as corden in the same one and we were just trying to move a law who thought that would be the best and most efficient only because we we believed and still do believe we had the the right to do so it no surprise they've been dealing with the e e o c charge for ever it was a very long charge there was no surprise they were just trying to get the case of your ticket and we we thought then and still still thin now even after this argument that that was the the appropriate measures to take because you put a high fair notice there was nothing coming from the side it was all straight down  good morning your honour's may it please the court my name is monica orlando and i represent all the named defenestrate siblings in a process at all is our position today that we believe that the trial court did not abuse it this disc with respect to the joinder the intervention as well as the equable tolling will to you know the intervention is not reviewed for abuse of discretion it's review did nova correct as to the issue of permissive as of right versus excuse me as a right versus permissive jointer i do agree with that your honor we do not believe that the trial court erred and we believe that the trial court opinion should be affirmed what is different about this case that opposing counsel did not address with the court is that it is our position as to the jointer claim that he did not meet the elements with respect to the two prong test this claim did not arise out of the same transaction or series of transactions the reason being was that mr waldron was a manager he was already employed by the defendant and he was not to not employment like the people the c was seeking to protect with respect to its lawsuit and he has a retaliation claim versus a claim of not her people over the age of four but these are unusual at all that the person who's in solidarity has to write what i'm trying to think of and says you can't treat my coworker unfairly and i'm going to go to the mat with my coworker that person has and they get fire with that lawsuit is treated in the same and most of the time there are certain circumstances where that is true your honor but in this particular case an opposing counsel argue to the court he's talking about the same charge same claims these were two different charges mr waldron had his own separate charge he got his own right to sue her with respect to his own charge he could have gotten filed his own separate complaint with respect to that yes he had its own separate charge but he did it as a result of him making them aware of the issue right that's the allegation that mr walker i mean had nothing to the contrary right i don't have anything to the contrary but there's nothing in the record that indicates that's the reason why the e c brought the claim that they brought against the defendant this case now one thing about his claim is that he was tailgated against for failing to carry out their discriminatory bob that's the allegation that they're making however we that is correct but your honor his damages are different his cause of back actually are different the witnesses are different because we have a right to put on the the reason for his terminations and but in order for him to prevail in his claim there has to be he has to prove that there is this discriminatory policy correct and in order for the e e o c to prevail in this case they have to prove that there is a discriminatory pops they have to do more than that they have to show our pattern or our practice of this particular policy among all the restaurants that they have to do the work they have to do a lot more but the body has sped but they have to at least prove exactly what he needs to prove in order to prevail with regard to discriminatory pops that is  least do they got at least do that but then he said that if they fail on that plane he loses his claim doesn't that is true that is true so he needs to be there to protect his right i disagree with that your honor because he could have had his right protected had they filed the complaint in a separate lawsuit your honor no because then they could use if they were in successful and they're going to head of him then after is because you talk about joined or not intervention correct i think you are you aware of any cases where filing a joint or motion has without a complaint that is so we're not about intervention i'm just i'm a jointer have you ever seen a case has tried to join without a complaint and satisfy the ninety day class have not seen any case and i did search for them but i did not find and have you ever found a case where eight post ninety day rule twenty four intervention motion was held to satisfy the ninety   his joinder properly or did not file a complaint is that anywhere in this read brief i know you're not on or it's not but the issue that i have made in this court is the issue that he did not timely sue the right defended and that's important in this case because the employer that mr waldron had was a one in a prizes when he filed this request to join the case within that ninety day period he sued the wrong defendant because p k one enterprises was not a defendant in this underlying case so you're spotting him that that was doing you're just saying it's the wrong person correct ok correct and he was well aware the council was well aware of the fact that c k one was not a party and was well if it were fact that that was not the employer he did nothing even after it was raised on the on our response to the joint or even i was after was raised he did nothing to follow an intervention at that point he waited until the court ruled on the jointer profile following any intervention c k subject to the judgment of the court yes there was a consent decree that was injured and it's my understanding based on that consent decree that that's a final word or even consent decree if they are not a defendant in a in this suit to where they were there after they were added after the statute of limitations ran by the e e o c where they added on  june nd of seventeen according to the record if we take is true mr waldron statement in the record that he didn't receive notice of his right to sue until march th june nd would have been his statute of limitations and it would run up you could argue that because you haven't actually argued that here that's correct we could do it but we're going back and we'd be re arguing on most the same points that i've tried to make as part of this particular record but are not part of your brief the issue such limitation jested was part of my brief but you're talking it does not you're not talking at the ninety days or at all you're talking about the statute of limitations for for bringing the wrong just doing the wrong defendant he should be barred as a matter of law for suing the wrong defendant this is more than a defect situation limitation but i don't think he's met his elements with respect to the intervention well it seems just for it let him go through that because it claims to me that he may have and so you agree that the statute of limitations doesn't bar the intervention it would relate back that is correct but i do not believe as a matter of law he's met his right to intervene there's four factors as this court is very row where st of all there has to be timeliness he waited until after the ruling on the jointer before filing an intervention he could have followed the intervention at the very beginning he could have filed the intervention during the course of the proceedings he waited until almost forty five dollars days before the end of the discovery period to follow an intervention request only because the jointer request was what do we do that is the  to trust litigation case that where they were and why they waited more than two years in the state of texas was well aware of it still didn't get involved until much later well your honor with respect to that case i believe that in our situation we had already been before the court we had been dealing with the e e o c situation for almost five years we were ready for trial in september if the court would have granted the intervention at that late date it would have severely prejudiced my client because we didn't even do any discovery at all with respect to mr waldron's claims he wasn't even engaged in the lawsuit at all we had witnesses different witnesses with respect to our legitimate reason why we terminated him for sexually harassing another employee none of that had been developed he didn't participate in disclosures he had participated in any of the depositions we would have been unduly prejudiced because the trial would had been delayed we would have had to extend discovery favor of the intervention and they have cases that have just been years later that they allow people to intervene there is not a case law with this specific facts that we have before this court there are cases that talk about time periods being you know if it's eight months it may be too long or if it's a year it's too long or what have you the bottom line in this case your honor counsel could have done something the point the inner mr waldron could have done something to file an intervention more quickly than what he did in this case right but no not the test so can you go through the other elements police yes your honor other than timeliness the court has to consider that the mr adequately protected by the e e o c with respect to my claim what is the problem with that why can't you change your mind didn't the maldef change its mind in the texas the u s case about whether the state could adequately represent it because the state was getting into all sorts of issues related to discovery of the things and well your honor i mean i don't see how he can change shit up right in the middle of the case because he knew what the he was claims different damages different different there is every covering your honor so i don't see how he can just jump ship in the middle of the case and go that route ok did you want to address the nd factor that you had you re that must have an interest relating to the property or transaction i disagree that he had any interest in the particular client he was a part of the protected group he was a part of that was not hard for  front of house position he was already an employee of the defendant albeit only two months had been working at the restaurant so he doesn't fit that protected class if he doesn't fit that protected class how does he have an interest related to the claims with respect to the pending lawsuit so therefore i don't think he even met element number two and the issue as to the rd element that he so situated that the disposition of the action may as a practical matter impair peter's ability to protect his could have done something much earlier here on or he did nothing he just sat back and did nothing counsel can i want to try and stand from the conversations we've had today the argument your principal argument on timeliness if you have your brief in front of you i'm looking at page twenty five enterprises it's untimely because it was not filed within the st ninety days that the complaint was not yes correct thank you we're just say that want five right but it says he could have taken steps before then so it's not it it's not a limitations argument it's why you don't think it's timely to satisfy element  right correct you're not saying it's automatically barred you're saying prang one cut in your favor correct ok i think and i'm not aware of any case law that's out there that deals with  this particular matter in the issue of the statue and actions ok thank you for judicial it in addition to the arguments that have been made your honor there was never any discussion thus far dealing with the prejudice to the client the the the that time period that my client had to endure with respect to this case and i believe that the underlying court denied their request because it was the intervention i see that this case would have lasted another year to year and a half just to get past all of these issues that were raised by mr waldron and because of that i believe the court denied both requests with respect to that issue if i heard correctly when when the judge all right asked if they were spotting that we sued to mean that constituted judicial admission and that resolves that i don't know if the court sees of the same way but that would be my position on the on the comments that were made i want to address just a few things in rebuttal i didn't bring this up in the beginning in my opening in the opening argument but regarding the employer the identity of the employer if you look at our reply brief and i'm sure you have on page six weeks cite to the court parkins versus international pains case that addresses this issue it adding the correct offended outside limitations  allowed allowed relation back to the original filing since the the the party in that case international had represented was the same counsel same principle same or everybody involved throughout the e e o c process and they received the the right to sue or if we believe that that issue with the employers is although maybe tangential was brought up and i feel a need to rebut it here do you have a case where relation back would clarify it i suppose but that i understood that we're spotting for the sake of discussion and we're moving on to a different part of the prong we've been doing jumping around between different rules and different problems something i'm just i'm not sure it matters where the other things are no these are going jurisdictional requisite bring before the case the court today two other things in rebuttal number one counsel states that the witnesses would be different in the retaliation case and the underlying discrimination case we're talking about a restaurant we're talking about perhaps a single decision maker who makes the hiring and firing decisions true waldron already hired but the person who fired him would likely be the same person who refused to hire these individuals or walker was complaining of so i don't see where you get to where you get to the the difference in the additional and the verge diversity of the witnesses i just don't see that being a an argument the last thing i want to i want to just bring to the course attention and it's found on page eleven are brief i know i know you have it i know you've seen it but it's our away for twenty three where the e e o c mentions that it is this alleged pattern or practice which is what we were speaking of that is the nucleus of operator of operator facts that binds waldron's claims and the claims of the individuals e e o c represented in the underlying action to him to me that ties the that ties the this completes our oral argument calendar for today the th circuit will can conduct additional oral arguments tomorrow morning at nine am thank you