to five zero point zero two requires a finding of causation a finding of but for causation that's the way that it is written the instruction fifteen and sixteen given on race and religious discrimination do not include that fourth element do not include a requirement of finding causation what it includes instead what they include instead is a motivating factor paragraph which is not a substitute for finding causation under illinois law i know th actually so early but many ask you this in doing the research it appears that you know there are two ways of proving this direct and indirect in does the motivating factor instruction calmly and only when  were going have the direct method how does that work your honor the motivating factor language actually is not president in the state of illinois it is seen in many federal cases granted to see and certainly and the seven circuit jury instructions that are used in title seven cases but there is no precedent for an all nighter so my answer your question would be that the motivating factor language simply shouldn't be in the instruction at all regardless of which methodology is being used that was one of the points that we made in our reply brief  there's a confusion between the method of proof and then what the jury instructions have to say so our position is again that under the fourth element of two five zero point zero two there has to be that language about because of another important point is  federal cases how does that shake out that right versus indirect motivating and we need to use that that was exactly what i was going to do next your honor thank you when you look good instruction three point zero one in seven circuit your instructions there actually is that because of language used twice in the same instruction there are two separate sentences that use that language so the answer is that whether you're going forward under title seven with a seventh circuit jury instruction three point zero one in this situation whether using i p i to five zero point zero two either way you have to have that because of language and again in three point zero one that because of language is used twice in two sentences in the same paragraph so you don't have a situation even in the federal cases where a motivating factor paragraph is being used without any reference to because of language even in the federal cases even in title seven you have to have that language incorporated and it simply wasn't there so even if the three point zero one instruction were in this case it's our position that it wasn't even then you would have had to use that language and it wasn't there so absent that requirement absent that element what  do we have left we have to look at we have the motivating factor language and as i said under illinois law there is no case which says that that's appropriate in an illinois state case under the the state act that's at issue here what we end up with is some language being used in other places in the instruction and that's the argument that the i believe presents for example the opening sentence of a pair of instructions fifteen and sixteen say that the plaintiff is making a certain claim  and that she was discriminated against because of something happening now that's the opening sentence of an instruction that is simply stating what the plaintiff is claiming that's not requiring the jury to make a finding it's simply informing the jury look this is what the pla saying in this case you have to go down to the five elements of the instruction that's what juries being told to look at when it's making a decision we know from the billing case that you have lay persons on a jury who without those jury instructions are not capable of separating the issues at least that's what the law states that's what we presume about juries we presume that juries are not capable of distinguishing relevant from irrelevant information that's another reason we use the jury instructions as the villain case discusses and so we have to have those five elements there we have to have that for development of causation there there's an argument from the i believe that instruction number seventeen which we also have a problem with and i'll get to that argument a moment starts with the first sentence using the because of blanks but again this is from the you can hear a problem in an instruction by looking at another sentence or another phrase or or lost somewhere else in the instruction packet especially when it comes to verdict directors you've got to have your elements right there for the jury because under the deal in case we know that that's what  s the jury to look at the issues that have to be decided in a particular case on instruction seventeen which i thought i would get to i'll get to now that in particular is probably magic in our view because there's no precedent for it anywhere even in the woods case that wasn't a case about whether the jury instruction was appropriate the woods case is distinguished ball on numerous grounds and we talked about this in our opening brief and more so in our reply brief but the main thing i want to emphasize by word district illinois case it wasn't about jury instructions whether it was appropriate really what the court was doing was saying that but when the jury is looking at it appropriately instruct instructive case it can make terminations about other things that happened to other employees and still find discrimination and that's that's understood but that doesn't change the fact that you had in this case a jury that wasn't properly instructed and that's the problem that we have here but was there evidence in the case that there were  that was part of the fence that that is correct your honor but that does not make the instruction appropriate because there is no precedent for the anywhere it's a non pattern instruction and it it's only support that was offered by the i believe is the words case which is easily distinguishable you're correct that was a defense but simply because a particular defense or argument is being made doesn't entitle the plaintiff to a particular jury instruction about that point if the athlete can find a case or find support or find an illinois pattern instruction that allows for this reason a seventh circuit instruction that allows for this i think my position would be much different i mean this is a war that will most of these instructions are going to be non i p i right a lot of them are that's right so i guess in my experience as a trial court judge and envisioning a situation where the court has to craft the instructions to go with the evidence that has come in in the case and to address issues that might be raised so it seems like that would leave a huge missing piece i mean how was the jury to handle that information didn't they need instruction on that i mean given that was a defense they didn't need instruction on that your honor because that instruction when matched with a motivating factor language that was in fifteen and sixteen continue to take the case away from the requirement because of that the requirement that the jury find that the acts were taken because of her race or because of her religion but if you didn't have the motivating factor instruction does that change or he knew the good no the instruction would still be problematic whether it contained the motivating factor language or not you're not saying take  seventeen there's still no precedent for it and there's no need for it i don't believe that every defense or every position taken by either plaintiff or defendant particular case necessarily requires for justifies a jury instruction i think we need to be able to look somewhere for support for that and i just don't think we're in the state or federal cases other than words which as i close discussed was not a case about three instructions and is easily distinguishable so my answer would be that with or without the motivating factor language we would make the same argument about instruction under seventeen and do you agree that they only mention woods in the context the fact that they represented that instruction was given would say did you really argue that woods decided that issue they were just saying this instruction exactly and that's another reason why we argued to the court that woods is not a case that it has a lot of persuasive value because that issue wasn't decided by the woods court neither side said it was right or wrong that was part of the question of the case what the case was about and so it's it has less value for that reason as well another thing that we do discuss involve the open in a reply brief is that there is some confusion this does get back your honor to your opening question about direct and indirect evidence a lot of the case up side of the at the lead deals with situations where a plane it is seeking to defeat summary judgment in a title seven case and the standards that apply on summary judgment and what needs to be shown to defeat summary judgment of course those standards are much different than what you have when you actually have a trial with jury instructions and with each side putting on all their evidence as opposed to the stand that applies on summary judgment and so we discussed this briefly in our reply brief as well as in the opening brief but those cases are distinguishable on that basis there are also title seven cases but the main thing is that those deal with summary judgment here we had an entire trial evidence presented by both sides and it and the jury that was instructed so getting back to where i started the beginning runners this is a case about jury instructions the question comes down to whether the verdict  include the fourth element that we see and i p i two five zero point zero two and even if the seventh circuit instruction three point zero one were procreated even then that is still that still has to be there and it wasn't present so for these reasons and the problem with instruction seventeen that i mentioned earlier we would ask the court to reverse and remand so that a case can be retried to a jury that is given proper jury instructions thank you for your time thank you counsel you'll have time  that by looking at the appellant original greek it was in the first pages of their brief where it identifies that there are two methods to be able to prove the case and those were the direct and indirect me like that you were asking about that was actually brought up by the appellant and suggested that not only do you have to superficially put into the instruction a prima faster case of discrimination but at the same time you have to do but for been used as a pattern instruction but it's conceded by the by the defendant in this case that that is a non that pattern struction does not apply in this case because it's a discrimination pates and so while there's a lot of discussion regarding that pattern instruction it was modified because everyone conceded as well as the defendant based on their tendered instruction that it did not apply here because proximate cause ation was not required without and they submit the proposed instruction leave the floor causation language and you know i would actually suggest the only conversation that they've stated was that in the fourth element it said i did not rehire plaintiffs because of her religion right that is the only however twenty two fifty point zero two there is an additional fifth element in the pattern instruction which identifies the proximate cause and what would be required of that and that was omitted in the defendant's instruction so as i stated in the brief they have waived that argument as relates to but for approximate causation if the defendant was going to take the position ok wait a minute i thought your argument was that they didn't offer a definition of good for and sold that could be used ok there were actually two different weaver arguments and you are correct in stating that the first one was that by looking at the pattern instruction there is that fifth element in the pattern just and look at the language of the  to is the fourth element in this case now that there was a proximate cause of her discharge and resulting damages so by removing the fifth element that's identified in that pattern instruction the defendant removed cause ation and but for causation and i would suggest an argue that once again if proximate cause was required in illinois or any or in the seventh circuit as relates to status based discrimination claims then the retaliatory discharge pattern instruction would instruct us to use that for employment discrimination claims and in support further of the argument that but for proximate cause ation is not required said the factual inquiry of a title seven case is whether the defendant intentionally discriminated against the plaintiffs and it's and this is quoting in other words is the employer treating some people less favorably than others because of their race color religion sex or national origin and if there isn't that hand that's because of language that they were asserting was necessary and yes it does have the same however that the court went on to describe what type of evidence would be necessary for that and specifically did not provide that but for proximate cause is necessary now was this a direct durham indirect case that i believe was actually because where the confusion can come in with direct ink indirect cases is that with direct proof you can do that based on clear admissions five to defendant if they had a discriminatory motive or you can provide it through a mosaic of circumstantial evidence and there is a significant case all within the united states supreme court seventh circuit and well as the seventh circuit to ruby case which is it two thousand and thirteen seven circuit case where in that case it's the one that's the most on point to this case because  have the directives where you used the motivating factor language that you don't see that in the indirect the pretax cases the motivating factor lane when which is actually used when there is a mixed motive where you have  you have evidence of both direct and indirect evidence and that in that situation you are then instructing the jury that you don't have to find either one that you can actually use false and goes through direct evidence in this case the direct evidence and i would say that we actually found under both l both ways of the direct as i stated there's the first one you had true admissions by the defendant or the decision makers and in this fit in this case we had admissions by was the supervisor for the plaintiffs throughout the entire case or throughout her employment and she was also the person who was supervising in making the decisions and was also the owner of the church that was at issue in this case in that amber is testified that she specifically told leave jasper who was the chief operating officer as well as nina harris as the chief executive officer that jamie who's the plaintiffs as well as two other white non pentecostal employees at the jacksonville site were discriminating against her and also making complaints of discrimination against them as relates to their race and religion so how is that to write their own behalf now that would be direct evidence because it would show that there was a discriminatory motive and that is the difference in this case and i think that there may be a confusion as relates to what's necessary the supreme court as well as the seventh circuit have have found that in order for the plaintiff to prevail on a status face that you just need to offer evidence which provides an inference of discriminatory intent and they provide four different avenues to be able to do that and the first one would be sick suspicious time and this is once again from the to ruby two thousand and thirteen seven circuit case which is actually applying the eleanor law the human rights act because this case originally the defendants tendered instruction as part of the standard of reviewing this case it's not only finding that instruction may have been faulty but also finding that the defendant was seriously prejudiced by it and by looking at procedures the element and i cannot suggest and the law does not provide that it is necessary to state that it was because of the language actually from the only human rights access on the basis it states as because but this is what i'm trying to convey to the court is that the beginning part says that she was not rehired because of her race and then the fourth element identifies three additional elements that otherwise i did not have to prove i did not have to prove that she rehired similarly situated not occasion teachers and who had less experience and less education it was going to be sufficient to simply be able to provide circumstantial evidence of an inference of discrimination fifty point zero two when it is eight but four which is what the defendants are asserting when it is bought for you have to identify what proximate causes and there is a correlating concern instruction that defines it that is not in any of the instructions here because that was not what the position of the defendant was at the time of trial when you look at the instructions it is very clear they were not operating on because of and i will say that the reason that because it is defined is that  layperson doesn't know what because of means as it relates to status face discrimination cases the united states supreme court has told us that and we are and you are required to follow that when it relates to status face discrimination claims issue they have unnecessarily invaded the ultimate question and that's when they went on to state exactly what the question is for the jury and it specifically said is whether the defendant intentionally discriminated against the plaintiff under no scenario does that say because of proximate cause and i will suggest to the court that in other cases in tennessee which is a seventh circuit case as well as sedgwick claims management with is a two thousand and fourteen northern district of illinois case where there were which specifically and that in order to find a status face discrimination in other words is the employer treating some people less favorably than others because of their race and that's exactly what the fo element of my instruction says is that she was treated differently because the defendant maintained and kept less similarly situated non publication and having hostile employees who had less education and less experience than pla have actually increased my burden as are related to having to prove those specific evidence to be able to recover and we did because there was four days of evidence very overwhelming evidence that would provide there was no that was presented yes i did i i did increase it but that's not a basis to be able to say the defendant was prejudice and that's what the next start of this standard of review is that's neglected in the  not just finding that it wasn't actually stated it's actually finding that they said they were seriously prejudice by the instruction and in these instructions and throughout all of the testimony and the closing arguments and everything that was for it to presented to the jury there was not a single juror that didn't understand what this claim was and that reproved it with overwhelming evidence and then based on that i would say that even if this court decided to not follow the u s supreme court as well as all of the other seven circuit including the most recent to ruby which a five gallon ojt human rights act to this and found based on absolutely not one citation to a case that is what's important here they defendants have waived their argument as relates to proximate cause as relates to because of as it relates to the motivating factor if you look at that appellant brief they did not support it with a single case that was on point it was devoid especially of the motivating factor it simply said this isn't followed in illinois law but it didn't follow that the seventh circuit has repeatedly said it and it came directly from seven circuit pattern instructions pattern instructions which defendant offered thirteen times in their instructions and it was fine on those instructions but i guess it wasn't ok on this one and there's no case of a suggest that the seven sir that the only court should not apply title seven law when interpret we have a better explanation of the alternatives to both race and religion so the notion that the jury wasn't confused is simply incorrect your honour's also the notion that anything was waived is incorrect in the reply brief we go through in great detail the entire suggestion that we left out the components if you look at pages ten through all twelve are open in brief you'll actually see our proposed jury instructions set forth and we do in fact include that four element for that defendant did not require pla because of language needs to be there and we recite that in the reply brief what was the response of the plaintiff to your turn declining which actually that wasn't a response that the court accepted the instruction as it was offered by the plaintiff and then record what it response given by trial counsel at the time was it's our position that the instruction should say that she was not rehired because of her race or in the alternative that defendants reason for terminating plant as a pretext for discrimination  the the plainest did have a response and that was that i have included also the motivating factor language from the seventh circuit the pattern three point zero on the substance of plaintiffs instruction fifteen that was just discussed by the defendant did not change  all right and the court said play this instruction number fifteen i p i to four to five zero point zero two modified with the seventh circuit pattern section three point zero one will be given over objection ok and after that a little bit about the eighteen i don't believe it stands for that proposition your honor i think and in the case such as this one it is required whether you're going to be in one of our federal courts in illinois or elsewhere on the seventh circuit or whether you're in illinois under the act i say i'm out of time again i would ask the court to reverse remand for a new tr