morning your honour's names jennifer dwyer i mean attorney from bozeman montana and i represent children seventy opponent in this issue or in this case children seven was denied a fair trial the district court because the judge erroneously prevented all but one of her claims from reaching the jury because of the obvious bias that this judge demonstrated in front of the jurors against children seven and in favor of united parcel service which i refer  violated the express provisions of its own written personnel policies jail proved at trial that u p s has written personnel policies included in employment dispute resolution program which is a twenty five page document that starts with excerpts of record one hundred two that program contains five steps it gets invoked if he employee contacts a human resources representative verbally or in writing complaining of discrimination unfair treatment or separation and so in this case that document was or that request was a written letter to test on april twenty seventh did it specifically request an investigation i thin there was actually two letters that we believe jill said to diane taft the human resources director of the northwest region that invoked that policy the first was the april twenty seventh letter in which she entitled a formal complaint  referring to age and gender discrimination and retaliation by her supervisors acknowledged that he had received it and it she complained so she did complain of the discrimination and she asked for a heightened level of intervention by the human resources department so she did ask for that sort of relief so it was also undisputed at trial that s is bound by this policy that was testimony from jeff grant the human resources operations manager but the human resources department did follow up with her after that letter did they did they placed a phone call to her that was unscheduled and unannounced to discuss the letter what they didn't do which was established at trial was meet with her and the other people involved nor did they issue a nonbinding final determination of human resources  of the other remaining steps under this employment dispute resolution policy which include peer review mediation arbitration and facilitation so therefore we believe that u p s failed to follow its own written personnel policies on that first instance secondly after she was terminated on march sixteenth of two thousand she again reached out to diane taft and this time regarding a separation it was entitled separation agreement and general release and it she again she contested the reasons for her terminations she cited her legally protected rights under state and federal law discrimination retaliation was and she sought a specific response from mentioned her ios e complaint correct i believe that she had well i i don't know i don't know about that but i think that it was referenced in that letter that she had that she had filed an cases don't require that she just she just be complaining to the e e o c or engaging in those procedures procedures that are provided for under federal discrimination laws the case is a stablished that even if she just complains to her employer about discrimination that she she satisfies had been gauging and protected activity to trigger the retaliation statutes and that that analysis so so whether or not even if the company doesn't know that you filed in the play yes your honor because she submitted specific complaints to the human resources department and to her supervisors so for example and huey versus honeywell which is the ninth circuit case in that circumstance there was the employee didn't have any knowledge of progressive disciplinary procedure that was policy of the company the company only shared it with their supervisors and yet that company was bound by that written personnel policy and i believe that the language from that case is something to the effect of having announced a personnel policy you can't be that the company can't selectively enforce it otherwise it would be illusory so for those two two times that she submitted in writing contact to diane taft request citing her legal or protected rights discrimination and retaliation and the failure of u p s to respond according to their employee dispute resolution program on either occasion we believe that the judge erred in granting judgment as a matter of law in favor of u p s and should have instead granted children five and a motion for judgment as a matter of law on that issue they contend that the final order of judgment from the district court was the issue that he ordered so in order that he issued on december fifteenth of two thousand and fourteen instead of the final order on january twenty first and the reason for which that this court does have jurisdiction is because within twenty six days of entry of judgment children  motions to amend the pleadings a renewed motion for judgment as a matter of law and a motion for a new trial those are undisputedly and speedily timely filed the judge issued an order a week later denying them for the sole grounds that they failed to comply with local rule seven point one which states that in the body the filer must state the opposing party's position but that rule also provides that if this is the first time that happened and that's th reason for which the order the motion is denied that the filer must be given the opportunity to refile and that order cannot be without with prejudice so children slevin was entitle part of the rule that they well because we did refile and we were yes was given the opportunity and did respond and the judge issued a final order finally disposing of that motion not until january twenty first so under the nine so because his ruling in december that denied the motion is non compliant was only for the reason of the local rule that didn't trigger the that wasn't a final rule that actually disposed  s'posed of those motions they continued under the case of bill burke versus b s f a timely post trial motion that isn't rendered untimely merely because of failure to comply with the local rules my understanding of that that case in the ninth circuit's holding with respect to whether noncompliance with the local rule affects the jurisdiction of the  the judge the district judge has discretion under the local rules to relieve you of the obligation if there is a time mix up or something like that the judge chose not to do that in this case why should there be disrupted when the judge clearly does determine whether or not to exercise discretion to allow the refiling even though it was a day late well i think i understand your question but he he he didn't the judge didn't have a under the rules to excuse a party from compliance with a rule like that that's not jurisdiction zero but the chair judge chose not to do that in this case exercising discretion not to excuse the relatively short violation of time and why should we disturb that discretion well i would submit that it would be an abuse of discretion because children slevin with then suffer prejudice because of the judge's interpretation of the local rule in contradiction with the federal rules and under so is there any showing us is there any reason why you could not follow yes your honor because the judge didn't issue the order denying them on the grounds of local rule until that thirty day period had expired from the time of judgment so we had so i thought he was he did a week later but but we had filed those post trial motions originally twenty six days which made them timely after the judgment but the judge didn't issue the rule denying for noncompliance with the local rule until the period to appeal had pass d more than thirty days passed and so therefore we didn't have notice in order to be able to file within the thirty days after judgment or twenty eight days excuse me after judgment because the order to nine them is non compliant was issued after that period of time it expired and when you refile the next day after you got the one that's correct your honor we refiled the very next day u p s was given the opportunity to respond and the judge  finally disposed of that last remaining fifty and fifty nine motion of children seven in january twenty first which made our notice of appeal it is later timely we also believe that the judge good morning your honor stephen good terrorists on behalf of u b s this court should not a need not reach the merits of the plaintiff's arguments for two reasons one the timely filing of a notice for pills obligatory in jurisdictional and here it is processing for the rule fifty motions meaning the twenty eight day deadline we invoke the timeliness of that when she refile her second set of motions but with respect to the first set of motions her notice of appeal clearly filed well after thirty days when the court and originally disposed of those motions for failure to comply with the local rule and with regard to the second set of motions and the motion to amend that was filed at the same time we objected as i mentioned to the timeliness and the court properly denied the motion to amend as moot and so for those reasons we think the court can dismiss the appeal for lack of jurisdiction as this court well knows under rule for the notice of appeals required by rule three under rule three must be filed with the district court within thirty days and in fact interestingly here the plaintiff had the opportunity to file a notice of a pill even before judgment was entered if a timely finding would have occurred then the the appeals period is told and then runs from the entry of the final order disposing of such remaining motion a party's failure to file a notice of appeal within the time frame mandated by statute deprives the court of jurisdiction in accordance with the holding and bowles versus russell u s supreme court and so as i said it's a it's an obligatory injures stiction or requirement now during that thirty day window she could have appealed any of the court's underlying orders but chose not to do that so in my view application of the principles of our straightforward the judgment entered on november twelfth and she if she filed her original set of motions timely twenty six days after entry of judgment relying on the quote the local rules which the court had every right to enforce their and porton vehicle for which the court operates and they carry the force of law the court denied mr horn's leavens motions for failure to consult with counsel under local rule seven point one did you demonstrate prejudice to the district judge there there is no argument that we were prejudiced in to the district court judge we simply argued that when she refile the second set of motions they were untimely utilizing permits the notice of appeal to be filed before injury of judgment and so the point i make is simply she had every right to file a notice of appeal and could have filed a notice of appeal in this case thirty days after the denial of the original set of trial motions she chose instead to refile a second set of motions and the trial judge was correct in finding that they were untimely under the twenty eight day rule because first he did not grant them any leave to amend the local rule speaks to those filings being without prejudice but does not speak to any sort of relation back and frankly under rule six the court isn't allowed to extend the deadline the twenty eight day deadline so the court correctly determine is when he denied the second set of motions that he did not have they were untimely under the twenty eight day rule as to the motion to amend the court denied that as moot because there was no relief no life controversy left for that for the court to grant a remedy on should he decide should he have decided that there was some merit to the motion to amend now there there was some argument here that the second refiled combined the post trial motions change the result in this case but again the denial of the first set of motions didn't alter the judgment in any way whatsoever so under wages versus  that the other side makes that strikes me is plausible is that u p s is not complied with there's on personnel policies under the so called he d r employment employee dispute resolution  program i'm just reading from the guidelines on page three disputes covered under u d r pertain to such claims as separation and legally protected rights separation is kind of a nice word for a firing somebody to it sounds as though the program covers firing somebody and i look in vain through here for something that says here are the formal requirements you need to comply with in order to trigger this you don't need even as far as i can tell you don't need to say i'm invoking u d r you need to notify that you're having some problem why why is that not a good argument regard rejected it out of hand and didn't let it go to trial so it's correct yes so why why was that right well it's right it for two reasons one either your policy doesn't prescribe are prohibited from terminating someone's employment doesn't strike me as complying with a procedure that's covered well certainly it does cover terminations but only for purposes of allowing one to grieve the terminations not for purposes of prohibiting the company from making the terminations decision but she complained about discrimination the human resources department started looking into it and then she was fired how is that an application of that wasn't her exercising her right under the policy but is the plaintiff's intent relevant there mostly she if she sent a letter where she complained of discrimination and asked that it be looked into she didn't say the magic words about the  policy but she did alert the company to a potential problem well her intent would most certainly be relevant because it's her it's her whether she intends to use to avail herself of the process  something she has to trigger but there's no there's no formal path to do that according to what judge fletcher was just reading from well there is no formal path in the in the in the policy but you are correct that the poles that the of such a complaint so why does she have to say a d r why does she even have to know the details of that being the policy well you know she just says i've got this problem your policy is well here's how we deal with it but then you didn't do it if i accept your premise for a process and nothing more she chose instead to try to negotiate a severance agreement and and and work through filing a legal claim as opposed to taking advantage of the arbitration or first mediation  arbitration as as compelled by the policy the the montana supreme court in interpreting the statute says that the employer must send  the employee a copy of its procedures do you think that u p s complied with that policy by giving your simply a brochure and not a copy of the entire set of procedures which i think were was twenty five pages long yes there the evidence in the record here is that the actual policy is twenty five pages long but the evidence is also that mr taft gave the e t our policy and in as an attachment to the terminations letter that was given to to mr lawrence levin it's our position that that does comply with the statute there is no case that specifically defines the sum and substance of what constitutes a copy but t r policy pamphlet has the entire process outlined for an employee to review and take advantage of linda to give her the bush or he attached it to his terminations letter when he terminated her but not the full copy not that there is no evidence did she ever get it there's no evidence on the record that she received the e r policy specifically there is evidence in the record that she was educated on the u p s policies in particular the u p s code of conduct which was the basis upon which the company chose to terminate her her employment but the code of conduct is not the to our policy or our so so as far as the record shows she never saw the thing and the first time she got the brochure was when she was fired that's correct so you're saying nonetheless when she wrote the letter to have she was supposed to say i want to invoke your procedures well she certainly knew about it undisputedly because she no test letter to her as of may eighteenth she wrote a separate letter back to taft on may twenty seventh which would have been well after receipt of the brochure wherein she could have exercised her rights under that process but instead if you  read that letter specifically you can see that the focus of that letter is all about negotiating a severance agreement and nothing more is there anything in the twenty five or twenty seven page set of procedures that says there are some remaining issues that mr lawrence levin argues in her pill that we found we equally argue are not subject to this court's jurisdiction but i'm going to address anyway if you were to get to the substance  with respect to the jury instructions your honor i don't think there's any argument here that all of the instructions were consistent with montana law there is there is no basis for mr laurence levin to argue that the jury was confused  certainly the terminations letter that chair well i'm sorry the c i misspoke again the april twenty seventh letter to taft was in the record but in the record for purposes of good cause  and the jury had that letter before it when it considered whether or not the company had good good cause to terminate in our brief we cited to a number of montana cases that addressed the good cause definition we believe the jury  on that by that definition was consistent with the with the law the final point i'd like to take with my last minister addressed the bill brooke b n s f railroad case which is an unpublished opinion we think that cases distinguishable first it's the judge had in this case and he did not excuse the mistake in his december fifteenth order denying the motions and while the local rule dictates it's without prejudice enlarge that time especially after u p s objected to the timeliness don't you think there's an element of unfairness here where the the motion was filed during the motions were filed during the appropriate time and the judge responded that it was not proper because seven point one wasn't followed but he did that after the time had run so there's a week later so they refiled right away at a time when they didn't have a chance to do it earlier within the time frame isn't there some inherent unfairness there to how that worked out well i think think i yes there if there is an unfairness element if you're mr but the rules are the rules judge had and didn't have the authority to enlarge the twenty period the second motions were filed well after that deadline so we didn't have any discretion and to rule on the merits of that and what was the precise failure on of the local rules was a failure to consult with posing been children servants and the april twenty seventh letter complaining of discrimination she did not have a copy of the employment dispute resolution program she's never had it and she does surprise that she didn't intend to invoke it as far as the letter or what she writes in her two letters to test because she never received a copy of it submitting the brochure is substantively substantial compliance does not meet the requirements under montana co and the aegis versus wieland case from montana that interpreted that provision requires that there be actual compliance of the employer but children seven also would contend that employment action afterwards and she established that there was a cause a link between the two is there any evidence that anyone at the company knew she'd filed a complaint at the e e o c before she was terminated noire on her but it was tried by express consent that she had made that complaint directly to the employer of discrimination and harassment and therefore it was still protected activity under the law but there but that would be prove retaliation not for but prove or retaliation for making a complaint to the company correct and that is protected activity under the law cited in our briefs finally we contend that judge was so heavy handed in his interruptions and his his preventing us from asking proper questions of the witnesses his he followed those interruptions with addressing the jury on some occasions directly to explain his complaints and criticisms of plaintiff's counsel and he prevented our us from eliciting testimony that went to the thrust of our case including questions about those two letters the employment to speak resolution process whether she was responding to work what her personal expenses were and  trial which it's alleged that you limited your complaint on the retaliation issue to a complaint that the terminations was due to the filing of the e e o c charge is are you do you have a different position now than what this trial brief specifically limited you to before trial thank you your honor actually it was the final pretrial order which did reference that letter to don taft but what u p s this position is is that we had somehow only relied on the complaint to the e e o c to which they contend they had no knowledge but it was not some sort of surprise or prejudice issue to the defendant we raise the issue and the second amended complaint we briefed it in summary judgment motions they were proposed we objected to their failure to include instructions on the issue and finally it was part of the statement of the case that was read to the jurors at the commencement of the trial so that when we had elicited testimony about her report of the public policy violation and discrimination and elicit testimony about what did and did not do in response that issue was tried by express consent and under rule fifteen b the court was it's a mandate that the court consider those issues as having been part of the pleadings so for the judge to did not i are not let the jury hear the issue was was a letter to taft the april twenty seventh letter was referenced in that and it was litigated throughout the case so we would respectfully take the position that because of the judge's constant interruptions he made it very clear to the jurors what his position was and that he was biased and we would respectfully request that the court remand on all issues and send the case to a different judge so that the appearance of