seven minutes for rebuttal as you can tell from the briefing in this matter this was a highly contentious largely race discrimination case and a case involving a terminations violation of public there were various post trial motions which were fully briefed and judge bertelsmann issued a forty page decision the jury verdict itself and a lot of the issues on this appeal involve questions about the damages and so they they come roughly in three buckets the first bucket is the bucket of back pay in which the jury awarded three hundred thousand dollars for the wrongful terminations now what the trial court judge did here which was smart and appropriate was he only allowed the jury to award one bucket of lost pay damages even though there were two wrongful discharge claims and so the damages overlap he did not allow them to double dip so the jury three hundred thousand dollars for the race discrimination terminations and three hundred thousand dollars for the public policy violation but they're the same damages and so it results in a total of three hundred thousand dollars in back pay there was also fifty thousand awarded emotional distress for the damages suffered by mr burton with respect to the race discrimination and a hostile working environment and a separate fifty thousand dollars under the yes are you arguing your cross appeal now or are you arguing to defend all i'm sorry we procedurally you're ologies i'm just trying to figure all that's that's ok we appealed the judge's decision not to grant reinstatement or front pay that what you're addressing now are you addressing their their cross appeal right now actually i was this kind of given will background but i'll jump to the issue that we have when you get the issues the reinstatement issue order in employment discrimination cases a finding of intentional discrimination under kentucky law likewise with federal law entitles the prevailing party to equitable relief to put him back in the position he would have been in but for the discrimination and that's reinstatement or front pay in kentucky it's the brooks vs lexington lafayette case which says reinstatement is the presumptive remedy it allows for a further remedy returns a plaintiff the position he would have been and serves as a defendant federal law provides guidance as the one reinstatement appropriate or front today and what the defendant seems to argue and argued successfully to judge bertelsmann was that there was too much hostility among the parties for mr berg to be reinstated but what the court ignored well as the most and important fact was the person who was most responsible for creating this hostile work environment and committing the race discrimination was long gone it was a human resource director sharon martin she's the one who was attributed the saying just a slew of reprehensible racial epithets that are obviously detailed in our brief and  which but but but our point on the appeal is she was gone and so this hostility among the parties was really only hostility perhaps among the participants in the trial that's like that clearly erroneous in this case my understanding is that he had he was employed but it was not a comparable position and there is nothing in the record he was under employed when the courts have denied reinstatement or front pay it's been in situations in which the had secured alternative employment that was equal to were superior to and did not want to return to the prior work force the burden of proof as with respect to reinstatement is on the defendant to prove it is inappropriate in their defense here was basically we treated him so badly when he was here we subjected in the so much racial harassment we should have to take him back that's rewarding them for their past bad acts is silent as to what he was i don't reflect my way or the other that's right because of the fact that chose not to put on evidence the mitigation but the beauty about kentucky law is that unlike federal law the district court judge decides both the issue of reinstatement law question it's a state law question that were because this was a state law applying it up and i want to ask you about the cross appeal ok are the public policy claim is that your client was coerced into committing perjury right yes corsten two possibly but they but that as i understand the record the evidence which supported that and which the jury found i guess is that he was it was suggested to him that he not say the same thing that he'd been saying to counsel who were investigating is that right yes what's your best case for saying that that amounts to either a public policy by a lation in general in kentucky or whether it amounts to a a sub or nation of perjury in or the equivalent of that under kentucky law for purposes of public pythonic the best case we have judge rogers is nearly on point north east health management inc versus cotton actually cited by the defendant in the second brief in that case a supervisor was accused of shoplifting she brought two employees in and she said i want you to testify that you overheard a conversation i wear in a court that we don't have that here that we do there is a pending sexual harassment case five women suing the defendant but is there we want you to testify in court or is it just well they're careful what you say to to to these investigators just ask me well i mean it sounds like it's more than a little bit different maybe an sure i think you can what's interesting the closest case i think that's the closest case here you know he was interviewed several times by the fence lawyers who are defending the company in the sexual harassment case he tells the defense lawyers i'm siding with the women who are accusing the company of sexual harassment and the sea earl of the chief operating officer says you need to make better decisions the vice president cou judgment your job is in jeopardy and the co director of operations ms walker says just tell the truth he had been in five meetings with your job's not in jeopardy well you've told us story clinton ok you've told us a b c just tell us the truth as if he's lying there was no reason for them to think he was lying they wanted him to tell you know side with them now all know in the what i like about the c case judge rogers is that there's two conversations here there's one supervisor involved in our case we have three higher ups threatening him in connection with his appeals your honor  thank you i'll do that so your honor there are two key issues in this case went to the court that i think resolved the whole matter one is based on kentucky law which i'll get into there's no public policy of wrongful discharge for perjury and eliminates any need for a discussion of punitive damages secondly the record is clear is pointed out in our briefs that pages twelve and thirteen and fifty three and fifty nine that plaintiff was only unemployed from the time of terminations until trial for five months and based on the testimony to get into he was only entitle to back pay of forty six thousand three hundred sixty dollars versus the three hundred and this eliminates that was based on your failure to provide that backpay must be reasonable in within the range of proofs jackson vs city of coke will reasonable interpretation of the evidence hanson vs nor folks southern make plaintiff whole not better off and rogers vs fisher body were given a if you're looking at back pay back pay is what was he making when he was with zwicker the evidence is clear that for the five months in two thousand and ten he made forty six thousand three hundred sixty dollars so if you look at in we pieced it all together in the brief district point was we don't know what he earned during that time or your honor it doesn't and what the from the discourse perspective it's because you didn't show what he earned would run or let's presume he earned nothing that he had no employment what would the number be calculated on it would be calculated on the basis of what was his last month's pay nine thousand dollars before the reductions what the amount was no your honor i mean the point of the matter is it to calculate back pay someone takes ok how many months were you unemployed i was an unemployed ten months i'm which did you make per month in your last job i made nine thousand dollars a month nine thousand times ten months is there was evidence maybe i'm misremembering i thought there was evidence that during the third of the year a year and so much you multiply that by three by the number of years got up to three hundred pounds for your honor in their own closing argument and this is plaintiff's closing argument on the back pay issue now we're going to get back paid these elements of back paid as you know from the record that mr burton made forty six thousand dollars in the first four plus months of twenty ten that translates to one hundred ten thousand a year it was the best job he ever had he's been out of work for thirty five months that is untrue so the jury is being told he's been out of work thirty five months when in fact he's worked thirty of the last thirty five lines at the day of trial and he's employed so that is clearly under the roger first your case a closing argument that's potentially unfair to influence the jury on speculative numbers and what does the jury come back with offers him three hundred thousand dollars but  so this court is very made it clear and so has the kentucky courts in both the vs phoenix transportation case it says in fact the court goes on to say the least there be any confusion the plaintiffs m show an affirmative request to violate the statute under ne health management it says in that's a case that the plaintiff wants to rely on but it says the employer must explicitly request that the employee perjure himself before liability attaches and you don't think there's liability under the public policy in kentucky if they go to a witness go to a potential witness and say lie on the stand there was no lie on the stand i am asking a question if they go to a witness and say lie on the stand or you will be fired and he says i will not do that and they fire him is that a violation of that is so you don't actually have to lie on the stand you can just be asked and have your denial your refusal be a basis for fire is that right or wrong i don't know the lawyer your honor if you request an employee to lie commit perjury lie on the stand in a judicial system and he says no i'm not going to do it and you fire him that would be the basis for a public policy claim that you admit that and you also agree that whatever happened in cotton would be enough is that correct well in cotton the supervisor specifically told the people to lie under oath so that difference is not whether he lied under oath but whether he was being asked to lie under oath on or in fact so when you say all you've got to show that he lied under oath that's not require this it is you just got through giving me two examples where he never lied under oath have to be specifically instructed to lie under the law i under yes in the garbage early find here that he was instructed to lie on the oath under oath that's not an answer to say well he didn't do it because under your examples he didn't do well the situation is whether he was asked to do you're out of the situation he was placed in wasn't anything to do with under oath under kentucky revised statutes so the law the he was asked to lie not under oath perhaps i mean some of the evidence perhaps i think the evidence is clear he wasn't asked why at all nobody asked him but a jury could possibly believe would submit under the law the question but under under kentucky right statute fifty five twenty three point zero two which is perjury in the first degree it says a person is guilty of perjury in the first degree if he makes a material statement which he does not believe in an official proceeding under oath required by law so that particular perjury requires that you be involved in a judicial proceeding and be instructed to lie under oath if you look at at the way i understand their argument this is what i'm trying to get at whether you're right or wrong that i understand their argument is these people are being asked indirectly with a bunch of mumbo jumbo to lie on the stand and the way they're being asked to do that is they're it's it's hinted in a way that the jury could figure out the argument goes that they were asked to lie on the stand because they're being asked to lie to the people who are trying to figure out what they will say on the stand if they're ever called as a witness and so you know usually when people solicit illegal activity they're subtle about it that's why we have juries we have a why isn't this and this is my question i don't know the answer why isn't this something where a jury could find that with a wink and a nod these people were being asked to lie on the stand is it because the jury instructions don't say that or well the jury instruction says nothing about it just says what did he was he instructed to commit perjury did he refuse to commit perjury was he terminated because and they found they found liability based on that yes they did but i can't why isn't this evidence sufficient to find that because your honor the kentucky courts in the that phoenix case health management chavez versus decode it says it can't be based on subjective belief in the judge even says well he's so interpreted it the judge doesn't say there was evidence of an instruction to commit perjury he refused he was fired for it and inflaming versus flaherty it says must demonstrate affirmative request to violate the statute so you have to have a specific request under kentucky law to violate a statute what statute the perjury statute and i pointed out zero two zero zero three zero says a person is guilty of perjury in the second degree when he makes a material false statement which he does not believe in a subscribed written instrument for which an oath is required mr burton was never in any situation to testify nobody talks about being a witness in anything in any judicial proceeding and nobody talks about and there was never any referenced in the trial in the record to a judicial proceeding or a written statement or you're going to have to give an oath or you're going to have to sign an affidavit where you're asking us to say the jury got the facts no i'm saying that the judge as a matter of law knows what perjury we all in this room know what perjury means and this was not perjury even if it was to go in there to the lawyers and tell him change the fatties if if what the jury found was that they were asked in directly with a wink to lie on the stand if it ever came to that while you're on it be nice if it was be sure and lie on the stand you're going to be called a witness was never even discussion about your going to be a witness in a case or anything it was like please well that was understood you're just saying i understand your argument to be saying there was enough evidence for the jury to find this but you want to turn it into a legal issue that somewhere i'm having trouble with kentucky  turned into a legal issue and said you know overturned these kind of exact cases where there wasn't specific instruction to commit perjury and there wasn't a judicial proceeding involved and there wasn't a written affidavit involved and in addition there's no causal connection i mean this takes place some six to eight in even in closing argument plaintive says twelve months before he's actually terminated in this court's been very clear on those kinds of issues that if you've got that kind of space in time you need substantially more evidence than just oh well this happened and now we had six eight ten twelve months pass the other thing on the punitive damages issue it's very clear that punitive damages involves a deprivation of property rights and the you know the u s supreme court the this court and the kentucky courts have all made it clear that before you're going to deprive somebody of a property right as a punitive damages of six hundred thousand dollars you need to make darn sure that they have violated a law so that's why it is kentucky courts have made it abundantly clear there must be an explicit request to commit perjury refusal to do so and termination of this court in highland what will the excuse me not this court but highland hospital versus castle kentucky court talked about punitive damages was an m aided by passion and prejudice to draw that out of the jury in this particular case in closing arguments in three different places page fifty five page seventy one and page seventy six of the closing plaintiff's counsel does solicit that passion and prejudice on the jury because all they talk about in terms of the company is about the race issue and specifically at page seventy five excuse me seventy six of the closing they say punitive damages is your final measure that's where you send a message to andover and you send it to other employers within this community if you have a racially hostile work environment if you tolerate a human resources director that can say be in t without repercussions you're going to be penalize and very specifically the kentucky courts have made it clear that punitive damages are not available for the k r s three forty four race discrimination case so what we have here is counsel who has incited the jury to go punish this company with punitive damages because of this race issue they don't even mention punitive damages in the context of this public policy and the other thing you know that i would mention is that the plaintiffs knew darn good and well that this was not a perjury issue in fact in the jury charged dialogue at page eight nine and there abouts plaintiffs counsel is trying to get the judge to just have an instruction for refusing to falsely support and the judge's like well what's really going on here is that a really public policy issue and then plaintiff's counsel even says well if it's going to be perjury that suggests he's under oath in a courtroom or something so we have the plaintiff's counsel recognizing i don't have perjury here for mr burton what i've got is i'm going to try to squeeze a public policy claim under this other issue and the judges ended up no it's going to be perjury that's public policy and then they say well but judge that's really testifying under oath in a court of law and we don't have that here you know you're right we don't arbonne versus west publishing company and for three to six circuits said if you don't provide data for the plaintiff to calculate for the court to calculate a reasonably certain amount you don't get front and in addition i mean they can say this one person's gone but you just heard allegations against mr posey oh mr twite others who still work for the company about how bad a poor person they are and they tried to commit you know him to commit perjury which we dispute thousand three sixty based on the record evidence and reverse a district court on the back pay award in addition with the back pay award reduced it clearly and impacts the constitutionality of the punitive damages claim thank you with respect to a public policy claim in the northeast health management a case vs cotton neither one of those employees who are the plaintiffs ever was asked to appear at a trial or be under oath it's exactly the same situation what the what the case actually says is that cotton and how will claim that dennis one of them to testify that they overheard a conversation over the speakerphone between dennis and the ploy at the tanning salon there's nothing where the supervisor said we want you to perjure yourself the defendant keeps saying and they just say in their briefs without really reading the case is that cotton stands for  proposition the employer has to say we want you to perjure yourself what's interesting is the court in analyzing those words says you know what they want to do was the perjure themselves that they never testified  place it's the same thing here the jury concluded that after he was interviewed five times by lawyers and three supervisors come to tell him your job's in jeopardy you're making bad judgments and you better tell the truth that were intimidating him and we did mention this in the charge conference we actually cited to a statute rather than cotten so we step aside it to the statute k r s jury made the inference that that's exactly what they were trying to do with this wave going on they didn't like what he was saying and quite you better change what you're telling us because we've got to defend the sexual harassment lawsuit and we don't like the fact that you are standing up for the women who are charging a was with sexual harassment and i do want to address the let's let's the full name of the cotton case ne health management in of the defendant thirty three in the second brief is cited by them was cited by them outside of you correct and we think cited wrongly on the punitive damage issue we would request that the court look at one particular case of the six circuit bridgecorp music and versus just incomes what's interesting about that case judge rogers you were on that panel in the bridgeport music inc case the sixth circuit concluded that a ratio of one to one between one to one and two to one that would meet the constitutional requirements of due process here with the jury awarded was a ratio of one point seven and judge has been knocking down the one one to one but i think the closest case we could find were just discussing the reprehensible factors says anywhere between one and two was fine and so we believe that the that the court should defer to the jury we have a large corporation here under kentucky law you can actually look at the profitability of the defendant but i think we're looking at the constitutional standards and this this act was particularly reprehensible because the fended is a law and if anybody should know that you should not threaten or coerce an employee when they're giving you their side of the story in defense of a sexual harassment case it's a defendant law firm or the this is particularly reprehensible because of that we believe it's also reprehensible under the five factors we think we need for the plaintiff was financially vulnerable i mean he was a single pair sure he was having you know he had a good job finally after many years in this industry he was making you know the equivalent of about one hundred eleven thousand dollars per year but a single parent was financially vulnerable because if you're fired  you're obviously in a bad state they're also repeated actions that's another one of the tasks for represents ability and in the ratio here we have three different supervisors coming to mr burton and telling him in essence you better change your story and the case also involved a substantial amount of trickery or deceit there was a substantial number of examples cited in our braves and throughout t where the company tried to get other witnesses to sign affidavits that were false one in connection with his term nation there was a machelp tomorrow example there was a company reese example so arguably four of the five represents ability factors were present and so if we think we think if you look at bridgeport music case that ratio between one and two is acceptable to meet the due process concerns the jury here apply it was a  one point seven to one ratio and we we believe that should that's the appropriate ratio and that you should reinstate the full amount of punitive damages awarded to mr berg with respect to the front pay and reinstatement issue all we're asking is for he remained the judge bertelsmann we believe he should conduct a hearing to apply the ralphs factors and decide whether reinstatement was appropriate we believe that he will conclude it was and if he if he conclu reinstatement is not appropriate then he should hold a hearing on the amount of front pay to be awarded i thank you for your time ok thank you counsel both of you for your arguments today we really do appreciate them the case will be submitted think that concludes our or argument calendar there is a case that is submitted on briefs no need to call that so you may turn court