good morning your honor sir i mean isn't that gary and i represent today the chicago park district the issues on appeal in this case are very simple the chicago park district terminated mr baker those employment for misconduct were decided during a seven day trial and march th seen the park district move for judgment as a matter of law which the district court denied without prejudice the jury returned a verdict on her claims of discrimination under title seven dollars ninety eight cents and awarded her seven hundred and fifty thousand dollars the part to strike then move her judgment as a matter of law again for a new trial and for remoted or the district court granted the motion for judgment as a matter of law as for the one thousand nine hundred and eighty three claim the district court denied the other motions there then was a two day trial in january of tw regarding the equitable damage portion of the case we are here today appealing the portion of the district court ruling which is related to the title seven claim and the denial of the motion for a new trial and the district court's order granting equitable relief specifically the amounts of relief that were ordered the district court should have granted judgment as a matter of law as there was no evidence that was presented at trial that could support  finding that ms vega was discriminated against because she was hispanic the just you know court for the jury does find evidence of course there's evidence of disparate treatment of spanish people there is some statistical evidence which by itself is not enough but it can be relevant so when you say no evidence i know i'm not accurate we believe that the evidence that was presented at trial was not enough to support a finding of which is a different point altogether ok to know whether it's the district court did not cite any evidence of racial bias but rather stated the jury verdict was supported for three reasons they said the investigators were hostile to mr vega the park district did not consult with mr vega supervisors or offer her progressive discipline instead of term nation and the park district treated john hispanic and employees more favorable than ms of a guy and imposing discipline can say yes saying that's when she would have had to introduce evidence that someone expressed overt hostility towards hispanics i'm not saying that you know what i'm saying is the three items that the court relied on to support the jury verdict were not what should have been used or what is commonly used to support a finding of discrimination under the law sure what that means when the district court says in his opinion taking language from our ortiz just susan that she needed to present evidence that would allow a reasonable juror to conclude she would have kept her job she got a different ethnicity and everything else would remain the same and then she in the end he reviews i mean doesn't go into i suppose you could have written a three hundred page opinion but he does highlight things that a rational juror could have found says the jury was presented with evidence that non hispanic employees were treated more favorably and it seems that you know we are we've said in order to ease especially when it's a jury trial you know we're not putting evidence  boxes i understand that your honor but at the evidence that was used for the jury to and bar for example that the hispanics were treated less favorably it is just not present in the record it's just not there i don't know what you mean but yet there were there was evidence that comp the similarly situated employees were treated differently but there were only two similarly situated employees that were appropriate to look at and they were both fired for the same thing midst of a guy was fired for and they were both african american lester brothers indiana rutledge well the jury didn't see it that way i mean there were there were other ways of treating people more favorably in other lines between hispanic and non hispanic employees i can certainly understand that from the point of view of making a jury argument you might have thought that this was a thin case but  these other employees should have never even been put forth in the jury and that is part of the judgment and you can tick off you know like a little bullet points what evidence you think should not have been admitted at the trial that sounds more like a motion for new trial stuff to me but anyway never mind you just what do you think was wrongly admitted relevant to the title seven claiming well there were five meetings between employees of the park district that were investigating mr vega and the spago and there were six people involved in the us the only allegation that she said she agrees there were no racial slurs or over racism shown she says they were all hostile right hostility is not a title seven does not include a general civility code that is not a basis for no bitch don't she links it up to her hispanic ethnicity but she doesn't well she does she she shows that this pattern of no hispanic employees this is not one of those cases where somebody just says i was fired i'm of x ethnicity ergo title seven was violated supervisor who i mean she was surveilled plaintiff here was surveilled two hundred and fifty two times over the course of forty eight days with two different investigators on the case and then she pointed out evidence of raymond occasion park supervisor accused of a similar violation who was surveilled three times and then she has two other caucasian park supervisors grow in mcmahon and accused of spending time in bars while they're on duty in the surveillance was conducted during the mornings when the bars were closed it's so whether this is a lockdown case or not as a chief judge would said you know their arguments could be made to the jury about it being thin she had some evidence that well ok denise raymond it was a different investigator it was referred to management and she didn't fall squier time sheets but she left the park every day every afternoon during her break to pick up her child from school that it was found but there are some european boy there's some i'll just say confusion the record about what  the real problem with ms vega what speak uhs there's this quote falsification of time sheets saying you know maybe estimating what you're doing on wednesdays let's say and then there was the more serious notion of time which it turns out she she's exonerated of nobody thinks that she did that so there's at some point a fine line between those two she's put down things on her time sheets that were concluded to be i suppose inaccurate because maybe she estimated the wrong way but apparently it's not that she wasn't working she just happen to have a job that meant that she wasn't at a particular park every minute of the day ringback well that was her contention that was very jury bought it i mean there's nothing wrong with her testimony is there what about where she was and i got where she was she can testify about where she was more she was doing but we don't agree with where she was have to agree but if the jury could could i'm just saying this is within her personal knowledge i'm just thinking rose from his sheer point of view of the law of evidence she can talk about where she was and what you and she testified for a day or so there are plenty of opportunities for the park service to undercut her credibility in front of the jury as the jury chose to credit but whether or not the investigation was correct or incorrect is not the issue that that's not something that feeds into whether or not the behavior on the part district part was discriminatory what is the issue though is whether this jury could see enough evidence to discredit that there's no obligation on the part of this jury to accept the park district's explanation for its actions this jury could think the park district was saying it was doing that  saying you know no one has ever been fired in the past for the kinds of problems that she showed the investigation was far out of proportion to anything that happened or other people was much more targeted there were these disparities in the workforce there were various yes the jury could find a jury could find that i mean the jury the jury is not obliged to say anything the park district says as long as it's not flat out we don't like hispanics jurors not required to accept your explanation it's a little different from the law about yes you know this isn't about was she doing a good job it's about are appealing the portion of the course decision denying us a new trial we believe that the court made multiple evidence jury rulings that were incorrect the st was allowing the jury to view forty video clips that were not admitted into evidence with the exception of one these video clips were made by mr vegas counsel they were part of a surveillance tapes that have been turned over during discovery right so can i just be clear about that was my understanding that you your clients were the ultimate source of these clips you handed them over in discovery then her counsel consolidated them into a bigger  durham or focused file presented that to you before the trial and then they were played that's incorrect your honor we were the source of the original videotapes that was hours and hours and hours long right and she went to your excerpted from those she didn't do anything to them other than excerpts we don't know what she did to them you but you'd have the opportunity to know she says that you had these clips before trial well and that we had three days before trial but putting that aside that's the reason they weren't admitted you're making up for a three argument you're saying that even though they weren't admitted as substantive testimony that you don't know whether the jury took them at money right that right well that's that's a different argument right to say that the judge did you object on the basis of fo that they were irrelevant that they were prejudicial that they were inadmissible every bit of evidence favoring the plaintiff is prejudicial to the defendant that's not a ground part of the problem with the videotapes was that  audio and one of the tapes had audio that said something along the lines of oh no i didn't get her picture i thought it was a dude which has nothing to do with whether or not she's hispanic well that just search i'm going to address this at two levels one to follow up from what your g s trooper of just said it really makes a difference both to the district court judge and then ultimately do a tribunal such as ours to know whether you're making a four hundred and three objection whether you're making a for a one objection i mean what what's the problem you know if you're as asserting that somebody went in and actually altered the raw tapes photoshop somebody else's face in you know whatever alterations that's a very serious allegation if you're just saying gee the jury might not have been able to tell the difference between using evidence for impeachment and using evidence substantively that's another thing so at that level the need for perception is is really quite serious the nd level is after all was said and done the district court judge concludes at the end of his discussion and even if i made a mistake there was not enough in these videos in his view at lee to make a difference so any error here he thought any error he might have made in that respect was  we don't know what was done to these videotapes what you do know you have right now when you have them in your possession months and months and months if there was some fakery in the videos it's easy for you to show there's no such claim what we do know they were taken out of context obviously i mean a clip and again that's a far three argument you're saying they were shown to the jury and not placed in the attic with context and so the jury would they would have set for all three i would have to go back and look at our briefs but pretty sure there wasn't a specific rule so the thing about four o three i'll just say for a start is that this is a discretionary call for the district judge the district judge has been there for the trial it's inherently something that requires the exercise of judgment it by definition applies to relevant evidence that could come in and the judge has to decide whether there's a risk that it will be that of so overwhelm the jury or otherwise sway things in an undesirable direction should go it should stay out anyway even though it's conceitedly relevant so that so you really need to you have a couple of barriers to overcome st of all we review only for the discretion the judge has told us he thinks in the end you know if there was this one sentence that you just quoted in the audio the judge doesn't think that made any difference wh we don't believe it was harmless error we believe that it shows the investigators feelings towards miss vega even though there's nothing discriminatory about what they said regarding her it was not about race but it certainly shows a hostility and even though title seven doesn't look at hostility to infer discrimination we don't think it should have been put in front of the jury because they can certainly and and st something from that that was not but even cell you think it changed the outcome of the track let's assume i mean it and as she said with said you're you're you're barrier to showing that the district judge made a four hundred and three error is high because of the standard of review but then you have to show that it was prejudicial and i don't think your brief did a very fulsome job of showing why the result of the trial would have been different if the jury hadn't heard that snippet which wasn't introduced for substantive evidence well i think it shows that there was hostility and i do believe that hostility was one of the factors that the court found supported jurors verdict so much might have thought that this was just sort of borish remark that was made i mean i've i've certainly heard a lot worse things than that sentence i'm sorry to say i wish that case but that the judge might have thought in the realm of nasty remarks this one was was at the mild end well  but they still found hostility and he still agreed that it was hostile behavior that supported the finding of it's not just based on that one remark it was based on a huge number of i don't know if he'll listen it's exactly what it was based on in his opinion but we believe that that should have been shown i mean that it hostility is not a support for discrimination that's true no one disagrees but before you run out of time could you address your every minute or and your tax to flesh out a little bit why you think the award should be permitted further below the three hundred thousand dollars so the award is three hundred thousand dollars the only evidence regarding emotional damage for compensatory was the testimony of mr vega herself saying that she was upset she had felt bad because she had nowhere to go and she thought leslie stared out of window we had her and her diabetes flared up and she went to see the doctor but i believe the evidence shows that the diabetes was flaring up way before her terminations maybe so but she did she did testify to that i mean what worries me here it seems to me that implicit in your argument is the notion that in situations where our congress or the relevant legislature has imposed a statutory cap all damage awards have to be somehow allocated like from two million three hundred thousand i don't think that's the law i think the law is the jury awards what it wants to but there's there's a hard ceiling on it and so you you're going to find a lot of cases at the cap some more serious than others because the increasing allow people to be convicted of serious crimes and sent for prison on the testimony of a convicted perjurer why is the testimony of a non felon insufficient in civil litigation i believe the said with regards to compensatory damages that three hundred thousand dollars is mild no i wish you would address my question you were saying in different places throughout her brief that the evidence is insufficient because he these are just the but it was a tax table that was submitted and the statement that ms vega has never paid any taxes watch we obviously disagree with her employer for a very long time we without taxes and then she got refunds we don't know that there's no evidence in the record that she got refunds i have no idea how this point with the tax component as we have absolutely no idea how this was calculated it's not that she got a text on it that we have a problem with is the fact that we don't know how it was done what your post i mean i understood from the briefs in this case that in the supplemental briefing the calculations showing what the tax consequence to her of the lump sum payment in one dollar particular tax year would be what was necessary by the time we work through the tax tables to upset that end and that is what was or was not the world's most complicated had she not been hispanic the jury verdict should be so can i ask you just because we were just talking about it to respond to his macquarie's arguments about the tax portion of this judgment of course your honor your not pay federal tax attorney show she testified that in the years when you say she didn't pay does that mean the withholding satisfied her tax obligation or that she was somehow in a low enough bracket that she just actually had a disabled mother and also the evidence show that many park supervisors spend their own funds for park to explain things that happen if there were no hot dogs or not enough hot dogs and they couldn't get in a form and time they just went out and spent their own money many parts of the union testified many park supervisors did that so there were some deductions from reimbursed business expenses at the district court ever explain how it calculated the no no if the district court did not calculate the tax us page page forty seven of the appendix there's this wish to things with no apparent explanation that they were derived some of them were explained someplace else like where the three hundred thousand dollars cap comes from but i couldn't find any place where the tax award was calculated of the plaintiff calculated the tax award no look i'm sorry's respond to my stamps are a little troublesome that included the tech sort and we submitted not only a static excel spreadsheet showing our complications and the bases but a manipulable excel spreadsheet so i don't know what the judge did but perhaps he or his clerks went through all those calculations but didn't explain why he found the answer sway seven so it gives us nothing to be well except your submission below the calculate that's right the calculations are in the record below your you know i grant your motion for summary judgment and i find your arguments persuasive without explaining why except this was not a summary judgment this was a specific calculation where he had the spreadsheets to work with i cannot tell you what you know but it's not a numbers are wrong or that calculation is wrong they would have served they said read up on mental memo on them we did where they said we don't understand the court calculations the district court said we i do understand the calculations implying or inferring that he did review the calculations in the xcel spreadsheet and adapt them so i'm just wondering it's a problem that he doesn't explain but if they didn't focus on anything particularly wrong like our records show that your salary this year was differential you know something you think you made a mathematical error or you don't like the way you set up the equations or some kind of objection if they didn't point to anything specific the navan selves may have foregone the opportunity to criticize they did not point to anything the civic the only thing they pointed to is what they have argued today that we conducted federal taxes there is evidence in the records in the years th regulations were at that point on paying taxes and that's what we submitted that's what that's what they were one page oh a different thing i wanted to talk to you about and i'm not sure how you organize this one to just jump to it anyway people can be the final decision maker such as the principal of a high school but the principal of the high school is not the ultimate policy authority it's the school board and i see mr simkins very much like instruction is very muddled when you look at mo now itself at the three different possible ways you can identify something as i just called the municipalities the entities policy that's for against hispanics at the park district was so blatant that a policy maker must have no right is a policy maker have to the point about the custom is that it's this is just the widespread way these people run themselves you don't have to then nail it down at least in the original language mono the supreme court just say anything about that so i don't know where that came from probably some th people have a great deal of authority the fact is just to take the chicago public schools as as my example the principals are are the captains of the school but the it's the school board from oh now purposes which is where you need to focus for policy and it can either be expressed or it can be a widespread custom you can't just write some words down on paper and never do that you know so well can show custom or as  act case i mean there's some instances in that instance decision chief of police but with maybe we're using the term policy maker in two different ways and i don't know it's it's a very confusing thing but my feeling is that simpkins would never qualify as a policy maker under part three of mono and i'm sure there's another way to put it we're going to hear argument later today in two cases there's been talk about terminations and this  we're going to hear argument later today in two cases where there was an actual terminator where the police shot and killed someone terminated with extreme prejudice but that doesn't make the police officer on the street a policy even though no one higher up in the police force can bring the victim back to a well if the argument here seems to be that simpkins must be a policy maker because he could make an effective decision now of course there was the personnel board but is there anything beyond the ability to make an effective decision or to shoot to kill that makeshift control policy that i believe so your honor the park district is unusual it is not like the chicago public schools or the police department all discipline all hiring all terminations flow through very few people under the director of human resources mr simpson the personnel board consists of three people and step two torah lee mr simkins is one of those people but could be outvoted if it's a three person board and his decisions are subject to review by this administrative review board they are not subject to review on any only if it's not mandatory they are not always reviewed they are only reviewed if someone chooses to request review on a due process basis well in another it doesn't mean that there isn't review i'm going to say speaking from personal experience that this court's decisions are not commonly reviewed but every so often the supreme court decides to review one of them so it means that we are not necessarily the last voice i understand you're on a discretionary novels all sorts of things you know we can't control it it's there is no evidence in the record that any decision of the personnel board has ever reversed the decision of mr simkins or the director of human resources that it is like the valentino case where he effectively controls who was hired and who was fired i think he is a de facto policy maker and i think the jury saw that and that's what that and comparable words are not determinative and all of that but your honor i can only say that we never put the plaintiff did not put a figure before the jury three times the defendant put the seven hundred and fifty thousand dollars figure before the jury that's learned that comes from playing that there was a pretrial order suggesting a range of compensatory damages and i think that was in there but the point of never suggested that the jury should decide on a particular figure the defendant did so once the time for trial comes whether it's plaintiff the source of that number the pretrial order or defendant or the judge or somebody but once the trial commences you're saying the plaintiff never uttered number it did not your honor not once it left it to the discretion of the jury and i think the jury was in the best position here reviewing all the evidence and the demeanor of the witnesses in the humiliation this vaguer was subjected to and her difficulties specifically the jury decided the figure and plaintiff's health was significantly offended affected by defendant's acts not only did her diabetes become uncontrollable but for the st time ever she developed high blood pressure and high cholesterol which they finally got under control after she was terminated she was stuck with medicaid which changed her medications for chronic medications every month depending on what was cheapest she was very worried about supporting her disabled mother and as i reported her building that had its own difficulties she loved the park she loved her park she took it from a wasteland to a community center and it's like she lost her life she lost her vocation she reported that in driving home that day she was so shocked she had to pull over to the side of the road because she couldn't figure out exactly where she was even though she driven it every day for years for a while all she could do was get up and kind of stare out the window and even a trial while she had recovered substantially she was working she was getting her degree there was residual effect what they did to her was humiliating and horrible and she experienced tremendous physical and mental pain i think that's why the judge credit when he remanded remitted to the cap so i would ask that the court here follow the suggestion of the jury who was in the best possible position to review and we are a few years away from her st maybe there's been inf every line certainly the certainly the appellant did not attach a ruling by the district court respondent to should we can i assume given our circuit rules that if there were such a room it would be there i how these i mean we had hundreds of video clips and twenty five dollars disks we pulled out twelve from days for which she was terminated in the st day for which she was surveilled in september and we ask the officers about those things mr callan authenticated both of his tapes from september th two thousand and eleven and officer has two who had identical did all of them at his deposition refused exactly right any snippet there ringback was one snippet on december nd that went on for hours where they're chasing her car and she's not driving it we we showed some of that and then we move forward but it was all you know we didn't show an hour of following a car around that she was not driving we just showed up for the purpose you didn't alter them a change them or pronounce in any way right now objection to that effect is to court enter them to bring in the originals to show that there was any alteration and they did not so they have your points and the opportunity if there had been some concern about alteration they could have brought that to light at the trial absolutely or in your honor these were the sole reason not was so jumbled they didn't know what she looked like during the entire investigation they admitted that they were following her car no matter who was driving they didn't know what hour she worked they  her duties did involve a certain amount of time actually it seems to me that one of the examples is that she was a training session some other place and thus was not it quote her park right she had many duties as a park supervisor that took her away from the park she was hansel acted to be the trainer for a new computer system for her entire area and that's what she was doing she had to go to area meetings she had to pick up hot dogs as an example she had to pick up other supplies she had to pick up boxing equipment she had many responsibilities she had downtown meetings sometimes she was asked to attend regional meetings sometimes she was asked to present at regional meetings and there was a lot of moving equipment back and forth the park district doesn't always have all the equipment it needs for particular events or the go to another park and borrow stuff and bring it back to the park district admits that her duties took her away from bessemer park she wasn't required to be glued to her chair there the entire day the officers didn't know this and further they decided that if her car wasn't parked in a particular spot in the twenty acres of bessemer park with about four parking lots that she wasn't work so the investigation was a sham under the hard pardon description of a sham i agree that the hardened case did find that the investigation in that case was not a sham but it did describe and there was a foregone conclusion perhaps summarized that's the mr hester's words one mistake is trying to explain you know she submitted fifty three pages of documentation of her whereabouts and not to  she was trying to explain sunday's i got i got so i don't care what to say i got up and the siapa who follow the report of the investigators as if it were her bible even though she never saw a single videotape kind of tossed mistake is fifty three  that was a foregone conclusion that she would be terminated i would like to reserve the remainder of my time for me you may thank you  gary so the remainder just to be clear be on the cross appeal yes your honor if you have any specifics that you'd like to ask or should i just go ahead from my perspective you can just go ahead with the yield to my colleagues so we agree that there is absolutely no way that mr simkins could possibly be a policymaker and there's a lot of discussion about the personnel board that he is one rd of a member on however in this instance it was and if you read the chicago parks act it allows for the personnel board or an independent hearing officer to review the terminations in this instance it was an independent hearing officer that reviewed myspace germination she had a two day trial where earth today hearing where she was represented by a lawyer called witnesses and called evidence becomes a question about the scope of that hearing i can't quite remember where i read this but i understand this to have been a hearing about whether the time she falsified cation charges w supported that this that this hearing did not include any exploration of potential discrimination on the basis of ethnicity that is correct so in this case if the independent hearing officer had issue simkins it would have been reversed there's also the personnel board is three people so he can certainly still be outvoted by the other two he is not the final decision maker when it comes to terminations he has the final decision or the final policy maker when it comes to this he has a final decision maker when it comes to various different discipline issues but a final decision maker is not a final policy maker so there was never a policy maker or anyone ever discussed during trial so we believe that the one thousand nine hundred and eighty three claim should remain dismissed i'd also want to just quickly mention about the the tax component and i think i can shed a little bit of light on this the biggest objection we had and they just said well it was based on her tax returns and everything the tax returns that are in the record from mr vega are so heavily redacted we have no idea what her deductions are so can i ask did you file you fight you must have filed a written objection to the supplemental briefing in which these tax computations were laid out i'm quite sure we did didn't you know so ok so we can find out what  the biggest problem was we couldn't tell she says oh they didn't pay anything while all we're going from is what the current district withheld because we don't have any records of deductions they were all redacted her full tax returns were never produced you would have seen the bottom line address and maybe a few other things but we weren't able to get anything we did ask for an redacted copies numerous times and we were told no we weren't getting them so we got that you're genuine advantage but that doesn't seem to be the ground  e i also want to clarify that in our pretrial we did object to the videotapes on for a one and for a three bases and then finally we just had a discussion where his summons girl was discussing how mary treated the report of the investigators as if it was the bible and she just took it i believe the record clearly clearly reflects that messiah went through the report had meetings with mr vega went further and made phone calls and even took some of the dates and dispute off the list so it's obviously explanations for them and she also asserts that those explanations are disregarded the people bother to read them could the jury have seen evidence that it was credited i'm sorry i see no evidence that they were accredited that well just because i pushed her explanation off to one side i don't believe so i will give you an example one of mr baker's explanations for where she was one day was that she had been given leave by elizabeth along who was her supervisor who's retired to go out and i don't know if it was work from home or do something like that so miss i ever took that information from mis milan says oh yeah later i remembered after i had spoken with her and i followed up and asked her the question well did you ever think to call anyone at the park district and tell them and she admitted she never did but the jury but again you're saying the jury should temp believe that change of heart right but the jury could have credited it the jury could have said well she didn't remember when she was called but then she her recollection was refresh well that's right it might have seemed like such a trivial thing i can't believe everybody remembers down to the minute i understand that at this point is how was your harvester exposed to know that it wasn't we had to start of the worst inference you could from it you didn't just take it as this was such a routine thing i'd frankly to be quite honest don't recall right now which would have left you in a state of not knowing or you could take it is aha she's lying you know this means a negative thing yes i have ten seconds left so given anyone have any questions or thank you thank you thank you very much ms mcgarry and district court felt there was sufficient that those were both heard there was sufficient evidence of both to send it to the judge so at that point the district court sent to the jury what he thought there was something that the jury should decide sufficient evidence of practice and policy and sufficient evidence of power he sent the instruction to the jury after that argument i think we have to assume that a jury that found two counts for  that's an argument that a judge can never grant a renewed jamma well right you're saying if that if the judge sent it to the jury after motion for judgment before it goes the jury that it would be fruitless for anyone to make a renewed judgment as the judge can change his mind if he thought there was enough evidence to send it to the jury then you can't reconsider of course a judge can reconsider your honor but at the time when the evidence was freshest in his recollection and he did not have a full record before him when he gave his o v he thought there was sufficient evidence of both to send it to the jury he did not in his grandstand of the disturb the finding of a pattern and practice in fact he gave the evidence outlining not only the support for tigers seven but the pattern in practice the percentages of terminated supervisors zero caucasians five percent that i had on a practice evidence was five percent and then seventeen percent hispanics the disparate hiring of hispanics are all levels no hispanics in senior management law investigations and every just based on statistics you catch a pattern of practice  need to show a pattern or practice of discrimination i think there was a de facto pattern and practice of lots of african americans lots of caucasians very few hispanics the jury heard that every hispanic who testified it was testified about experience discrimination and they also heard that every hispanic who retired or was terminated was replaced by non hispanic not the strongest but not no evidence on which a jury could find a pattern and practice and at the time the court was not required or the court did not require to identify a particular policymaker the jury could have found i can remember the judges for just said the jury could have found that the pattern and practice was so blatant the jury certainly could have found that mr simkins knew about it because he testified about all that in prepared the reports about and knew about it from his own knowledge about this the dearth of hispanics so the jury could have found either that the practice but how does that make him a policy maker if i understand correctly the park district has a board of commissioners under which is the superintendent under which there are other people like symptoms the m superintendent subject to confirmation by the board of commissioners if i were to look for the policy maker it might be the superintendent it might be the board of commissioners but i don't understand how somebody who's a  all discipline no individual direct supervisor can't even issue and oral reprimands all of that flows through human resources this may be rd level by some department all the arrests are made by sargent people on the beat they aren't made by the commissioner of police but the commissioner of police has the policy nick your honor that is correct i would like to suggest to this court that it look carefully at the way the park district does things as opposed to the police or the school board the commissioners at the park district are for the most part a little bit of a revolving door not completely but they are not this case the person that stuck the person making these decisions is a director of human resources with in the park district not the police department not the school board an extraordinary amount of policy like the mayor in valentino yes he had a board of over him but basically whatever that may or decided stuck whatever simkins decided in hiring and firing stock i bet that's your stronger argument than his job title because if in fact in the history of time the human resources director has never been overruled then maybe you're almost in branch two of mono and you have something that's a de facto czar of these things  but that but it's a i have a feeling work in some ways talking past each other since there is a difference between being a final decision maker and then being this  final policy maker supreme court both opens up the possibility of municipal liability but puts very significant constraint by and i understand your honor i i believe that the evidence showed the jury we do have a jury verdict here and i believe that it has to be properly instructed well the instruct i believe it followed its instructions and it has to be reasonable and i believe a jury was reasonable if it fin and care for if it finds two counts for plaintiff and two counts for defendant it followed it instruct its instructions not if there's not sufficient evidence to show that simpkins was the policy make i think they had to find a policy maker they were not told they had to find or ident is there someone else has to identify i think there is the line of thinking that policymaker in a florida with these this sorts of evidence knew or should known but i think it's also very clear it was clear to the jury that mr seam simkins had tremendous authority he spoke with authority there is no evidence that one of his decisions to terminate was ever reversed and by the way even though the decision of the arbitrator wasn't in the record sigel was not back at work long and so i'm sure that the the jury knew that but the outcome of the arbitration hearing  so all i can say is i think that the jury should be given some deference i think they thought about it i think they followed their instructions and i think they found mr simkins to be a de facto policy maker in a very unusual system i would again ask how many systems have you ever heard about where a direct supervisor cannot give an oral reprimand but has to go to human resources five people ok thank you and thank you very much