just manage your own time see as you choose you need not ask really divided as you wish to sit down when you wish when the light turns red in the numbers are still changing it doesn't mean you have that much time left it means you're that much over time correct that was totaled but the retaliation that occurred as a result occurred closely thereafter after the filing of the complaint in march of two thousand within twenty five receiver back on the klaxon is that really a reason to terminate somebody if they're not responding to your conversationally just hangs up on you and upon your boss you can get away with well it depends if you're trying to tell your boss that you can't get a project on that he's trying to dictate to you because you have to go and see your doctor and he's refusing to even acknowledge that you are on the other side of the phone then maybe you might start crying and maybe if you're crying the receiver's getting all that you have to put it down it's a problem is that we've got a jury verdict here which essentially i guess clearly construed doesn't necessarily discredit your client version but found that the employer had a basis of germany i don't think we i don't think that their determination issue that's the jury at all the only issues they got to the jury were the retaliation in fact the judge even instructed the jury that the plaintiffs left of their own accord that was part of the jury instruction i don't know why that got in there because it wasn't true what happened was the summary judgment is what dealt with the the lower court of the case but we don't frequent for me to other but it would just let you know be helpful to me you've raised an awful lot of issues on your feel it would be helpful to me if you would at least hang up the sun was one of the reasons and so she sets the events in motion that allowed that that resulted in the terminations i don't know if that's a legal conclusion or not but it sounds awfully like factual statement that was made that you claimed it was proffered to tre and to represent to them that the schedule cs could be manipulated in such a manner that we can make this a quote win win situation for both sides that they were in fact a basis for the statement of fact is that they were independent contractors read of employees the other statement of fact is that schedule c is can be manipulated in order to in order to make somebody what they're not in order to make them and the a statement of fact i mean you've got twenty factors that's as i recall for whether somebody is an independent contractor going ploy and you've got microsoft's famous in the pen the contractors i think it's employees not independent contractors that despite that knowledge and advised by his accountants he continued to had to categorize them as independent contractors and he stood to gain financially from that that's directly relevan was argued at the pretrial conference which is record it page two hundred pages ten through fifteen it was highly prejudicial not to permit that type or adverse to employment at that there's a huge difference between your hostility in the workplace and an actual change in the circumstances of employment adverse to the employee view as a result of  for you it's an adverse employment action that is actionable as retaliation if you don't like them as much you know i'm not saying that and i think you're getting into exactly the problem with the hostility suzanne travis with respect after that everything changed he started throwing files at her he would not let her work within her medical restrictions he created insurmountable mounds of work with deadlines that could not be completed couldn't possibly humanly be completed he even slammed the phone down on her that's in the record he's fine the phone down on her he didn't have them she slammed the phone down mirror hostility directly to the page of the excerpts that you're talking about  i didn't read it it's taking it away and i may have misread it sorry i want you and i believe that it is if i may step to the away from you're talking about the slang which an adverse employment action is an on for real action by an employer that changes the terms and conditions of employment here hostility of an employer to an employee does not constitute adverse employment action much less than it is that's why i asked you that question right at the outset of the discussion going to be actionable to like somebody less than you conceded no that would be going a little far and that's what i understood the term your hostility to mean it's a fancy way of saying not liking somebody but is that all it means it means also acts of warfare at warfare i've been watching warfare on television where they shoot each other  jury is left with the next sentence that mere hostility does not constitute a noun first employment action i don't know i think a reading of the term hostility or something that is just i can't see anything wrong with hostility means not liking somebody and that's what it means and merely not liking somebody isn't enough to constitute an adverse employment action nor are non trivial actions like if you always got her flowers on secretaries day and then he doesn't get her flowers on secretary's day anymore i  can't imagine you getting my vote to treat that as retaliatory action some of what you've described like giving the secretary is more work than could be done in the time available to do it gosh i'm afraid i think guilty of that with every set of law clerks i've ever had my clients have been guilty of it with me when i was in practice and the court is guilty of it with me now that i'm on the court as but i don't think i don't get it unless there's something a whole lot worse i concrete i don't think you've been guilty of confusing to me but i believe what you argued was divorced of the terms and conditions language that second sentence and the instruction that we're talking about isn't good enough because it isn't hooks to terms and conditions of employment pages at the very first point that's made in the reply brief i think that it's pretty clear it by the very end of that that that was that's what their request w harassment means doing something to them can include nine x feelings and emotions however it also includes by definition anyway according to webster's overt acts things like throwing files can be considered hostile think maybe the best use of my time is to respond to whatever questions you all may have on particular issues that have been appealed it would be helpful to me to cases rolling and to be helpful to me if you would or with down give me a nice complaint about two weeks later that included claims for retaliation claims for intentional infliction of emotional distress and various other claims that included in some instances and quite explosive allegations like that mr knappenberger had thrown withdrawn at the time there was considerable press coverage going on about the case so there was some concern about these allegations being picked up by the newspapers and they were not actually withdrawn for a period of several months so it was a tense situation to say the least what ultimately happened in terms of the plaintiff's employment was the the first issue that arose about three weeks after the filing of the complaint in regards to its who's on trial apis the lead plaintiff and in that instance as you heard she became agitated with mr knappenberger over an issue of a medical appointment that she said she had he was dictating correspondence to her over the telephone from his office they were actually in the same office at that time and she hung up the phone in anger when she felt he didn't adequately acknowledge her indication that she was going to go to this appointment so she hung up the phone and she left the office this was in the morning they were that day filing an attorney's fees petition which there was some stress around i guess to get the attorneys fees petition filed on time so she laughs the office without saying anything there knappenberger later discovered that she had last wasn't sure whether she was coming back or not that was in the morning she never did return to the office not to go back and that she left her lawyer then fast a letter to mr naveen berger's lawyer saying that she had left work that day because of the stress and issue in becoming that mr knappenberger testified that he didn't receive acknowledges that during his conversation that he had with her that next day when he said that this is ending our business relationship that he told her at that time i was planning on terminating your employment later this week anyway based on your conduct in going through my client respects given the allegations that after the lawsuit was filed mr traviss artistry happened berger's conduct towards her improved dramatically and that he almost did a one hundred eighty in terms of his demeanor and attitude everybody acknowledging putting this or knappenberger that he is you know a tough old bird and a hard guy to work for and that he had been at times exposed and difficult and had anger issues long before the lawsuit was filed so the defense was there was no said he had done we did not acknowledge that he had done all those things but we did acknowledge that he was difficult to work with from the very beginning in that they all were aware that it did become difficult for plaintiffs to assert at trial that this was any materially different very much the way that we argued the case to the jury in fact and so then you have this manix saying that it seemed to her that he was restraining himself after the lawsuit trying and she said i just assumed he had to at another point in her deposition she said i assume you told him that that's what he had to do yes precisely so for a period of about a year their relationship dramatically improved then they had a big argument about thirteen months after the lawsuit was filed he had had a death in the family she said he was in a bad mood they had an argument over where some witnesses were supposed to be they yelled at each other if she says that he swore at him he denied that or he didn't remember that in that particular instance of the knowledge if he swore all the times that are his words all the time right that's great in any  event ms maddox left work that day and she for fax to a doctor's note saying that she would be out for thirty days mr knappenberger said well either he wrote her a note and this followed a period where she also didn't show up for one day of work without calling in and without an excuse but she ultimately did drop off this doctor's note she said i've got a busy law practice in a note i'm going to get your job functions performed by somebody else her lawyer wrote a letter saying we construe that as a terminations of employment his lawyer wrote a letter back saying no it's not and in fact she's free to request reinstatement after thirty days she never did request reinstatement he never heard from her again after about thirty five days he sent her a note saying you haven't returned i haven't heard from you i'm going to soon that you voluntarily quit your position now in this matter to testify that she never became aware of this of mr knappenberger his lawyers letters saying maddox employment ended in that fashion so madison travis's retaliatory discharge claims were dismissed on summary judgment then and the case went to trial on these retaliation claims for the retaliatory conduct that they allege that had this it's a good question here i don't know that that precise point was addressed in the in the instruction i frankly can't recall at this point whether there was language like that included in the instruction it was not  was that this conduct was so severe that it altered the terms and conditions of their employment and certainly under the instructions they were given a jury was free to find that that was the case but this was and i do believe there is language like that i  the easiest place to find it is bay have set it forth at the very beginning of their reply brief with the cite to the supplemental or to the expert of record i think that corresponds with a but is on the initial page of their reply there's about three pages of this colloquy back and forth and you know my view is that to a somewhat surprising extent it seems that plaintiff's counsel is agreeing both that there needs to be an adverse employment action and that simple hostility mere hostility you want to phrase it is not enough in itself so it's difficult to tell from that apparent exception if it was an exception what precisely was being accepted to at least i think your position there is that the instruction that's correct yes and i think i think if the court reads reads that that section you likely come to a similar conclusion there is no place in there where the where plaintiff clearly all i'm sorry to say that i don't recall what that case was i think that's the case not from the ninth circuit first circuit i don't i don't recall offhand it wasn't a case that i noted that they need particular play out of in t when you look to the extent that you end up looking at the summary judgment on the termination claims that we now have a jury verdict looking at that whole period of time before those people left their employment and finding that there was retaliate torrie conduct during that time i think you know if it's an aster the fact justification and i don't really think that one is needed here because i think even on the record that summary judgment it was pretty clear that the plaintiffs themselves were responsible for the ending of their employment relationship but now we also have looking at this record as a whole the benefit of the jury that is look at this at mr knappenberger conduct during this whole period of time and it's been placed in the most sinister cast that it possibly could be  and the jury said now we don't think that he was retaliating against any of these folks and we have this maddox herself saying actually he seemed to do a one hundred eighty and seemed to be very restrained during this time and you know for months was much better behaved really than he had been before we don't actually know the jury could have thought he didn't act any worse than he did before the jury kind of thought he really didn't act that badly before or after it's been exaggerated by the plaintiff's or he always acted absolutely terribly but it had no member tell you story aspect to it at all he was that way before during and after that's correct but i think the one thing that we can't do that we can infer from the jury verdict is that