and i want to be clear we are we are not putting forth our argument is not that there must have been an underlying finding of liability but on the part of debbie hollingsworth in order to found the city liable however under mon el and its progeny in a number of cases as recent as last month that this court has put out there has to have been and always has to have been an underlying unconstitutional act or unconstitutional conduct as to mr riddell such that a custom policy a practice of the city was a moving force behind that caught me behind that constitutional violation here mr original complaint was that his discharge was discriminatory and nature his discharge was based on the fact that he is african american however the first discharge with respect to  where the combined actions of multiple officials or employees may give rise to constitutional violations supporting this so why ability but where no one individual's actions are sufficient yes or i would judge martial suggested maybe it  jury instructions given to the jury with respect to the motel claim were insufficient as a matter of law the instruction that was given to the jury was that to win on his race discrimination claim against the city regional must prove two things that race motivated his firing and that have had an official cost of discriminating against employees based on race the fact that the crime the primary element there is the race motivated his firing there's simply no evidence of that with respect to the terminations and mr riddell was terminated by the hollingsworth the city council just simply failed to override that decision they upheld what the jury has determined was a constitutional act with respect mean there's no special iraq atory in this jury the jury verdict form that sets forth the finding of the constitutional court then cause ation then damages instead there is just a simple question a general verdict as to ea defendant and the question as to hollingsworth is just does on the race discrimination claim do find against or for hollingsworth and they said for and that's all it says and so we don't know on the elements where the claim failed though isn't it possible that they could have found the existence of a constitutional port but then the causation of damages are not attributable to her but in a but but attributable instead to the conduct of the city council i mean and this is clearly i mean if you just look at what happened here you know we get the deal where you say oh we can't reach a verdict we can't reach a verdict we give the allen charge they come back with this split verdict it looks like somebody you know compromised in order to arrive at a verdict the damages are small there's no emotional thing added to it you know i mean if you look at it you know i mean adept tried two hundred dollars more than two hundred jury trials in my lifetime and i'll just tell you that this has written all over it compromise and it looks to me like judge marshall's looking at it say yeah they split the baby but this is where we're at and given the form of the verdict isn't it just you know i mean i get w saying they found the constitutional court but there's more than just they couldn't find the tort just to find causation or damages right or more wrong why am i wrong i guess because i know you know i'm wrong but i wondered why judge eric and i don't disagree as far as help with the reality of why i think we're here not least of which the jury was given i think two maybe three allen charges the friday before memorial day weekend and they were going you can't get uglier can't out they were coming back on tuesday if they couldn't come to have our ticked on friday that being said the jury instructions with respect to the mayor why are you know do you find that the discharge was race based what he discharge testify mr holcombe who was the swing vote with respect to mr riddle's discharge the fire sparseness the second time and george steps and neither of which testified that race had anything to do with their decision to this verdict you know eight ten years from now you know hopefully not our representative you know but if they get sued you know again ten years from now or fifteen years from now there's now going to exist not just you know  things of that nature and he was disciplined for it and there was testimony from debbie hollingsworth that you know once she sort of put him on notice that this was an issue it didn't continue to a car and in your hon it there are no questions currently i'd like to reserve the rest of my time for on his race we presented evidence of other cases where the city was guilty of race discrimination the case that i try other cases but in this case which people carried out this  miller and another gentleman who had been guilty or has vince aboard the nation and yet they want terminated themselves and so this testimony was presented and counsel for the city of palm bluff contend that that was not enough evidence to find a racist from a nation well the jury disagreed with her and so well what they said hollingsworth didn't act based on race in the city only x true people so i'm just one that's why i asked which people affected this discrimination way ya know i mean obviously this is a situation where the mayor and this in this case i think it was a split verdict it was a compromise verdict where you know you have a situation where the jury are probably did not want to impose liability on the individual person but will they also will impose a labial of the on the city and i think that's what happened in this case we make some of those kinds of decisions in criminal cases you know where you know they acquit on something and it seems inconsistent with something they convict on and we that says that you know the jury is free to exercise mercy but i've never seen anything like that in any civil case and so i think that would judge politan is asking is really the heart of the question and that is where's the unconstitutional what evidence would support a finding that they had the mayor may have acted in a way that was unconstitutional but is not liable and if not then the question is as judge paul can says who's the other person that could have done something unconstitutional here lead if imagine that the mayor with value and defendant in the case well you chose to put her in though and she was found liable so you're stuck with there yes yes your honor i understand it but but the young mr ridge will sue the city upon groff and the mayor contending that both the city of pine bluff arkansas and the mayor discriminated against him based on his race the jury found that that them that the city violated his constitutional right by discriminating against with late for work and so when you look at the difference that the mayor how the mayor treated steven miller and the other a caucasian employed how she treated those employees versus how she treated a riddle in the jury concluded now the mayor makes the final decision on the act of terminations now whether or not mr ridge or mr ritter could have just not chosen to appeal and he would've been terminated the first time he appealed to the city council and the city council he was able to get six override the veto to override that decision the second time he was terminated he was not he would get six of the only got five votes and so that terminations with hale that that decision of the mayor was up held in that case again the of this year ramona ever again saying that while in this power he cannot be held liable without a constitutional an employee there is no requirement that the plaintiff establish that an employee who acted unconstitutionally if person a lot you know i don't think anyone's debating that i think the question we're asking is if you would identify what the unconstitutional what evidence in the record would allow the jury to find it unconstitutional act in light of what they've decided with  and there's seems to be there's there's there's two ways that can be approached i mean one is you can say well let's look at the elements in there or there could be that they failed somewhere else other than just a common unconstitutional act the second would be that well somebody else did something and i'm just and i'm just telling you is that i've from what i've read i'm having a hard time finding out who did anything that you could reaction really where even assuming all evidence in the light most favorable to the jury's verdict that they should say well there it so you have the personnel director in that in involved so it's a catspaw case where the target the personnel director was really the discriminating actor and the mayor was just adopting what she recommended well the mayor was the one that was really pushing th even if the mayor is the moving force and not the personnel director or anyone else and the jury has found that the mayor has not performed an unconstitutional act that read a lot into the jury verdict and i think again this was just this was a compromise verdict where the jury just do not want to impose liability on the mayor who will be the only one that comes to my mind is the counsel that voted to uphold it correct he had spoken personally to the mayor has spoken personally to mr vickie conaway to try to find out what happened in that situation but he never spoke to mr riddell to try to get his version of the story as to what happened he also i also asked balls that he needed to override the senate again the them that you know that it's kind of like a splitting of the baby i guess that well i wonder is there any authority that says that the jury cannot be inconsistent when suppose there were sufficient evidence that they could have found against allen's work but they give her a break and say no liability and then they find against the city based on hollingsworth's actions can they do that you know is there any case law about that kind of inconsistent verdict in a civil case well you're not i don't think it would be an inconsistent burdick again i guess have to fall back on the case law is bad you don't have to have an individual employer i know my hypothetical was though that it is inconsistent because the only basis for the verdict against the city would be race discrimination by hollingsworth right and they said there wasn't but maybe the evidence would have supported finding that there was and they decided to use that against you on hollingsworth they're bound to act consistently when they rule on the cities clear out of this of this is not a that the kind of case where you have a police shooting case where if you find a qualified immunity for the police officer then automatically that eliminates the sit this is not that kind of case words the that the the case law also said they can be one unconstitutional act of terminations that can be a custom policy o things that i looked at is i kind of and i did not study the transcript of the trial the way that that i would there will if i get signed right the opinion but when i read through the pieces of it that i read i think crossed my mind that perhaps the who had worked in office for like thirty two years the mayor bypassed her brought in a white female from the finest apartment with not even promote this after marrying a female to the position and instead promoted a white female by the name of  was committing fraud by stealing time that was evidence that he was reporting that he would have a particular location when he wasn't and she conducting the investigation into that and yet he wasn't terminate so at the personnel director you know she could have had could have said this person need to be terminated but she wasn't there yet she didn't make that recommendation to the mayor and so in order and i also asked ms conaway i said look you know at the human resources director it is your position and it's your responsibility to ensure that the city comply ass with anti discrimination law and did you ever do that and she can say well i can only make the recommendation but in this situation she knew that mr miller was committing fraud by stealing time read just that if you want so we can hear you if you allow me your honors i want to address a couple of things a couple of questions that were posed to mr porter first and foremost that is the crux of the case what is the underlying unconstitutional conduct i think we agree asked me earlier you know what was the difference there in the spears case the facts of that case were that the individual to the plaintiff in that case was complaining about not having been given a name clearing in front of the counsel and the court determined that there were multiple other individuals who could have given that plaintive mr spears the name clearing hearing and so that there was a possibility that  second discharge he had voted to overturn their hollingsworth terminations of mr riddell the first time and then changed his vote the second time and that that that distinction is what prevented mr revill from being reinstated by the city the second time which employee certainly not based on his right mr riddell got a full appeal to the city council both the first time and the second time he was absolutely both and rotting and orally given an opportunity to present his side of thing to the second time a full council all eight members were there and were able to hear mr originals of things which of note and import in this matter at no point in time did he explain to the council or put on any evidence that he had informed them of his belief that his discharge was based on his rights and so the idea that the council was even on notice that mr riddell was concerned that his discharge was in connection with his rights there's simply no evidence that the and the fact that you know mr porson you know he didn't have to sue the mayor sure he didn't have to sue the mayor but he it and the jury did return a verdict in her favor and also even without doing the mayor you still he'd still have to show the underlying unconstitutional conduct and that is the meat of this issue is that testimony goes and i believe it's on page two thirty three of the transcript her testimony was that she is the human resources director i did not make a recommendation regarding rachel and my recommendations are not always followed i do not think if howly terminations that she was working in the human race as a human resources office but that she was not the department head he would be you know perhaps advising the mayor who was a different mayor at the time this amount of time  you having to go was clear that if the if the claim against the city was logically dependent on the mayor committing unconstitutional act that the jury is if the jury had determined that there was an unconscious there they're all at your own i'm not sure i'm answering the question you know what i mean there always has to be that underlying constitutional conduct there has to be that custom policy or practice and it has to be a