for dawn l best versus william d johnson against a class of black women but the point was it is unlawful on of the sex discrimination laws to to take a particular subset of a class of women and say that they are trading  forgotten my hearing aid when i i also mumble that we have a different combination here where did the district court air it seems to me the that the jury had all this evidence presented to it into the only issue would be whether would have combined the two of you saying you can transmit the transcript the group agree to it figures in the rest of you that we wouldn't say anything about age and would just let the jury deal with the evidence is it was presented here's the problem it says you must disregard any evidence related to age but i just don't believe that's correct your honor in view of the fact that discrimination against older women is sex discrimination so this last two i don't have a problem with the first two sentences  last two sentences that are in error the first two sentences are ok this is you talking to the judge and saying why you don't like the charges constituted or east or do you think that that's not the key part of the discriminate against gender is to discriminate against older women i mean under the interpretation that event is given it's perfectly ok they would adopt a government rule we're not hiring any women over fifty and they would according to them that would be perfectly legal but it's not like first i may be wrong but it sees me you may be talking about the finances corruption seven at that stage as opposed to people teen but it's the same point what is the jury going to be told about age plus sex and the court says we just discrimination and what you seem to be saying is i have people or team my hip pocket and that need to be introduced which would be directly contrary to what anybody disagreed to on whatever instruction as well or yada ears as a question by the way it may sound like a statement but give me your response to that characterization we got here i don't know i'm not going to come around and try to find this but but here's the substance of what was going on when you look at those structures or watch the courtroom will that i decide a g s i had to upgrade to t i was trying to separate what the court had ruled that age is not going to the jury sets was going to the jury but we have to couple that with destruction that they discriminate against our women then that steps from us and that's the point that i think it's clear when you instruction in china bers and i read it that this is the instruction that we won't while the jurors deliberate and then the court refused so they refused again at that time and after i had requested it and it was at the end and we still haven't found in the first part we looked at fifty one that was a follow up but i mean i don't i don't feel like i can when the court say that's what i say you ensuring that we've made our arguments made out i think i said i'll see you in the corner well it's also a busy time of trial and so the court may not remember that they haven't technically ruled on number fourteen i'm not trying to suggest what the court did here so that's why you need to give them a reminder you forget you forgot your honor to rule on fourteen and i'm just ok so assuming we agree with you on the law but just assuming argument of that but we don't think that you demanded it what result on that claim i think debates played era because the whole thing was i did have one woman they had has ruled that age is not going to the jury i do not believe it's a good trial practice to go back there or get to the judge that he just don't go to the jury he's rooted it's not good only thing you can do is to say that sex is going to the jury but that should be coupled with an instruction juror or who is trying to decide your point your point is the age part of she's trying to bring that into that's basically what the jurors say is at that point the the court then starts into an avalanche of and i i sex plus age jury instruction appellant is citing page one zero six seven as the point when he preserved the request for the jury instruction that happened when the court was ruling on t v s directed verdict in the court specifically said we will take this up in the charge conference mr way did not take the issue up in the charge conference there was a question about where t v s and limiting instruction was that is found at page six seventy four in the record in judge southwick as you mentioned plaintiff's instruction that it submitted which is spot on page six eighty six was directly in contrast to t v s instructions so the court could really only give the jury one of those instructions that instruction you would say th object because it's clear that you're given the other you're not given is well he had they did not object they agreed to it he said yes age has to come out of that we agree with that your honor if the court is going to take but still i'd come out of that and the court could still say that age discriminating against older women is a form of sex discrimination yes i think that that's what the jury should have been instructed isn't it no your honor i don't think that the jury should have been instructed i think it would have been confusing to say on the one hand age can't come in but on the other hand you consider discrimination against women actually how it works it's not a separate claim but it is a factor in whether you're discriminating against women and older the statute of title seven in the language of title seven which lists all the protected categories and specifically uses the word or in the reason that the fifth circuit just decided the jeffries case in that manner is because race and sex are both protected categories under that statute which is title seven and jefferies is not govern this case where the court ruled that six plus age is a is a separate protective care first pick that would be an extra extension and you'd be referring to the the do shut case in that was based on the misses the minnesota human rights act which is more of a super statute that includes all the protected classes in one statute so in that case a particular statute has a gender and age both as a as a protected characteristic but it is a type of sex discrimination so it doesn't have to be a special place separate claim it is a form of sex discrimination your honor i  that you get put the women out to pasture when they you know it is well i think it it did not manifest itself evidentiary early in this case there was no specific evidence in this case related to older women at all if anything the statute that covers and age discrimination and if the court is to rule otherwise there's a lot of judicial questions that remain open for example do you have a right to a jury trial if you're if you're proceeding under older women theory or does the district court have to decide what is the primary statute under which this claim arises does a person get compensatory damages or do they get liquidated liquidated damages the second they get attorneys next discrimination claim it is not an age discrimination we treated it is a sex it's there's no law that has to be done it's all the you answer the question the same way you answer for any other sex discrimination claim yeah i think at first blush that that makes sense your honor but then i think you have to look at the practical impact that this will have on the district courts when they're trying to determine what what is the primary statute that this claim balls over under because that it's sex  seven sex but i don't want to argue with you about this the whole time it but it's already been it's in evidence re point not a legal claim well i think that it's not any novel it's not anything novel it's happening i think it is very novel your honor and again just to give an example of what the district court would have to deal with here if it is a sex plus age claim that t v is a federal agency is immune from jury trials and each claim there would be a jury trial or where a federal agency would otherwise be immune from a jury trial so there are key differences in the statute also says when your principle argument is not that we need to get into whether to recognize a sort of dual claim is that very much what we were discussing with mr wade that held that he accepted this going to the jury not just that he had his objections overruled or never addressed that he accepted that the fair to say which i think your arguing this issue was basically to the jury needed to be told about both of these in some way was basically taken off the table by plaintiffs counsel and that the jury he accepted that the jury did not have to be told that sort of walk me through that he did have instruction be fourteen properly followed and waged on in the northern district for judge b the he did raise it if you pointed out earlier how when when does he lose that instruction is an issue in your mind i think that he loses it at several points i think to back up we don't even get to that point because this claim wasn't mentioned the pretrial struction is when she did not raise it at the pretrial conference or at the charge conference itself the second time would have been raised and wasn't gone just to wasn't mentioned do wasn't mentioned at all they didn't ask her about the charge conferences were mr wage police statement to the judge never gave me a ruling on what's that about well i think that is incumbent upon mr wade to seek a ruling if he wants a ruling on something in and i think that he waived again when the judge gave the actual instructions at eleven o nine the judge said i'm struck you know that the question of age is not fair consideration at this time there's no objection page one one one one as i mentioned earlier the only claim you're deciding at this point is whether the pla if if he just wants to argue that older women are treated poorly and i know you don't think the facts support that he doesn't need to argue with that point he just needs to stand up there and argue that he's closing and he did your honor and that's at page eleven thirty three to eleven forty four and mr wade was able to argue in closing that only younger women were eligible for promotions at t v s so in essence he got that he got an instruction gender discrimination and he made arguments in closing that only younger women were eligible for promotions and so i think that no matter how the court rules on this issue the result is the same which is a jury verdict in t d s favor me you had one juror who is perhaps if not persuaded at least somewhat leading that direction relying on the jury or going with this sort of maybe necessary i don't know this way it was presented to the jury made most of the jurors think we can't talk in those terms not their barking talking about we can't decide it in those terms and it sees me the practical problem not saying there's any legal area or not that's for us to decide practically speaking l plato yes based on the limiting instruction that mr wade agreed should be given to the jury and that's not true even with the limiting instruction the foreman is wrong that they can't take into account the age of the woman and whether or not the treating old women differently they could take into that account so the foreman's giving wrong information based upon his i think it's a his understanding of the the charge to the other juror and then going to complain about the other juror when it's the foreman that's wrong i don't read the record that well your honor i've read that the record is the four it was a woman the form woman i'm sorry no it's ok the four woman was saying that the judge has instructed us we can't consider age and we need to follow his instructions and again that was instruction that that mr wade agreed to but you could consider the evidence that older women couldn't get promotions and that's a legit was argued to the jury they were allowed to consider that and that's not against the instructions and i think that's a point your honor they could arduous and twenty something minute i mean that is an highly unusual your honor i think that of course these cases that go into the allen charge the cases are decided on a case by case basis based on the totality of the circumstances you have to look at the first allen charge which the jury asked for they said they sent back a written questions to the judge and says what happens if we can't reach a verdict in the judge said i'm maybe should give them an allen instruction in plaintiff's counsel does not raise any objection to the giving in of an allen instruction the jury comes out and the judge says you don't have to reach a verdict so to me that's more curative then then coercive because he's telling the jury you don't have to reach a verdict when he first out he said you got to be unanimous go back in so to me the allen charge fixes the situation by saying look you guys don't have to reach a verdict but i'm going to give you the allen charge and there's no objection to the allen charge at that time and in that the allen charge helped to get sick whores and because it told the jurors you don't have to reach a verdict don't yield your conscientious convictions right after he took out it that first one may not be objectionable but calling him back fifteen minutes later to say would it be between calling the jury back for a second allen charge in our case law your honor i did not see a case like that but again based on the totality of the circumstances i don't think it was coercive here in answer to that when the judge gave the second charge mr wayne never said it's too soon your honor you shouldn't give a second charge that was not the basis of the jackson the basis of the objection is that the jury was being singled out because the jurors were polled well that was plaintiff's counsel's own decision to pull the jurors so certainly he can pull them in then claim error based on that and i will also note that before the judge gave the second allen charge he announced i'm going to give them another allen charge and plaintiff's counsel did not respond to that announcement to not say you shouldn't give them a second one in also the record shows that before the judge gave the allen charge it first asked the jury if it made any progress and that's when the four woman said why i think one of us is confused your honor about than structures which in my mind indicates some progress is being made in then the judge goes on to acid jurors can you reach a verdict or not one says i don't think so the other one says i'm not sure and the other one says probably maybe the jury's not deadlocked at this point this is much different than the fossil or case that the primary case that the appellant site where the jury said three separate times we are deadlocked we cannot make a decision the jury never said they were dead that really true that the court made some kind of comment like that at the time of the dinner being ordered i don't think that's in the record here i think the judge said we can get that's not in the records he's our that's extra record yeah i don't i don't i don't recall that happening i think there may have been some comment about how long it would take dinner to come in but it wasn't you guys are have to wait forever that we can call and supper if you want and there was no indication that the jury asked for supper was there ever any comment similar to you guys could get this done in five minutes or we could be here forever i do not think that's in the record your honor and i don't have it right in front of me but from my preparation tonight in my participation in the courtroom that would that not be a highly unusual comment if that were in the record i don't again i don't think it is in the record but if the judge said to you you you only have five minutes left you could do that you could get this done in five minutes or you could be here forever if jeff a court said that it or they give in to allen charges that would be a real problem wouldn't it i don't think so in this case your honor does again the jury never noted that they were deadlocked this was supposed to be a four day trial and we ended early the jury could have come back the next day i was long as the jury hasn't said it's deadlocked the judge could bring them in every ten minutes and say some other comment if they want i'm not i'm not saying that happened here but i'm trying to test your proposition that it's all the most important thing that it's the jury didn't say they were deadlocked well i think the reason that's important is because when the jury says we're deadlocked we can't reach a decision that is coerc to say well i want you to do it anyway even though you told me you couldn't there was no indication that that the jury was deadlocked or that it wouldn't be able to reach a decision will in it be coercive even if we don't know whether the jury is deadlocked or not is there a point at which the court could take actions that would be coercive before there's knowledge of the deadlock or do you say that bright line rule unless you know there's death like you there's nothing you can do that reversible in this context i think in the in the context of an allen charge there really are not any bright line rule is your honor i think you have to again look at the totality of the circumstances in in here the the second before the judge gave the second instruction and inquired as if to the jury as to whether the jury hadn't had made progress let's say the jury said there's no progress we can't possibly reach a verdict tonight then maybe it would have been different but the indication of the record was progress was being made and the allen charge itself told the jury you don't have to reach a decision don't weild your conscientious conviction but try to reach a respectfully disagree that that's troubling at some level i mean i'm not saying it's reversible error but it's not troubling at all i think when i was there it was not because it the german was laughing while the judge was giving its allen instruction i think that a judge has lined discretion to to govern its courtroom and if somebody is laughing when the parties have spent two days on a trial and in and we can't reach a verdict when somebody is laughing i don't think it's inappropriate for a judge to ask somebody to stop laughing while he in will he is delivering his allen charge she was laughing so hard that it interrupted the judge's allen charge in the record shows he just stopped briefly to say this is not funny and then he continued with the allen charge she didn't her at length and it was just him stopping and looking to see why would why is somebody laughing and we did never stablish wives she was laughing at me could be very much exasperated laughter like this thing is going to be railroaded and i have to go along even though i don't want to and the judge is going to make sure that happens you know an exasperated nervous laughter not i we don't know the basis of the laughter we have no idea all we know we know that she's in the corner all we know is that she apologized on the record and said yes it's not funny i'm sorry your honor that's i can tell you what i think happened from being there but to use your honour's have the record so yes it's not clear from the record in the last question i want to address before my time is up is what result here there's not sufficient evidence in the record to find anything else and what the jury already found which is no gender discrimination the judge found no age discrimination and zero plus zero equals i know it's not funny on the court and if you would like some food to be brought into you you can do that as i see it it takes about an hour for us to get that done and so if you don't want any vote then let us not but i long for you to retire again in view of what she said some of you that you possibly could reach a verdict and another few minutes or so spent here would possibly her the pressure is all on her i mean i don't see how rigidly placed an innocent there she started laughing when the court was speaking to the jurors and well you know how we react and counsel probably are tempted at times to laugh at some of because i thought he just say it but then when you remind them it's seven o'clock at night and you're reminding them that when you can either have voted out there would be eight o'clock or you can do that vote and those are the only alternatives and we're dating with a five different occasions i don't know how many more times to do it and i don't know maybe whatever the shot of that i just if a judge says it is age is not going to the jury and at the end of the judge says thank you i'll see you in court or whatever i'm not going to say where you relationship with him and hope to continue that rick we have you kate thank you thank you very much