standard for title seven retaliation claim and both of those errors were prejudicial and require a new trial beginning with the evidence three questions really that the key piece of evidence  clemens is germination as set out in the terminations letter referred to that interview with said during the interview you took no responsibility for any of your actions but instead tried to shift blame to others and so the key disputed question on trial was was that correct was question were the question proviso was right about clemens his behavior in that interview or was clemens as account correct and clemens as counsel said in closing argument we will never really know exactly what happened at that interview because it was conflicting testimony on it it was the witnesses were testifying six years after the interview took place but in fact we did have a way of knowing what happened at that interview and that was the notes that the trial court excluded and recollections and were in fact used that way and they were but that there is a limit to the extent to which you know even with the help of notes someone's recollection of events six years before can plausibly be right for the council i have to tell you  when i was in a prosecutor i would have loved to introduce the notes of interviews with f b i agents to prove what someone said but i was stuck calling the agent and the agent had to rely on his best recollection unless he recorded it and there was no record in this case correct that's correct i mean i don't know of any authority that says notes of this type are a business record in ordinary something in the ordinary course of business when there's an eye towards potentially firing this guy what is your best case to say that the district court abused its discretion by not admitting those notes as actual substantive evidence as opposed to as just clifton referred to refreshing someone's recollection that the district court abused its discretion because it made an error of law which is to say the court's decision to exclude the nodes was predicated not on the conclusion that they didn't the basis for them to be admissible anyway the basis for them to be admissible is that they meet the requirements of the rule they're prepared at the time by by somebody with knowledge of the events in the ordinary course of business and what distinguishes them from the inspector just takes notes and you never know that there's going to be you know you know there's a suspect out they don't even know the males really been stolen here it's pretty clear this was not this is not going well between cuesta mr clemens at this point and that's the reason why there's interview so can you point me to a case ninth circuit case that is similar to this that says it would be abuse of discretion to not admit these notes i don't have a case with respect to notes of this type or in the case that i would refer you to does matter a lot of cases that say that but you can't point to one case that says the district court i mean really got it wrong in this situation every day so i mean i think what i take your point to be  that these are prepared in anticipation of litigation and that would if that were true that would be a basis for excluding i'm just going to put that aside that's another problem you have but just show me the case that says notes of this type are admissible a subset of evidence what is that case you're looking for a case civically relating to personal records i don't think we i mean how about any case that says notes of an interview in a chart i mean these are h r interviews happen all the time all the time and tell me a case that says these type of notes and any circuit are admissible a subset of evidence i don't know of one saying they are also not aware of one that says that they're not and we are final decision making a gripe about trying to fire somebody well or whether to discipline them and there are cases that say that employee personnel records are blood but that's what counsel that's time in attendance that's how much money they made in a certain time that's when they have one of the badge into the office with a badge out that's very different then this i mean i think you have other issues in the case i don't get too bogged down in this but but you don't have a case like this one that you can tell us to this is the case why you when know their testimony was much less compelling necessarily than they would have been presenting the actual document which the jury could have looked at and it could have seen for example you know a love in separate times  mr clemens refused to answer questions or in one thousand times he said that he didn't remember the events that had taken place just a couple of weeks before so that's those are arguments we could have made by reference to the actual exhibit which the jury would have been able to look at th with testimony even refresh our the use of the of these notes was a principle either response is a mystery clemens you were interested in as opposed to the comments by mr butler other people with the company it was that there was a dispute as to both but the principle that we were interested in or the way mr clemens spoke in me and with these ever offered is as admissions of a party opponent so they wouldn't be here say in the first place we did not rely on that theory below we did point out that another non hearsay basis for admission was that they were evidence of mr butler's state of mind mr butler said that he reviewed the notes in making his decision so that's a separate non hearsay basis that they would have been admissible like to turn briefly to the question of the arbitrator's decision as the court is aware the decision to admit a arbitrary decision of this type is generally within the discretion of the district court if the only question at issue were the arbitrator's decision standing alone i'm not sure we would have sought to introduce it and if we had we would have a much more difficult argument here but in this case we had two prior decisions one from the washington state human rights commission one from the arbitrator they reached opposite conclusions on key factual points and it was an abuse of discretion for the district  to admit the one but not admit the other that reached a contrary decision and that directly addressed mr clemens's arguments about disparate treatment and retaliation can i ask you about the stipulation i was a little confused because the word stipulation was used i got the sense though that you guys are kind of forced into a corner on this one this record can you can you just take a break want to kind of walk me through how that stipulation was created to the district court directed the part objection and that during deliberations the jury sent a note to the court asking with respect retaliation does it have to be the only factor or a motivating factor and that question was simply wrong the premise of the question is wrong it doesn't have to be either of those under nasser the standard is is but for causation it doesn't have to be the only factor but merely being a motivating factor it is not correct the district court of course has a considerable degree of discretion and whether and how it responds to questions from the jury but what the court said here is the answer to your question is in the instruction and then it read the instruction  but for cause and that statement from the court was erroneous because the jury should not have been told that that their question had an answer in the instruction because their question didn't have an answer the question was is it only factor  motivating factor and that's not a right that's not the correct question it's a question based on a misunderstanding of the law so the court should have said and we urged it to say you're asking the wrong question it is neither of those things but the court  didn't do that and by saying you know the answer to your question is and then reading the instruction that had given which cause the confusion in the first place it implicitly endorsed the jury's and correct framing  and referred them back to it to an instruction and given before that did nothing to clear that up and so that is outside of the range of discretion of the district courthouse in responding to questions from the jury and since that know that was the issue on which the jury found against quest there a confusion as to what the standard of causation was was prejudicial and led to the verdict on that point the do you want to reserve your time please the court my name is alexander higgins i'm here to represent arthur clemens jr and courtroom as well as my co counsel rebecca area and dan johnson our clemens worked for quest for approximately twenty years u ntil he was fired shortly after engaging in protected activity opposing discrimination in the workplace the jury determined that he was the victim of retaliation awarded in lost wages emotional distress and punitive damages those are important because this is not a close case as a proposition by qwest in its appeal the jury found that the conduct of ques was malicious oppressive or in reckless disregard of the plaintiff's rights as a previously found they mr clemens to lose violated his obligations and had concluded the term nation was an appropriate remedy so maybe a closer case than you're letting on because at least one of the decision maker came to a different kind of conclusion well the arbitrator didn't have five days worth of evidence of discrimination retaliation that we put on he heard from none of the coworkers who testified about how mr clemens alleged violations were commonplace syquest and they were nothing out of the ordinary and the mr clemens was being specifically targeted for his protected activity the union president submitted a declaration saying we didn't even put on a case of discrimination or retaliation because we wanted to conserve resources and we just wanted to target the just cause standard so the arbitrator's decision that gets into the issue of whether the arbitrator's decision was properly excluded under our for all three and that the district court has broad discretion to do and he looked at this and said this is invading the province of the jury this is a totally different question than what's before the jury in this case which is was there retaliation and so then there then why was the human rights commission report submitted well first of all there's no assignment of error to that on appeal but more importantly it's admitted because of the long history in the ninth circuit of allowing probable cause determination is made by expert agencies going back to one thousand nine hundred one in the plumber case where there's more of the juxtaposition of the two seem at all peculiar to you not really when you look at the judge's instructions the judge gives an instruction to the jury that says look there was an arbitration it was a thirty eight page written opinion not going to give you the whole opinion there's an arbitration found in favor of qwest on these performance issues that you hear about at this trial found that that these happen the human rights commission determination you can take a look at but it's only a preliminary finding the human rights commission does not make any credibility findings it doesn't say this person is telling the truth this person is not tell not an adjudication it's not an adjudication where the arbitrator is making an adjudication about cry ability in the judge is saying whoa wait a minute that's for the jury to decide who is more credible who's telling the truth who isn't and we had so many more witnesses who were able to testify at the trial they were able to be called by the union at the arbitration that the jury had the right to make a decision free from the prejudice the unfair prejudice as the district court found of having this confusing thirty eight page written opinion from the arbitrator basically trying to decide the case for the jury i do want to talk about the other issue that counsel senators don't have in her near your answer to my question which doesn't the juxtaposition  two seems a little peculiar i mean you have in one hand a an actual adjudication by a neutral on the other hand what amounts to a probable cause determination by a prosecuting agency and one of them comes in on the other one doesn't and the one that comes trial discrimination and retaliation the arbitrator did not decide those issues the arbitrator decided under totally different legal standard under just cause and so it was only going to be confusing to the jury about  saying oh well i found that the plaintiff was not telling the truth about this performance issue or that performance issue i'd like to address what opposing counsel has called the key piece of evidence the july eighteen notes that the judge  was well within his discretion in excluding a trial every management witness was able to testify fully about what transpired in the notes including any admissions by mr clements that were made at that time there was no substantive fact excluded by the district court he only managed the form in which the evidence would come in and it would come in through oral testimony the question from the bench about do you have a ninth circuit case saying that this kind of thing is a business record and the answer was no we have a ninth circuit case that says that this kind of thing is not a business record and it's not exactly an h r interview but it's close it's a special investigatory audit and that's the patrick case it is in our materials i don't have a page number we can track it down thank you further the court was well within its discretion including that in concluding that the type notes did not have sufficient in trustworthiness they were not made at the time of the interview in fact qwest intentionally destroyed the handwritten notes that were taken contemporaneously and they used the word destroyed their own witness e five five six further the court was very troubled by the fact that they were selectively edited one sided and passed around from manager to manager without even a recognition of nobody could even claim authorship of the notes and that's on having not succeeded in convincing the district court that these were trustworthy quest tried a back door approach of saying well this must go to the state of mind of mr butler who was at the meeting but mr butler's decision was made because of what happened during the meeting in fact mostly he was his mind was made up even before the meeting occurred four weeks before the meeting he suspended mr clemens without pay indefinitely during the meeting he went on for many many pages of testimony at trial about how poorly mr clemens acted during the meeting and that was his decision he described it as a trainwreck there was no need to review the meeting that he was present for to confirm his negative impression of mr clements he was there he never explained to the district court why he needed to review notes for a meeting he attended the only thing he could say the entire sum of his statement about his alleged reliance is that it was pertinent asked an answer to a leading question from  counsel three one nine they cite to e r two eighty five in addition that's just wrong that's about notes that mr butler reviewed that were taken on july nine two thousand and eight of another witness in any event quests weak evidence that butler somehow needed to rely on notes of a meeting he attended was not persuaded to that persuasive that the district court and they were excluded any error was harmless in this case because mr butler was allowed to extensively use the notes to refresh his recollection all management witness testified and this was a case where punitive damages were assessed against qwest one other thing i want to point out is counsel begins with a quote from closing argument that that i said we will never really know what exactly happened and the sentence goes on in that meeting because the original notes taken by rebecca floors were destroyed but more importantly on the harmless error issue just above that i said who was rude to whom this train wreck of a meeting they had an unpleasant discussion well maybe they were both right maybe they were both right from their perspectives so the case we really didn't just wasn't decided by the jury based on was mr clemens or not we conceded that mr plumbing's was probably not very happy at that time and may have been rude in that meeting so this was further evidence that this is a harmless error if any error was committed although we don't think there was an the next question is whether the district court correctly answered the jury's question about sole reason or motivating factor and it did by redirecting the jury refocusing them on the answer which was that if the terminations would not have occurred but for the protected activity venue fine for the plaintiff now that's a double negative and is a little bit hard for a jury to get its head around but that's what the ninth circuit pattern instruction is and that's what the district court thought it needed to reiterate to the jury and if the jury still didn't understand it they could have asked another question but they didn't there is no evidence that the jury disregarded that answer the law presumes that the jury in fall that the jury actually followed the instructions and the answer by the district court and if this court reverses on this basis then every time a district court has a question from a jury about a pad the meaning of a pattern instruction the district court is going to have to provide some further unknown elaboration which will lead to another appeal an a llate decision about whether that was a correct elaboration or not further any error was not prejudicial under the law of the ninth circuit there is only error prejudicial error when the looking at the instructions as a whole the  does it do you think that could i mean that i want that this is serious that their confusion in their response by the court actually cleared that up i think the response by the court did answer that question because it basically said you're looking at the wrong instruction and it read and it really read the correct instruction to the jury that you have to find that the term anation would not have occurred but for the protected activity which is in essence a little different than the motivating factor standard so yes i think the jury was possibly on the wrong track and it also would have been on the wrong track had it been deciding certain factor which is higher than but for and so the judge answered it scuse me by redirecting to be correct announcer under the law all right the next question is about i want to go back because i got out of order a little bit i want to dress the arbitrator's decision one more time and that is there is quest cannot cite to a single appellate court that has held that it was an abuse of discretion and that a district court should have admitted an arbitrator's decision in a discrimination case i just want to make sure i said that we talked about your cross appeal for a moment yes so as i understand your argument that it's possibly a remedy is supposed to be to make someone whole and if you give them all the back pay in one lump sum could he could be in a higher tax bracket and therefore it's really not the same as being made whole now i think and that rule would work conceivably both ways so for example if congress were to pass a law that because everyone's taxes to five percent or whatever the current proposal is to  that's true in this case it's undisputed though even by quest's own expert that mr clemens was not made whole their expert submitted a declaration that he was short changed forty thousand dollars by having to pay all of the money in one tax year as opposed to being spread out over three tax years our expert decided sixty thousand dollars and the court declined the district court declined to exercise its juror its discretion it said the ninth circuit hasn't explicitly authorized me to do so so therefore i'm not going to do it and so the standard review on that should be dyno vote because he made a legal determination about the availability of the remedy now even if he had exercised its aggression we think it's an abuse of discretion not to award what at least the defendant's own expert says was the amount of harm us supreme court has stated that title seven is designed to make a plaintiff whole and that courts must provide equitable relief to make a plaintiff whole because there was no dispute about him being not made whole then the court had to act ques argument that it is a legal remedy not an equitable one is waived because it was not argued below they didn't ask for the jury to decide the issue which is what they would have had to have done to preserve the beleaguered large amount they in fact said it was equitable they said this is this is not equitable in this case and agreed that it was an equitable remedy at s three three four and three three seven that argue that argument now has been completely change one hundred eight degrees now they're saying oh no it's not equitable at all since we lost now we're going to say it's legal and we believe that that is wrong there's not a single appellate court in a country that has held that it is legal not equitable every court is unanimous there is a split on the availability but three courts of appeal have held that it is available the third seventh and tenth of all held that it is an available equitable remedy and we urge the ninth circuit to do the same thank you thank you or something altogether different would have been a basis for setting aside the terminations and so when the court when the arbitrator found that no such disparate treatment had been established which he said explicitly at page one twenty five there issue preclusion based on the arbitration award no no we did on your honor but we are argument was simply whatever probative value either it or the state human rights commission has  if the one is going to come in that the other ought to come in as well with respect to the notes notes of disciplinary and personnel decisions are routinely used in employment  litigation and what really distinguishes these from some of the hypotheticals that the court was raising is that these are used by both sides to the proceedings mr wylie the union representative who was at the meeting said that he uses the notes as a representative of the union and that he understands them to be reliable and they can be trusted to be an accurate reflection of what happened at the meeting for both both the unions purposes and the company's purposes with respect to mr butler state of mind the evidence referring specifically to to this set of nodes as a page to anyone into eighty two you are finally on the instructional point we're not saying that the court needed to rephrase the pattern instruction it was perfectly fine to stick with the pattern instructions the problem was saying that the pattern instruction provided an answer to the jury's questions that statement by the court that was erroneous the jury should have been told that but the question as stated had no answer on the cross appeal  has been discussed there's a circuit split on the question of the availability of the gross up for tax purposes it's our position that the court may not and should not weigh in on that circuit split the district court said that it was declining to exercise its discretion so that other statement that clearly recognized that the first part of this given the lack of a in this case this matter you submitted move on to the final case for today's calendar northwest school of safety versus