sort yes absolutely this was a pretty contentious case from beginning to it was respecting how little time we have available to us this morning and again thank you for your time if there's a specific area the city is identified for issues on appeal i'm happy to go through them and sort of descending order of relief requested but if the court is interested in the specific area well start i guess the st you have ok you have a jury verdict all right and so certain sick leave given the circumstances and doesn't the f m l a protect employees that are wrong so long as your belief is subject employee reasonable and so i'm trying to put this in the perspective of the jury heard all of this cisco going back and forth and then but they even though it seems that the city probably could've been clearer in explaining things that seem to  points but it certainly seems that he reasonably believed that he could take a sickly even working night out and then there were the e mails and then the jury also heard in every time he went to a lieutenant's exam that he they kept bringing the e mails up saying that you know he was kind of an unprofessional person hothead that sort of thing i don't i looked at the e mails and they didn't really look that bad i mean the worst thing that he said was well i don't agree with you and i'm going to crave it it's not like you went into h r and so it it seems like you're pushing a rock uphill on the retaliation part of it there a couple of points that i would bring  employees who pose as unlawful activity ok but also the belief that the acts of these unlawful us to be reasonable our position is that it's not a reasonable belief in this case because sergeant grow it was provided with a policy by his supervisor that clearly says the birth of a child back clearly say i read all of that it wasn't that easy to ascertain that i mean he was basically discussing hate my wife i and my wife is dying and i not that clear if you look at if you look at the initial email to the department timekeeper that came up in his promotional interviews he doesn't say my wife is sick he says i refuse to tell you the timekeeper who's observing department rules who's observing the rule that if it's for bonding with a baby you take vacation if it's for if someone has a serious health condition you can take sick and she asked for clarification would you please provide an explanation and he says no i don't have to do that but also your honor i want to point out that that st communication has nothing whatever to do with us in the way it's simply i think i have a right to take sick i don't want to take my vacation you can't make me take i'm sorry i want to say fixation and i don't want to take sick but sick sick leave versus we kishan leave your honor is not an f mily issue the f mily contemplates banks of accrued paid leave and it gives the employer the employee the opportunity to bring them to where it took me forever to figure it out so why couldn't why i i mean anyone that start with h r anyone that has a question and all he has to it he all he has to do is have a reasonable belief right yes our position is that his belief that this activity was unlawful in other words to get to the idea that he wanted to save his leaves that he didn't want to that he wanted to stack it was definitely does not give you the right to do that he has a belief that he could do that is not reasonable because page two of the policies provided said leave will be run concurrently with paid leave banks so did did was a charge just perfectly correct from the beginning and there was no need to have our staff that she checked the box for vacation leave not understanding that this was in fact for a serious health condition that make it unlawful though no i would say that the city's actions were not unlawful under the f in the law i think the city's actions were lawful under the us and the and that's why this belief was not reasonable so that st communication that st e mail i don't think can form a basis for a retaliation claim because again broad even testified at trial he's not thinking about the f mily he doesn't care about a family he cares about six vs vacation he says it didn't enter into his mind that you get to trial and counsels framing this as a quote fight for f m l a rights and i want to point your honor's attention to the complaint you can say you have a keep bringing up in his promotional exams well it just doesn't seem like it has anything to do with anything i think the command staff had not a bad faith belief that they had some concerns with communications with his temperament  and in particular that these were non sworn civilian staff that that that they thought it was not the command staff thought it was not the most professional way to approach nuns one civilian staff member but if i could point your direction if i could point your tension to the complaint the only reason this is an f m only haste to begin with is this theory of stacking which of course is an incorrect theory it was disposed of a summary judgment there's nothing in the complaint about this retaliation it was sort of an afterthought and if you're looking found it the city did not interfere with his ability to take him out lightly no your honor actually the jury in correctly found that they did interfere with his ability to take off and i thought they sounded good but i thought they found that they didn't jury but if the judge found there was no interference then what would be the unlawful activity activity would be well the unlawful activity is got to be an activity that's made unlawful by the f m l a and you are not felipe would have to be unreasonable correct and in this case there's evidence to suggest that staff and h r try to communicate what the policy was what the lawful policy was to broward and that there was this miscommunication that there was initially a refusal to talk about it with the department timekeeper or even though that was a legitimate process i guess under that the standard in a jury i don't know if the jury actually found that there was interference with the f m l and so that kind of and then the judge ultimately said well no there wasn't actually but there was a reasonable belief if the jury actually thought that it seems like and a person could think that i would continue on that that demonstrates the mistake if you are going there was no interference right and the jury still found it correct i would say i said no reasonable person think that under the circuit even if they're wrong it's a complicated statute your honor and i think the jury misapprehended it and i especially think the district court misapprehended it when he says he he continued to say that this belief that you're entitled to claim sick leave instead of vacation leave is an f m only protected right it is not counsel neither counselor of the district  were text of the federal regulations that the city that the city proffered as instructions and they they tend to break out what the what the employer's reasonable expectations are under the f m l a in other words it's reasonable to require a employee to comply with what the internal policy is it's reasonable to ask for more information for assistance and how to code this leave the the sections of the c f r that immediately proceed these were allowed in and when trial counsel for the city tried to point out these regulations the district court completely shut that down and so they had to fight again at the at the introduction of a jury of jury instructions and the district court incorrectly i think found that there was no basis in the evidence for these instructions but again the supervisor sent the policy the policy says you go to h r furthermore the h r director testified in trial that employees are actually required to go through some of these steps and it's informal you could just go to h r you could call someone you could talk to your supervisor but but it's an important struction and it helps give the jury a sense of what the entirety of the law is because it goes to that reasonable this goes both to the reasonableness of the city's expectations in asking for more information and also to the unreasonable most i would i would posit of an employee who was provided this this policy said he read the policy decided that the policy didn't apply to him so unless that unless that instruction you know unless instructions fairly sort of give the jury a whole picture of the law and it was it that was a prejudicial area was like st on the last word then there was this and you're already points but he was always like high on the list and then he wasn't selected to do you have like a rule of three a rule of five or what is it that i mean i've  there's a rule of one which means the person that gets the top after the oral and the written and all of the assessments you have to pick that person then i've seen rule of three rule of five and that means that essentially if you're you can be st all the time but you discretion within the so how many times was he not selected at five in the briefing counsel suggests it's five times i'm aware in this record of of three times the three the three rights to an interview is based on the civil service rules and counsel portrayed this as really nasty of them to continue to bring him back after you know his st interview went bad but really they're abiding by what the interview rules are you can't if we had not interviewed him the nd and rd times there would have been a claim that further than the tracks in the th circuit to see that front page is an equitable issue that is for determination by the judge the court sitting in equity for a jury in this case the jury arrived at a number based on sensually it was plain experts number it was a math problem the math is all correct but the jury is not not provided with the instruction that this is a strongly disfavored remedy very importantly it's only a remedy that you see in cases where the employee no longer works for the ok but the judge knows all this and the jury is dot that's that isn't why the jury he had the jury say as a recommendation to you but the question is ok if did you offer to promote him to bhutan at at what point well after at this well after the front pay when you were making the motions after to say no no no we don't want you to pan the front pay we'll just promote him to lieutenant pretended that that would have been the correct remedy i would say at the time of post trial briefing but it wasn't too late to do that your honor it's not as if the court would have had to throw out all but the judge said that's a super contentious that he didn't think that the person could go back there and administration and he has problems with the brass in the administration so are they the same jobs and how's he doing right now they're not the same you know you're correct about that but i would also say that the way the front page should be tailored should be as a complement to injunctive reinstatement so these this brass that get along with they're going to be gone in a couple years they're still twelve years left on this front page award where he's collecting lieutenants money now if he can make  yes what was the last night at this point if you were promoted he would the front pay is not going to go away if it's just continues correct the front pay is structured to take him through his retirement it's not a temporary remedy in this case like it's supposed to be so what i'm suggesting is an appropriate front pay award would be for six months or a year or two years until he can be placed in the position how long such a for going to be there how long are the people that don't like him going to be there you're asking things that are outside of the record your honor i am happy to volunteer and well i know but i would say six months wouldn't necessarily softer much closer to being gone than sergeant route is i would say that there's plenty of opportunity for an award that gives in front to some certain point and then he gets put in a position to have another like ok look at this new say well why didn't you just go to another job if they hate him he can go to another department and be a sergeant i don't know that he couldn't well thought you i mean if you go to another performs well on his and his job i'm not suggesting that he leave i'm just suggesting that the front page board is against the balance of both president and the equities in this case it creates a situation where he doesn't have to mitigate anything and he doesn't lieutenant i mean he put he was at the top of the west before and every and that everywhere on there they always mentioned this issue as why they just they didn't like that it was a single and your music partner are you amused no ma'am i'm trying to relax and that's i smile when i'm trying to relax it's just a way of me to catch my breath and become centered my wife is sitting in a stand she looked at me to remind me to take a deep breath and relax and so i was following her device  was not opposing on unlawful practice under the f m r i falls on every set of standards if you take a look at the department of labor standards under twenty nine section eight hundred and twenty five starting at that point one hundred and going all the way through point seven hundred it delineates the obligation of the employer to protect the rights granted to the employee by the f m l a and under tw discourage the use of f e m l a leaf as a small time on mr brough the child was born on april nd two thousand and fifteen on april th when he's home from the hospital he calls his two direct supervisor is both of his lieutenants and tells him about the birth of the child now he testified under oath he had had previous conversations with these supervisors and because of his wife's preexisting condition that developed in their st job her he knew he was going to take sick leave off a substantial amount of time off to take care of the babies and his wife so when he called his lieutenants from the hospital one of those lieutenants not at the request  one of those lieutenants went into the time keeping the electronic time keeping tell a staff and intern and several weeks of vacation time unbeknownst to mr brown mr brough a comes home from the hospital at that point do you think there was an questioning the sick leave and on the tele staff and said yes that is that interference at that time no ma'am and says at this time i want to make you advised of our paternity policy that if you're taking time off just to bond with your baby you have to use vacation time you can't use your sick time mr brough responds and says i'm not going to talk to you if the chief i'm taking sick according to my contract and if you want to know the reasons why i have the chief ask but they knew the reason why because she said our paternity policy so they knew h r knew now if you want this whole thing can be just take a look at the designat mr brough that without providing him the notice required under section eight hundred and twenty five thousand three hundred dollars they designated it and they designated him properly saying he was taking time to bond with his baby and therefore d right to substitute accrued sick leave and if you take a look at the interference claim at the designation the reason why the timeline is important mr brough it does not remember he takes his he's on his own normal days off on mark on april th during the birth of his child he takes sick leave in accordance to the article ten of the collective bargaining agreement which guarantees him eleven days a year and states very clearly that the only one who can challenge or certify the use of sick leave is the chief of police and then grants the chief of police the authority to request the medical certificate if necessary so mr brough is taking leave according to the lipase he comes home on from the hospital on may this that you're bonding with your baby and then specifically in three separate notations and that designation did knight him the right to use sick leave now what's really important is to lake a look at the designation what they say is they say we the city of reno became aware of your need for leave on april th that you needed f m l a leave starting on april  th and we have down designated that leave and taking off the chance to substitute accrued sick leave now that under the under the the designation that she sent was wrong she admitted that she had the doctor's notes in her hand at the time that she sent the designation she admitted that she knew that the doctor's notes indicated that he was caring for a sick relative and he was due to use his sick leave your position if from the time they did until trial they took the position that it was correct what they did they still are when i lifted up and then right in front of you right now they still are saying now this is absolutely clerical error it was three times marlene chappell testified under oath she said i asked did you notice that the designation was wrong she testified she she knew that it was wrong after browett brought it up i said did you have enough information in your hand to make the right designation she said she did i asked her why did you send out the wrong designation she stated i was told to the human resources director told to send the designation for bonding with your baby not caring for a serious health condition so not only that but on your i remember on may th when he gets that designation one have he had a crude sickly preparing for this he knew that he was going to take time after the baby had been accruing his sickly specifically because it was his right and that if i could guess at what f m l a how is their house has their interference with his f m l a if he doesn't want it this quarter in a shriya versus foster poultry farms in two thousand i was on that you have all heard me i was on that panel so be careful how you characterize this court specifically said that an employee ride to delay preserve or other deny after emeli leave if in fact even if in fact the f m r i qualifies so in two thousand and fifteen when he says i want to preserve my right so i can take care of my wife in case you are the family case she dies he has the right to do that in a shari'a this court said that was the  not only did they violate his interfere with his rights when they refused to follow that they interfered with his rights when they refused to allow him to substitute sick leave and so that when he responds to the email on ma th he actually responds on my own lab he responds on mail level he responds he's a he is objecting to not being able to delay substitute sick leave and he objects to not being able to the he has a conversation with them she takes it back to the human resources director they writing back an e mail and say you're right you get to use your sick leave now a try how they never sent him a new designation they admitted this never sen him a new designation never credited any account other than his sick but they did not know how much of his aff m l a used or not and two the employer must ask for a leave it the employer is not obligated to know that he has f m l a qualifying levy needs to ask for leave and then the onus is back on the employer to ask him the conditions of the leave and then to make their proper designation and in fact why didn't they try to ask him what the purpose was and he said i'm not going to discuss that with you what the purpose is no that's not true i cause that's what you said that he said the cheap out i'm not going to tell you i'll tell the chief i thought that's what you just represented and then on that same day right after he tells a bookkeeper he doesn't tell the keeper i'm not going to tell you he says i'm not going to put it and tell us in that mean he's not going to put in the reason for his use of sick leave in the electronic time keeping system that's open to everybody at the police department he says i will tell the chief if they want to know says well you know you get eleven day he's the chief deputy chief of ins on then cancels him to stand his ground and don't let them force him to not be able to use his sick leave unused vacation because the deputy chief vents on promotion and deputy chief ends on looking straight in the eye and said i promise you this will not affect your ability to promote a thread out of your closing argument well ha ha ha so tell us about iran or tell us about fr it seems like a real windfall for your client you know st off the thought that even if mr brown were to quit that that would be a windfall is completely conover that's not what we have we have him still with the department so tell me the case authority that supports the a waterfront pay when the employee is still employed with the into to this this theory of recovery has been long  front pay for the duration of that individual's career but so such a bra it was is probably what now they're fifteen years yes sure ok so and this has been going on since what tw fifteen or something like that i don't know st passover was june twenty thousand one hundred and fifty four and a half years ago your honor so is if he can make lieutenant then he would get lieutenants pay you know that's an interesting well i'm just wondering if it's like we're trying to figure out and is he doing ok now or is he what the court saw was that this current administration had taken its time to discriminate against mr brower and they did it for out justification his employee file as the court district court recognized he was a model police officer destined to go forward he was number one he was valedictorian of his class right and they don't have a rule of three your honor he was the number one candidate on that list and that list expired with him still being the number one on that list well but but if you have to put like a rule of three if you don't have to pack theirs and do they have to pick the number one person they do not they take it upon themselves that they are allowed to select which everyone they want of the whole list off the whole list of how the city of reno operates and so at the end of the list when it expired after one year mr brough was the number one candidate and was the only less only one left on it they promoted five lieutenants over him ask can we get back to the law in traxler what is the language that you're relying upon to support your argument that someone who is still employed with the entity can receive front page tell me the precise language in that case that supports your argument because traxler the person was no longer working there right track she was she had  and made the argument that she could not recover and the jury had awarded her one and i know the facts of the case i'm asking you what language in there so poor it's the argument that someone who is still employed with the entity holding in thorne versus the city jail should do and i get that and again much of that applies to someone who is no longer employed with the entity but it's extremely unusual to have front pay do you have one case that you can cite where there has been from other than this case where there has been fraught pay awarded and the individual is still employed by the entity one case thorne versus the city of el segundo she was a clerk typist for the city of el segundo she she tested and promoted to become a police officer and they denied that to her if you  sufficient animosity existed to prevent her reinstatement as a police officer or the court was to establish nine years of if you have to be reinstated it promoted  motive and in that case the court actually remanded it down for a nd hearing on that specific issue and in that case at least else a good o put their chief of police up and said we would hire her back as a police officer now at that time thorne said she didn't want to job back any more ok so that's one front page comes into being if the person does isn't able to go back to the employment so that's that's real books the question as to whether or not front pay is permissible when the individual is still an employee there from pay awarded by this court was clearly only the amount of money between mr brough out sargent pay and what he would have made as a lieutenant and then a commander there is no recovery for mr brough it's base sargent pay so there is no windfall and as the court there's no windfall unless he gets promoted to lieutenant and commander correct and is still has the award right but that is not what is missing is not only the animosity about them and the discussion  that commander waking had with chief soto right after he passed mr brough over for the st time and she who had been his commanding officer his entire career said do not be that guy brower deserves a right to promote and chief soto promised her that he would promoting counsel and he didn't and she testified that she had been lied to counsel could you tell me the language in the morning that you're in line upon to support the argument that someone who is still employed with the agency may be awarded front pay what page are you on again your honor i am sorry as to the page citation but thorne quotes sangster versus united airlines and this is a specific quote when i put it here and now i'm interested in the language that says that someone can be employed with the agency and still receive from your honor i'm trying to tell you this is the development of the law that dorna quote because this quote right here explains why this is not a windfall right if relief is to be limited in any significant measure in all instances where an employee quits one job after unlawfully being denied another job by the same employer that quits out in the employee would be construed constrained either to contribute by his labors to an employer who has treated him unfairly and persists in that unfair treatment or to take less than a whole remedy for injury suffer looks forward to equity and it made a determination well i think the closest language in the horn is assuming that the finance bore no hostility towards the plaintiff as long as she remained a clerk typist is just not follow that but on that way over your time we understand your argument but if i may finish up at one point as was asked did they ever make an offer to promote him when you're thinking about reminding this down to address that that's outside the record so we've argument we understand thank you very much rebuttal thank you are quickly i believe that the plaintiff and resigned from employment i don't want to make that absolute representation certainly you can check that i couldn't find any case where anyone was still employed and got this from their word like this  what if he was promoted to lieutenant would you have a right to go into court and say since we're dealing with equities the equities have changed to award should be reduced in some  way oh absolutely i would think that if the court sitting in equity did the proper consideration here of what all of the equities are things that a jury is just not capable it's non linear decision making great but and you do it after the case i closed say like two years from now let's say you promote him can you go in front of judge jones or his successor and say the equities have changed i don't know your honor i would suggest that would be a very tough row to hoe i don't see i think it would be far more preferable to get it right ok so what did judge jones say when down below i mean he he understood it was his discretionary call it was only an advisory verdict from the jury he heard all the testimony and he obviously felt that  the likelihood was that the only way for him to get full relief was to give him print pay he actually said you know well because it's public safety i don't want to jeopardize public safety he said someone else would have to be demoted that's not fair but again the court is just he's making suppositions at that point there that those are the kinds of things that should have occurred in an equitable hearing and could still occur well but he also knew in the trial there he'd been passed over numerous times that they had and every time that he went to those that i mean that the jury apparently felt like it wasn't likely that he was going to become a lieutenant in the command staff while he was he walked into court and said i don't want to be a lieutenant said i want the not to you know improperly retaliate i do want to say that i think executive said the court could say so executive staff testified that they did not know that they weren't allowed to consider these conversations ok that goes to i think not a bad face discriminate they openly admitted yeah we talked about the stuff we didn't know we weren't allowed to have it in the wake of this case i think it's it's perfectly expectable that command staff would know that what they should and shouldn't be considering in if they're instructed that way by the district court if the word gets stale in other words promote i mean you're not allowed to you know you're not allowed to go into that kind of stuff that's what this case established but essential way if you reduce the front pay as you're asking them what he would have to do if they were tallying it against him in the district discretion because he didn't just say i'm not persuaded by your argument that this was a good face retaliation he said i refused to consider your argument even though in a post from oceans we made a completely different argument which again like i just said is that executive staff said what if i'm a bad face after i'm not going to bring it up in the interview to begin with i'm going to hide my you know mind if arius reasons they didn't do that they they said i didn't we we were objecting to the way that he was treating staff we didn't know we couldn't do that i would suggest that is evidence of good faith that this record is free to not be persuaded by the but the district court refused to consider the arguments that you still objecting to what he did you never said that what he did was ok you're still objecting right i don't why would we believe that they know that they can't object anymore it's still your position they were they're still taking the position they were right i'm suggesting that the s m l way is around the whole in this case is a square peg it was never about f in  talking about all this interference with an already as a matter of law there is no interference because his right to those twelve weeks of leave was never prejudiced that's that's the end of the interference discussion all you're left with this is a reasonable belief of unlawful activity i'm suggesting that if you look at the technical language in the statutes in the regs there's nothing unlawful that the city did here that could be opposed to how it was he was rejecting his f m l a right it's like it's like if you gave me wheelchair access your court house and i said how dare you give me wheelchair access take it back and then once again i asked you about it and guess what i'm questioning here is you're saying trust us we know that we can't do this anymore and we're not going to continue to bring up and retaliate against him if he wants to be a lieutenant but you're still taking the position that everything that was so k i'm making a legal argument in your honor about ok what that statute but i understand that i'm having i'm having a little you know and i'm wondering if apps what the jury and the court were thinking they don't trust you well the jury trusts the city the jury was never even told that injunctive promotion would have been the correct remedy in this case whether or not they trust you or not has nothing to do with