panel for rescheduling this argument at my request my name is marcy glahn and i represent the appellant united airlines this is discrimination appeal is primarily about pretext which plaintiffs needed to prove because it was under spirit that there was no direct evidence of causation no direct evidence the plaintiffs ages caused united states citizens to terminate them and also because it was under spirit that united had proper and nondiscriminatory reasons for those terminations decisions specifically plaintiffs and made it violations of united policies and their admitted lies during the disciplinary process i don't use the word lie lightly but that's what plaintiff's own attorney mr lane said to the jury during the trial and i'm quoting in pretext we look at the reasons initially and the reasons later and so just as you've described we have two different rationale going on here we have the initial charges that was that were relied on and then we have the dishonesty or a large house report that well actually the consistency isn't the violations the investigation began with a complaint by another flight attendant about plaintiff's conduct in watching videos during a flight while they were on duty and that was what united investigated when it asked mister back way to observe and that was also what united found that the final ations were in the end at the same time mister whitaker who was the decision maker took into account plaintiff's credibility as any decision maker would have to do as he listened to the facts and the evidence presented by united and by the plaintiffs themselves he was in some cases hearing inconsistent stories plaintiffs change their stories along the way so yes to that extent he was certainly paying attention to their credibility and that wasn't something that was part of the initial charges against them mister dodge after he investigated their conduct he prepared letters of charges that were strictly focused on the policy violations that he concluded there was evidence that they had committed it was when mister whitaker met with them have conducted the hearings and heard their story that he  discipline or you could be imposed another words they were the predicate or would be the predicate for any discipline that was imposed i thought that that was the policy and understanding of united and his and that's one question i basis to impose discipline so i guess my question is is that not the case that the letters of charged words most of the find the balance of the grounds for discipline and if so then why isn't it a regular for him to consider it an independent bases that dishonesty and that i really don't think that he did consider it as an independent basis i think he factor it into his determination i actually think the paperwork the internal paperwork that he sent to united's human resources department which plaintiffs have pointed to actually as a procedural irregularity it wasn't that because that paperwork wasn't required at all but what it does confirm is that the violations that he found were the violation stated in the charges he did not find as an independent violation and these people are dishonest and therefore they deserve to be terminated but i thought his testimony improper right or regulars well i don't think it would be improper not circle back that but i also don't think that he rd very clearly as you read it judge holmes that he was finding their dishonesty an dishonest i thought praise to the extent that he could not trust their testimony but when he said about why he was why he reached the decision the termination decision was is on page three thousand five hundred and eighty two dollars of the appendix and there he said the safety and security of that aircraft was paramount to me i think the lack of focus on our customers was very concerning to me again this is not normal behavior to do this this is not something our flight attendants do do and so the consistency is on the focus on the violations which were initially in the complaint the missives presented what was in the letters of charge what mister bad way reported on he certainly had no ability to report on their honesty or dishonesty significantly mister john made a point of drafting the letters of charge even though they had been dishonest in during the investigation process he didn't include that in the letters of charge because he wanted to focus and he knew he needed to focus on the actual policy violations oh i'm not sure how that helps because i mean it suggests that their dishonesty would not have been something that would have been included as a regular course of pay as a basis for lie during the investigation and don't lie your hearings probably have a good lawyer if i have i suggest that it's a given in any employment relationship and in any disciplinary process that it's a good idea not to line that you don't need a policy to say that and you also don't need to charge someone with dishonesty in order to take that into consideration when the hearing conductor is deciding whether to believe what they hearing as a factor influencing his determination of the charge conduct as it relates to that isn't the charge conduct very wasn't the record doesn't record say the one could conclude that the kind of conduct that took place here was rarely the subject of discipline of terminations on a st fence well i would have to disagree with that there was actually only i'm asking you if there's evidence in the record that you're aware of who i mean not that the where is the only evidence in the record this kind of offense in another flight attendant who was terminated after the incident the incident being watching videos during a flight now the plaintiffs will tell you why the facts in that situation were more agree just be that as it may the fact remains she was terminated there is no evidence of any other flight attendant being disciplined for watching videos while on duty on a flight there is also no evidence that united was ever aware of any other flight attendant watching videos because its policies prohibited go what are reasonable jury could infer that some deviation in policy reflect the pretext to discriminate absolutely and i will tell you that there is no policy that required united to impose a reply progressive discipline missis like the tillerman case where the progressive discipline argument was a fallacy because while the collective bargaining agreement included progressive discipline as an option it was completely discretionary and you wouldn't be surprised that when we're dealing with flight attendants who are entrusted with the safety and security of passengers that united collective bargaining agreement made there's one thing to say that you employ we reserve the discretion not to who are progressive disappointed in a particular instance that's another thing you say in the overwhelming majority of cases in the majority of cases progressive business judgment rule and they did it because the employer proffered a nondiscriminatory proper reason for its decision and regardless of whether the judges or the jury thought it was a wise or unwise or correct or incorrect or just plain dumb decision they respected and employers right to exercise its business judgment as long as there was no evidence of discriminatory animists as long as the muslim not only think well belief that and that's characters there and if there's evidence discriminatory animals rape and you can't stand on it's my business and i can rob salut like absolutely but there isn't that evidence here and the pretext evidence the plaintiffs rely on aid doesn't prove pretense it's insufficient evidence a pretext for all the reasons we've argued and i don't have time to address right now but beyond that it certainly isn't evidence of discriminatory a court my name is david lane for plaintiff billy's oh i'm going to pick up right where counsel left off with a business judgment question in order to avail oneself of the business judgment rule they have to believe that their actual reasons for terminations were business judgment a jury concluded here that no those were pretextual reasons they were not exercising business judgment they were engaged in a pretext to fire them for it discriminatory reasons which is exactly what they did and in answer to judge holds us comment about what about you know terminations for these minor violations we cited a case called salter versus wal mart out of the th circuit that talks about swatting a fly with the sledgehammer it's on page forty of our brief but that's exactly what happened here ten kyle the union rep testified that he expected maybe a letter of reprimand worse and he also testified that yes indeed there is progressive discipline at united airlines was not progressive discipline the apparent rule is that you know if there's a major safety violation a pilot or a flight attendant shows up drunk they don't have to go through progressive discipline but if if something you not wearing an apron when you're doing drink service or you're serving water the wrong way minor violations it's been progressive discipline and mummy and mommy framed this way the question is not  you know i mean what we have here is a brief you know submitted by united airlines that goes on and on and on making the same arguments the exact same arguments that were rejected by the jury at trial they make those arguments to judge the late it's daniel who rejected those arguments at half time they made the same arguments to judge dominica who rejected their motion for a new trial and now they're recycling the same arguments to your honor's but it's a completely one sided argument if i don't know if any of your honors have you know deep drilled down into the transcript of the trial it sounds like perhaps yes  these witnesses were impeached at every turn of the road and you could clear the clear jury instructions which were never disputed by united  airlines the credibility instruction not objected to that's number one thousand one hundred and twelve the impeachment instruction not objected to seventeen age discrimination elements not objected to business judgment instruction eighteen the air progressive discipline issue there was some statement i think in the briefing about well we didn't have to reply that i meant it was testimony we didn't have to apply that to these plaintiffs because they were union members but i think what they were testifying to is a progressive discipline only applies to attendance issues now but about disciplinary issues and that that was a point of dispute during the trial that united has apparently changed their policy and now progressive discipline only has to go to so that attendance was progressive discipline and in fact when this term these terminations occurred the testimony was from str and kyle that yes they have a progressive discipline was the rule of that that it's me ask you assuming assuming this and sake of argument that we were to find that there was error in the mission of the the stress evidence what's what's your if strongest top line argument for why any such error would be was not prejudicial well st of all we have a jury instruction  from the court and i'm talking any jury instruction number twenty emotional distress damages are not available to plaintiffs secondly the jury instruction num r hang on a nd it's the constructive discharge jury instruction the constructive discharge jury instruction talks about how would a reasonable person feel under these circumstances so the jury instruction itself as the case law supports how would a reasonable person feel well then that opens the door to some very very nondescript testimony and non controversial testimony about well how did strootman alethia what about this and did they feel the same way a reasonable person would feel the actual jury instruction uses the word  so i had no choice i had to resign that's garden variety testimony there is nothing prejudicial about that especially in light of the jury instruction that specifically said they don't get emotional distress damages they complain about oh well you sandbagged us in discovery we asked about that you said there's not going to be any significant testimony along those lines and there wasn't had we put on a psychologist or a psychiatrist or some witness to testify that these two were huddled under their bed in the fetal position crying about the emotional distress they suffered then they'd have a point but here judge daniel specifically limited that testimony to how did this how did you as a reasonable person did this make you feel like you had no choice which is consistent with the jury instruction on constructive discharge so so that is my answer to that issue brought to the trial well it is you know as has been said the u s supreme court and reverses sanderson plumbing is recognise that in the st century employers are savvy enough not to make a was no direct evidence of age discrimination i said that to the jury all say that's of this court because employers don't give us direct evidence in the st century it's all true and true but you don't i mean you don't win a case on pretext do you i mean you have to you have to prove a discriminatory animus you can prove that their reason that they that they cooked up is a lie or are disingenuous but you have an initial burden well we have the initial burden of going forward to show that they were in a protected age category which we did that they were adequately performing their jobs and they got terminated and that the reasons given for the terminations were protected will reverse the sanderson plumbing says pretext evidence alone is more than sufficient to sustain a finding by a jury of age discrimination and in fact the age discrimination instruction which was given to the jury which was not objected to by united says just that if they find pretext they may infer discriminatory intent they don't have to but they may infer if the offered explanations by united are so outrageously ridiculous that they then may infer that the actual twenty one was correctly stated by the court did united know and did they act and rest reckless disregard about whether their conduct was prohibited but hazon paper says there is not a require two tiered analysis the same evidence that supports a finding of age discrimination is relevant to a determination of willfulness united admits that on page nineteen of their reply briefs they said what yes i don't get i don't necessarily contest that i but you how do you distinguish i mean what what is it about your evidence that that pushed it over the top i mean i'll give it to you have the do for argument sake that you beat on and that you were able to get a verdict but but what pushes you over the top as far as well from ok willfulness st of all mister whitaker that this is a maker in this case testified at trial that before you can terminate someone and i did you have to contact the legal department not the h r department used to be the h r department but then he said a tro you have to contact the legal department so presumably that's great evidence that united which is a multinational multibillion dollar corporation understands that the law of age discrimination exists and then did they did they act in reckless disregard to that law and the answer is based on all of the outrageous pretext that was shown that is evidence of willfulness as well they were aware of the age discrimination laws because that's presumably what was told to them by their legal department well but even even his to that from united's perspective so is it a petition then that if you know about the eighty he received training and you go to court in lose that you're it's ipso facto you've got a willful violation  there could be a situation where for example a low level low level supervisor is engaged in age discrimination but the company itself is not and this low level supervisor  reasons for terminations but the company is good about age discrimination and they don't know anything about this and the company may have even been negligent in not looking into this more deeply then that's not on the company's part but here they ran this up the chain of command all the way up to their legal department and these are such minor transgressions to terminate these two  very senior employees that the company could be seen to have acted in reckless disregard of the age discrimination laws when you're terminating a thirty year employee like jeannie stroup for not wearing an apron come on somebody needs to look at that up to corporate chang when you're terminating her reuben levy for turning sideways during a safety demonstration and you know handing out plastic cups in a way that united doesn't like or using your butt or sitting on a crate all of these were totally shut down on cross examination they are protectable reasons and united has an obligation if some senior employees are going to be terminated and legal gets a call from whitaker you know i think they need to look at it they can't just recklessly disregard the protection will nature of what's going on here somebody united needed to say we're just terminating two employees of seventy one years experience with united airlines group an elite was given a commendation for his actions in saving a flight monday that had to do a belly landing at dulles airport because their landing gear didn't work he was the guy that got everybody out of that plane safely i mean come on that wasn't considered by united airlines in the terminations decision someone up the corporate chain needs to look at this and they didn't and that is reckless disregard for the reasonable person feel and by by invoking how someone feels that opens the door to very limited emotional distress testimony which is exactly what judge daniel limited it to here it was an extensive it couple points i need to make progress of discipline mister kyle the union representative did not testify the progressive discipline was required in the situation i refer you to pages thirteen to fourteen of our reply brief where we fully explain what he did testify to and what he didn't testify to i have to push back on the premise in one of the questions and certainly in counsel's responses that these were minor violations i'm not surprised that mr lane is focusing on the apron and wearing a name tag and all of that but the testimony the evidence of the decision maker was that mister whitaker based his terminations decisions on what he deemed the serious violations the the watching a video on a short flight when the plaintiffs did not have any breaks hunched in the back of an airplane with their backs to one hundred and sixty passengers for which they were the sole flight attendants had sole responsibility with a video on an i pad beverage cart while they perched on unsecured metal carts it's in our brief we have a picture of it on page ten that was a big deal to united those who were serious violations when you're talking about a plane her link through the sky as far as the what the jury decided on that that proves these are minor absolutely not that's the whole point of the business judgment rule it doesn't matter whether we are the jury things that these were ticky tacky stupid little violations as mr lane called them in his closing argument that is irrelevant what matters is whether united honestly believed that they affected the safety and security of the plane and violated their policies and if they thought they had a good reason to terminate them wrong or right and the cases make that very clear are briefs will address have to rely on our briefs to address the questions that were asked on liquidated damages and a motion stress i believe that  actually cover those points adequately but in closing i would just like to emphasize that if this verdict is up held what that means is that flight attendants with the make on a major airline with all these people in the air can disregard their duties watch videos repeatedly not just on this flight they admitted doing it repeatedly and then lie about it using the cigarette on the flight whether it was lit are not late it was undisputedly out and  and the airline cannot take disciplinary action against them it cannot exercise its business judgment to enforce its policies i certainly hope that that is not the law in the transfer thank you thank you counsel thank you both for your arguments