seven retaliation and breach of contract against the postal service the jury found the postal service liable for breach of contract but was not permitted to award miss phillips damages lower court well let's stop right there i have to why i found this record really confusing and it is pretty clear to me anyway that yes there was a title seven claim and that there was a contract and the eventual verdict is worse than clear and there were a heck of a lot of events intervening that suggest to me that it might not be is easily said that the jury and did not for example if i understand correctly the jury instruction did not provide food or provide instructions to the jury for who w damages on the contract when your honor i think you misspoke a moment ago when you referred to title seven just for the record is clear the the jury found for the plaintiff on the contract i did not speak i said that because i understand it's a contract compensatory damages on the money on the country it was not differentiated your honor because our position was that the compensatory damages were the only monetary damages that she could recover we agreed that she did not  suffer any lost wages or anything and so the two con to two claims that the damages available for both conrad going to in one of the conferences that you had with the district court where you indicated that what you would do plaintiff's case suggested that it may be better if there weren't additional jury instruction to address a compensatory damages or damages award for the contract itself up until take out that language or that defend and preach that settlement agreement with plaintiff so doesn't that imply that you agreed that the only relief you were seeking on the contract claim was specific performance but no your honor it does not imply that because the jury instruction that said that the damages were co extensive remained in the defendant was expressly alerted to that fact before the parties conferred and slightly revised the verdict form however the verdict form that both parties and the court permitted to go to the jury at the end of closing argument provided that the jury could award damages on the line for damages on a finding of liability under either going ok i think what happened in conference was that the defendant was had raised an issue the parties when did some research met and conferred and they together agreed to one revision but i understand why you agreed to that deletion of that language or there aren't any monetary damages damages under the contract itself i mean isn't that pretty clear yes right there there are no when you say there are no monetary damages under a contract that is the say it's not a traditional commercial contract where you say extensive to the extent we were looking for anything under the contract we would come back to the court for injunctive relief or otherwise yes what is it because at that time the coextensive instruction meant that a finding of liability under either of the counts would entitle us to damages awarded by the jury all that we were saying in that context was if you leave then the coextensive instruction and you leave the verdict slip as it is we would contract under contract and under title seven our client was inside of the compensatory damages and the other damages whether they be attorneys fees or equitable relief in the form of specific performance or other directions to the postal service to comply with title seven those would all be reserved to the judge so it's perfectly consistent and the judge was the one who who proposed the jury instruction that said that the claims were co extensive in the first place the parties all agreed to that before the jury retire in this case i don't think there can be any doubt that when we made our arguments and the parties agreed to the jury instructions and the jury instructions correctly stated that the damages available were co extensive and it permitted an award compensatory damages as provided under pennsylvania law for the breach of this kind of contract that it correctly stated the law and that it was error for the judge to go back after they had been delivering for three days and change both the substantive jury instruction that we relied on as well as a verdict slip and remove that power from the jury to award damages upon a finding of liability when the judge further refused to award any damage contract how would we know though i mean how would the jury that gets that is should know how the contract was breached as i recall the contract talked in terms of the not taking action now on account of the  first discrimination claim in certain specific respects how would they know how the contract was really going to be time is almost up but i believe there are a way to go about it would be that a that the parties would be permitted to present a summary of the evidence that supported the some declaratory or injunctive relief after the jury or judge that is correct your honor she awarded partial relief but not all the relief that was pled proven and demanded a trial my times but i know your time is up but if you want to ask the question on the sanctions issue ye interesting as well that the postal service did not express the raise it i think that what is clear in the briefing below on the motion for sanctions that was originally filed is that the postal service is response to that was many  was we didn't the rule that required us to maintain e s i wasn't in effect as of that date that was their first offense their second defense was well you know we don't issue litigation hold notices until things get to ministry of the third thing was they did say well this was our policy that we just destroyed everything's of every thirty days regardless of any pending litigation so i think that by implication it was there although it was not express raised i don't believe that they are entitled to the safe harbor because the good faith routine operation of electronic information system requires the parties intervention to modify or suspend certain features of that when litigation is reasonably foreseeable and but there was an instruction there was an instruction to the jury that contract damages would be coaxed pensive with the callee and there was that iranians instruction which meant and objected to on was obvious that the understanding that is that if there were a finding of liability on both claims they wouldn't be entitled to double damages however instructions as a whole and the jury verdict didn't give but the wasn't intended to get the jury the right to award that amount satori damages that issue was discussed plaintiff had an opportunity to proffer specific damages instructions related to a breach of contract making clear what they are and in fact when the issue was the vault during the course of jury deliberations it was then for the first time the plaintiff offered it an instruction as to what contract damages would be that point he pointed to the pennsylvania state law regarding when emotional damages emotional distress damages might be available from this record what evidence supported the breach of contract claim we know from this record what her title the you have a jury finding that we have a jury finding that it's but to revamp and and it's certainly not clear it would be a argument of the case to go back and say what kind of what conduct to argue about what conduct breach the contract plaintiff never made a case as to what case section four zero nine eight provides a basis for jurisdiction absent some other statutory provision excluding that in the recent case this court issued in another postal service a matter of of the breach must all and there is a procedure that is gone through and if the employee demonstrates there's a breach then he has former point that have been resolved is put back that that is precisely correct but what happened here is that the agreement basically duplicated what title seven says and there's a subsequent there were certain acts that came up later that's not disputed there were acts that that occurred after the settlement agreement that we're not sure which ones but apparently the planes position was that some of those acts violated that the agreement  or it certainly should have been if there was confusion there were the government not used postal service cases and perhaps not a lot of title seven cases  made arguments that you would make with respect to any other governmental agency the court bought them dismiss that could be the claims that are you know should have gone to the federal court of claims or something else as a and it was only after that ruling the plaintiff finally found four and i'm seeing came up with a basis for jurisdiction the government had argued that this is going to make the case very confusing which it did but it was not pursued further at that time it certainly should have been there was confusion from day one of the trial as to what the difference between the two claims were i think there continues to be confusion it's a confusing record it's it's not straightforward but  provision that says don't retaliate and on the sanctions question it is clear that the postal service did not timely implement litigation hold right yes that is up that is true they should have moved a little quicker on that now how well i think you have to look at it in the context of the entire case the plaintiff has never argued nor would there be a basis for arguing that the postal service had some duty to to issue litigation holds higher for the time that a formal  trial that supposedly were acts of demonstrating some sort of hostile work environment occurred before that time there would not have been there is no way that there wouldn't been a litigation hold in place that would have protected the destruction routine destruction of any of those obs so we're just talking about a few months while the e o complaint was compound pending that on the main server of the postal service these these e mails weren't preserved oh employees and supervisors have preserved their files they have to do that all the hard copy files relating to talking about handling and i think that covers the jurisdictional issue and the abuse of discretion i would want to point out one after this entire trial is over then the final verdict was reached at that point in time the plaintiff changed his whole theory and argued that liability was coextensive at that point the government said well if that's what you're saying brown versus g s a the contract claim drops out your point being that prior to that time all of the discussion relative the plaintiff was not feeling the title seven judge there is no relationship between the of the damages ruling and the title seven judgement itself no connection whatsoever there the intention to appeal the title seven judgement wasn't on wasn't obvious and again there were there was on line normal cases where  are were issues that had we known that the plane was going to feel anything dealing with that led up to the title seven judgment and that finding of the jury that he we were not liable under title just a few points if i may on and some across on the in selma crossing case like a specific li address the contract disputes act that act applies to a very limited scope of certain contracts concerning real estate and it's sort of commercial contracts that usually are to that case and that law c d a has nothing to do with an individual agreement between the postal service and miss phillips in this case as to the preemption argument brown simply says that if you have a discrimination case you bring it under title seven you can't bring it under the state law and we certainly don't dispute that the rest of the points that we made in the reply brief on that point clearly establish there's no preemption here and the argument from the postal service is that the contract claim somehow should not be allowed in the first instance again was obsoleting argument that they raised after the close discovery where they said you didn't assert forward to a waiver of sovereign immunity that was the first argument to try to get rid of the contract claim that was initially agreed to and then the court allowed it to be reversed  by filing in many complaints of so on the three preemption issue that simply does not apply the only thing that i think is important to notice is that while counsel refers to this case and her client as the government the postal service is not the miss phillips common law a right to bring her contract breach claim of action as a supplemental claim to her title seven what period of time to read alleged acts of retaliation encompass all the way up through the present or are there still content so you would have had evidence from september of two thousand and six to may of two thousand and seven television absolutely right and i wanted to make that point when the postal service i did not hear deny that they did absolutely nothing to maintain even that the document that the hard copy documents of communications that were relevant to miss philips what was being done to her on the work floor on a daily basis and what the managers reactions were once the new e o was filed so you are correct sir that the the fact that they didn't maintain the records from the point of the filing forward is absolutely relevant because the retaliatory conduct continued as i said through through the time of trial and in fact richard till today the so have you brother a claim for breach of the district court's judgment of that will cause the postal service to recognize that it needs to stop its conduct towards her that it may very well be that mr phillips will be back before the district court in any event i think that that would be unfortunate and unnecessary when the court has the opportunity to that's in the record that cannot be disputed the postal service tried to pretend it did not receive the formal complaint when my father unfortunately passed away shortly thereafter but we were able to to get them to process it and take it to the only other issue i think that i'd like to address again on the sanctions issue is that the court's ruling below impose an impossible burden on the plaintiff in this case where the standard  under schmidt and brewer is that the plaintiff only needs to be able to point to evidence and give a concrete plausible explanation for what the destroyed evidence would show in order to give rise to the inference  occurred i think that was wrong i think we've addressed that in our briefing and i also think that it was wrong as we cited everything that there's any requirement of showing bad faith if you fail to stop the automatic destruction that is intentional conduct and that is sanction