two thousand and eleven that the date that they put in the verdict form that's right your honor so my question to you is you asked the judge to have the jury clarify that anybody object to that at the time no we requirement is a separate procedure under rule forty nine when there is an inconsistent verdict there is nothing logically inconsistent with his advice it seems to me and help me because i was struggling with this the as you say that question was posed purely for advisory purposes relating to damages having nothing to do with liability and that you are pinning on the liability side all of these arguments  premising all of your arguments on that verdict for but it has nothing to do with liability has to do really fundamentally with damages so why why is this the source of jury confusion that should u verdict because the answer to that question the october two thousand and eleven tape has no connection whatsoever to the only discrimination claim that was before the jury so  to give advice about something generally came back with something now i happen to think that what the district court how it harmonized is not even and reasonable that the see the inconsistency but i also have a problem where why is israel opinion ever consistent so it's not about that the question of whether or not the jury was confused about what claim was actually before and what it is predicated its verdict on is separate from the question of whether the question that the answer that he gave was advisory or binding but in but there's no reason to think that the jury was confused because of a said he would never have been heard to me that they would in fishing when he was also specifically discriminated against at the later time when he applied for a job up there too different from what the the in the question that the jury answered was please set forth the date of d f s is st decision not to select mr sobber for the chief risk management specialist position that was taken based on his national origin into religion that position was not posted mr savva had not applied for it and as a general matter of basically said we don't think these characters would have hired this guy given this guy that position at all on the inception of which you know there's something very funny about this case the jury clearly did not believe the state they clearly believed that this guy who was out because he was an iranian we were very sophisticated they said it isn't really a job it is  nationality the jury head i think quite clearly in mind a picture and because of that picture they gave damages which were way out of proportion because they were sufficiently what it was doing so your responses to that your honor to the question of what the proof of whether there was evidence of a mood or culture atmosphere of anti raney and bias as an agency the only thing that distr district court relied on incision was that from the inception that this regulatory agency was in forcing a federally imposed sanction and that's sufficient to create a mood an atmosphere and called what she was doing she was trying to pin a reason on the jury's note and to me i think that's calgary's he's right i think that they that this jury decided that that was the prevailing araa at this agency and this gentleman was never going to get this job i mean this is a separate apart from the need for the new which was really just advisory which is that which is another issue for you but i take it your argument is that the nature of that n last factual question that the jury submitted before it returned with its verdict was prior to mr sobber filing his out of title grievance how long had he been doing commensurate work with the risk management specialists who were at level that the jury submitted asking a factual question that was not the st time that the jury asked a question about the grievance and the reason we're here is because that grievance and that whole theory of discrimination mr sauber had a separate discrimination claim that was premised on that grievance the district court didn't smith's that entire theory of liability based on the october twenty leavened grievance because not for technical reasons not  for statue limitations are still year to exhaust because the jury found that sorry because a district court found that summary judgment that no reasonable trier of fact could find any discrimination based on the allegations underlying  the answer to this question that the jury posed was advisory is beside the point because it very rarely do we know what the jury is thinking when they are doing their job liberations here we have very strong indications from all the juries conduct what they were focused on be asked about the grievance the grievance was a dismissed claim if it had not been dismissed at summary judgment we would not be making this argument here and we know that the jury picked the october th date because they asked come from the creation of d f s it comes from the grievance because the jury asked about it that was the last question they asked thank you and you reserved two minutes  it please the court my name is doris tram and i together with co counsel represent the plaintiff appellee your honour's i think that from the gist of your questions you see that we're dealing with a jury verdict that was rendered after six days of consideration where the jury was very careful they found discrimination based on national origin they did not religion and they found retaliation now counsel argued that there was a suspicion of confusion well a suspicion of confusion that is simply a hypothesis the defendant is essentially saying maybe maybe the jury was confused well that's simply not enough in a case that is supported by a tremendous amount of evidence and i think to point out that the jury had very good reason to as the judge  indicated think that from the get go from the start of the agency in october two thousand and eleven the plaintiff would not have been promoted to chief risk management specialist an argument that was made to them well there was let me say there's actually a fair amount in the record that goes to that there was testimony that the position was open at the time of the creation of the agency in october two thousand and eleven there was testimony about the new focus at the agency at the time of its creation of targeting institutions that were alleged to have violated sanctions against iran and there was testimony of course that at that point in time a cobra two thousand and eleven that's when the plaintiff was sent to the insurance side of capital markets asked to do and perform the exact same duties as every other market specialist at less money and despite asking for a promotion and filing a grievance agreements which by the way was denied a month after he filed his ego see complaint  that this was you know he had it they had it in for him based on his national origin from the beginning it was argued that it was argued that he was not being treated and that by the time he files his ego see complaint what occurs directly thereafter and it was point out to the jury that you know even when he files his grievance and it's tonight it's an admitted fact in the record schofield and discussing the motions in limine and she rules orally but explains her reasoning on each of the motions including whether the grievance would be allowed in that at the joint appendix pages ninety three to ninety six dollars she says very clearly even though matters may not form an independent basis for making the claim that does not necessarily mean that they're not probative and relevant to the issue of intent the filing of the grievances part of the course of events it's what led up to the counseling it's admissible as a background to explain the counseling parties should not be allowed to cherry pick certain pieces and omit others if it's important the jury's going to hear about some of this to hear about all of it that's the totality of the circumstances that's exactly what every employment discrimination case looks at so judge lo here you indicated you had a question about damages v just scofield did not have the benefit of the personal man management manual so right that was that was not put before the judge that's correct the defendants did and maybe i'm wrong but this in reading the manual it seems to me that their argument is correct that you can't use an extra of the survey but the guidance says well what i would indicate is this the statutory language eleven i would say there is no case to that effect and i think that any court would look very carefully at the language of the statute a personnel bulletin does not have the force of law and i i note that the citation to this personnel manual cites it as a manual being dated in october two thousand and eighteen that's a date that was is that this paid bad for out so says against yours is required in a particular way there is no such case and that would be contrary to the language of the statute so whether there might the plaintiff's unique background in formulating the damages the judge has tremendous discretion in terms of determining whether to peg somebody's salary to a to another person's salary and here impressive qualifications of the plaintiffs so the fact that she would find that he would be entitled to his least didn't much is certainly true and the other point i would point out the judge doesn't really focus on this part of the statute but the statute goes on to say that if any person in a particular title has their salary raised based on qualifications then any other individual holding that title in the same geographical area under the circumstances this case that's still a twelve month difference so his salary wouldn't have been entitle to a raise until may of the following year well i think my problem is the school field but maybe it's you know maybe it's that she's got very wide special but she went down the avenue of section one hundred and thirty one and relied on that reading of the section in the manual seems to suggest that that was wrong and i wonder if it's not a good idea to send it back on a very discrete issue with the benefit of this manual because we were talking about new york law and that's what she promised it on would you have come up with the same damages and now i would agree something wrong with that yes i would respectfully submit that there is no basis to send it back given that that manual which is simply a manual is entitled to deference where it is directly contrary to the clear language of the statute your basic argument is that the district court in a situation like  has very broad equitable powers to do what they are appropriate salary as it looked at hello and said this guy is more qualified than just for a brief points i'll start with what the standard is here for far new trial argument on the jury confusion isn't this court's precedents show that all you have to show is that there is a strong suspicion that the jury's verdict was predicated upon confusion we don't have to prove conclusively that that's what happened but here given the context of all the questions that the jury asked i mean to your point about whether that theory was argued to the jury you can read the opening statements they referred to the grievance also as a promotion on throughout and that may go to the issue of whether or not the jury was confused about that issue he's all the grievance and the allegations underlying many of which miss trout just talked about but those allegations can't be used in this case as pretty as predicating the jury's verdict because that claim was dismissed so all the claims all the arguments about he was treated unequally beginning in october two thousand and eleven that were the basis for the grievance the same the district court found that no reasonable try or fact to find a discrimination claim based on those allegations of the jury's verdict the difference with respect to just the back pay portion is about twenty five thousand dollars but it flows into the front pay that the district court ordered and also the estimated pension losses and to the extent of talk about the discretion that the district court had here courts have broad discretion if there is a sufficient factual foundation here the district court did not have discretion to disregard mandatory provisions of the civil service law we talked about provision one dash a which is the provision th it's subject to those as well they are very they are very regimented and the legislature made it that way so it's true work suggests that there's really no difference  to the manual is binding the civil service department basically controls how agencies interpret the civil service law and here we're talking about whether in the district court misinterpreted provisions of the civil service law and your honour's to section two thousand one hundred and thirty one point two which is cited in our briefs that provision is mandatory and so this is not the ordinary case where a district court could look at comparative hours and say you're just as qualified as the person who got a job because the law controls thank you very much