jordan returned from his reserve duty and given his old job back work for a month and then was discharged for good sufficient nondiscriminatory cause would he have a right your argument the district court's jury instruction had the effect of transferring a defense from another section of the structure which in essence did away with his industrial gases they they produce and deliver industrial gases for uses such as in hospitals and computer chip making and a whole wide variety of do business with the government your honor i'm sure it well i believe it probably does yes just going there is no difference between the hypothetical you posed and this case and this is really a case that's founded on a bedrock principle of remedies and particularly employment ramit he's a an injured point if who has lost his job whether it's my term an asian or failure to reinstate isn't heigl to be made whole here's what i understand your opponent's argument to be and would like to see if you can address that he this thing that this jury instruction which he objected to have the effect of taking a defense from another section which turn what should have been simply a damage computations effort by the  confusing remedies and affirmative defenses what was when the district court found that your client violated the gath by terminating this man when he came back from his military reserve duties right actually what it found was that it violated section forty three twelve by not reinstating him to employment because if the found that when he showed up for work after his return from three weeks of reserve they handed him a terminations noticed and this was based on this was what had happened before he went on duty this was based on a decision that was actually made the day before he went on duty based on his performance in the several months that he had been with it is when your client the employer had decided finally and and without subject to review that it was going to terminate this man the moment he came back from his reserve that is absolutely that is correct and lay this conveyed to him it was not conveyed to him and this was all placed before the jury of course and there is no attack on the substantia evaluation in which he had been found deficient in a number of respects which was given to him was gone over and the company did not notify him of terminations before he went on his three week leave for two reasons and this was before the jury course for two reasons really three reasons one they did not want to be in the position of looking like we're not going to honor the law and accord one of our employees his rights to serve in the military and number two they were well on that point they had a strange way of doing that well i believe that if they hadn't we're not going to tell him before he leaves but before when he comes back the moment he comes back before he even clocks in we're going to tell him he's fired well i believe they would have been i'm not aware whether it was or not here on the second thing was they were well aware that he was going overseas that he had a sick wife they believe that he was receiving company paid health insurance if they had terminated him before he left his company health insurance would have ended on the date of terminations by not doing it they extended his company's health insurance until the end of the following month even though he did not work that following month he was employed throughout his military service and thirdly they knew he had and it all a very ill bedridden wife and simply thought rightly or wrongly that to tell them and the day before he was going overseas to italy by the way you're terminated and then he's you know half a world away with an inability to be doing anything about it plus not receiving his differential between his military pay and his regular pay they decided to wait until he came back now i suppose reasonable people can differ as to whether that's the best or better judgment to make but that's really not an issue here this health insurance terminate have a life still suffering from the malady that had been present when he went on duty was she at that time yes or yes she was the defense what's been characterized as defenses of forty three alleged and imported into this case is not quite right they were not the fences because as you correctly point out it already been determined that forty three twelve was violated the question was what damages did he suffer i'm here here's where at least to me this case focuses ok the district court to determine that your client violated the act by terminating him the minute he returned from reserve duty and what your opponent is arguing is that the plain meaning of that is that the trial before the jury should have been the damages only trial now the damages me have been a dollar they may have been ten dollars to b m and more than that but that's all it should have been and by giving your client the opportunity to say we had a perfect right to terminate him the moment he came back because of what had happened before  that that an employer is under under this act to reinstate a returning reservists now what's your response to that that we did not argue in the case was not try it on we had it right jury instruction told the jury that if they found your client had reason and cause nondiscriminatory to terminate then they should return a jury verdict for your client which is exactly what a nondiscriminatory or for a lawful nondiscriminatory reason then he's entitled to damages from the time that he would have been reinstated until that time that he would have been awfully terminated this was a rather unusual factual case in that that time was virtually contemporaneous with the failure to reinstate that is it's contemporaneous lee because your client chose to notify him when he returned and not when the you've made the decision is that right that's correct that is that is correct and in fact the who serves for more than thirty one days may not be discharged thereafter for a protected period of time except for cause for less than thirty one days as in this case there is no such cruel requirement so yes if five minutes later mr jordan had cocked him and then air products had said mr jordan you're terminated based on your performance prior to your departure then there would be no case just as in your hypothetical that you pos the only reason that didn't happen is because they didn't wait until we clocked in they they called him into the office immediately when he got back if you look at any of the that it would have terminated the injured point if i had a later point in time but prior to a verdict for a lawful nondiscriminatory reason and that limited there's a first paragraph as to mr jordan's contentions there's the second paragraph which seems to bring him a forty three eleven on the motivating factor if you really should have been eliminated and that might have been tied in solely to forty three twelve but i suppose if he were terminated if he'd been terminated and a motivating factor was that he'd been gone for several times for his military service this was not the first time then you'd have to consider i guess whether  he was wrongfully turned where the term nation was wrongfully even though they had all these other reasons to do it if the military service was a motivating factor navy that would make it unlawful to do with the right and want sense except that was taken into account in the instruction if this had been a forty three eleven case yes then it would have been the burden in the first instance of the point have and in the last instance to prove discrimination to prove that the military service was a motive motivating factor as you know from your i sick decision here here the burden was placed in reverse or an air products to show to prove that the military service was not a motivating factor there was a presumption remarkable presumption if you will that it was for purposes of of of the terminations in the future determination that occurred i say fugitive only because theoretically there well they could have terminated him then it after he came back but there is some claim here there has been that it was because of military service so   it did and this all happened before the case was dry i guess that's correct so why shouldn't we re man this for a trial behavior was failure to reinstate an arm of the history army amid the history from the time he worked there before he left the decision to terminate him not told him before he l followed well first of all the only the only the only promise for that first of all of the cause of action requires outrageous conduct and the only possible conduct that could have been issued and issue is why not telling him before he left and to failure to reinstate it i think what judge thompson flaming and what i'd like to know too is is just basically a legal question are the state claims alive why one it was premised on terminations which didn't take place two if it  was if somehow the failure to reinstate could be considered outrageous conduct i guess what we're really asking is this and they be you can tell us and points to can you point in the record were judged district judge prager soon said the state claims are gone he did not say it explicitly it was implicit in his last written decision on the jury instructions which in effect became the final pretrial order so as we said here we don't know this court of appeals doesn't know with all those claims are alive dead or what the right the court made clear through the course of the trial that they were death that they were no order there were evidence cherry rulings during the course of the trial in which he said that i cannot give you the page citation of the transcript i'd be happy to do so by someone i know whether if the court he's not only was the defendant put on the burden of saying look we have a lot of reasons to terminate this guy and we terminated for reasons that also have the burden of showing that he wasn't terminated or that the military service was not a motivating factor in the termination so that he was put on that burden i guess any layer of prison additional burden which maybe he didn't hang out on of the forty three twelve is there a difference between what was tried to the jury and what claims were dismissed gone forever yes yes yes the differen another words is was this a case where the district court court said i had an affair we were not going to try the state law claims in front of this federal jury or is it that the district judge said these claims are gone they're