as happy to say we are making primarily two arguments what we have is a situation where a jury answered in iraq or tory that said if you find that the plaintiff dollars our primary argument in this field is twofold one is we don't think that there was sufficient evidence to submit to damage award to the jury at all and the second argument that we have is is that it's due process and let me explain the first argument in the second argument and we have a third argument that has to do with attorney which depending on what this court does may very well impact the district court's opinion because of success on the merits and the other issue that we raised which had to do with what your normal wiring right which was never entered or lyle what happened in this case was this gentleman worked on a drainage in the arkansas river called the corner there for people on the grid there was  another gentleman by the name of basemen another gentleman named lambert and there was a leave man by the name of skaggs and these people are shuttled out to this boat drainage they work during the day then they're shuttled back in to the shore and go home what this gentleman claimed was that scapes is late may and subjected him to some extremely obscene racially motivated racially oriented improper language at work while he's on the court he also  testified at trial that these racial epithets that were directed to him occurred at times in front of both mr lambert and mr  specifically identified them in his testimony is witnesses to this his first complaint to the company which by the way has twenty eight employees mr wickliffe unfortunately was not available testify trial because he had a stroke in two thousand and thirteen and can't speak so he was not called as a witness no depositions or anything else but again there was no way to take  were able to nail down the time frame of when these complaints were made mr wickliffe and when the investigation occurred that way the plaintiffs testified that he couldn't remember the exact dates of when he complained and as a matter of fact his testimony even read in the most the best light to him he couldn't nor did he establish that he ever complained about anything further with respect to racial slurs being directed to him after may of two thousand and twelve in other words until his terminations which was found to be for the appropriate reasons in in february of two thousand and thirteen the company has no record of having received any further complaints now what ended up happening was the company in this first instance and in early two thousand and twelve put a gentleman named randy marshall on the cora for three days to observe what was happening on the court to determine whether or not he could pick of any inappropriate language being used any any procri methods being used by the leave man with respect to the people that were on the boat he came back in the boardroom by the twelfth i can't find anything going on there the crew seems to be work and will and everything seem to be familiar and that was the nature of the investigation that was heavily criticized in the trial by the plaintiff is being incomplete in sort of investigation jury apparently believe that perhaps they did proceed but here's the point in order to show reckless disregard under the law in order to get punitive damages it has to be more than negligence malice and reckless disregard have been defined by this court to be more than just a negligent investigation in other words it's a it's a lack of good faith almost as a way i read the law but all that being said that investigation and that result occur outside of the state you limitations because this lawsuit was filed until july of two thousand and twelve you mean sixteen  acts that occur outside of the state you state your limitations in a continuing violation case can be used for purposes of potential liability they can be referred to to support allegations of violations of the law within the statute of limitations in other words if there's a continuation of that gets into the state you limitations period and in fact you have this pre stat limitations activity that can be used for the purposes of the term liability it cannot be used according to this court for purposes of determining damages should have been but the fact is there was an investigation second after the statute of limitations is no longer a bar there is no complaint there is no evidence  right that occurs in january the thirtieth of the next year two thousand and thirteen at which stands a company stopped everything and interviewed every single employee on the core of every single employee who had any contact with the corps and to a person including mr bateman and mr lambert who supposedly had both personally heard this over the period of time including back in early two thousand and twelve  headed for two thousand and twelve cracked it no that's right as far as we know because as opposed to the person the company to whom he registered the complaint couldn't testify so we don't know but what we do know is what's on the record and yes what's on the record is that he was not interviewed by mr marshall or mr ball and in early two thousand and two that's true and he wasn't interviewed  two thousand and thirteen because basically what the e mail said was that they had heard racial statements being made we assume those were directed at mr brown because he was the african american employee on the four but they didn't talk in the front and i don't i couldn't even this was whether he was at work because soon after that he missed so much was in the assuming he it was of value of that the fact of the matter is nobody corroborated what he had said in two thousand and twelve or what this e mail implied might have been happening in two so what you're asking us to do is say well you can look at the overall hostile work environment claim so long as one x is within the statute but when it comes to day to day punitive damages you can only look at what's happened well because one one act has been committed within that time frame understand but you see what i'm also saying your honor is in the period of time after two thousand and twelve after th that's contest to thought i mean i understood from the apple e's brief that brian said he continued to complain that i got him lambert said he told management about it lambert testified at trial that he never told been harassed his answer we did in this case because we didn't think there was an any relevance to it my next question i'm just trying and i'm just saying my question is do you think if the company was serious about employees being harassed the company would at least make an attempt to talk to the person who has been at least saying that they are being harassed would you agree with me i would agree with you yes sir so the jury later yonder heard testimony from mr bryant as as the other witnesses mr bryant specifically said that he continued to complain to management official he had four different conversation with joe wycliffe who was the owner of the company he spoke to him twice by phone  to him in person one of the times that my client indicated that he spoke with mr witt with clear about the situation mr wickliffe said i turn this over to kenny both and i'm going to let him deal with it basically i don't want to hear anything else racial harassment and another interesting point in this case your honor that was brought out the company does not even they have an anti harassment policy no no such policy so obviously they don't take harassment claims serious and to even have a for a second yes i don't think you responded on the klein case that's the one nine hundred ninety nine and you're familiar with it kill any climb for scans of the police department and they say it says that you can only recover damages they say it's a federal employment discrimination claim i'm just reading from their birth for x during this the limitations period even if it's a continuing violation are you familiar with the case you know that it is opposition  that that was a i guess a new argument that the that the jeffrey saying it made i they didn't make that argument of course in their motion for directed vertical motion for judgment as a matter of law that i recall as something that was new th that eight reasonable jury could come back with in conclusion that it that it did and that was the case of  his argument on page the pellets opinion page four twenty nine this was the investigation this was as a result of the anonymous e mail that was sent on january thirty first around about that time and they went for the first you when the company asked you about it you said it was said well i may have heard some things being said and so i think obviously the jury saw that missed a basement they really didn't put a whole lot of stock into miss abatements testimony and they thousand august of two thousand and twelve a missed abatement on mr bryant even testified that he was told to take of black as i object to continue to paint and all of these racial comments that were being mr bryant and again the company didn't do anything to investigate it and in doing it they did take a seriously never even talk to my client about it and obviously the jury was of the opinion that this company with not i know there are other factors i get that but on the ratio i could not find one above twenty five thousand to one and this is two hundred fifty thousand one and you know the amount if this were a title seven the punitive damages would be limited to the fist circus had a one hundred twenty five thousand to one in a hostile work environment case and let's see the ninth circuit had a had one that's in this range in a sexual harassment case but that was a title seven statutory case where the fifty thousand was multiplied six times and came up of the gun a thousand times my man but anyhow if you look at all these cases that we've dug up this does appear to be they felt that mr campbell had been sufficiently compensated in that case but here you have a case where mr bryant was only given a dollar and compensatory damages but you have a company that committed  bryant testified he continued to make complaints but once he got the position from mr wickliffe to mr wickliffe told me he didn't want to hear it anymore so mr brock just felt that there was nothing else he can do he continued to complain and so he felt that he had that conversation with were the president of the company that there was nothing else that he can do that he had done all that he could do to bring it to the attention of management officials and so his testimony and obviously the jury believed him that he continued to complain even during the time period when he with there and they laughed about that they thought it was funny and so again these things occurred even after that after the may two thousand way of complaint that they said suppose you looked into  and twelve right we all agree on that yeah right to complain to wycliff four times right he's testified correct how if you look at that and you know how we do it the other side knows how we do it most sympathetic to the jury's purports to say that as long as any act of harassment occurs within the limitation period that you can recover damages for all the harassment even outside the limitation period and that's what clients because it's clients is things like you said i thought you were arguing that you can only claim it damages for what occurred within the limitations that's what conses there's has to have something has to have happened within the statutory period limitations that's illegal in order for these other things to become  liability but you agree well and damages i mean do you agree that if if there is one act of harassment within the four years that then they get everything no i don't think that's what congress is as a matter of fact the cases are not in conflict and they talk about gibson and jensen anyway what what the you know some of the cases are are therefore not in conflict in the instructions limiting the recovery of damages to events that happened within the limitations period work rate so that's what this case is thank you for your argument cases been well argument and case number eighteen dash twenty two ninety seven is submitted for decision by the court