trials one in july of two thousand and twelve and one about a year and a half later in november of two thousand and thirteen briefly the first trial bolted in a jury verdict in favor of ms matheson on the claim of hostile work environment and damage use of five hundred thousand in the second trial resulted in a verdict it was if it was a mix it was the kind of work on a daily basis sometimes referred to extra work and it was also the distribution of packages on a daily basis that were hidden away by the manager must to be given to mail route drivers this is that's correct your honor but so this was part of the opening statement that was part of her testimony it was part of her especially part of her rebuttal testimony so i'm just trying to figure out why ultimately in the end like it would have probably been a little better if the district court made that decision earlier that did but how is that not preemptive well what what remains you that there was a widespread practice there in the early morning in particular of distributing packages to other m i don't know if you were the lawyer but i probably was your honor his term in terms of extra work at the time and she did two inch there's been a history of these kind of complaints that had gone and been brought forth before had their that's true your honor but at that time at the early stage extra work was a cloak we all a general term seriously referring to the collective bargaining agreement and saying that it's there's definitions there and it's all muddy that i believe she makes reference that it's all kind of muddied i don't know that we're talking about  when she herself is point hundred in realigning or seems to be relying on the collective bargain your honor she did she did testify to the various  significantly different from peru for roubini and i don't know that your brief really address that this is different from that is your honor clearly that case o on the issue of part time work for a worker who gifford because it's about that was about emotional distress and this is about discrimination that what that content yes your honor that case that case directly focused on intentional infliction of emotional distress a different claim a california tort claim and in fact  as outrageous as a con conduct might be not the kind of non non negotiable claim that a claim for hostile work environment yes i'm not sure i'm a pretty that appreciate this difference i  focused only on a part in derived was derived from only a part of the collective bargaining agreement and in that case the plaintiffs the plaintiff employee she had actually brought the case a claim under the duty of fair representation as well so the focus there by both parties was on the collective bargaining agreement i just want to make th part that i am really aware of in that regard is referenced by the court in the order of february thirteenth and that dealt with and that was appendix a dealing with extra work assignments but i want to make the point your honor this case is a case that for for a hostile work environment that's what remained and those acts that conduct was outside the scope  outside the scope of the collective bargaining agreement and the various eight nine or ten serious and outreach you say acts that were directed district court ultimately decided and then allowed the second trial on on the remaining x seems like most of the evidence came in excess cept for the extra work got behind her or made a face and greatest team that was ultimately allowed in the us in the second trial of so i think the district court please recognize that but i guess acknowledge that incident the grit and gritting of his teeth in clenching of his fists as as a court mention in the second trial was permitted and allowed but that's a that's a big issue with regard to the second trial because all of that testimony was allowed and then the judge has on or changed his mind and in effect reversed then issued an instruction to the jury and said you can consider this part you just can't look at the extra work you know sort of provision or dispute with respect to it but  about extra work and the court's order and determination the court simply said there is some confusion by in among more than one person about extra work he covered the testimony of three or four people of u p s and ms mattson and concluded that extra work  is a case and what remains is a hostile work environment case and it's the acts the eight or ten vicious and outrageous acts that the proof that ultimately supported the hostile work environment claim for example the court said  the court referred to unwelcome conduct conduct that was undesirable an offensive that being hostile work environment and that not being so the ex through work assignment that that's a point i want to make very clear here and that is that this conduct was outside and beyond the collective bargaining agreement  the heavy pack each incident occurred in may of two thousand and eight and following that were all of the outrageous  being evicted from the office of the chief executive at that facility her being told that if she came in again and complained to him he'd file charges against  the incident of the choking that's one of the reasons why she went in and talked to him she wanted to talk to him about a worker who concerned her now i think we deal and it would help a few to rest ok we understand that there's other evidence of hostile work environment other than that which was excluded after the first trial and does your honor have a question of me i don't but i don't think that what you're well i do have a question which isn't different top topic and that is about the n l r b and see documents that were in it did you ever object to the emissions of those your objections were very discreet with respect to the admission and kind of qualified list maybe you could take the break well maybe show us in the record where you did object i mean it's all right i may be getting the two the two cases next up at this point in time i did object to that at the first trial and i'm trying to think as to whether i did at the second trial the question your aunt and her your honor asking about the instruction and about the washington state human human rights commission instruction both of those instructions has given  highly misleading to the jury but clearly in the second trial washington state human rights commission ruling only covered the first half of all of the conduct which one piece was that work was given to man instead of to her when she should have gotten the work and she had several different reasons she thought she should have gotten in your already location they'll ability  another one of which was location and another one i e where where are the package was going as a plated to where she where her route was and also that she was there i should have said i was right there and instead they gave it to the honor she didn't put it in terms of the c b i and the clearest place to see that as a pitch for thirty of the supplemental excerpts of record which is page forty three of the transcript that was referenced earlier and that's a rebuttal testimony and she said there were two storks males her hostile work environment client relates to but i think harry i want to pose a hypothetical to you and figure out how far your argument goes if let's say  a female worker comes in and and says i'm entitled to a certain amount of pay under the collective bargaining agreement only women are paid half of what they're owed and the men all get their their pay and we have to go and sue every month for the rest of our pay now the fact that their right to payment comes from the collective bargaining agreement with that preclude any claim of that kind from going forward as a hostile work environment claim in your view no the plaintiff is able and a plaintiff can and this point if your did to some extent come in and present evidence of disparate treatment and say you know men are being treated one way i'm treated differently and you best argument i see her argument is i've been treated badly because i'm female man get all the good work assignments in my high packages from me and there's nothing in the bargaining agreement about writing packages if i guess i just don't  you have the argument certainly that you've repeated that arises from the collective bargaining agreement but i have a difficult time seeing her actual assertions factual assertions you full time part time work you don't have any you do with this package delivery stuff at all when she was talking about the somebody area the money area he was asking her whether she had ever claimed a job serve all arbitration system in just signing contractual issues and she tried that and in fact she got settlements in some instances for example there is a settlement that says the company will recognize the pr its that might have cases makes clear that where the agreement is is clear enough you don't there's nothing to interpret what i'm saying is that it seems to me that shouldn't compas an already decided if there if this is an interpretation senior and he was supposed to do that and they've agreed he wasn't supposed to do that so response just feels that again why i think that they haven't agreed that with respect to the kinds of packages that we're talking about it's not specific the company also signs if you know that it's twenty dollars an hour and the women are only getting paid ten and they have to fight for that extra ten you seemed to agree that that could be a hostile work environment claim because there's nothing to interpret and why explaining how things went badly in the working relationship as she was math and will testify that in the year two thousand and seven she noticed that extra work was not being assigned to her as was required so not you knew that there was a component of her evidence that you know men were getting something and i wasn't and that's that's fine in the district court recognise that that's fine she can present that but the expense she's asking the jury to say you know implicitly you know you should rule for me because my rights under illegally curate an instruction that says that the ins you know they they they should take into account whether it was required or not just what happened on the ground because that's what does matter what happened on the ground not now because the district judge didn't rule on this until after the case was over there was no opportunity to do that because he was saying there was no preemption problem up until that you know i think your honor is correct that an instruction to that effect would have gone a long way towards solving this deliveries is there no specific provision governing the assignment of extra deliveries and if that's true how can miss mat since claim be preempted i mean that is my understanding of th and did deliveries then you're saying and it didn't just because it was referenced and not actually preempted i understand i was a little imprecise in answering the question the the the  instruction did not even mention extra work or any term in the c b a the the instructions did not mention it but you know so much of the testimony was about it  couldn't couldn't the jury have found for mattson without crediting her extra work allegation and only relying on the other allegations presented at trial and i think i would agree with the district court that when you strip mattson had no right to work to work the work in question these this extra extra work that we've been discussing does that can be a license for u p s to give all the work no not not at all and to the extent that they were the plaintiff wants to come in and say you know here here's me here's my coworkers you know who are similarly situated except that you know they got all the good work and i didn't and consideration and the everyday operations of business that has nothing to do with extra work right it's not it's not confusing or doesn't require any interpretation there it is that's what it says well  consideration is not a self defining term and so it seems quite consistent with her argument and there's nothing more to i mean she wasn't she was saying there are a number of reasons why i should have gotten this where one is i was senior to them another is they are that supervisor stand there and he doesn't tell them to pick it up and then i go and get someone else to help me with it now she did have help so in terms of the collective bargaining agreement she did have help she was simply saying that there were setting the she did have assistance and picking up the package from a coworker right ventral yes right so she wasn't what was she to her contention was that these guys were standing right there and they wouldn't help  previously filed a c v a grievance based on an incident in which a supervisor did provide assistance to somebody in lifting a package so you know because i was not bargaining unit work she said so i think that the maybe the charge might have come in a showing how she was characterizing something but why does the that i think the point is that it wasn't unrelated i mean it was i mean how is it really that it shows she's come in and she's complaining about some of the same conduct the same incidents but alleging in that context that it was on the basis of her union activity did i did make then and i did make an objection global object sion to the me and now are being me instruction you had nothing to do with the issues of this case i'm referring again to the second trial there was another issue with respect to the n l r b me instruction and then is that the complaint was not plan i have to admit i've looked i think i object to several times to that i haven't found it all right thank you