accepted we were mr shaper said admits he says it's a virtually the same that the defendant asked him or the pelley asked him if it was verge of the same he said yes it was and what were asserting is that a reasonable jury could have concluded that that is not the same a substantially quickly and it was the duty of the employer to specify what what all those how they were similar in their  the synch we did was identified that it made more money on an hourly rate and that the position perform the same type of job responsibilities and i think that's what the jury saw as well because it didn't just say virtue of the same it went through the hourly rate and the job responsibilities and i think everyone understood that that's what they was referring what mr shafer was referring to when he said virtue of the same because it was the same job responsibilities it was a fair but it did not have the same type of retirement or health benefits and the position offered was it's not really clear in the right it's not clear wasn't put in the record but it is the seasonal position that's something it's lower dizzee row or five dollars or five million whatever it is it's still labor miniature and the court should have been required in the seventh amendment the constitution to give us a new trial for that and declined to do so i don't think we should have asked had been required to ask to begin with but we did in the court declined to do so what evidence is there in the record before the jury how your client reasonably diligently pursued other employment well he  applied for unemployment received unemployment and i guess with unemployment there is a requirement to seek other work but there is not any i think record we're all the plaintiff failed to look for work and what we're saying is that one there wasn't a substantial the defendant has not identified one that was substantiated but two it offered no evidence that the plaintiff failed to look for work it's not the plaintiff's duty to go out and explain were all he applied for work is the defendant's duty to show that he failed to do so your point is the record is silent right to whether your client don't hold lock to lock or did nothing whatsoever to look that's correct record silent on the issue although we have it is one job that there's testimony that's roughly the same you obviously got that right after all there is right well there's there's two jobs there's the donna point  diamond point is not virtually the same the only what we what we are arguing is that it's the defendant's duty  it's since it's their firm or defense that they have to prove the case they have to show what the job responsibilities were what the pay rate was what the retirement benefits whether it's full time season though i mean that full time or see whether it's  a year round job or seasonal job where there's part time or full time on there and all the defendant did was put forward the hourly rate and the general job he's on there and the defendant asked the pla of the same and he said yes but when he was talking about it is in the same conversation he was talking about his job duties he did not admit that they're virtually the same in retirement benefits or health benefits or or anything like  that and i think a jury recently could have confirmed that that is not the not the issue since the jury ruled in our favor all your forces go towards our saab's toward a jury could have reason to conclude there's no evidence of the drugs being different your point is simply that there's insufficient evidence of the drugs being the same right there is that there's no there's no evidence that the jobs are are different based on whether they're seasonal or you're wrong with things we point out that are not in the record they're the only stuff in the record was that he it was a fairing and it made an alley rate a little higher than what he was making and what we're saying is that that's not enough is you've got to inferences in our favor and there and said that the plaintiff made a mistake he wasn't he was talking about these job duties and there's nothing here before us on the other issues that we have in our jury instructions to require the defendant to prove and they've  specified that it was seasonal instead of your round but we think that it's since it's defend its burden it's not up to us to prove that there is substantially a quilt on there now certainly a jury could have  ruled against mr shafer on that issue but since they ruled for him on that issue i think it's reasonable to conclude that they found that he was not talking about that was not referring to those all those particular terms and  with that particular jury instruction the third issue we've brought forward is the issue on damages we had asked for reinstatement in attorneys fees and this is more of a contingent argument simply is if the court rules for us on either one of our arguments that we'd asked the court to request the district court to reconsider attorney's fees and other damages because that would change the outcome quite significantly i think the court gave us a thousand attorneys fees with that was based on us only getting a dollar after being reduced the defendant or the appellee has raised several arguments and its argument their motion for reconsideration and after they had not filed a motion for summary judgment on it and was not raised any further i think it was it was preserved in a pretrial order as an issue but was not raised as an argument appellee in this is on the waiver we have said that they have not raised that issue in their motion for judgment as a matter of law nor did they raise what waiver issue that's  and we're saying that that one the fifth circuit has found that it is protected but two it is waived because it was not raised in a motion for greater verdict or later on in a motion for judgment as a matter of all  and there are some language in the record if i'm talking about the same thing where warren county said it filed a motion for judgment of the matter of retaliatory discharge and what they are alleging is that mr poole wasn't aware of what all was going on that mr carson wasn't aware as well of some of the instance a not working with mr poole and we think there became red faced when mr shaper brought the issue up but as well mr carson a lot about the coverage for mr schaefer to work for him and instructed employee that we had come testify that to prevent him to come for about a thank you sir thank you rector raised in your fifty a motion why do we have this confusion i will say first of all you are i don't believe the motion at the conclusion of the plaintiff's case was transcribed i don't know why that was the case that wasn't specifically but i can't find it in the record of the transcript that i wasn't that your duty since you're relying on that is the cross appeal well maybe it was your honor but i guess i understood that the entire proceedings of after this motion was filed and we have a double problem with that but we don't believe the court although that's an interesting question in my mind and continues to be an interesting question as to whether or not an exempt employee can make a retaliation claim o ingredients were in fact required elements do those have to be shown all four or five of those to being in which case you read all of those have to be shown in every case and as he is judged certain point promotional opportunities compensation job responsibilities working conditions and status there is no case that i'm aware of that says you have to demonstrate each and every one of those those are certainly factors that the courts look at some of those are applicable in some situations and some are not as the district judge pointed out in its order and it's reflected two or three times in the record the issue of compensation and job responsibilities being equivalent is not   it the plaintiffs have admitted in the at least two briefs and is recognized in judge jordan's judge turns order that the plaintiffs admitted that compensation and job responsibilities between the two or three jobs depending on how you look at it are quibbling so as the judge addressed in his order the only thing left to be discussed is the promotional opportunities the working conditions and status and i think working conditions and status clearly are equivalent i think would prove that mr shafer said out of his own mouth it's virtually identical job i'm pushing a barge with a with a with a towboat i'm pushing a barge back and forth across the river i'm carrying hundreds of dollars back and forth back and forth across the river it's virtually the same job status is the same he's a boat captain he was a boat captain for warren county va boat captain for either  order that again and i think he indicates and i agree with him that status probably is not an element that could apply in every case of every case there is no distinction in status and i think this would be the case here from orange county to be in charge of the boat that he would up great for any body else so i think judge jordan was correct in finding that all of those if they are in fact each required elements that all of those were the record supported all those sufficiently  and that a jury should have recognized that if the jury had been following the instructions i don't want to leave this area without reading that there is some question as the judge pointed trial his order as to whether or not we even were required to demonstrate that the two of the three jobs depending on how you look at it were substantially equivalent because as judge jury and found in  response to one of my questions at the record it is in page one thousand one three one thousand and three that that exchange they are where he basically says and basically say exactly says i really didn't want the  talking about the dam and allen job we don't know why he didn't want the job really don't need to know why i didn't want the job but for whatever reason it's clear to us that the plaintiff decided that he no longer wanted to be engaged in the maritime industry that he had been engaged in heretofore so i think that the jury made a mistake i think judge jury and corrected it at think it was clear from from all of the testimony that  confusion and this is reflected in the record clearly the dam and allen job would pay offered to pay mr shafer twenty dollars an hour he had been making sixteen dollars and fifty five cents an hour for the county clearly isn't enough to cover any benefits that he was receiving at the at warren county that he would not receive at a private employer is a court know it warren county he was in the  increase would would more than cover that difference and then there's about six percent left over the that would have been certainly sufficient to or should have been certainly sufficient to replace is is the insurance benefit that was being taken plaintiff that the compensation is equivalent because of the increase substantially and the thinking really more than compensated for the difference the second job dismissed toing job which judge jerde found was not was not equivalent because another employee of smith testified that he is that employee's job was seasonal i don't believe you can infer that one person because one person's job is part time seasonal that another person's job would be a part time or seasonal all of us half the employees who are full time and part time and do different things so the testimony that mr brewer had a seasonal job with smith  there that i have time for first of all i would say that the setting aside the retaliation claim or that or the viability i should say of the retaliation claim which is as course pointed out as suspect i do think that is an issue that some some day needs to be decided but because it is unclear to us particularly in the situation such as this is always unclear to me from the very beginning how  an employee who is exempt but actually being paid overtime this was not a situation where the employer was telling him he couldn't have overtime he was regularly every at two weeks being paid two  wasting more my short time but i do think that is a an issue for the court it if not today at certain at some point because it it is it's out there and it is problematic for practitioners i will say but at any rate  retaliated against mr shafer own account of this suggestion that he missed six hours of overtime and once again i'll say that i don't really believe the complaint had anything to do with  fs l a or over time because nobody was denying him over time there was just obviously an error as mr shafer seen in his direct examination he called it a discrepancy somebody some cart down the line made a mistake and or couldn't read  rate assuming that that qualifies as a as is something that would be the basis for retaliation claim you still have to show plane still has to show that you're engaged engaging the plaintiffs engaging in a protected activity was the but cause of the terminations other words he would not have been terminated but for engaging in the protective activity in this case mr shafer had to show that he would not have been terminated but for his complaint that his paycheck was shorted forty nine dollars and sixty five cents which in his view amounted to over as a result of that statement became read in the face and then the conversation went downhill from there if you read in the in the transcript there's a there's significant testimony about that two of the things happened in that conversation that judge adjourned characterized as grossly insubordinate and one of those dealt with criticizing both of those really dealt with criticizing mr pool management skills management ability even ask him if he was afraid to go to the board of supervisors and try to get some additional hilt so that conversation which is the only conversation has pointed to you as the source of the retaliatory animists covered a number of subjects at least two of which were certainly could have given rise to a retaliatory motive on the part of mr neither one of which were sorry do understand the cheaper testified that what caused pool to turn around was the overtime discussion not the other two discussion well though he goes on if you read that dialogue and in the in that section of the of the of the testimony if you read that he admits that he actually says that some point the other two things that he brought up rigor and uses the word triggered his anger so if you if you look at that  not having enough help and not not mismanagement of the help and the third complaint is something about a holiday policy that county has has put into place at some point is that testimony he refers to to say is it the end of  i think these two things we talked about those talked about the holiday pay and the insufficient personnel last in the conversation and at the end of that dialogue he says i think these two things called the problem so yes i think yahoo is not a non knopf to require deference to the jury but i don't i mean that the jury i mean obviously can look at there but the imprint sees they have to draw should be reasonable and i just don't see how you could suggest that to be but so are you have to show that it would have happened but somewhere that and i don't see how you do that when you've got all these other arguments between the two of them go no that's my problem lack was and i'm out of time  mr director mr norris if you save time for now we're back as we were talking about that for a while go ahead and address that first it's not just the red face issue there were three things and just turn delineated very nicely in his opinion one was the red face but two when asked mr poole that mr shaper had made a complaint over time and the jury could have concluded that mr poole was lying to hide hi is that mr schaper had complained to the supervisor numerous times about other issues and i think including lack of polyps and holiday pay in the past and have not complained about overtime and had never alleged had been retaliate against those three things together were pretty strong evidence of the but for with regard to the protected activity the defendant alleges it would not make sense to protect people that are exempt from overtown but it would be the opposite and the great example or compared or would be how we treat title seven retaliation claims we what we look at is whether the plaintiff made a good faith had a good faith belief that they had  a discrimination or sexual harassment something and same thing with overtime if that's the reason it's written that way is any employee who asserts coverage not whether they are covered but where they assert coverage and the purpose is employees are not lawyers they don't know all the exemptions or how the fist circuit interprets an exemption so while this court may find an employee is exempt that employee certainly could have a reasonable belief and in this case there's no evidence that the plaintiff had a bad faith and it was a comment on the defendant shows there was a bad faith complaint there in the issue of mitigation of the defendant says well there's and there's a break up in the  think the court has to decide in the issue on that and the reason is the jury instruction the jury instruction we use was the fist circuit pattern jury instruction and it requires that the defendant has to offer virtually identical problem motional opportunities compensation job responsibilities working conditions and not all work and status as the position from the plaintiff was terminated but why are they not allowed to are not entitled to rely on your had a very tough row to hoe to hoe on that but what we're saying is the jury ruled for us on that issue and putting all reasonable inferences own there the jury saw the testimony from the plaintiff and they got their jury instructions and so well did they provide provide evidence of the working conditions status was it was this a year long position was a seasonal did they specify all of these issues at own there or did the plaintiff just merely make a mistake because he's saying he was it was virtually the same but at the same time he's talking about one job being traveling timber at the job is also paying more and that's not the second on there and the jury could reasonably have inferred that they were not the same on there and that the defendant did not provide sufficient evidence that they were the same and while the defendant says well there's fist circuit precedent and says well you did this make should be a factor issued this court  doesn't have to decide that issue because the defendant agreed to the jury instructions they did not object to this and they did not raise that issue on the motion for jannah v from my understand the i'm sorry even if this issue and the court were to determine that that is sufficient we still believe we should get a new trial on damages because what has happened here is  lowered it to zero but what it relied upon was that the other job that the smith telling job that it said was not comparable the plaintiffs had stated that the smith telling job was immediately available but the job that the court said was were he talked about being virtually similar was not offered until some vague time after unemployment benefits ended so even if the court were to find that the diamond point job  was substantially equivalent it still should not have a loaded zero and since the defendant didn't specify the time it's really unclear as to what that should be at a minimum we are saying that we should get a new trial of damages to clarify that issue file about you if you lose on a summary judgment matter if you're a law that you've got to raise it in a fifty a in fifty b motion at trial to preserve it yes that's not going to be retried  retroactive in that sense i'm not even sure we use retroactivity on civil law but you think it's obviously you think it's probably a political one yes or the retaliating claim even if it would preserve rice yes or we think that is  political and there i'd retroactivity i'd have to go back and look at case so i don't know a case off the top of my head i mean certainly on our side we're going to say yes but honestly i don't know a case off the top  she's under submission the last case for today