here first from mismatch yes good morning may please the court i'm jennifer smith here along with stephen smith representing jennifer smith this is a troublesome case an unusual case but everything that professor smith sued about down to her own salary has been admitted by florida a and m and i'd like to walk the court through simply documents explain the judicial mechanisms that we've advanced for relief  tell the court what we want the court to do and why the first document i want to talk about i want to talk about is the salary study that's dated august twenty fifteen counsel their position on that is sure that's great but you had access to exactly the same information which that report was compiled this salaries are public you know faculty or all you had to do is match them up you could do the averages you could didn't meet in just like anybody or ed which i find unusual because we did that we didn't have an expert nor that nor did they have an expert but the salary study was a document that they claim was not in existence at the time of trial but yet they claim that it was a work product which was talking about a two thousand and four war the one that you know no i'm talking about the august twenty fifteen study ok that was that's a different issue you got one about the two thousand and four his testimony about it looked at a list of faculties and their salaries and the average was in a medium was but now you're talking about the twenty fifth  measure but then they say it's also work product and that they could claim the work product privilege they never mentioned it in discovery here's what i don't understand they say that all of that salary information is successful to any salary study is an analysis we did that in fact i did that in a faculty meeting before some of you so you had the information right which is the point here is that so in my complaint in the complaint i apologize i complaint complaint indicates that women were paid more that were paid less than men several times all of which the university denied well that report is new evidence and it shows that i was right and they were wrong and you could have put that report together yourself there's no legal mechanism for saying we're sorry you didn't go back and have another go at it well first of all the document was in existence that's the dispute here that's great but you could have created the same document yourself but we did we did analyze it then you have it right that's the point then then you can then knowing that information and we in the complaint it says men are paid more than women except i didn't either and then tell the court that you've done individualized study of the salaries when you haven't and then argue in your motions for summary judgment the opposite of the information that you have this week that's who cries our american judicial system no longer and i'll tell you one reason why it is you can't bring up a summary judgment motion at this point which once you go to final judgment at a trial summary judgment moot right and that you had an opportunity to put all of your evidence before the jury including the evidence you say was in that report and it if they got the evidence from publicly available hollar sources you could have gotten it and you could have put it in front of the jury and the fact that the only thing that public records reveal which is what we saw is correct salaries at the time on right we had an expert as well for damages we we a did that showed that women are paid less that men that report indicates first of all would never turned over it was never there was never a work product privilege is that product we're not talking about that were i don't waste i'm not they maybe but what i'm talking about is that evidence was in existence all you had to do is get it put it in a chart and put it  before the jury are you saying from public records their statement in their brief which i don't understand you to contest is that the salary information is available and accessible because they are a university that has that information available and i see excessive oh you know who the faculty members aren't you know which ones are women and which ones are men right and all you got to do is match the salary with the sex of the professor in that category and we did that ok they knew that the information that's in their report we did that the right and that's what we based our complaint against right and that's what how he drafted our complaint put this professor who's a woman makes this and this professor who's a man makes that yes when you look at for example the personnel hired in two thousand and eight has consistently their own data we said they defended ratified in affirming to the deans hiring in salary recommendations that should have been an admission we said as of twenty two when plaintiff thought it evokes a charge of discrimination the male associate professor being paid considerably more than female associate professor and more than the sum female male female full professors that should have been an admission we said male professors perform substantially similar work under the similar conditions that should have been  are also they can deny allegations in the complaint they also lead to an affirmative defense that they analyzed each individual salary they did not do that when they finally did it in twenty fifteen all women salaries were increased up to twenty five thousand and mine was most to be equal to the male compared to it that that brought this complaint in the first place i don't see how you can deny if the factual allegations the same thing with the discovery request denying the discovery requests every party loses a lawsuit not every party but most parties that lose a lawsuit have denied something but they're not guilty of misconduct because they didn't admit it that's why we have trials right but then this is a case that everything that fester smith alleged was accurate the information from the retaliation to the salary to the equal pay was all denied and post trial it was revealed that yes they discriminated and they retaliated this is an unusual case and yes people want to bite at the apple but the court i think is to allow this to just we just discussed this the salary study but i also wanted to mention the december twenty fifth twenty fifteen jones memo where they say that we are now in an inescapable catch twenty two from now in her current promotion denying it for the exact opposite reasons that we said in court that it was under rule sixty two and three so that's a lower standard than sixty  d so here again and then the interim dean there also says that we retaliated we did not consider you on the record this case should have never gone to trial so we have a documents that are hurry up change the salaries we have proposed salaries of all the women i mean it has broken the glass ceiling but it should have never been a case that came to court  i was not evaluated i was promoted on my prior records the same thing i was saying in trial so it's clear that the witnesses falsified you testified falsely in court and to me you know what's disturbing about this case is that it will chill women from advancing equal pay rights it will this is the foundation of americans you did the dishes system has to be based on truth accurate facts honesty otherwise we don't have one here the retaliation i complained about it made it equal pay i was complaining about admitting that my salary should be equal to jeffrey brown they admitted in pro salaries document one thirty three dash one page thirty and they took the high paid men out so that our salaries still are not equal and the problem with with this case is that when they did all that  to call it hiding in falsifying information there they then have been able to revise the salaries as they deem fit but they're still not equal so they took the high paid men out called them outliers and and with a certain amount of half truth that happened during the let me tell you the only thing that bothers my about this guy and really might not affect the war where you end up deciding it because so much of what the point of contention this case was not objected to so we have to review it on the plane are a standard everything else we review under the abuse of discretion standard but it does time to muddy that there was some inconsistency in the university's promotion policy can you address that and tell us because of that would that have made any difference for example going back to danger when he responded to the committee's decision with a memo and he highlighted the committee's inconsistency and evaluate in applying his scholarship and he pointed out that in two thousand tant it r articles by applying if and in two thousand and thirteen the committee refused to rule you know simon even though they'd been published between the two applications that's just one example but that's what i'm talking about would you trial and these things happened afterwards these things all happened and words and they might be impeaching of testimony they might be they might be anything but they're not after discovered evidence that didn't even occur until after the trial second of all the committee did not the law school committee which goes for those things because knowledge goes to the sixty billion while right it would not be moved to scrub it would not be under the better box case which i cited in my br has to be something that's in existence at the time of the trial otherwise there's just no end to it there's no finale these things could be opened up and open up and open up and i'm not saying they shouldn't be for fraud because fraud is something that the wrong party is never going to at the university wide votes on it and then the provost and the president when the actual promotion that we're talking about now in two thousand and fifteen happened that didn't happen university wide committee did not review it the committee voted against it the provost just entered the promotion so yes there are some inconsistent inconsistency is all across the board bottom line is those don't really go for they don't in your opinion their support they don't and there's numerous cases we didn't go into about how the inner workings of how people are promoted is not something that the courts like to get into because there's a wide variety of discretion that goes into that including collegiality and the ability to work and play well with others all kinds of records and things like that i would to take exception to one thing i don't believe that we claimed that they salary study was work product i believe that at some point we did mention that perhaps the infamous list of two thousand and four professors  we had together from personnel files and had given it to the plaintiffs as a trial except and we might have said that was work product because we did it together there are a whole lot of things that have gone on since this appeal was filed that we're just not really fairly able to cross examine there are declarations filed in there and by the way there's a couple from the thing your friends who was on the rule twenty six witness list he could have appear trial we could have cross examined him but unfairly to which we had a real dilemma about whether or not to object and pepper the record with more defensive documents about what happened in discovery but we didn't  we could have asked him questions about his declaration ms smith has peppered it with more records more declarations produce trial trying to retry the case that's really not fair that's the reason the record is closed and what is presented to this court  what is reviewed by this court is use of just question standard and what was presented to the lower court that's only fair to supplement the record in this fashion is extremely unfair and there's a couple of things were actually done wrong for example under tab one zero four which is the which is the e mail where smith alleges that the day before trial the plaintiff was supplied with a list of two thousand and four professor says that demonstrative we actually had receded all of our bait stamped exhibits that we're going to use a trial on june twelfth and i can make a proper to the court of copies of that if necessary but that was not sent just the day before trial it was given five weeks before trial smith has added into the record because discovery is not generally filed plaintiff's first request for production of documents one of those pages is a mid and that is the very page that says we're only asking for things from two thousand and seven forward i think that's material i can proffer the entire document things that were that the motion in limine they kept out of the trial had been presented as if they are evidence for this  fact that's not fair the a b a report the p t a or tobacco about this trying to raise their own salary or by a fax these things are not presented to the jury for very good reason and it's not fair to treat this court like the church effect again and i would like to just run through a few of these things larry robinson's testimony when he testament testified about being the pro postman in two thousand and four he only had seven or eight people to remember he remembered that miss myth was the highest paid assistant he also identified her employment contracts he identified the letter offering her the position as visiting assistant professor he also identified a letter from dean looney saying we offer you this oh and there was another job a job description description of the position that was identified in editor into evidence that between it signed by dean mooney and signed by robinson that said visiting assistant professor this was to establish the circumstances under which mistress was hired and her salary as one of the high as the highest paid person that year he remembered that he didn't testify from a list in the case doesn't hang on the list there was a lot of other evidence because we had the contracts we had the file cross exam this idea of a list came out i'm not quite sure if he was referring to just the data because he was the provost or whether he was referring to a trial exhibit but that came out on cross exam that they ask for documents from two thousand and seven forward yes but we had provided as a transit would because i think maybe depending on how testimony goes we might have written on the board because they were even numbers if you look at them they were eighty five seventy five thousand and seventy five thousand were not that hard to recall plus it's impossible to actually conceal who those people were there were only seven or eight people there at that time it's not a fraud it could possibly be concealed those people walked the halls with  they were known to her from two thousand and four the allegations about closing arguments are the allegation that maria santoro testified about evidence not in the record she made a statement to the jury and this  quoted in several briefs what she said that's what these records are saying what she was referring to the employment contract number three or four things including the the personnel file that applied for the position of visiting professor and signed off on her employment contracts and so on so those are the records in this same jury didn't make this up smith claims in her brief the fam you relied heavily on this list of sound ways that's not true we relied on her bailey judge said no everything is fair game going all the way back to the beginning and in fact judge incl wrote the jury instructions and presented them to us the day before the end of trial and judge him go wrote the verdict form and it was passed on by everyone it's in the record no objections to any of it when smith accuses santoro a couple of times of saying no list to the court i want to clarify that because that was not a lie to the court at that time evidence had closed no list had been introduced into evidence before the jury it would have been highly improper to offer one back then without again without the opportunity to cross examine or to look at smith says in her brief filed twelve thirty one that the salary study was an involuntary measure not so it was done by another division of the of the college who really not the college the university honestly i don't think anybody there knew it was pending i think it was done outside but it wasn't completed until after the trial and it wasn't done it was purely a voluntary measure this is the e e o c did not swoop down and make any kind of complaint let me see the source document says the  available all the way back to the beginning of time and actually if we look through the declarations that miss smith has entered into the record since the travel we will see that she had salary information going back to two thousand and one and she was the house and chair there is no fraud of any kind in th court i think in this case i think the court can recognize that and at this point i will not be labor any of this any more unless you have further questions we don't thank you counsel mr s good morning your honor just on some notes on what was said in conclusion first of all i'd like to point out chief judge collins when you were questioning and  about the salary study from august twenty fifteen and you asked about the data being readily available through public records request judge we don't we do not deny that the salaries that were in existence were public records and that and that they could be easily compiled pop up with precedent professor smith in fact professor smith head compiled this evidence what we did not have is we did not have the conclusions well we were given it initially was that florida a and m said that the differences in salary were due to conversion and all kinds of other reasons or experience that had nothing to do with gender when they concluded in their aug twenty fifteen study was after trial was no these actually are problems that are based on the gender between the male the report actually says we have discriminated against the female professors because of their sex and that's the judge i will agree with that contention however it just so happens that every one of the disparities was based what happened to be sexually related so all the people who were given increases  women and none of the men were decreased and all the outliers were excluded that were men that doesn't change their position that there's a reasonable explanation for it and judge anklets order order says the jury found her sauer was lower than that of male professors with equivalent jobs but that the reason was not gender and i agree with that however when they after trial when they came out with their salary study where we're of the belief that they're admitting that gender was in fact one of the cause of but it doesn't sound that i mean you could you could want just as a just as a policy to look good and make sure you didn't inadvertently doing for everybody's salary to be to sign an assigned category or subcategory position male female everything be the sign but you're not required to do so and the fact that after trial they said that's what we're going to do doesn't mean not doing it earlier was based on sex discrimination does not mean that it was based on sex discrimination we just find it odd that all of the salaries that needed to be raised just all happen to be women and there is no other reasoning behind keeping those women in th shouldn't which supports your position that this would have been good for us to show the jury but then their position you know you could have gotten all this information and done it yourself and  in fact have all that information and we argued all of that information but the argument that was made by the defendant buff lord and him was that you did what you wanted their mission with what you want to put to the jury what  themselves that they discriminate at least try to argue to the jury in that report the report came after the trial so are and report the final version of the report did come after the trial as it were that's the one you wanted but but the bottom line is that the other report which had all of the same information were well before trial and oddly enough those reports came to an exact opposite conclusion with the same data and then all of a sudden and in august of twenty fifteen they admit that yes there are problems with every woman who is being paid by florida a and m compared to every man and we need to correct this how did they we were what we are investigating is how they could possibly come to that conclusion after the trial ended when they had the same exact documentation in two dressed before the trial ended and the exact same information gave a minute gave them a conclusion that oh well this isn't based on gender this is based on any and every other thing other than gender we just we found that that was we find it to be very just disingenuous and we think that the record is clear that everything that was questionably produced or discovered after trial were things that inhibited or worked against florida a and m and as they that just doesn't seem to us to be happenstance or coincidence it seems like an overt attempt to make sure that documentation that should be discovered that should be handed over was not given to opposing counsel to the plaintiff because you knew it hurt your case and you knew it showed everything that she had pleaded in her let's make sure we're one hundred percent fair impulse will never be able to do what it did in this case because you always follow sixteen r d and say look they admit it something contrary to what they did it trial discrepancies years prior to the suit being filed years prior to going to trial they could have and they should have checked it then to find out to make sure then you don't have it being a subsequent remedial measure which comes which which in which you have sixty b problems going forward because you didn't litigate the issue which you did is you corrected it when you found out it existed as you should have done because that's the equitable thing to do and to give them a pass because  of what may happen in the future doesn't seem fair because when honestly speaking they should have done this as soon it was brought to their attention will how is it possible that every single female at every level from full professor to assistant pressure to associate professor is paid substantially less than every man when does it dawn on them to say let me investigate this let me not make excuses and then if of course at the end of trial you want to say however we don't think that she was really an assistant professor she was actually an associate professor and she was mostly underpaid as far as the officers are professors was assistant professionalism the title was listed on a document as an assistant professor however that that was in dispute and it never should have been and that's why they said at trial oh unbeknownst to us and we have absolutely no idea how it happened she all of a sudden became an associate professor but she was never given the pay increases even though it went back to two thousand and four we were never given the pay and she was never given the pay increases that she was entitled to as that associate professor and the whole idea is what they're arguing is basically that professor smith just made herself she just gave herself a different job title and then the went in the computer system for the school and all of a sudden it happened there's no explanation for that other than the fact that that's what she was supposed to be from the get go i probably should never ask that question because now we are really led to getting but thank you for your argument are you will take that case