problems is the great weight of the evidence surely as it is a day's favor because the principle witness for when dixie miss monica sledge was the store manager consistently told different july excuse me july twenty third or fourth of two thousand and nine and in that statement misled she said that she did not return that story changed again she still didn't remember much then at trial she remembered in great clarity that the client because missy they claim she  so were all of these were these inconsistency is presented to the jury at trial i believe they were it had great length i think what happened at trial you want if i can i'm going to segue into that the more important thing is i think there was  and that discharge constitute an adverse employment action and the problem with that is busy day was terminated and it's very clear in the eleventh circuit the determination is an adverse action and so when you put a statement out of this nature it's in the verdict form and the jury was charged with that the jury now begins to wonder ok we know she was fired but what's this other thing conference where we are going these things quite a bit particularly the verdict form because eyes masoud is cancel i was opposed to that that statement about adverse action i wanted to use the eleventh circuit pattern jury instructions which basically said that you find she was discharged because that that prong of the determination is strictly you know where you harmed the next prong is the charge conference  the i did not find it in the record i looked but we talked about a great deal in judge decided no i'm going to issue this charge and that charge i understood she's going to she was also going to have the definition of adverse action but it was not in the record but my understanding is that much of the trial would have been discussing this disagreement about circumstance of mosquitoes non return with the company's position being look you know she wanted to come back but then we gave her some hours moved in line she said just forget it i'm not coming back and then she doesn't come back the day she's posted her position is different from she didn't do that that's clearly isn't it reasonable to think that the jury understood with this question what the question they re ally answering was you know did she did they just fire for not reason because she didn't come back or aren't that did she announce i'm not coming back and couldn't one infer from this the jury accepted sledges version of things which is she said to sledge i'm just not coming back isn't that reasonable i don't think so you're on the reason why is it really for the second prong of the verdict for that new suit is pregnancy was above it in fact that prompted when dixie to take action that's the real question miss sledge he made a number of statements and various points of it and sworn statements says yeah no i told her to come back in fact you read in my brief there's a number of things where she says  i didn't give her the date and time i didn't give her the time she was on the phone call me and then she went home it is a confused mess busy day says very clearly and testifies it very clearly you know i we had a conversation i told her i had shared with my doctor just she said we'll check with the doctor i called my doctor right away i called her back so my doctor will not let me return to work co manager at trial says that that didn't happen now i said well what about your statement miss prison we also had a sworn statement in two thousand and ten what about that sworn style sheet where you say you don't remember there's there was wink you don't remember and three and a half years later saying that never happened which is what was going on with these two so i think it's a jury sees that the they might be buying into the to an factor by apparently readily gave her pregnancy labor an unhappy with that they were ready to let her come back so what is your what was your evidence that even if they did discharge her in some of her stories right the pregnancy had anything to do with them well arguments were she she wanted reduce expenses she denied this of course but the fact is had pregnancy not been there and news today i had a financial need to try to come back early and by the way her doctors statement says she can't come back sometime in august until she has opposed and that and that is a july alone when d c certificate of health care for that was filled out by the doctor so it's true she can't come back it's true she has terrible financial problems now whether or not misled you made a mistake or not that pregnancy made  women although there was some evidence we were not allowed to talk about a trial but perhaps touched on that it's a response to a in iraq it's war but if pregnancy is a two or some e or other to influence this decision my understanding is that's enough that this is sort of a well beyond two form of title seven which is if you mess with a pregnant woman you better be sure that pregnancy didn't have anything to do with the term relationship here does the fullness trying to come back early and a doctor tells him that they say no that's not the case she said she was coming back and then there's three or four versions about whether or not she still wanted to come back whether she so but time will come back whether she's in the office talking to her or whether she's on the phone talking to her i think that the what happened was there was so much discussion that we tried to keep out through emotionally not to l and said do you mind if i see that i went to her house i don't know who was that day of the next day i got a copy of it she wasn't there then met with her at her place of work and i had a tape recorder in my pocket and i tape record of the conversation which to me indicates that her her chance for that is her up her testimony was influenced she now could not remember into the whole thing and at that point she was compromised so badly i didn't i didn't see where it was going to be of much benefit they were going to have a declaration she was going to say something else is thing i wanted to mention is the issue about  second here about this alleged being the corporate representative and personally disagreeing with her testimony is the corporate represent there are things missions missing from the transcript all that and i have my e mails to the cou talking to her about there are places later on the transcript to talk about this would you check your audio record and she got back and said yes check nautical audio records there's no problem and i said would you mind if i got a copy also there was an adverse action and the jury did not receive the definition of what's an adverse action in the charge and it's redundant to say where she discharged and it she suffered  the jury is left pondering well what to do the souther thing they're also advised in closing by defense counsel to my right that all they need to do is answer no to number one they're out of there and it's a you don't know if you can but if you when you get back up if you can give me the page number where that reference there's been ok thank you very much  jury issue that the court has raised mr tall to he was discussing i would take issue with his description of what happened the record does contain the charge conference and volume for document one twenty six page five eighty seven that is where the definition of adverse employment action was discussed if i can step back just a minute and explain the proposed jury instructions from both parties are also in the record i did not have a chance to look through the transcripts to find it but it is in there i remember look at volume four document one twenty six page five eighty seven again that's the transcript of where the the court has the charge conference and is asking the parties the lawyers about the charges and that  is taken up the court firmly rejects the proposal by when dixie to define adverse action and her explanation for that is in the record and you can read of argument by the parties about whether or not miss de was sustained to adverse action meaning whether or not she was terminated or whether she voluntarily chose not to come back to work and the trial judge said the parties the lawyers could handle that during closing argument that was her determination but again i would reiterate for purposes of appeal the only issue that pla raise an appellate had raised is that adverse action was not defined he does not in his appeal in his brief on page i believe it's fifty one he doesn't argue about the verdict form as a whole or even the initial charge all he argues about all appellate argues about is the absence of a definition of adverse action and again i submit your honour's that the plaintiff never offered such a deft that didn't happen at the charge conference now one other point on that that was at the end of the evening on the next to last day of trial we had the charge conference we all went home for the night the next morning and i think even later that night the trial judge e mailed us her final jury charges which we then had an opportunity to look at review and then she had us in the morning of the next morning to review those final charges and there's a very brief discussion of that involving one of the bree of the appendix and if you look at volume one document one twenty two page t the trial judge asked the parties if there are any other revisions or problems with the jury charges that she has circulated and both parties said no there were no objections raised including as to adverse  action so your honor first of all we would submit plainly this issue has been way it is not been properly preserved by the appeal and secondly we would just submit that even if that were not the case we are not aware of any of authority that would require a definition of adverse action i think the trial judge had it right even though i did not get my way and get a definition i think the trial judge was correct in that that's there's a fairly plain meaning as to what means and it doesn't need to be elaborated upon that was her rationale and she had a point so we would submit those points in response to that the issue raised by pallant this morning you secondly judge just more broadly i think what you have heard is a very good example of a party that will loses at the trot level and now asked there court improperly i submit to come back and re weigh the evidence make do evaluations of the testimony make new credibility determinations we heard a lot of examples from the record that  appellant's counsel pointed out where he disagreed with some of the testimony and he said it should have been interpreted one way or the other very frankly that's what the jury supposed to do as one of the members of the panel pointed out all of this sub supplied to the jury in abundance the jury of eight men and women you know sat through three and a half days of testimony they heard from eight witnesses they heard or receive twenty five different exhibits they received very thorough jury instructions on how to weigh evidence what to do about inconsisten lapses it's worth pointing out that this matter the events in question happened in two thousand and nine and that the jury trial did not occur until two thousand and fifteen that's almost six years and we made that point in our closing argument that it's not surprising that they're going to be inconsistent season differences of memory over time that happens and again the jury was instructed on that processed all of that and took about an hour before returning its verdict in favor of wind dixie and we submit your honour's that there is an abundance of evidence in the record to sustain that jury verdict and it would be highly improper to substitute a different judgment for that outcome this is the standard for doing that are well known to this court don't need to be repeated by me but that is essentially what the palin is now asking is reweigh all of the evidence and say that there's no reasonable way a jury could have come up and reached a verdict that it did and we see review of a very substantial record in this case is clearly s nothing here about verdict forms but keeping that in mind did opposing counsel object to the verdict form no man i thought he indicated a habit you're you've read the record you see nothing indicate s he said judge that's a confusing question on the line let's redo it nothing like that let me answer it this way your honor if there were a competing jury instructions offered there was not i proposed jury instructions and within document eighty nine and you'll see that when dixie's alternative and then you'll see the plaintiff's alternative it minor same as yours did not did not belabor this and the judge disagreed with us and we disagreed so i didn't see any need to say we still disagree judge wow the next time you might want to do that i think i will you air when you're getting ready to present the case when it was the decision was finalized by the district court you did not object of the verb by understanding was that i had lost and i did not want to bangor the judge any more than i already had and so i did not object again i felt like the objection was their minor standing is that this court where there is an objection or not can say that if manifest injustice will result is a different her memory was improving with the years not not getting better i mean was getting better in her mind the thing we all aspire to but she says she thought about it real hard and so she didn't think about it very hard when she signed a sworn statement and she didn't think about tomorrow morning at nine o'clock