there are really two separate issues that are important for this court the first question is this question of whether the a o i see was missed his employer and i don't know that i did a great job framing the issue in my brief and an employer so could you address the joint employment in the whitaker issue please and i will check hamilton and i think that relying upon him as a joint employer type of theory i think is probably wrong i don't know that that's the way i would analyze it i think that would occur does present the most critical issue in the case and that is if a oh i see is the employer then you take a look at would occur and where would it where ritter comes in it says look if if you're not the employer but  control what's going on it can't then be liable for the actions of something that had no ability to control and i think that in this particular case where were we believe what occurs at least we survive would occur at least to proceed to trial is the supervisor of tibbs was a woman named bard maybe she was the administrator of the courts and clearly she would been involved in some of the decisions and some of the history that was submitted up the chain to the to the other judges who alternately made the decisions in this particular case i think that the ultimate decision to terminate was probably made in consultation between two judges but there were other issues i think such hamilton is correct of the whittaker issue is is really what what is critical here that the question of who is the employer isn't necessarily as important i think it was this is one of those situations and which who's on first is a problem are there the court reporting employed by the individual judges are not employed but if they were the individual judges and they were from the court and this seems to be a real problem right  it does judge kenny i would i would agree with that i think which is not unusual in state court systems it is i gree that it's not unusual the in saying i'm in county the court reporters are assigned to specific judges some are assigned to a pool all of them are i believe employed by the ministry of office of the illinois quartz and i do believe that the way t that it works is that it's the chief judge who has the ultimate authority to terminate the employee i believe that is i believe that that is correct but that that responsibility does rest with the chief judge in this case the presiding judge who has  involved in some way she was her supervisor and the issues that were forwarded to judge mitchell for him to rely upon some of those issues did involve a judge maybe so there's at least in with her there was no relationship  there is at least some relationship it is there you've got to prove intent to retaliate and you've got you've got circumstantial you are you've got circumstantial evidence of that  but is there any evidence indicating that ms maybe had any hostility towards the use of the family i'll i don't believe that there was specific evidence that she was hostile towards it i don't believe that there's any direct evidence saying that anyone was hostile towards what we what we have here is it's a completely circumstantial and direct case where we have an employee who had been on multiple leaves and it's had some medical issues and historically i think that even this maybe said she had been a good employee right that's true but i gather it's undisputed that in your deposition i think from one that from that particular provision that's the way it reads i think when you read the deposition and it's an entirety if it questions that a little bit what she what should i look for she did acknowledge my client did acknowledge that she went down there and that she shouldn't have and contrary to a specific order from the counties presiding judge correct  i believe that the best way to look at it was to say that she should have checked out the key from the other person sandra morel that she didn't do that there was that the issue had arisen just hamilton by way of background facts there that there were a lot of keys that had been in circulation with for the vault ultimately a decision was made i think through a recommendation to the head of security personnel that those keys needed to be consolidated in one place in one person needed to control them and i think that the key went to sandra morel i don't think the policy ever was that she wasn't allowed to take someone there it was that she needed to check out the key which  which she did not do that is that is accurate she did not do that and so i think that there was a violation i don't think that it was of great significance and i think that they're putting much more weight on it well that that's an interesting question and you know i think i understand your argument that this was so trivial we should treated her a jury could find it to be protection on the other hand if what happened or at least what the employer believed what happened was that she violated a direct order from the presiding judge whether the order was a good idea or bad idea doesn't seem that important i would i would agree with you so you think there's a factual issue i do i think there's a factual issue of what the what was actually said i think that my client did acknowledge that she shouldn't have done it do we have where do we have that laid out the factual issue eight out of a summary judgment briefing believe that you do and i think you know ultimately there with the written rule didn't include that that provision the written rule that doesn't matter now i just and i and i agree i agree judge him to understand that the point that if if this was a directive that she violated even if it's trivial then it could be sufficient to warrant a determination and i fish which her her acknowledgement clearly is that she should have done so i think that there is something that can be drawn from that adversely to my client but i also think that it was something that was not of tremendous significance that much greater significance is being placed on it now i had let me just ask you very briefly i had thought this was this is the factual issue on which your case depends correct i think that the factual issue more depends on what occurred and getting around would occur you have to win both we do we do we do i i would agree heads and second because no reasonable jury could find that since it was terminated in retaliation for taking leave of absence on the first issue the office can only be held liable for chief judge mitchell's discharge decision if it participated in that decision or had the ability to prevent it but failed to do so here the chief judge had sole authority to discharge heads and was in fact the person who did so therefore the office could not have taken any preventative action and under would occur it cannot be held liable for chief judge mitchell's decision could you address the theory to use maybe played a role here well there's there's no evidence that maybe did play a role in the decision and or or that she even even if she was involved in the process in some way that she had any ability to to prevent the decision or to change the decision because that's the standard in winter for that either she she the office and gauged in that conduct or could have prevented it with will to do until tips returned from leave and then he's the one who made the ultimate decision to discharge her after she failed to take part in that process on through the retaliatory intense issue no reasonable jury could find that th well it would be whoever made made the engage in the retaliate allegedly retaliate or conduct let's assume she's got a good claim on the merits did she just sue the wrong person under your theory yes she  recover from that state as the employer of the agent who made the decision to fire her well if the chief judge mitchell had been named as a defendant and he did in fact retaliate against her than she could   so they're both agents of the state right yes chief judge much as an elected official but not an employee of the office employer or is the to you can you sue an individual supervisor into the f m l a or do you sue the employer you sue the employer but in a joint employer relationship you can only prevail against a specific employer why isn't this just a misnamed defendant which should be the state of illinois well to this hasn't moved to amend the complaint to chance i know we're getting all tangled up in these bureaucratic relationships that are complicated in most state court systems for between administration and adjudication and so on but if they're all agents of the same entity why should we worry about that well because i mean a matters for matters of discovery of knowing who the defendant is who the claims are being made against but here alternately the court can avoid all the confusion at the once because suppose so she had named steve illinois who defend d what and you said look i don't care whether it was chief george mitchell or ms maybe or judge graves the state retaliated against me for exercising my rights which would you would you have a one of these technical defenses to that it was  was it a trivial violation that was not the sole reason for the discharge at that point all chief judge mitchell had decided to do was to initiate the pretty disciplined process yet not decided what discipline it and it was appropriate it was not that fail to take part in that process that he decided discharge was appropriate in this case so there's no question of fact for a jury to resolve on the retaliatory intense issue and on the astronomers and any further questions