else is kind of by the side because she didn't get fired for refusing to lift suitcases or put things in the overhead racks and she claims that they failed issue about whether she failed to take it she the answer is no she did not take it the question is why and what happened and whether or not that was the actual reason if she was terminated what she treated as other employees would have been did occur on other occasions according to her testimony in her deposition there were times where she was left by herself without assistance and she was told by her supervisor that she couldn't work if you can with one hundred pounds there were times  i we've got lots of cases saying that you can't create an entry or a fact by inconsistency in your own testimony i mean that is but that's not what happened here this is on the stand you can argue it a different way you can say deposition she testified there were occasions where there was nobody there and she was not given any assistance under the law is she supposed to be accommodated for her disability she doesn't have the obligation every single time to say i need help employers propagation under twelve where anybody can see but with a bad back well you would have no idea look at me and i have no idea looking at you whether either of us has a bad back or lifting limitation you have to bring it to somebody the way i'm understanding this this is not one of the people that's behind the counter when you check in and they take your bag and put it on the conveyor belt this is the person who's on the airplane is that right oh you're on or not she's in the terminal and she is basically something more than a ticket  only because the it was going to she's talking about is whether it was before this may thirty one two thousand dead line that's that's the type of evidence that she was talking about whether it came within what the defense claimed was the statute and we just agreed to fast  those same extent also constitute retaliation and i basic disagreement was that she did not think the same acts that constitute all three of those that you could not put the same facts in one cause of action and have them in another cause of action they had to be completely separate and distinct and we disagreed on there throughout for those twelve b six motions even when the case was finally ruled on summary judgment we disagreed on that and that was the reason that the sexual harassment claim was family just missed was that she ruled it was including allegation flames of us including discrimination claims and my response to that was these are the same facts supporting each of those claims they're the same x they're just different results resulting from the same math that was our basic disagreement and i'm sure i remember right  sanctions and ordinarily does not explain why or why not have lawyers ask for sanctions a lot and they get them rarely only for something extraordinary rule eleven was an attempt to tighten up on it but that's not what's before us one hundred twenty seven is may and here basically what the judge got upset about was the plaintiff just kept filing a complaint that made the same claims that the judge had already dismissed that right much more to it than that as well isn't that what the judge said was the wrongful conduct and the fact that we litigated all the way through a summary judgment motion with allegations where there was no evidence for support we demonstrated that there were allegations that contain leave ask her the plate of testified in her deposition that the allegations were false ok that's that's a little broader right as i remember ninth circuit law is that if the judge grants a motion to dismiss certain claims in order to preserve those thought that the judge it erred in dismissing certain claims counsel would nevertheless have to reassert them in an amended complaint in order to preserve a right to appeal the dismissal and that it's extraordinary to cross appeal and it's not foreclosed but it's an uphill battle the standard both ways whether if your grandson actions or the nice things you're supposed to  lawyers and you know the solo practice room but i'm fairly well networked in that the reds employer attorneys like myself or union lawyers who get sued by their members there is this feeling that most of the district judges in and then she says plaintiff's counsel failed to comply with orders for suit claims that lack of entry support file papers that assisted either of client or the court ultimately lost on all claims which is all that you say but then she sa nevertheless the court cannot conclude that he has acted recklessly or in bad faith so it looks like she went through the authorities and said i have to find recklessly or bad faith and i polokwane and receiving some rather than satisfactory answers she said mr porter i'm just sort of the last you say you've been doing this for twenty years i mean if we have another case like this and it's handled in the same why i'm going to be very hard pressed not to impose sanctions just out of desperation get your hope it is built on the transcript and not on the order but you give us the order in the excerpts and you don't give us the transcript free ride in my courtroom and it's only if you do with a sentence or she says i judge can say a lot of things i mean i can i can say gee i'd really like to do this but the supreme court always slaps this atmosphere and she's made comments like big companies should just assume this is a cost of doing business doesn't matter if you're a large airline losing money after the terrorist attacks she serious doubts whether appropriate request for a reasonable accommodation was made but i won't get to that because that was clearly no denial of any lift of any request for the things the council does didn't think that the standard the everson case and what the source of the three seventy nine of the deposition i asked if you make requests of management for help almost every time a plane came in you know maybe three or four times a month and who did you may ask well we get on the radio and whoever was on duty at the time and people would come to help know why with why well they said no they didn't even respond so you know people even heard on the radio i have no idea so she works at spent preparing the tele papers are minimal compared to what we spent the last half of his case dealing with everything we were sparing you know not asking for repetitive motions if you've got this right  this was litigated below most of it was about sex discrimination six fair assessment and national origin discrimination and race discrimination and age discrimination all these other things and retaliation and  retaliation and all that's when the only thing she's even arguing about now is disability and on that she says there's never an instance where she another company came in and that with the general manager for this meeting that was sexual harassment for him to go to a private office on a day she wasn't even there that's the kind of ridiculous stuff that  provide a valuable service to give the kind of clarifications judgment no i think was crying out for and certainly the my colleagues in the employment labor law bar would certainly call out for that clarification because  the way it looked to me was she got fired for refusing to take a drug test and then she sued the pants off them on everything threw in the kitchen sink everything and what judgment never was concerned about and what your adversary is concerned about is they spend a fortune on depositions and developing evidence and motion practice and all this on sexual harassment and age discrimination and nothing there and the problem is you run up litigation expenses psion off the nuisance value of america's case becomes very substantial so all you have to do is bring america's case and you can get five ten twenty five thousand dollars and that's what and against me that he's dealing with the second thing is that i did not choose to pee on one of those other issues the age of the sex discrimination because i thought looking back on it that it was you know a close call and i didn't want to deal with something that i thought was a close call on appeal i like to keep appeals to minimal issues that i think i can support and that's exactly what i did here and as to the age discrimination standing up i think the case for age discrimination or sex discrimination very simple which is what was alleged here which is when she's in protected class she's performing their duties and she gets terminated that is the primacy no no that's not right you don't have a prima facie case for sex discrimination on behalf of any female who gets terminated in any job no matter what the circumstances no there has to be something that would indicate that that was the motivation i agreed and we leased statements from witnesses here that the supervisors were primarily yelling at to stop the district court if we were to reverse on sanctions from imposing sanctions on whatever lawyer the district court determines did in fact multiply the proceedings some reasonably and vexatious with so if it's not you but if somebody else district court could impose sanctions there on because he wasn't given notice of anything in this case wasn't given notice of it in the first place but i also wonder when he could be given notice of an opportunity to be heard i suppose your honor but i also want to  address another question which is what this this call for an explanation the district court was tragic with trying to find if there was recklessness or bad taste she's essentially trying to find out what was in my mind is what she's trying to that what i did was not comply with their orders but she didn't think it was reckless or in bad faith a measure honors pointed out i was simply trying to assert my client's position as the best i knew how and i had a disagreement with the judge and i still do as to what allegations to support either harassment or retaliation or discrimination and that was what i was but i wasn't doing anything that she found it was reckless or in bad faith and she said she looked at all the facts and she came to that conclusion and other than think she determined her and give an explanation as to what she thought was in my mind or not did she come at that all as i understand your previous remarks it was really some other attorney who was responsible for