claim the first one is is that what it is in braced by the scope of the charge ms phillips as you know filed her charge september the sixth of two thousand and eleven after she had been placed on a performance improvement plan that was our position is deliberately shortened by the defendant then after she filed her charge and complained of discrimination she was ultimately terminated about a month and a few days later november the seventh of two thousand and eleven then after she filed her charge her lawyer wrote to the e e o c and explained to them that she had been discharged from her work then or excuse me thirty and then there was another year and a month that elapsed during the investigative process the defend his position is in the apple e's position is is that she did not exhaust administrative remedy with regard to sanctions criminalization in retaliation although she did check the box of sex discrimination and didn't exhaust retaliation because she didn't include the actual discharge in the charge but the charge clearly states that she had told or was stating that she felt as though this performance improvement plan which was going to run august the twenty second was deliberately short so that she would fail and lose her job it also mentioned the fact that she had retained the attorney who had written an own letter june first two thousand and eleven which she had done because they were not doing their investigation with regard to the allegations of sex harass so clearly i think it even more importantly because of the court's recent decision in jacobs the position statement lays it all out the scope of the investigation  allies stuff so i don't want you to you know stay mine too to raise the issue of the retaliation following the retention of the attorney so somehow the sworn declarations that they never knew which are clearly false that she had retained an attorney when they the job she's a member protect clashes suffered adverse action she was replaced by a male and then there's compared her evidence to about mr betting fielding mr corsi on mr hadden the other but the principle promise facia case came out with her having been replaced by mr headman than mr corsi home and the other individual who they mistakenly identified as the male that took over her position past that point when you get to this issue of did they articulate a legitimate nondiscriminatory reason and i would suggest that under the patrick the ridge case no because first they said it was perform phillips had been working on for some time and for reasons unknown although they take insurance of any kind character in this particular contract it was going to be a huge one for the company they wouldn't take insurance of all kinds but they always did and the people that were involved in this process were the same individuals who had been involved in this conference call about what had gone on with her when she got arrested it's the the problem with this case from the defend our position is is they never really articulated a legitimate nondiscriminatory reason because you can't determine where the truth starts and where readings first it was performance then it was she falsified eight expense report on a day that she was allegedly at court then it was because she didn't close the vater deal then it was well she also of somehow downloaded a virus to her computer when she was on a medical leave but of course their own ip person proved that falls then the next thing was is she was she didn't disclose this conflict of interest because her roommate was somebody that worked at one of these dermatology clinics that's how she got the job they knew it hiring ripped from them there was also a the  our retract that statement and then all of a sudden this memoranda comes out with all these things in it about this criminal activity and they'll never know who the decision maker was with regard to the decision to terminate her jo it was a collaborative effort then mr rein forth and she said that she had some input into the terminations memo at one point then mr rain forest says that it was prepared by human resources bit from all of that which you know about which there may be fact issues as i understand it what the court held was the chief did not allege sex discrimination in to the e e o c as a basis for her being fired she just didn't do it any facts related to sex discrimination she talked about how it was a good old boy when she didn't she didn't allege her complaint though right because she had the only e e o c charge she filed isn't this correct was with someone in september when she was still on the plan so she hadn't been fired so she did not amend her charge to say she had been fired because of  your decision to given the left in industries case also assistance in that regard the mclean versus c charge and then six months later in this case it was two months later you get fired a month you know you can't just transform your ego see complained so well i paragraphs seven through twelve i believe it fifteen to twenty but the record don't feel well but you didn't say was because if you're reduction in sales territory that was in there as well but we are you saying the district court read your complaint over technically as narrowly as possible is unfortunately what happened but we also had in there that it in but not limited to the  motion to dismiss it was no motion for more definite statement there was no complain about the pleading until we caught them  misrepresentation of fact which was whether or not they knew she had retained an attorney when they put her on the performance simply place and they all denied it in their depositions they it in declarations we pointed out and then they moved to him in their summary judgment and claim we misremembered although there was clearly e mail communication about about what to do about this lawyer so the evidence how can you base the decision ranta summary judgment i was so complex upon the declarations of people who have been proven not to be forthright and insult to injury in the right ms don't in this criminal investigation that occurred claims that the mug shot thing she looked at it in my preparation and expanded those exhibits those documents didn't exist in the record eighteen eighty one is where i am is duncan maintained that the whole issue of the mug shot thing came up and turns of this case and judge stewart in a moment i'm going to answer the question that you posed to mr wall about what is the main thrust of this case but i propose to you that the main thrust of this case and a case which is multifaceted in many ways can be cut through like a hot knife through butter and that is what you had in that original charge that was filed on september sixth two thousand and eleven was a garden variety sexual harassment case in which she complained about her first supervisor allegedly spreading rumors about her sex life in which she complained about i'm sorry not her supervisor but a coworker and that a coworker allegedly had had a proposition her a couple of times once in a cab once in a hotel room and what judge what judge lindsay did in that was not was not as a matter of law it didn't have any milk to it and he didn't he said bannon that on appeal that was not not only was that not brought up an appeal or briefed on appeal so not only did the district court get it right but even if the district court got it wrong judge jones that was not briefed on appeal and therefore that's been waived so that's what that charge was all about the charges the rest of this case has to crumble because what was in that charge was decided by the district court and not appealed now what mr wall my colleague is trying to say was that well she was terminated two months later but that wasn't in the charge that was never the charge was never supplemented the charge was never amended and what the cases say is an exhaustion is that we start with what's in the charge what's in the will but the point is you can you can still a legit and i guess then you have to extend from that because she never updated or chart here you have to extend from matt a p r i p to the fact that he and well i think we've i do think that you have to take that leap but there were two opportunities that my caught with his brought out to you that i think he's trying to say that that determination and play if you will on that first opportunity cent five thirty five what the company was doing was responding to her allegations that the p i p was put in place and her allegations that there was sexual harassment going on yes they did at the end of the letter inform her that she had been terminate they informed the you see that she'd been terminated but they certainly weren't responding to an allegation that she had been terminated in retaliation or in discrimination they were just informing you see what was going on so what else in the record shows of what was going on with respect the e e o c best occasion the second thing that's in the record and by the way the patent case that was sent to you the other day by mr my colleague in that case there was an intake questionnaire and there's no intake questionnaire in the record in this case but the second thing that's in the record is an e mail that c at the very end of the e mail he said by the way she was terminated again he's notifying the e e o c she says that she that she had been terminated but nowhere in there does he under oath no copy of that e mail was ever set to the company no copy was ever sent to the company's lawyer and title seven requires the charge that the company in the lawyer be put on notice of what's in the charge and that was never done so the charge itself never put either the court or morocco on notice that she was alleging termination so let's go on to the complaint all right the complaint itself alleges well first of all let me just say it it's a case say the case law says you know you can't get somebody for having an imperfect complaint this is not an imperfect complete but the paragraphs seven list the legal basis the legal basis not the factual basis for her cause of action she does state one fact in paragraph seven and that is that she was terminated on two remedies with respect to this allegation paragraph eight simply states the circumstances of philip's work where she worked and where she lived paragraph nine amplifies the claim of sexual harassment harassment to maraca and reducing her sales territory but neither reduction in her sales territory nor this quote unquote hostile environment in retaliation was ever in the charge in fact all at this that when judge lindsay went through the allegation of a hostile work environment in retaliation for complaining about harassment judge judge lindsay found that there was no evidence of a hostile work environment either so in this case the district court did not impose any form of heightened plaiting requirement  analyzed the complaint for what was presented to the court and correctly concluded that the plaintiff never alleged any facts to play a claim for wrongful termination as a consequence said it but that's what i understood is pretty brief three answers to that your honor first of all the district court record of appeal page twenty eight forty one said that the district court's not clairvoyant can't read into the complaint what's not there i understand that role eighteen requires a short and plain statement of the case but that same rule also says that it has to show that the player's entitled to relief what you're saying is not that she didn't allege facts but she didn't allege exhausted facts well both your honor well i understand that but i mean that sort of puts in a different perspective what judge lindsey was doing she wasn't alleging facts relevant to retaliation and terminations that she had exhausted properly that is correct on that is correct but more importantly not only is the court not clear when well i don't think you have to read tealeaves she's saying that she was fired because she was a lawman right well that was never in the charger on her that was never in the chart that's the point she's she was not a tie that fact very well in that any of the cause of action that she listed in the complaint ok and i think that's where just lindsey said that it's not required to be clairvoyant the third point to your question  that yes it's true moroccan never filed a twelve b six motion in this case but more importantly once that motion for summary judgment  phillips never filed a motion to amend her complaint and after judgment was entered never filed a motion under rule fifty nine for a new trial in for leave to mentor comply and i think that's important too because on those cases that are cited in the briefs in those cases what's important is that at the trial court below the trial court was asked to them in the complaint in the trial court part of the error in the issue that i want to deal with it came up with in my colleague's opening statement and that is this letter to russ former attorney canard who was the lawyer for mr phillips a long time ago wrote a letter to russ far dated six one eleven and that's in the record page twenty five twenty eight twenty five thirty one of the things that occurred in the in the tryout work was that my colleague was so upset that iraq as management didn't remember that this rest of our letter existed he moved for it's not a core issue in this case mr mr wall my colleague wants to make it a core issue but just take me said it's not a core issue and that was never appealed to the fifth circuit you that was not appealed and it's just not a core issue in this case whether she whether she had a lawyer or not because it's kind of seven talks about retaliation in terms of what you do with respect not with whether or not you hire a lawyer or not so i have more time i'm here to ask you to affirm judge lindsay's opinion and to judge as firm the judgment below but i'm here to ask any question and answer any questions you may have or to you would or are getting all these other trails stick with affirming district court because of the not exhaustion of the claims and specifically the non urging in this complaint that i'm looking at over exhausted claims without ever getting to some of those so i think you can affirm on the ground your honor absolutely but even if you don't affirm on that ground judge lindsay left plenty of ammunition in that opinion just on other grounds as well because i think that everything in that opinion has good legal standing are thank you on a jury right now we heard what you said on open about you know the trial court reading in the naris possible way the you know point but looking at it i mean it's pretty straightforward so what's your best take followed the private practice of this criminal action against plaintiff because of her sex in violation of forty two u s c two thousand and four discriminating against her in the terms conditions and privileges of employment harassing her page twenty three twenty five thirty two of the record that he states respond that denies charging parties allegations of sex discrimination in retaliation responded is confident that he acted in accordance with the law he goes on to say that after the criticisms of sarah and the receipt of the lawyer letter which the lawyer letter at the summary judgment stage after they denied knowing time when you know that an employer retains counsel you are gonna look at potential action against an employee in a different way sure but there's the cases that talk about th participation in the process well i don't i still don't understand how that's any smoking gun to to shore up your complaint or the allegations of the e e o c why i think that the jury could easily conclude that they put her on this performance improvement plan because of the lawyer letter they deny knowledge of the lawyer and they also deny knowledge that she'd ever found the charge before they fired her now if they know about the lawyer i think a jury could easily here in the position statement about the performance improvement plans the extensions on that it said based on the form going noted noted lack of improvement in job performance in newsreaders for a to make sales compared with the p r p quota requirements the company elected to terminate her employment at was clearly part of the investigative process of the e e o c that was exhausted because it was written in march of two thousand and thirteen and it wasn't until may of two thousand and fourteen that the right to sue was issued now that the defendant respondent surly mood was part and parcel of this whole thing never wants in here to the mention all of this nonsense about the memo the performance of the virus in the computer the conflict of interest the mug shot nonsense that records that the law for got up with the twenty fifth of two thousand eleven that were all part and parcel of this investigation that ultimately came into the terminations memo and then when ms duncan was asked you know after a little bit of a lot of trouble with him who really made the decision to terminate she says she doesn't know could have been and i'd suspect probably was in house