he says he says there's no dispute we're not disputing that she was not a good employee when it came to running that machine you heard our own people say they like i like me she's a good person but this is not about me  as a person as to whether we don't like her because she had a bad person out it was a question of whether she could comply with the matters instructions and follow the rules that everybody else had to follow so that is the very defense the things they are going to brave about r she had broken in our contradictions and that's just been rejected by the jury so it's not consistent with the seventh amendment your honor to say well they had the right not to take her back because i considered it she wouldn't follow the ropes that's what's been rejected was no testimony on by any worker anybody that worked with her that she caught with cows any more oil problem or they didn't want to back the people that sat on that peer review committee with first of all that they were in the personnel department they don't have a vote they sit there they run  up but then they say i want to work or sit on nobody that said from out in the plant no worker ever said this is going to cause i'm a while problem if you bring this back and back to work so that's not a reason this not if i didn't produce any obviously want to fund is this an issue of hearsay or is it a matter of those who said it clearly had no source of information i haven't said john i'd say it's no substantial evidence you know for the personnel manager to say that to just say well i think it would i'm just saying there's no substantial evidence that they produce substantial evidence for example with hearsay i mean is it the personnel manager said that he was she had talked to individuals who had been so informed and i don't know if you're raising that's one of  but regardless i just can't imagine every employee could say that with it hurts my feelings at the court put her back to work now the next thing she said well if there was a change in career you know i think what the district court had confused is we're talking about there was a time when she first lost her job there was slightly over a year that she went without actively looking for other employment she was finishing up a great social work she didn't want to be a social worker she didn't want to go she was making dash for tools to be alone more so you can't say that is two totally different but to say she changed careers of course talk about what happened after she lost her job back in two thousand  talking about reinstatement which is after she lost her job so she did change careers during that period you know not just any question here i thank your ears here's the point that she did she did  unsuccessfully attempt to get other work but when she other social worker to to change careers but when she was unable to when she was unable to in two thousand and fifteen she forgot that she wasn't able to do that and she went back and got this job with toy a automobile for some at this point the fact that she made it at some point earlier but that's all been rescinded then when she goes back to toyota and yet i'm not not involve work on machines that's really all we know about loan mowers at the case of employee day we know it was a train the company but there's no proof in the record that the defendant didn't offer any proof that we have a job that pays just as much as you have that you could get they just have no reason to dispute that this is a highly technical man for tupelo mississippi this is a big time job you have to go to junior college two years to qualify for it and have a long training period the computer programs and all that on it which is way beyond i understand jobs change all the time but if they had not discriminated against or she'd been right there with the changes such to rely on that the fact that his job is changing that would mean your honor in our society now when all the good jobs are technical and change all the time as ya know what we had in last i want him you can't even be a lark if you walked out what went on everything has changed and it's not it's in every field everything is complex and judging and if they had not discriminated against her she would be there to keep up with those changes so if your daughter doesn't that i mean i understand your critique of that fact but it seems that would also be true of you know the case law relies in the judge did hear on the fact well someone there's the positions full now that the company doesn't have a spot for this employee same thing you just said i mean if they hadn't discriminated against her would have been her spot they would have hired these other people to me just seems that's a critique of the larger reinstatement pay some which might be a good one but i don't know case law doesn't buy into it discretion and denying miss bogans request for reinstate really really curve by that mr wade started by saying i believe that the only issue with boras is reinstate the only issue that he's bringing maybe he doesn't mean on the appeal at all because i didn't read his briefs that way i'm maybe should get a clarification when you get back up here but it sounds like that is already on this case re wainer i like that idea so i will not address that i will i will focus wholly on the reinstatement issue judge i cock in her opinion and looked at all of the factors that the fifth circuit has said  that a district court needs to consider before it finds whether reinstatement is feasible or not phase of all as i stated earlier the district court we believe that the district court's nominal finding was a finding that misspoken had changed careers i believe that during the hearing on reinstatement judge cox specifically asked her question this bogun about her intent to change careers if you look on record of appeals seventeen and eighteen judge and cop asked misspoken so did you change careers i mean in your mind once you got that social work degree did you start seeps did you start seeking jobs in the social work area and the spoken response was unequivocally i did so the trial court's finding that misspoken has changed careers says among many one paragraph that says one reason not to reinstate her is that the country violated the company's rules you know at this lunch stuff and they want one of back because they would have fired her anyway and said it wasn't valid that it was based on discrimination so are you saying that if pursuing what ultimately she was vindicated from or no relief which is why we're here today that meant many thing to or no than  you know in a session that you have been in probably for are you saying that if her pursuing her right causes the company maybe reasonably to get upset with you but that's the reason that's relevant to us on process where the employer demonstrated to miss bogan that they were unhappy with her attending classes i think what the jury's verdict says is that it wasn't a good enough reason to terminate her but the fact that there had been a performance history that is documented and that misspoke and admits to those occurrences of the final written warning and then the terminations decision surrounding her employment and that she had been and that she could not attend class during working hours that is just part of the consideration that judge i caught it was part of the fact that the jury considered and that judge i caught considered during the reinstate and hearing but it's not a matter where the reason is good enough is as you well know you really don't even need a reason as long as it's not on sex based or non race based so when the jury had a found that you know this reason about the coming back taking too long of lunch breaks that that was pretextual because all these other people worldly evidence showed allowed to do that and went punished for the real reason at least one of the major reasons was race or sex discrimination that the jury was instructed on the plate and from considering as one of many factors on her reinstatement consideration whether or not there's animosity between the parties related to that employer and if you look and i believe that that animosity discussion of the circumstances leading up to her terminations and was just one piece of data because the court also relied on the employee peer review board and the but the discretion was exercised based on all these factors if there was an impermissible factor we don't know exactly how the district court would have exercised its discretion but that is true it is true but i think that you look at the world that the equivocal about whether she would accept any job but what was consistent is she said i would accept an assembly job as long as you pay me a as an a t m wire operator job solich cept the minimum wage position but you have to  a factor in the list of things to consider it doesn't cancel the need to be considering these others i mean mr wade was saying she unsuccessfully sought to change her career and now she can get back to the to what she was doing before is it accurate to say that is just one factor and whether she changed career start a threshold is not a gateway if you change careers you're out of out of the game altogether correct you can still make your argument that you should be reinstate available are you saying it i think it would be unusual maybe in those cases to have the set of facts that we have here that somebody has been vindicated in asserting her rights all the way through the jury trial and has convince d the court system and its men apparent that she was discriminated against do in those cases say that when such discrimination has been up a old has been found that to get to a successful litigation and which the individual has been found to have been discriminated against iran i do not believe that is a proper consideration and i do not believe that judge a clock relied on  talking about earlier but i thought it was the new reg knowing that her section of her rights after her terminated him was part of what created the animosity indicated in her opinion that she is why i think that it would likely be inappropriate for a judge to consider animosity related to litigation as the the evidence that the judge relies on on the animosity factor and i and i would say this judge ad hoc did not put up her discussion delighted to animosity under in that box of the employment related animosity it was also the significant human resource issues with bringing an employee back out of the employee she says should do is it would look bad for the weekly review process how was she issue they often i'll quote one case palace soda is the selection between reinstatement in front and front page is discretionary with the trial court so long as the relieve granted is consistent with the purposes of the f and their similar language it almost could be read to say it's a choice and there has to be one of those equitable remedies that is there a case you found where both were denied like in this reinstatement on this case we're reducing the backpack and they instructed the district court that if you find that reinstatement is not feasible you must consider his failure to mitigate as hoping that that intake jobs everywhere they didn't give any specifics about the particular tam but then i asked the personnel manager well if you have hired anybody that's been terminated and found several rights that you've been a personal matter just got a point here and he said i never i never had this come up to the main sheet that the problem is she's a branded light as i say country to her getting another job is just it's just you know it's just almost beyond the pale that's why she needs to get to be given the job back for reinstatement she had three when after she got his empty day job which is one of the best jobs in the place she had the highest rating you could get and performance pun problems like line they had weather was not the real reason for the termination and got the same type of job i know it's not a as complex effect but she got the same type of job a job making automobile parts in a technical position the sign type of job there's nothing in the record of the burden of proof is on the defendant there's fired her about two months she'd had the job for two years i found two months before this hearing saying that you parked in the in a customer's in the customer parking lot and you've been warned not to she testified i never had any such worries and they just a correct quote in a correct way of course she'd like to have the same amount of money but think that she should have at least been offered a job in assembly that she's done for twenty years so you're not only play the court oh the abuse of discretion has to be in sorry i do think that in light of the think of her inability to get a job she should at least been given the opportunity even at a lower right thank you thank you both