you sure first i think it's important to note that this is not a circumstance where the sex discrimination instruction would have applied at all since that instruction specifically said this is and they stood her down right after the health of and the telephone report unit was for the health of then argument of retaliation continued on after that are we alleged that are claimed that  they introduced evidence into the investigation of the of her complaint attempting to turning best occasion into one of her personal life and her mental stability we argued that they leaked information about who made the complaint through the bureau and that that was an act of retaliation we argued that the team out to her domestic partner and telling her domestic partner  best partner to file domestic violence complaint against the plaintiff was an act of retaliation those are all the kinds of things we argue are acts of retaliation ok some of the first ones but clearly i think they would be satisfied under the other expected conduct that was protected contact the act writing down what what happened how is that protected conduct it's protected conduct by virtue of the fact that everyone on the team perceived her as documenting activities for purposes of filing a sexual harassment complaint or a sex discrimination complaint we introduced evidence into the record that the team admitted that that's what they thought she was doing she testified that she was documenting for purposes of making a him and you know if i did well it's a little bit shocking that it was a complete defense verdict but that how well you know just in general because obviously there are a lot more aggravated things than any of those things that you're one of the things that the burlington northern type instruction does says that it's not simply employment related actions for example in the context of this situation some of the strongest evidence we had of retaliatory intent was of the individual who called officer brown we had some admissions from him that we focused on a trial that we felt show an intent to retaliate and the failure to instruct  gave the jury the impression that you know perhaps something outside the regular employment related employment decisions aren't an adverse employment action ok i have to get over the hurdle that you know tell you that i guess there's two responses one my understanding of the ninth circuit decision a lot is that if the judge tells you you know your objections as to any instruction you've requested is preserved my understanding is that counsel's entitled to rely on that and i believe i cited the ninth circuit case to that effect if the judge is going to say that i think the judge has to be held to his work because literally i think that the judge was probably judge making a series of decisions that took out major portions of our case and arguing both vociferous lee about that and the judge not being interested in hearing it i mean i think that's part of the context i would raise is just very simply if that's going to be nice circuit rule then attorneys i mean it the court needs to say that and say that you can no longer rely upon a judge saying specifically   review case specifically on a failure to instruct the nice talk of decisions that i have seen simply say play is entitled to instructions on her theory of the case entitle me to means it's a question went along with it sufficiently that she couldn't sustain a claim of sexual harassment is was there any evidence excluded which would have indicated that she protested along the line or that she f this person went along with it perhaps just to make the point that she could be a good member of this this team and therefore in effect gave up her legal cla i'm i think that the point of that is to poll number one in my view by excluding all of the evidence almost all of the evidence and the most serious evidence that plaintiff had that certain members and middle managers were acting with bad intentions effectively the the the district court focused the whole that you know the jury rejected that her concluded that her participation was voluntary and all that kind of thing just overlooks the whole concept that what was going on on the search team was these people were resisting having a four sentences don't specify what the evidence says without a one zero four hearing on what the evidence says it's not for three balancing it's for i want to throw to relevan explosions the defense has to show that there is no possible way that category of evidence can be relevant i would suggest to you that it is implausible implausible to argue persuasively that resistance shown by this protein to point to the first woman appointed to that painting is irrelevant to sexual hazing practices that of adverse employment on the other causes of action that they retaliate if an adverse employment definition is a little bit different and if i want you to tell me why it would be harmless the claims of error are preserved in the court simply not to address them at all as far as the this this particular instruction is concerned  players argument is based on a misreading of the glover case and what the court said in glover is rule fifty one requires that a party make a specific objection to an instruction given are not given no talk for a number of pages about staff and he basically says listen i'm getting tired of hearing about all this well it is clear that the judge was trying to get the case wrapped up as quickly as possible it is not true that the court did not entertain objections or comments or discussion about post jury instructions and that gets to my point which is that there was a specific conversation about this very jury instruction the retaliation jury instruction and at no point during that conversation did the plaintiff say you need to give an instruction about adverse employment action as it relates to the retaliation cl i'm sorry let me take it from a different angle suppose in light of the past which troubles me as well we just simply say well we'll assume literally finished finished the conversation about preservation is that the exception presume that and it go further exception would be futile and you can't and that the judge is fully aware of your position and i think it's inappropriate to find that here because of the specific conversation because the judge did work with definition in the other context on the other claim it's an indication that he would in fact to consider a proper  raising of the adverse employment instruction in this context and so that the plaintiff has not intitled to the the trapdoor and in glover because an exception would not have been  said that if these things happened they were not ever simply actions i mean no i don't think that was the argument anybody make it the issue in the case was you i'm but i'm tracking you on that because if they believe that she was part of it she didn't complain and all of that that's that's one thing but if the complaint accidently tally asian are that someone put me on a desk thinking just that those aren't really in fact lee related to that you know how does that if she participated and she was well long along with that how do those defeat those acts of retaliation well  nearest city of portland so the question is was there something that she did that qualified as protected activity that caused the city to take some action against her in retaliation and that and we argued to the jury that they didn't retaliate against her for doing that we didn't say that she did it and we retaliated against her it doesn't matter because it's not a it's not a protected activity or it's not an adverse employee but actually we stand we didn't do it we didn't do it because  carefully the evidence i think was was was fairly overwhelming that they that there was not retaliation against or that there were legitimate reasons for everything that happened  involved and regarding her former lover and that woman's new partner and so he was concerned about what was going to happen to officer raina there was reference made to prior instances where portland parents that a parent from the record even if so we're supposed to really when it's going on three issues you have three to wait i would submit that it is not relevant and it is not relevant again because what we're talking about is context of the evidence that that was admitted not only was this not relevant these materials were not relevant admitting whatever this evidence was was well it might be but not in this case and the reason it doesn't this case is because the plaintiff got asked all these people about whether they wanted her on the team or not and there was there was evidence that some of them didn't think that it was her time to be on the scene because they believe that she had been placed above or to higher than she had on the selection test but they all testified that once she got there they wanted her to succeed because their lives depended on it and so the evidence was don't understand that all i could say is that the without very much specificity about what the excluded evidence was it's hard to put it in its context but basically you're talking about because for so many different actors in what happened you're trying to figure out how we're going to attribute what happened to the i mean whatever might have been going on in the back of somebody's mind who may or may not have wanted her on the search team doesn't have anything to do with why these officers even before she was there or after that she was there greste up in stupid costumes and engaged in funny skits she never said they made me go to strip clubs she went there because she wanted to she didn't ever say they made me sit at the front row and put money on the table she did it because she wanted to and she admitted it so  it isn't you know the evidence of what might have been in somebody's mind about whether they wanted her to just is as far afield of anything that really ever happened once she got appointed to the team and i don't think the judge made a mistake when he said it wasn't relevant in the circumstance started to feel bad about them and then she but she went back to camp riley and that following summer and resigned from the thirteen at the beginning of november just prior to that i believe this when she had the episode at work that wound up having her transferred to that telephone reporting it while they could verify her medical fitness for a beauty and it was in that time period in november when officer stradley made the phone call to her she did not come to the chief of police with any kind of comments about the search team until i believe the beginning of two thousand and  when he made the phone call they were it was six months later they were back in portland thank you counsel your time is expired mr sherrill you have a little bit of time left to one minute number one i do want to point out that the verdict form from stradley that we offered into the record that one of the factors causing him to go to officer brown was the fact that you knew plaintiff was keeping book number three the  s to keep rain out they lie about it in the city's investigation it goes to the issue of whether they took reasonable care to prevent harassment how on earth could managers knowing