in may thank you this case is about what happened to dr nina sherman during the course of her residency with the defendant institutions and under the leadership of the individual it is about make no mistake about it a course of conduct of ongoing discrimination of punishing if sometimes hidden or cynically denied retaliation that existed over a period of time and culminated ultimately in jobs denied opportunities to grail and a career a promising career moved aside now i expect that you will hear from my good brothers and sister that this was a case that took a long time to try and that the jury heard the evidence and they just simply didn't believe dr sherman i will come back to what the defendant themselves have said about the quality of some of the evidence that was let in in this case but fundamentally this is an appeal about the trial court's misapprehension of its appellant has no quibble with the notion that trial courts pay play an important gate keeping role but it is neither appropriate nor right  trial court to stand as century locking the door and taking from the jury the tools that it by bright should to determine what events occurred and why over a course of time and to hear how were full direct evidence of bias powerful more than you must have in cases that are even successful in retaliation and this the trouble started at summary judgment at summary judgment this court decided that as a matter of law a cause of action apparently crude sat down in february of two thousand and seven and placed by her residency director in the harvard combined orthopedics program on probation as a matter of law some time in that spring the judge appears to have determined that course of action accrued such that she was obliged to go to court at that time he'll greet she the next day she could have gone to court or she could have gone to the here is a red herring the only time moonlighting was raised by the plaintiff as a source of concern and damage was when she by right in june of two thousand and eight having graduated from the residency program would been without probation been given a full license and then the testimony was and the only testimony cited by the defendants in a kind of a little fashion the only testimony is that she lost that team interval right in in certain circumstances and negative in this circumstance i do not believe she could have your honor and here's why here's why it is without a doubt that she believed upon learning information about being placed on probation that it was likely biased as she was concerned that she was subject to starting retaliation at that time to be sure she was then told the following don't worry it's not an adverse probation and told it would have serious consequences for her and she heard from burke that it was because she didn't cry couldn't she have gone to the city filed a complaint i think what would have happened had she done so she surely could have but had she done so it would likely have been dismissed because the defense would have come in and said it's speculative the language is actually it may cause you they then would appear and their decision telling her about the ratification of probation in june of ultimately had in that circumstance one cannot imagine why it's not better to write this so i mean i don't understand if the probation was improperly imposed as a result of this rumination why is the fact that she didn't understand the consequences of the probation and the she didn't have to bring suit but there are two issues here one is that i do not believe that the that the discreet act in this case the fact of probation sufficiently harmful that this court on appeal would consider it an adverse action in other circumstances it may but not this where they where they told her repeatedly don't worry it's only internal it's only academic it won't even let us assume for argument's sake that the probation is a is a definite act i don't believe it is but most assume parchman sake it is that does not dispense with what the district court did here because there are claims that arise out of that triggering the vet aiding and abetting discrimination interference and punishing and hidden campaign of retaliation but now you've combined t there's the discrimination and then there's the question of whether the continuing discrimination and then this retaliate and claim yes or no is a question whether this continuing retaliation i'm not sure of any precedent that would allow you to combine and sort of evidence of continuing sex discrimination as opposed to continuing acts of retaliation with respect to the retaliation there is evidence in the spring of two thousand and seven by a member of the harvard executive committee mark  gephardt in that wasn't my question my question was where are the where is the evidence of continuing sex discrimination as opposed to the evidence of the well i was trying to answer could i'm sorry the the answer your honor lies in the combination of i would urge this court to consider is the state law policies at issue here what ever title seven in its jurisprudence would do there this court has recognized that in massachusetts under massachusetts law discrete acts may be part of a continuing violation and even so in this case even so in this case but policies under one fifty one which are different  different under graduation were choir this result and finally let us assume for a moment the continuing violations doctrine would not apply and i don't concede the point but even assuming it for argument's sake fifty one b and as recently as d s what you see is a combination of discrete acts and environment in clifton the retaliation facts were transfers disparate disciplined and  to provide job opportunities things that looked at if you if you want to do it in a sort of cut up lens look like a discrete x if you want them to be but the clifton court said they've combined the issue is do they develop do they graduate magic medical education he said it is truly internal it will not follow you in fact when it looked as though it was changing in the summer of two thousand and there's no suggestion that the he was going to refused not until the summer of two thousand and eight and then she in then she pursued the second step of the grievance and ultimately in two thousand and nine she was told it would not be removed i want to make sure that i have time here very quickly to address what i think are critical issues in this case because whether or not there is a continuing violation there have been seismic exclusions of evidence in this case that alone warrant reversal when you have the chief men when you have the president and c e o of m g h saying to its chairman no court in the land will force me to hire noonish or been that direct evidence of retaliatory i or as a jury may honor and he was involved in the decision not to bring her on to staff in the summer of two thousand and nine and i cannot sit down i hope i don't have to sit down until i raise the other issues here which is the question of the exclusion of strong evidence of pretext that was kept from the jury when the evidence from john was excluded where the decision makers in this case the vice chair of the department of orthopedics at m g h and its chairman wanted to hire someone informally but because of this lawsuit decided not to can one of these cases the trial judge is that a man if you've got an infinite supply of comparable or arguably comparable events for both sides and don't we apply an abuse of discretion standard to the court making those decisions which requires for it to now runs the provisional of against the probative value but taking that to be so your honor the the challenge here is that when you take from a case like this strong direct evidence of bias and retaliatory animus when you take out of this case the traditional stuff of discrimination cases you are at the door this case but they've let decisions i would say your honor that it is more difficult to try and inferential case when you have direct evidence that has been excluded and you cannot in this case look at merely the volume of the evidence you have to look at the quality of it that was excluded and here the challenge is that this is plaintive mustered the kinds of evidence that women in a professional setting rarely get w he was speaking of one of the decision makers about whether about emissions that he made to him about this case we can't hire someone informally now because statement was vice chair of the department in charge of hiring him but he did apparently all these people with three or four different things and so the court had to make a finding whether they were wearing a party opponent hat and then made a finding as i understand it that the person wasn't they were acting in a different passage if that's correct and we need to review that under an abuse of discretion standard let us assume you view you review it in that fashion but this was error and it was not harmless and it was over because he was speaking to him why are hiring a vice chair and and the response was in that capacity it was an admission you need us to find that no reasonable judge could look at the evidence and conclude that he was speaking in any capacity other than as the vice chair of a party opponent he said we cannot hire her we cannot sherman's lawsuit and i think given the fact that he was speaking to dr solecki in his hiring capacity and he was involved directly in the question of whether to hire dr sherman along with  issues we stand before the court here today urging that the court's ruling on summary judgment be affirmed the lower court correctly applied settled massachusetts and federal law to the facts of this case and finding that the continuing they'll have no effect doesn't apply on licensing and given her that hoshi feel on several occasions what at that point was the crystallized in an injury on her that would have allowed to go in and see it minister a different traditional this case i think is different than about a guy in case which means son address to the court earlier in that case probation was instituted on a resident but he did not have any crystallise consequences from the beginning in this case dr sherman in her own words over the entire course of from two thousand and seven until she ultimately decided to use the grievance process in two thousand and eight consistently said that the imposition of probation and change the terms and conditions of her point that she was subject to its increased scrutiny that she was there dr herndon's letter to her in march of two thousand seven which told her of the probation that he had placed her on in february told her that she couldn't move on like that she was going to be subject to increased monitoring but it out see now that now you come back in time which raises the question i'm trying to get  the employee comes in and says the supervisor comes in and says you're on the a list and the employee says well what is the a list and the answer is the a list means you're going to be the first to be fired if anything happens well there you've got pretty serious ramifications yes in the employee gets ready to sue but then a month later they come in and say that was a a a joke the a list simply means you get go to lunch with someone who has no effect on your career person can ndertook a review of dr sure of its case in the spring of two thousand and seven none of those individuals are alleged to have me any statements they were decision makers on probation the affirmation of probation and the extension of probation none of those individuals made any representations to dr sherman about and there's no evidence of the record that they mean it doesn't make any difference who made them as long as the unauthorized person in the east se i understand it actually wrote her a letter to fortify what they were saying and said probation is not considered to be an adverse action that it won't have any negative consequences on her either in the residency program and the she won't have to list that when she was going to sue about the fact that she felt she had been subjected to probation based upon discriminatory animus that the probation had been ratified based upon think probation itself or professional doctor in this high powered studying is itself a tangible effect i'm not sure that's what the executive committee said to her what they said to her was that it wouldn't have any effect on her ultimate licensing and it didn't need to be reported to the board they didn't say that it didn't have tangible real consequences for her as a resident in the residency program at each court she was subjected to additional monitoring she was not allowed to moonlight during the period of  outcome of the discriminatory acts are here dr sherman knew she had to believe she had been discriminated against believe she had been retaliated against in two thousand and seven and that's what triggered her responsibility to whether the continuation continuing to violation doctrine applied and what test the plaintiff needed to meet in order to get the benefit of a continuing violation and in that case the court said that earlier violations outside the limitations period did did not trigger the plaintiff's duty and awareness to file suit namely that she could not have determined at the time that she had a reasonable belief that the employment action until i know what the serious consequences of this are and if i've been told that it doesn't have serious consequences and i make a decision not to bring suit based on that inaccurate representation the earlier discriminatory act be barred by limitations when i discovered that the erroneous information in fact was significantly wrong and that this really does have serious consequences so i guess the question is does say that if there is a discreet act of discrimination the clock begins to run when the judge street act takes a fact and when the plaintiff understands or believes that the act is discriminatory we have to have s question that is could she bring a claim the next day the answer is yes because sherman argues in the alternative even if i'm wrong about this being a continuing violation after all my claims preserve through my internal grievances which  exceptions under massachusetts law so she herself serves she brought a grievance the executive committee redoubled before the grievance committee about a month and a half after dr herndon placed her on probation she said and she says this in her brief page sixteen she was the victim of gender bias and she was shocked by dr herndon to decision and this court has repeatedly held it's not a matter of whether there was one or another adverse thing that ultimately didn't hold up or was misunderstood it's like the bundle of rights in a contract case herndon said that she was could be monitored closely she couldn't moonlight she wasn't on track to advance she was on academic probation attendance of all classes were mandatory and detail  evaluations by her supervisors should be conducted monthly and that constellation of things caused her immediately to file a complaint with the grievance committee on the jury instructions of course i can't address all six challenges dr sherman levels against the trial judge but to take part for whole and maybe the most significant instruction which is reviewed by this court under abuse of discretion that is there's no defined of liability for conduct before a given day this is a phrasing challenge  whole phrase about time part of events that it could bear on motive intent or context and this was in big us difficult to follow there are three severe problems with servants attack here and there typical of her other jury challenges sherman on probation in february two thousand and seven and explains to the jury that's a time barred act as to liability for all these defendants however that is it could bear upon motive intent or context in the non second does this court has repeatedly explained parties have to view individual instructions through the lens of the charges the whole and by the time the judge gave this instruction sheet explained the way the jury could understand evidence how it was to draw inferences that it should consider all the evidence and it wasn't just an accumulation but the weight and quality of it that really mattered that's the frame for the judge's comment at last the judge's instruction is correct two thousand and seven might be quite enlightening about his later attitude in the jury could so consider it if it wished this is not in big us or unclear it's quite polluted and quite simple and i'll stop there rather than going on through the other jury challenges unless the court has questions and turn it over to my colleagues and turning evidence thank you making decisions and that was clearly not the case in in this particular case if you look through the record it's clearly obvious with respect to every substantive decision the court made including the ones that are challenge here today they were the subject of extensive motions in the extent that they weren't subject to motions in limine a they were at rest in lengthy sidebars for example with respect to the dr slavens comment it was a very likely sidebar so much so that the court now the need after coming to a conclusion for mr retaliation it's indicating that they're not going to hire neither sheriff and but they're certainly given the context of this case not going to come here at mass general at mass general and there were with respect to the job which is you have a posting of a position you have a need for position posting sent into a journal search committee and the decision there was a very specific quote a position that was opened in two thousand and eight in two thousand and nine it's in your materials ex forty to one forty four and you'll see that positioning issue been disqualified for she decided not to apply for that position so to the extent with respect to her opportunities that's one of the reasons why i think the court gave in part the that they can of the statement could represent certainly that because of her shortcomings as a physician that the c e o of mph felt uncomfortable having her on on staff here with respect to patient care issues and so he said she decides not to hire sure any hiring individuals there so i think that is in a microcosm of a sample of where the court under four of three grounds knowing and this point i just want to leave with because i know my time is up with if you look at the c stated expressly that during the call if we with the judge when they were seeking to admit it so to the extent that there's any error with respect to that decision it would apply to those three defendants thank you moment to briefly add one argument one issue to the continuing violation statute of limitations issue this you need to harvard harvard agrees with everything the facts the law is stated by attorney wilson correct that let's take the june day issue why don't you if if that were and i know you don't see it but if that were the date which she could bring cause of action and needed to and any continuing theory was for harvard medical school or harvard medical school undergraduate students it has in the regular food for the judge there were three weeks of the trial and came up there was absolutely no evidence that milton hospital had any relationship whatsoever with harvard medical school with pick the doctor get parts academic appointments with medical school that academic appointment was based at children's hospital and by the terms of the of the professorship in the endowment the funds that he received first professorship were for research and academic activities to pick up where my good brother just left off i will simply refer the court to exhibit fifty six in exhibit fifty six is the advertisement for the total joints specialist the position that dr plot for which was going to be working in the community hospital room hospital with a position at the i d m c and h and s and in the advertisement itself it lists harvard and b i d m c as joint equal opportunity employers dr gephardt was in charge of that search he pulled the search when dr sherman was presented as the candidate so i think he proved too much in his comments and before leaving the continuing violations doctrine what is concerning to me is that the the representation of the doctrine at state law by my good colleague is essentially the revolutionary standard that w discredited and can die or in could dire the question was posed with a plaintiff who experienced in her own testimony from day one discrimination and filed internal complaint after internal co in other words awareness conduct that on its own if it if it existed as a slice could have been actual but it kept on going over time and indeed she testified that she was concerned about raising concerns perpetually because when she did she faced further retaliation the court said that the test was does the conduct continue and accumulate over time and if so does the plaintiff believe it's unlikely to improve and would have a reasonable person in massachusetts policy instead pasley against forcing the plaintiffs to brushoff to court at each slice along the way it says it's in the not in the interests of the planted and the interests of employers because employers then are going to have the syria them complaints for small things were plaintiffs will be part from the courthouse now when ocean spray this test is not what my good sister represented oceans p all and then they heard a week's worth of additional retaliatory evidence that you pointed to was retaliatory usually didn't they didn't buy why why would why would we think that if they'd heard of these other events that seem to me be lesser than denying a job in the like in an earlier time period if you're a would have bought that because of the instruction your honor the jury's instruction the jury's instruction was in at the third day of trial she said it may not be the basis for any liability or damages now my  ocean spray says liability damages but it's his life and damages where an element of the claim is intent and the intent may be located in the statements and the conduct in what was determined to be the time barred period what's a jury to do with that in other words yes they hear some comment about background evidence but repeatedly the third day of trial and then in their instruction they told it cannot be any basis for liability or damages that's not the law the law permits particularly in the retaliation context particularly in the massachusetts claims for aiding and abetting discrimination interference the accumulation of facts and the considering of that reliability indeed an ocean spray even where the continuing violation doesn't apply because the analysis there was the pla should be understood to have considered the situation hopeless that he kept on asking for accommodation and there was no sense that they were ever engaging in an interactive process so the courts as you should have found yourself hopeless hence no continuing violation but even there where there was a letter within the limitations period the court goes on to say that letter may not have looked like it accommodation request unless you pull in that prior conduct to understand that it meets the element of the claim this jury was in no position to understand that and so with great respect when you look at the evidentiary exclusions here you look at the decide it tilt in the evidence was self serving notes going for notice and knowledge and notes that would have favored the plaintiff staying out it is the position of the plaintiffs here and the seven civil rights organizations that have joined us courts for discrimination and particularly for ongoing retaliation i thank you for your time thank