rial race and gender discrimination as a result of a failure mode to a milling manager position and there were different references given to that during the course of the trial that's a reference given data help myself with repeated milling manager position he has a third claim for retaliation we tell you if and claim arose because he was complaining about scrim a nation by his supervisor kathy whitley internally with a d m and within a temporal proximity of that complaint he was not given a million manager position which he believed he was a best qualified for now i made my bed doing the brief and i started as a priority i reviewed the briefs again the smore ning i'm not sure that as we stand here today i've still heard that that is the major issue in the case because i think the structures in this case were devastating and devastating to the attached to the brief one thousand and twenty contain multiple questions which i understand you know my supreme court's ruling is improper and i cited the smart case in the first if twenty thirteen case which i understand specifically held that it's it's improper to give a special iraq torie that's not a single direct question in iraq jory the other problem for the special in  adverse job action this is a legal determination to be made by the court and in fact the defendant had argued at the time of summary judgment this was an adverse job action there's no definitional instruction un intelligent to the point or an answer read and all of them none of the parties are harmed by that when i'm saying is the questions of the juries actually submitted indicates their confusion because they require further action by the court which was only a one word response of yes well times no further instruction no further direction to the jury as the consequences of their questions relating to the special under illinois case law and inserted it consistent with the facts of the case the defendant used as we pointed out in the brief entirely instructions from the federal court system and the with this is in some instances illinois the illinois supreme court does not follow federal law on employment discrimination the the substance of some of those instructions were totally contradictory that would allow for this instruction well i bought the fact that the company said right off paid a hundred thousand dollars in never said that what the company said been he testifies i would just consider this a lot of transfer and we weren't allowed to put him past money bought any records it was also considering and then when there was a poor question to miss whitley as to do you know the transfer to another city there's no evidence about the relocation if that's true why i mean if that's part of the idea if that's what makes it a promotion or out really favorable job action the  testimony about the substance of the relocation package other than a i hears of relocation package because mr peggotty got relocation package before we're going to promote so that was initial question did you receive a relocation  construction number six starts off plaintiff must demonstrate he was better qualified this is absolutely key component to appeal your mo case as the plaintiff half prove that they're better qualified or as qualified than he other party and this is the instruction that was given by the working american over never standard they're basing it on and they were disqualified as the other person and they were not pick because of their race or they were not picked because of their gender and in this case it was a perfect set off the person who's p is a white female who didn't have nearly the amount of experience my i had over thirty years with a company who didn't last new job very long at all after she was  and then the jury could pick because of the instructions we wouldn't be here today but we did get a fair trial that the playing field was not well call and the instructions were improperly given to the jury i don't want to few employment discrimination cases in the state of illinois to go to trial since the only human rights act was amended to permit jury trials effective january first of two thousand and eight and issue was whether archer daniels midland company did not select david pickett for position as a human resource manager at its milling division in overland park kansas he contended that the decision was based on his race is gender for having made a prior complaint internal complaint discrimination the jury concluded that mr pickett failed on all three of his claims george little painstakingly went through the evidence and also the instructions to be given to the jury and we submit was correct with regard to his  instructions that were provided to the jury he used illinois pattern instructions where he could but as we all know in light of the amendment to the illinois human rights act the i p i has not yet caught up there are no only pattern instructions for employment discrimination cases as a result he sensibly did what illinois courts have done for years look to the federal jurisprudence in this area and he used the model instructions from the united states court of appeals for the seventh circuit and very large part instructions that were also tendered by mr williams we have to take a look at this situation and determine where the law in the state of illinois has come from and it has uniformly with one exception come from the federal law now one exception being areas of sexual harassment which has its own statutory provision in illinois and section two death one of the two d and is not at issue here the remaining elements when you're talking about gender when you're talking about race when you're talking about retaliation have all been adopted from the federal law following trial so it's a little considered mr pickett's motion or the briefs considered what he had he her argument and properly denied the motion for new trial and we believe that you was correct humans good morning my name is tim wolf and i represent archer daniels midland company your owners i think it's important when we look at this situation to to briefly focus on some of the facts that gave rise to the claims here idiom knowing company is this name might suggest a company that mills crea to corporate headquarters in here in two thousand and ten the president of a knowing more forth determine if he wanted to have somebody on site in overland park who could assist with human resource functions related to the corporate office and to the commercial side of their business these are largely the people who are involved in ministration payroll benefits buying and selling of their products not their operations not the mills not the place where the final flower is produced those functions were largely related to the labor relations group which is indicated and would continue to work with the plants mr course is looking for something entirely different he wants somebody in deal with compensation benefits succession planning the development of executives within the organization and he sets the terms of what he's looking for in terms of the qualified candidates he identifies those skill sets and then he contacts human resources indicator and that's them to source potential candidates for  me at the time was the vice president of human resources for north america at a d m she considered her organisation of approximately fifty individuals and she determined that there were three people in a group who would be a good fit based room he agrees there's three individuals two males one female the two men have no interest in a job so while all five aren't considered candidates for the job leaves one person internally to be considered laurie's idiots mississippi's was a field human resource manager at a plant in columbus nebraska she had had extensive experience in other corporations doing the exact type of work that mr cole was looking for mr coke or invited her to overland park interviewed her with his entire management team and determine that she was a good fit he then had to decide the compensation level for this position he looked at the field human resource position and that was a job that was worth approximately seventy seven thousand dollars again that's the one person who would be working in a plant level responsible for one  had a value that was approximately nine percent more than a field human resource so form this zevi it's this meant a change in salary from a process of seventy seven thousand to eighty seven thousand dollars this does not mean however that anybody who was selected for the position would have got a nine percent raise that's not how compensation works you look at the value of the position you don't just take anybody in at nine percent to their salary this year when he indicated that this position would not have been worth over one hundred thousand dollars and mr course the hiring manager specifically stated that he would not pay somebody hundred thousand dollars stood up and mr pickett was earning in excess of one hundred thousand dollars at that time mr cole made the decision he frankly didn't have mr pickett on his radar at all because mr pickett is a labor relations representative dealing with the operations side of the business dealing with the plants dealing with collecting parking your greens regents processes none of the things that he was looking for in the corporate office he didn't consider race he didn't consider genter and he certainly didn't retaliate against this is he didn't even know that mr pickett had made prior in tow plane complaints or wasn't the first things we hear about are the special interocular tories they're called confusing however only were were very simple very direct questions they were neutral in their nature they were not come round he focuses on the smart case but it's smart what the courts so there is especially in iraq victoria that was tendered to the jury was inappropriate because it was compound it asked the jury in that case whether it was contributory negligence and was it in excess of fifty percent of the particulars especially drug three hundred net case was not appropriate but when you have a single clear question decide and ask one question then moves on to another that's perfectly permissible under the authority in the state of illinois to suggest that the jury was confused by the simple questions because of the notes that they sent out so the judge i think it's speculation on counsel's part they asked for clarification that's not uncommon jury trials and the mere fact that they were only out for two hours would not suggest that we had a room full of individuals who were hopelessly confused by the simple questions that were put to them in the special iraq i did want to address the suggestion in mr pick act it dealt with a question and a feel a case on duty and their duty was deemed to be a legal question but has nothing to do with adverse employment action given on the retaliation claim there we have to take into account the fact that the united states supreme court had just amended its standard with regards retaliation claims to incorporate a but for standard and in light of that brand new authority that had to be incorporated in in illinois has sent we follow the law from the federal system when it comes to these areas with which was not at play here the instructions that we provided did in fact model the law and when we look at the law you have to look good where are we what stage of the game are we looking because i think there's some confusion in mr pickett's argument what is involved here is where trial the mcdonnell douglas standard even bigger problem even if mcdonnell douglas apply they want to the first third of the three part passed and employ them into the instruction so it wasn't even a complete instruction and just a little properly  is regarded those tendered instructions which were not by p p i they were simply taking a some of the first third of a summary judgment standard and trying to instruct the jury we submit that the instructions that were tendered based upon fifty years of experience in the civil rights arena in the federal court system were the proper ones to use the argument that struction group better qualified as opposed  to when you look at best particular instruction you have to remember what you're looking at here and it's an appropriate instruction and something that's used regularly and so forth system because when you look at a job and when you look at somebody who's candidates for a job a business has the right to choose with thinks is best qualified and if you've got two individuals who are equally qualified you defer to their judgment in order to infer that there was some invidious characteristic used such as gender such as this release you would have to show that the individual was better qualified in order to establish that there was something in the decision making process but even if you had some quibble with that instruction it's clear that the jury didn't even get to that point because it determined through the special that there had been no adverse  action and that was an appropriate instruction because you have to have something meaningful happen and order to take advantage of the civil rights laws that the courts are clear that not everything h one have in the workplace is action submitted in this case did anybody consider gender or that anybody considered race in the decision making process if you're trying to go about this through some form of circumstantial evidence you would have to show that the individual who didn't get the job group did not have those characteristics this was somebody who has long tenured experience with the company but on the operational side of the business not working in a corporate setting not working in compensation and benefits not working in succession planning and development of senior lea with regard to the issue that was drawn of on the employment action and whether the relocation package was part of that there was nothing that stopped consul at trial from asking questions concerning relocation package mr pickett wasn't permitted to testify about it because he didn't have any personal knowledge of what the relocation package was in two thousand and ten he had some modest knowledge of what the package was in two thousand and one there were no follow up questions asked about that and the global head of compensation and benefits was on the stand hold by the plaintiff and no questions were asked  concerning that tom he certainly could have been asked any questions he wanted about that in this circumstance the final issue raised by counsel was the matter with regard to mr richards compensation there's no evidence of what mr richards compensation was despite counsel's statement but the mere fact that he was not a candidate merely identified as somebody who was horrified to be considered but he took himself the running didn't wish to be considered and wasn't hired for that position made it whatever his salary might have bene the time completely irrelevant all the only two relevant people in this case were laurie's evades and pickett and their compensation was appropriately entered into the situation in council argued above the adverse employment instruction number five at the time of the conference as opposed to what's been said here it wasn't a make or break instruction and there wasn't the end of the world we can still argue and will still prove it anyway the jury disagree we respectfully request have resulted in higher pay is not an adverse employment action though my incorrect reference to that sentence does not change the substance of the argument and that is that this is not an accurate statement of either illinois law or the facts of the case the word lesser position is you just the word the demonstration that would not have resulted in higher pay if you adverse action as a point of reference to his instructions in order to pursue a case for employment discrimination and the only human rights are so to suggest instantly to the jury that this was illinois supreme court said page one thirty eight of two thirty eight to thirty three only second although in other instances illinois courts have found it appropriate to examine federal assistance during the act there is a string of citations we find federal better qualified refs is the most pointed reference in this case today when the plaintiff was required to show that he was better qualified than lawrie's i when he was put in a standard doesn't exist in illinois