court abused its discretion when it we've used and did without explanation to it mitt the statement of this chiefly gaging counsel to the equal employment opportunity commission concerning how and why mr amador took the first step to watt within nine months would be employment the explanation that was equal employment opportunity commission here she is making a statement to a federal official concerning something with which that girl official is of duty tell us what those were material at all to your clients discrimination klein because things to made the district judge would have been perfectly correct to exclude the statements altogether and then you come in and say gee that's not going to work we'll come up with another story my client isn't out to have the jury hear what who is fifty four years old making in the mid six figures ex wife with alimony the new wife with two new babies and these are for a new house why is this person going to just say you just told me i'm giving up the job is global director of energy instead delivery for the worldwide h s b c account on which i'm making a whole lot of money and the purposes of my question that there were things in the position paper that were material and relevant to issues that remained in this case is it not also true that there were many things in that position paper that were not relevant to the issues that remain by the time you got to the trial for example since only amador his removal from the h s b c position and subsequent removal from the j l l position war really at issue the statement can taint other things that had to do with not getting a permanent position with the city which had nothing to do with this case or why he wasn't chosen for any of the other positions he may have applied for if that had any relevance it sure wasn't much on those issues even if there were proportions of that that war relevant to issues so it wouldn't be fair to say that they were district court was well in our power to say the stuff in there that doesn't relate to what's remaining in this case certainly well within her authority would not have been an abuse of discretion to keep out the whole report on the theory at least portions of the report on the theory that there's stuff in there that isn't terribly relevant and might mislead the jury confuse them about what's really at issue in the case and what's not and yet you said to her i want the whole thing and that's why she said no but i'll let you use it for the purposes of impeaching on the particular areas that were tremaine and one is i understand your question it's well it had been an abuse of discretion to keep out the whole report but you wanted the whole report in and she said no but you can use portions to impeach and the why was that an abuse of discretion is what i'm asking because the report could been redacted and  say to the judge well judge you're right that some of that may not relate directly but let's redact this report and we want to only put a portion in i frankly don't recall i don't want to say that i said that it was desired read this record as i sort you said where entitle them to chapman to put the holes on him and she said no and then she said in the roughly one hundred fifty to two hundred trials i've done i've never peach or dick with what harry said you just can't do it but she should have it let me she should i don't know why why is that so difficult if because you almost gets on the stand and he says quote he told amador he would be spending only half his time in city and said nothing about the age as b c position the letter and then go back impeach my deal with this on page eleven of my no i've read the transcript i understand i'm simply saying you were free to confront to cross examine and impeach with the statement even though the statement was signed by the lawyer on behalf of the company and you were impeaching one of the critical employees involved in this you know of this fact pattern and after mr thommo said we're talking about your claim is the district court abused her discretion by keeping the report out in toto period and i said to you look to me like they were sound reasons to the extent you wanted the whole report why the whole report wouldn't come in or at least arguably one could say it's confusing and not relevant to some of the issues i agree i think those portions shouldn't get out however the portion that you didn't say to the judge or if you did show me where as best i can tell you didn't say you williams what i think you want to do here is allow us to put in a b and c as affirmative evidence even if you keep out d e f g h and i actually suggested questions i want to ask yeah no i wasn't i'm not talking about impeaching questions which you were free to do i'm just talking about you said the heart of your argument is that she abused her discretion because she didn't allow you to put the report in and i'm simply saying there were things in the report that struck me as irrelevant and if not irrelevant marginally relevant and quite confusing i think there were i think those things should have been kept out however what you have been let in is the statement on page one of the and jail would be available when his when his assignment and those portions should have been allowed in on the letterhead the other stuff could easily have been redacted when i attempted to cross examine mr thumble about that the judge disallowed me being able to show him the report after it he said that he did not recall any of this i was not permit proceed in question him my time is up and my main argument as you haven't for the questions now thanks very much  may please the court good morning your honors i'm tom wilde i'll be presenting on behalf of jones lascelle americas with me is my partner this is a evidentiary issues so obviously we're talking about an abuse of discretion standard and i think there's a few points of context here that are important for the court to consider in that regard one of them judge marcus touched on the only issue that was left for this jury by the time we got the trial was a single employment action that mr amador was removed from this assignment on h s b c replaced and then ultimately terminated but the discrimination charge that mr amador had filed with the e e o c was much broader than that it had a race discrimination claim and an age discrimination claim with respect to a host of different employment actions except in all of that it's true district court could have said you can put in this portion and not that and that's what judge williams did though she didn't allow and put anything in his affirmative that the shell out him to use portions of that for impeachment she did not quite the same thing is that it's not but judge williams was faced with that context of this position sticking with all of these different employment issues and claims and what she did is she parsed through it and she determined are any of these comments that mr am one was relying upon or any of them actually contradictory to evidence that was a listed in discovery she determined that only three of them arguably were and even for those she said they were not directly contrary and she allowed mr amador to put those in as impeachment habit and if he established a proper foundation which never happened so this case is unlike chapman and other cases that  amador relies upon because judge williams did allow use of portions of the position statement that were are great no i understand that she allowed him to use the statement in order to undermine  impeach the credibility of witnesses like all i'm asking is if he had said to her i want to put in at least the portion of it as affirmative evidence it's very different to put something in his affirmative evidence on the one hand or do we use the document for the purposes of impeaching very different propositions statement may be well he suited to impeachment an holy inadmissible for other reasons she kept the statement now in whole and allowed him to impeach with some of it could she not have allowed him to put in that portion of the position paper that  upon the issues this jury had to try she could have did he ever ask her to do that i don't believe that ever happened and i would also add on that point your honor and the record shows that there was a point where defense counsel suggested that they would be willing to put those statements in affirmatively in a stipulation and judge williams also agreed that that might be simpler and easier but mr amador never did that so there was that opportunity it was considered and it was never requested and ultimately here you're exactly right the the district court judge has what this court has said is considerable leeway to make these types of discretionary decisions about evidence well  and i would say that was well for that purpose that that was well within her considerable leeway and it is this court has noted in describing that considerable leeway even if a different district court judge might have gone the other way or even if this court looked at it it might all about you needed to ins apparently had no but said that he could use it for purposes of impeachment i different judge marcus it is and my point is that she has the leeway to make that determination that's part of the trial court judge's discretion or not i and i don't think on this record you can say that judge williams abuse that discretion and on that point urging that these statements are inconsistent i will let you use them for purposes of impeachment it was not excluded altogether there was still the opportunity to get those statements in front of a jury through impeachment but that foundation was never established  that never happened and when you look at the statements themselves by the way if you drill down into the you can't possibly get to a conclusion that there was some substantial prejudicial effect even if you conclude second guessing that ok maybe judge william should have allowed those in which i would argue was well within her discretion not to well within that considerable leeway if you look at the position statement the comments that plaintive urges you should have been able to put in as affirmative evidence if not the entire position statement are not inconsistent and let's look at them the first grouping relates to what mr amador was told when he was asked to take on this temporary city assignment amador argues that the position statement falsely said he was told from the get go the jail i was going to back fill his job the position statement doesn't say that the position statement specifically says that in the beginning mr t split your time between these two roles the position statement says that then it goes on to discuss while they were looking for a replacement or a permanent person for that temporary role later mr thumble decides he can't handle both of these jobs at the same it that's what the position statement says that is actually what happened that's what the evidence shows there was nothing contradictory about that the one quibble is that the position statement says that it was mr thumble who told mr amador he was going to backfill the job and the evidence shows that in fact that communication came from a different manager but there's no dispute that mr amador was told he'd be back filled he even testified and acknowledged on cross examination that he helped to back fill the role he interviewed candidates for that role he recommended people so there was no secret here that is not a substantial prejudicial effect because it's not even contradictory the same is true with the other other statements in the position statement that mr amador contends were so critical to his case saying that he accepted the temporary job even though there's a risk that there might not be a job available he portrays that as if j l told him there would be no position there might not be a position available the position statement doesn't say that either it just says he accepted that temporary assignment even though there was a risk there might not be a position available and that was true virtually every jail witness who testified including when mr amador himself testified explain that they had cycled through countless assignments at this company that's the way it works it has all these client accounts it gains them it loses them it shuffles people around people are moving from assignment to assignment all the time and there is an inherent risk that there may not be a job available the record shows that happened with others so when the position statement said that he accepted that job even though was there was a risk of not having a position available at the end that was true and that's what happened especially when here it was a temporary assignment there was of course and up a risk there might not be a job available but the positions they were never said he was told that just that that was the reality the other one is  the statement that mr amador accepted the job because it would give him this client facing opportunity an experience that he didn't have again mr amador portrays that is jail is saying that that's why he accepted the job position statement doesn't say that either it just says given his background in engineering that's true his prior engagements in technical roles that's true the temporary assignment provided him with an opportunity will be a short term to assume a client facing role that's true that might better position him for a future leadership position that's true and that amador had not previously served in senior client facing roles which required him to manage the overall client relationship mr amador quibbles with that and said he had client facing roles before but again the position statement doesn't say that's why he accepted the job it just says these were the realities of and all of those things were true so even if this court says it might have gone the other way as it were first of all that's not an abuse of discretion but secondly even if this court had gone the other way or a different district court judge might have gone the other way there's no substantial prejudicial effect by excluding these statements from affirmative evidence and i was struck by something judge marcus said in the prior argument  that a statement from a case didn't have anything to do with the holding here the statements from this position statement that mr amador says were so critical to his case have nothing to do with the fact that the company chose someone else for th role and the issue that was in front of the jury there collateral there is no substantial prejudicial effect in judge williams is excluding these or as she did allowing him to use them albeit for impeachment purposes and again we offered to put them in affirmatively through stipulation which judge williams agreed was perhaps an easier simpler idea and the plaintiff never requested that so we would ask the court to uphold judge williams discretion and affirm her decision and unless you have other questions your honour's i have nothing else thank you very much thank you who was present in the court room and sure i thought i heard you do say the heart of your argument was she abused her discretion because she kept the statement out on chap and she was obliged to admit the statement now i hear you to be saying maybe something a little bit different i just want to be clear as a on what the argument is because when i read the blue brief i wasn't one hundred percent certain but it looked to me like the thrust of the argument was the abuse of discretion was in keeping the position paper out the alternative is beyond that she didn't allow me to when i say the statement i'm talking about not just a physical statement the piece of paper but the material contained in the statement ms born or who wrote who signed a statement could easily have testified the fact that she made the statement to the e e o c is relevant under rule for one under four zero two relevant evidence is when i looked at the blue brief point one the trial c that she was obliged to let that statement come in and i don't think you had was the heart of the argument that i thought you were making that you couldn't put the document  don't think keeping the document out was as harmful as keeping the statements it contained out in this born or was there i asked to i asked to   it was denying me the billy to question miss barter which sealed the deal it kept the it kept from the jury information from which the jury could have found that jail those explanation was pretextual so i understood the district court ruling she said that formal quote can be asked about whether he was aware that a previous position was taken by j l l in another proceeding and she said that you could ask as well about what amador except for the temporary assignment at city even though there was a risk that no appropriate justify two positions one person would not be able to do the job affectively and the court said that that was a carpet an area of cross examination as well didn't she say you could ask about those areas i did i asked mr  e about those areas and he said i don't recall i don't recall i don't recall i then sought to show him the letter to the city and to go back and question about it and  this letter before and that point she said well move on and i was not allowed to pursue that live question anymore i did ask to call miss barner and to ask her about these statements the when i say keeping out the e e o c statements i meant both the piece of paper and the statements that it contained  i was allowed to introduce neither the offending material in the statement you have been redacted that wasn't done they ju