craps in the court with give me some pointers along the way because i mean just tell you a question that i have and get your feelings about it  whining that went to the jury was the hostile work environment point us around and that was the sole claim after everything else had been cut off in one of your contentions it's not your only contention but one of your contentions is that you should have been allowed to go to the jury on the sex discrimination claim correct and the retaliation playing as a sex discrimination got cut off in summary judgement i understand retaliation was kind of half and half had offered summary judgment half cut off a trial will mean tell us what evidence was there could have been presented in to a jury under sexual harassment or retaliation was not presented in the context of hostile work references to the cheating were inappropriate but all of the business about the way in which she was spoken to the photographs the reference to t district judge should have been a lawyer but it sort of somewhere the sex discrimination claim was not precluded by anything that i could see and i'm not quite sure where it was res full well that when they got to trial and in the plenary before the trial the judge said there's only two issues remaining retaliation and sexual harassment and he had interpreted his own decision earlier mentioned that she mentioned that there was testimony by the lady they received tutoring at one point or another but that the men were having an easier time in the class and that there was some appreciation that they were getting help and some candle steinway  of whether there was a hostile environment and they said there was nothing there but i'm trying to figure out the jury didn't have any instructions on how to tell the difference between a hostile environment and discrimination that would seem to take care of that aspect of the claim what i'm trying to find out and i can't really hear is what happened to the claim is that the test was unfair it was unfairly graded the other point being that those cases the case seems to really put a lot of emphasis the crossed over again has choice and this case she lost two sets of attorneys the second being on the eve of trial and there was testimony about her psychiatric problems related through the whole trial and so i think it can be clearly said that she wasn't acting with full knowledge and understanding of the risks of being  trial the trial commenced in late june of two thousand and one her second set of lawyers the court granted the motion to be relieved in february in fact in the pretrial mediation session there was a yet another set of lawyers a harvard trained lawyer highly experienced who was representing her but he didn't proceed so i want to make that subject matter came up during the trial when the more years that she local rules because mr kelly was improper this particular witness had never been deposed and we wanted to ascertain on cross examination because of some of her statements if she had ever had contact with any of mr kelly's lawyers and she said she had plain and simple the other point is that you came up in why dear where miss kelly injected the issue when she why did the potential jury she asked the whole of dire if anyone had a problem with her representing herself and there was some questioning back and forth about that and fact one of the potential jurors stated that she would be sympathetic to this kelly because she was improper or so in fact miss kelly had injected that into the trial you folks except that you're well actually i could tell you with your chalk ins that i asked a judge prior to dismissed for cause the juror that said that she would be sympathetic and he offered is there a distinction and doesn't make a difference i don't think well as follows nothing was precluded nothing whatsoever so she was free to put on any evidence concerning the greedy she called sixteen point being nothing precluded this kellen at the time of trial from putting on any evidence whatsoever regarding the stir from stances in which the tests were given she had a full opportunity to do that the exam or whatever she was and that's the whole point your honor they weren't and i think the proof is in the pudding here after a two week jury trial sixteen witnesses expert witnesses unlawful discrimination on the kind of suspects and the answer is no we proposed jury instructions miss kelly did not even though she had the opportunity she had the opportunity to object to our jury  differently if i may in the course of the trial at the conclusion of that evidence we brought a rule fifty motion and we asked judge bryer to take the case away from the jury and judge bryer denied the motion to the extent that he allowed the hostile work environment claim to go to the jury as to the retaliation basically there  retaliate against mr kelly by having a seven hour time limit on the second exam he found that there was simply no way a reasonable jury could infer retaliation for the same reason judge reinhart you articulated to helen's counsel it was the same exact test eighty nine questions in the record the company didn't change the order of the questions they didn't change anything except in two questions the numbers changed further and it's undisputed in the record under the memorandum of understanding between miss kelly's union and the company  student fails the first face exam they must be given the opportunity to test not only was she and the male student given the opportunity to retest but they got wrong with your answers i just am trying to find out where if ever anybody was asked to decide or decide the question of whether whatever happened was it was incidences judge hawkins asked at the outset the summary judgment ruling as judge bright pointed out that not preclude miss kelly from bringing in any particular witness whatsoever she had full rein the teachers were brought in and subject to cross examination her fellow students were subject to cross examination and the point is it's not got to be careful with with the word discrimination versus issue well not only did she wait that if it existed but the issue as to the reason why she was expelled from the program if that narrow question was determined at the summary judgment stage understand your argument that on the evidence you're entitled to when that's not what we're talking about ok that's that's a different issue the issue of the stand their argument articulate to the panel is that this is really an academic discussion we're having because to get back to judge hawkins question in terms of the practical implications nothing happens at the trial from an came in on appeal i tried the case i was there and there's nothing that she was precluded from putting on other than the motions in limine a which were granted which they phrased on an abuse of discretion standard this is not raised in their in their issue it wasn't like she said i want to put on this and the judge said you can't do that in fact in the ultimate question that you may as your pondering this bear in mind she chose not to testify now i believe she chose not to testify because having been through a deposition and she knew what would come out on cross examination about her own conduct in terms of the type of language she would use including racial epithets and i think she was fearful of having that heard by the jury particularly because there were minority people in the program who by the way came in testified and i think that was a sensitive issue for her but she made a very conscious decision not to testify even though judge prior etc are you planning to testify because as you know when issue came up about a proffer about that and she said no i'm not i don't think i'm planning to testify i'll put on my case the other this is so you can't come now to the court of appeal after making that type of a decision in this type of case and say i was precluded from putting on evidence and i might also add that this whole issue about cheating is a side show if you look at her deposition testimony which is part of the record she admits that the students were ten feet apart in the classroom and that the test was proctored plain and simple and the bottom line to come back to judge reinhart's question is that this is a case of a person who unfortunately just like th nature i just couldn't accept the fact that she didn't pass just like the male student did in the past and could have gone back and worked at the company but instead chose to take on the company for years of litigation trying to say that this happened that happened i think when it's all said and done you look at the jury's verdict on the lack of a hostile work environment claim and it really subsumes just about everything else here the cost that we tally ation claim which was taken away in essence she's arguing the company retaliated against me because they made me take the saints test ten days later in seven hours and i think  of the ten students in the class seven of them on the first exam finished within six hours and so and then the person who made the decision to have a seven hour limit mr kilpatrick testified at trial subject to why wouldn't we then give a new test and make it more difficult if someone was quote out to get her as judge brian pointed out all the evidence in the record is to the contrary here's a situation where the woman comes forward says i need help and i get tutoring and it's under scooted the teachers are giving her hours upon hours of private tutoring sessions if anything the record shows that the company bent over backwards to assist her on fortunately she she just like this male student just was one cut out for this particular line of work doesn't make her a bad person but can firstly it doesn't mean that the company acted inappropriately thank you thank you former attorneys questioning ms mello has pummeled on page five seventy five of volume four the report is transcript and that someone was her former lawyers yeah and if you speak with her former lawyers over the past couple of years know i spoke with a couple of them and could you tell the jury on how many occasions you spoken with miss kelly's former lawyer basically probably just that one time for i don't know maybe half an hour something and was that ms dixon's firm was that her next set those cases where there are instances where you know the horse is out of the barn and and that was allowed to happen the question of her not testifying we didn't put that issue before the court we won't belabor the point but we think that it was very significant that the court required that she was going to have to write out her testimony ahead of time which was not the procedure used on the opening statement when mr stier presented on the opening sta helping her get to the merits of the case maybe proposing that you can write out your questions for the court the court told her that she could not testify unless you wrote out her whole testimony we think that was for a person in this situation insurmountable