good morning mid pleased to court stephen burke's team for the plaintiffs emery lead patricia watson we have two primary issues of substance on the subpoena we have the pregnancy issue we have a hostile work environment issue i'll start with the pregnancy issue under the pregnancy discrimination act women are not supposed to choose between working and having children and they are supposed to be on equal footing with any employees whose temporary impairments entitle them to work light duty those principles are implicated here know didn't that there was a bench trial on the disparate impact right we're no longer talking about disparate treatment at all you have an appeal the jury verdict against your client on that correct ok so  the district court as i understand it found as a fact that ms leg was not disabled by her pregnancy in any way and that at least and she was not in july when this  application for light duty was filed i have that right i don't think he said she wasn't disabled i don't use it you wasn't a sable i think he what he said was she couldn't prove that the policy falls disproportionately on pregnant employees he had a footnote in which it isn't their problem i suppose suppose it did fall just brutally on pregnant employees who have some disability because after all the point isn't that people who are pregnant have to be treated like people who are disabled it's that people who are pregnant and are therefore not able to perform full duty have to be treated like other people who are disabled that's right right so if she's not in fact disabled by her pregnancy then doesn't if nothing else she would lack any injury from a policy even if the policy was improper that's the central flaw of what the district court did to arizona the district court divot let me start with that because it starts with the july eighth two thousand and eight doctor's note that says i'm treating emory for her pregnancy she can't work directly with inmates once she comes in with that note they should have immediately assigned her to light duty just as if she suffered a work related injury and so i mean the district court says i'm going to disregard that note because the doctor a day later said something absolutely opposite to it so it's not credible evidence as to whether she is disabled but that's completely on reasonable because because number one once they saw the july eighth note that should have been enough to trigger the light duty policy and say ok you're now going to work in the control room and what they said instead is as soon as a doctor sends a note that does not in fact say here is a medical issue because this woman is pregnant that means she can't do specific things all  note said was she's under my care for being pregnant and she should not have contacts with inmates and as soon as that is said there is no possibility of questioning that they didn't question it on the basis that your honest question how they simply looked at the note and said oh no you don't get light duty because you weren't injured on the job pregnant women don't get light duty under the policy go back to your doctor get a reevaluation and what happens the next day she goes back and she gets the note that you need don't we all have the experience of wouldn't it be a reasonable thing for a fact finder to say that look we've all seen doctors it's not that they lie it's that they want to accommodate their patient if the patient wants to be have the employer be told they can work they're happy to say that and if the patient wants the employer to be told they can't work they tell him that and they're not really focused on the rigors of this particular job they're just saying you know it might be better all things considered to give this person a little break and if the person doesn't want that said for whatever reason then they're perfectly happy not to do that so that argument supports our position because she gets the note that she needs in order to work and earn the salary that she needs to support a fright but why can't the fact finder what is the fact finder have to say the first note was the real truth and the second note was a dishonest accommodation you've got the same person saying two opposite things within two days how can it be clearly erroneous for the fact finder to say i'm just going to disregard that and look to the fact that she then went on and performed full duty for many months without any untoward difficulties that were on toward difficulties that's the problem in october she told sergeant winter i can't do this and sergeant went there in an e mail said ok you'll work like duty and then he wrote an e mail memorializing that transaction because he knew there was a problem because she complained and then look what happened in the vendor now she's in her seventh month of pregnancy she's still working full duty in a jail with up to twenty four with mates in dorm two she testifies she can't and up quickly she can't sit down quickly she's got all this weight in front of and she's supervising twenty four mates by herself without a weapon in her seventh month and what happens a fight breaks out she can't do her job so where is the evidence that she can't do her job isn't there testimony that the district court could fairly rely on that you know we're not the fact finders here the district court is the district court could have relied on that said she actually did exactly what any officer in that situation was instructed to do which is call for backup but that's not really doing her job so she's waiting for backup to come while some inmate is getting beaten up in a bathroom stall she can't break it up and she herself is at risk a great argument for the fact finder but the fact finder credited testimony from the sheriff that she did a terrific job she did what any officer should have done in that circumstance she's in her seventh month she can't she can barely stand up you can put somebody in her seventh month in a situation like this she has no business working in that dorm in her seventh month this is why the light duty policy was illegal as applied to make any difference whether she what her condition was in the seventh month versus what it was in the third month when she made this application know because in the third month that brings us back to the doctor's note getting a doctor's note the second day with a contrary decision with a contrary opinion we all know why the doctor wrote what he wrote she can't live on thirty two's and we all know well it's a fact finder made a fact finding about this and the fact finder chose apparently to think we all know what the doctor did or at least the fact finder thought he knew what the doctor did on day one as well as on day it's not reasonable because the it's the next day it's the next why else would she get a note that says that one day later when they tell her get it we'll evaluation from a doctor if you want to work full time that's what she does because she's making a choice now between working full time and having a family and it's a hobson's choice and she shouldn't have to made make that choice t should have looked at the july eighth note and said ok you're working light duty go work in the control room for the next five months you'll never have contact with inmates and when you have the baby you'll go back to full duty and i didn't one more question about the  impact as such one of the things we talked about in the previous opinion in this case was that something that would be useful evidence from which inferences could be drawn about intent but it seems to be something that is also highly relevant to disparate impact is to compare the number of people who are affected by this policy by virtue of being pregnant zero pregnant people can get the benefit of light duty against what the proportion of people who are partially disabled for reasons other than pregnancy who get the benefit of this policy because for example if ninety nine percent of the people who have non pregnancy related disability also can't benefit from this policy and it's only a relatively rare exception that somebody gets the benefit of light duty because they were injured on duty is it your position that would also be a disparate impact yes you get light duty if you're hurt on the job and there is evidence of what if what if that is a very rare thing this still a policy that they're applying against her so if there was a rule for example a sort of superhero let's call it that in the fire department nobody gets light duty but once they made an exception for somebody who  been injured on the job in a remarkable exercise of heroism and got the key to the city as a result allowing that no one except would invent wouldn't mean that anyone who's pregnant has to get light duty yes because you're extending a privilege to somebody based on their inability to work and it isn't the real problem here not a light duty policy isn't the real problem that there is a state law that says that most people who are ill in some way have to take their sick days and when they run out of sick days they get unpaid leave but someone who is injured on the line of duty in the line of duty has to be paid the whole time is it isn't that what you really should be challenging that she should be entitled to stay home because that policy has a disparate impact on pregnant people compared to people who are disabled by reason of a job related injury well that's one way that's another argument you could make but if you coming into work and you want to do the work but you can't work full duty but you need the full pay which is what she did which is why she got the second note the policy is not being fairly applied to her but she similar in her inability to work as these other men and women who are disabled in the line of duty are entitled by the state law in effect to stay home and get paid and the sheriff makes them come in if they're able to do something that could be useful if that's the policy that's the policy right so the there's an achilles heel to the district court's analysis he cites a case from the eighth circuit from one thousand nine hundred four armstrong that says she has to show that no pregnant woman can work full duty at the jail that can't be the standard the standard has to be whether she is somehow victimized by the policy and for the reasons we've argued she was because she had to make this choice the issues of business especially never came up in the that there was a hostile work environment against officer watson based on the following evidence you have office a divorce subjecting plaintiff to unwanted harassment breathing down her neck where he says what is absolutely lacking in this case is any evidence indicating that pregnant women were unable to perform full duty at the jail and that's consistent with the evidence here there was no medical evidence presented at the trial to suggest that mis had any difficulty whatsoever and she went back to work in july and worked without complaint all the way through november and that you ation that mr bernstein point to know where she was her inability at a time there was a fight breaking out to go in and  deal with it no issue with that because the sheriff himself said that when you're on duty and there's a fight you call for backup and you only thing you do i mean that seems to me pretty pretty stupid that you call for backup of course but you just stand there and watch this melee take place well i mean doesn't the sheriff have a vested interest in saying oh she did exactly the right thing since he's here in the county is being sued well for the very thing she's saying i can't do well if you would take the minimum manpower requirements stablish what we have to do at the jail and those men quire power requirements have us have a c particular location and another c e o in an inner guarded area and when there's a fight they call for backup and the backup is responsive within a short amount of time but the difficulty is is that they do not want to expose any c e o to the fact that there may be contraband involved in that fight that they may suffer greater injuries result and so the procedures that have evolved and i don't pretend to be a police expert or a correctional expert tell us that you back off until there's greater numbers of seals ceo's there and yes you know you could be you know i suppose somewhat heroic but that would also place you in danger and potentially make you a hostage and so that's why they wait for the greater numbers and doesn't than the record also shows that apart from being pregnant she's something like five foot six and the guy who was apparently the aggressor in the fight or at least the winner in the fight was some  and that's in the record so you know the likelihood that you would want that to happen is not the same time after that fight and after that incident then she stays home for the rest of her pregnancy and isn't there also evidence in the record that while other pregnant women had worked well well into their pregnancy they also stopped working at something like seven and a half months yes and we didn't have any evidence in the case that was presented by miss leg that suggested that she hype risk pregnancy is that am i wrong in remembering well we don't have anything we knew that she had there was some colloquy in the case with regard to she had a problem pregnancy but we had no evidence presented at trial to suggest that that would put her in some different classification so are we i required to just overlook what kind of common experience that pregnant women tend to be more vulnerable physically because they're condition because they're carrying fetus than the ordinary person i think that what we cannot do is that we cannot make a generalization about any in particular pregnant person but me must wait for the receipt of policy disproportionately impacts pregnant women and we had an absence and i suggest you judge i'm just putting an o b g y n on saying pregnant women are vulnerable that that had done it you know i would have cross examined that obstetrician with regard to that i would have had to look for some more backup i mean that the judge said statistical evidence wasn't necessary well i would submit that in this particular case we had proof that other pregnant ceo's had worked and that at some particular time near the time that they were going to give birth they left and you know we would only speculate as to why they left at that point and when you say they left do they see is working and they beings ceased getting paid or were they on leave or well what was their condition well status when they left i mean some of them save sick leaves on them say vacation time but they definitely left and then after maternity leave came back to work in the same capacity so there was an absence of proof and i would submit that what we have here is we have a forced work policy it's a misnomer to call it a light duty policy in the record it will show you that these people who are out on two zero zero seven c have to show up every week and the sheriff can force them to go to work and so i submit to you that it's a misnomer to call it a light duty policy it's really a forced work policy and nobody can ask for light duty light duty is only something that the sheriff can direct you to do if you're out can be a reason but it can't be the only reason and here we have minimum manpower requirements by the commission on correction so if i can i just go we go back for a moment what happens in july when the doctor's note comes in you know it's one thing to look at this retrospective at the end of the process and ask the question well she did do the work and well looking at it now we could have experts come in and talk about what her the state of her pregnancy was or wasn't isn't the question really what is the jail supposed to do when someone comes in with a doctor's note that says i'm pregnant and my doctor and his doctor say she's pregnant and as a result she should not have contact with inmates now are you entitled to then at that point say i need the doctor to tell me something else and what is the doctor you know what judgments is the sheriff entitled to make to second guess the doctor's prescription well just the vagueness  not to have contact with inmates this is not a work setting that's a public library it's a work setting that's a correctional facility and i think it has to be judged in that particular context and even so would you think there's a difference between saying at that point well officer leg i'm not sure what this says have the doctor give me more information and saying hey you got to get a note that says you're able to do work full work because if you can't use have to take your sick leave when that runs out you take on paid leave and you're on your own i mean that's a different response then i'd like more information from the doctor isn't well the response of course has to be that as the young case says the pregnancy the pregnant individual is not the most favored nation she doesn't get a preference over everybody else and so long as we're not treating them differently and in this case we didn't treat her differently because she presented no evidence of any particular disability there was a vague note and she wasn't injured on the job so we have sick leave policies at the jail and if you present a note that you're sick we'll let you go out  jobs i mean it's not really disputed that there are jobs that do not require in made contact at all and that do not require you to respond to emergencies and there's a very limited number of those per shift and here that was an opportunity for the plaintiffs to put in statistical evidence to demonstrate that we treated people differently and they didn't because i submit you can infer that the statistical evidence when it help them here or there is in their list at one point of something like five or six people at one particular moment who are in the category of the injured on duty and available for light duty i think that that is one exhibit in the case and that has a listing of people including those on military leave as well and the number is insignificant ice and that compared to the number of people we need working on every particular shift to guard three hundred fifty inmates if i could just jump over to watson we are obviously bringing our appeal in that regard to suggest that the testimony with regard to the work environment in that particular case is insufficient to meet the standards of this court to justify a verdict on either title seven  do and we soon said they were mere utterances she said that she and others testified that there were pornographic stream screen savers up and pornographic magazines around that they complained about repeatedly over several years there were two testified at trial and said i never received complaints about any of this from mr watson or the other plaintiffs who were involved in the underlying case they observed to the wrong person well there certainly is a duty for you to report this in the appropriate fashion and here they had yearly seminars at which mr watson proof was a trial she attended those seminars and that particular officer indicated i'm the person to come to and nobody ever came to him so i agree with you that those particular pieces of testimony suggest offensive matters but clearly the plaintiffs were not so aggrieved that they wanted to complain about them and particularly in the underlying case there was also proof of telephone conversations between the c e o s with regard to how they viewed their workplace and as i said before on the other particular zation on the pregnancy discrimination this is not a public library it's a correctional institution and what does that mean for having pornographic materials around and i'm talking about with regard to the fact that it's a culture and a place that has different  voice and people if they're not going to complain about those tones of voice if they're not going to alert the sheriff or the deputy with regard to them that puts a different twist on it and i submit that the underlying council said at some point there was no complaint but i am really led about having to work full time page three twelve of the appendix is the email from sargent went through that recounts that exchange which he was concerned about safety put him in light duty so that's why what happened in july had an effect all the way through november when the fight happened on watson there's a i don't think it's a serious factual question about whether the plaintiffs properly complained this was a jury verdict and the district court said at page twenty two the jury could have concluded that officials at the jail act we asked to the existence of the pervasiveness of the pornographic material and the use of explicit screen savers so management knew and the district court on three occasions in his ruling pointed out how management dropped the ball in the face of their knowledge of the widespread pornography and sexual harassment going on in the jail three bases upon which the jury could find management was liable under title seven in addition to that a couple of different questions actually one supposing i agree with you that the judge was wrong to take away the to give judgment as a matter of law on the one nine hundred eighty three claim the second that's and then and then just one other question that's what i thought but if if that's so i guess one of the things that has puzzled me about the case is this was litigated in the  emotion thing is as a case where the jury awarded four hundred thousand dollars worth of damages and that makes sense to me why is there d damage the i understand there are two theories or two cause of action one nine hundred eighty three in title seven but isn't there really one unitary injury that suffered the jury divided up in the course of action the jury said is four hundred thousand dollars worth is allowed to divide it up the way it did three divided up that way and so it would go back and the judge would decide whether to it's appropriate to have a remitted to or to seventy five thousand dollars on the second claim as well as on the first or to some other number ok the other the other question has to do with the waiver argument right because you argue as i understand it that all of these motions by the other side were untimely in the first place and i guess what i'm wondering i don't even understand what the district court found as a way of waiver but isn't there a clear waiver at an earlier point in other words the error that the judge made was in extending the time which he wasn't allowed to do under federal of silk procedure sixty two and when he did that you didn't object no one objected everyone was slow to happy with having more time to consider including you who also got the benefit of taking more time to consider whether to make motions addressing the verdict and then when they made their motions according to the schedule that the judge erroneous lee sa suddenly the judge says oh sorry it's untimely but it wasn't that matter i mean if the district judge made a mistake here and the mistake he made he made weeks earlier and no one objected to that well that was at the end of trial but the judge didn't say you can go beyond the twenty eight days he said you file you approach two weeks at the get the transcript that's not the same as saying you can go beyond one month extensively as you might think but the standard around the country seems to be this if the judge makes that mistake and nobody says anything at the time of the mistake but they raise it in the merits brief as long as you raise your objection before the judge was all circuit that mean one circuit says the opposite and we cited both of those cases in our prior opinion and i thought we were asking the district court to make a ruling in the first instance of how to address this and he went off in a different direction that it was constructive waiver but  the common sense rule is this if we raise our objection before the judge resolves the motion on the merits isn't that enough and there are cases where that happened and but you know if somebody had said and this is the whole point contemporaneous objection if somebody had said to the judge wait judge this is this wait until you get the record which also i think any human being who is not a lawyer and an adept in the federal rules of civil procedure would think is a pretty reasonable way to decide when you can follow your post from motions is after you get the record but as someone pointed out to the judge oh you know yeah after two weeks after we get the record so long as that's within twenty eight days because otherwise you're violating the rule the judge presumably would have done something different but no one did point that out to him that's true but that's what happened i think of the deal case the deal case right and then but as long as dill raises his objection when the motion comes around that's enough that's what happened when discovery man that i raised it and and you know we never had a chance to object when the time the motion came in because the judge to respond to my object why have you one hundred percent that you can't be taxed for not making an objection at the time to when the judge already ruled in your favor without even hearing from you know if i'm right on this that we didn't weigh what that means is defendants post trial motions never happened right never names the title back in full well perper haps to the title seven verdict comes back in full because there was never an opportunity for the judge to make an emitter decision the motion post trial was it really didn't make it and you accepted it well we're going to come back later and say i mean that's the whole point if you didn't accept it then none of this would have happened and we would have been back having a new trial before any of this came to us despite you bought into it well we're going to deny them a minute or so we can have a second trial so then we can claim we didn't wave i mean the point the standard seems to be from other circuits is the issues of a separate and distinct if the issue you take the remitted iran is separate and distinct from everything else and you know waiving the everything else and there are militar is not the same as that's a separate issue from understand the everything else i'm asking are you telling me that you are taking the position that you can actually reinstate the two hundred thousand dollar title seven version not withstand verdict notwithstanding having accepted the  decide that the motions were untimely with respect to a completely different cause of action and a completely different claim as to which there was no express waiver of an objection to the think about the consequences of if you're right so we say no we're not taking every minute we want to new trial on damages you have another trial just so you can claim on appeal that we never waived our objection to the post of motion that seems far afield well that that's exactly suppose there were no hundred eighty three claim in the case and it was just a straight title seven case that with the only cause of action you would be in exactly that position you made an argument this is waived and you made an argument there shouldn't be remitted to or the judge rejects those arguments and grants the remanded to or you then have a choice you can go through the trouble of a new trial and i recognise that's a lot of pressure put on a party under but that's exactly what the rule requires it's not a final order so you either go through that or you accept the remit to er and the case is over some trying to figure out why it should be because you've got another whole string to your litigation that you are reviewing and inclined to think correctly you have still a right to raise the on timeliness issue as to that as to the one nine hundred eighty three that that also trumps the normal rule about accepting ritter's but there is no normal rule in the circuit by the way on circuit interesting i don't see any case that really gets into this