case number thirteen four one four five fourteen three eight one six and fifteen thirty four sixty two carrie braun versus ultimate jet charters it all oral argument not to exceed fifteen minutes your honour's may it please the court this is actually a pretty important case it's the reason why i ask to have it argued it's important on a number of different causes and i'll deal with each of them in turn three of them in particular first one has to deal with whether or not this issue should have gone to the jury whether the court should have taken the case from the jury and the consequences that attend to the fact that the court did  defendant after the case was concluded under rule sixty a your honour's may please the court all address the first one the reason why this is so important and  i don't quite know how to do this i've never done anything like this before i cited in our brief and our initial appellant's brief a an accident that occurred with a commuter jet in akron fulton airport where nine people died on on or about november fifteenth of last year your honour's at the time i only had the plymouth report because that's all the national transportation safety board had issued i now have came out on wednesday and i don't think it's even i don't think it's come out on westlaw or lexis yet the actual final report from the national transportation safety board i have i've given council a copy of it i have four copies here i filed it with the with the clerk's office with a request to take the dish will notice i don't know if i give it to you now if i made would you mind saying what the issue is that you're addressing yes the issue is this  the question of whether or not the judge should have allowed this to go to a jury is critical what we're dealing with here is a an airline a commuter airline where mistakes if they're made have fatal consequences below made a case an arguable case even for oppositional activity whether or not there was discriminatory conduct specifically discriminatory conduct on the part of the employer there was  some notice that was made it was rather skimpy and i've cited that in the brief but the question involving whether or not the actions of the coworkers and that is the co pilot's whether those actions ever could arise to the level of a discriminatory practice by the employer and i've cited the case of o ses versus strong and kill versus university hospitals on that point that is the very narrow question here i raised it at a directed verdict at the close of the case in chief i also raised it again at  the close of the entire case and of course i repeated again on our renewed motion for judgment as a matter of law essentially to the nub what was proven at trial and all that was proven at trial was that coworkers and that definition was was given to us by the united states supreme court in vance versus ball state university a decision that came out right before a trial we had nothing to do with hiring firing giving her any kind of advancement or any kind of raises the supreme court and ohio courts and i've seen it cited that that's the osaze decision os versus strongsville ruled that that sort of activity by coworkers is not discrimination that could be imputed to the to the employer very simply and there's a reason for that the reason for that is you know we start with the basic concept i'm struggling with that argument in light of six circuit precedent that makes clear that an employer can be held liable for conduct of coworkers where the employer knew or should have known of the cond but failed to stop it ok i'm not sure your honor whether you're citing to a seventh there's a little bit of a difference decision the supreme court said very clearly that it can't be imputed but there are circumstances but the question is not imputation of their actions the question is whether the employer knew that conduct was going on and failed to stop it ok and i believe what the court then refers to it by the way that was not part of the jury instructions but be that as it may the question at that point in time then turns on whether there was negligence and whether or not it will operate out just one under a retaliatory charge yes and so if if the question seems to me under six circuit clear precedent is knowledge and mr gordon testified that he was aware of these compliant i don't believe was mr gordon i think you're thinking of mr parsons but it is no no you're correct it was both i think gordon's and parson both know he's a k did there was awareness of some of the complaints because the the terminations even included a reference here that's exactly first of all that's exactly what the answer says ball state university said it was it was directly on that point and it was about imputation it was about retaliation didn't go into a lot of explanation it just said that the two issues before the court had to do with a claim for retaliation and also a claim form but one of the claims that was dismissed in this case for harassing workplace  but it was on the issue one of the issues was on retaliation and it did talk about imputation your honor and i'm sorry i'm finished at it you want me to finish my answer  ok yes your honor it actually went into a great deal of detail on the question of imputation and whether or not under certain circumstances i believe it described as negligence but i believe that had to do with  harassment i disagreed on or i did question here is whether or not that that conduct by those coworkers can be imputed i also cited an ohio case that was cited by the northern district of ohio that's the osaze decision where it said that coworkers conduct cannot be imputed in there they were talking about some really vile kinds of things about african americans that were being said by coworkers cops in the city  strongsville and they said their coworkers it's not retaliation under the ohio statute forty one twelve and that's all that was involved here would you like to take some of your bow and continue your argument or do you want to save your rebuttal i'd like to question of whether or not the truck which of green of the judgment is a matter of law fifty of course we have to take the open it's reviewed in the light most flate favorable to the plaintiff and we have to give her the nonmoving party a discrimination this evidence if believed would be sufficient to support a determination by the jury that she reasonably in good faith believe she was engaging in protective activity when she complained to parsons under the oppositional clause forty one twelve zero two eight an oppositional clause violation can be found whether or not the challenge of practice is ultimately found to be unlawful so as long as she reasonably believe  that that she was engaging protected activity in making the complaints i don't think we have to get whether or not the activity itself amounted to gender discrimination and that's johnson versus university  we guarding the issue of the appeal during the remit to remit to turf of punitive damages i think ohio revised code forty one twelve ninety nine permits an award it's clear under the water case permissive award punitive damages in scream a nation claim and again quoting from wattle the jury is given wide discretion in determining whether peter damages are justified and in assessing the amount of such damages based upon it collective judgment as to the punitive and to turn effect that such an award would have i do not submit at all that is award of one hundred thousand dollars when compensatory damages were calculated at seventy shocks anybody's conscience i don't think that any of us are going to say the jury lost its way and awarded excessive punitive damages it appears to me they award comports fairly nicely with compensatory damages award d touching if i can onto other issues regarding the whether or not there are some error in the trial court awarding attorney's fees i think there's two problems with that argument under the wattle case so i think the attorney's fees stem from the punitive damages the punitive damages awarded by the jury even perhaps even more important i think that issue table to be decided by the court and time with three different times during those parties agreed to submit the peanut damages charge to the jury correct yes correct judge should the so i think there's two problems with that that appeal if i can take a few minutes to address the name change controversy under rule sixty i think trial acknowledged that they work for all of the judge charters and i think one judge awarded a look at how that was presented all the way through the trial her conclusion that the jury intended to hold plaintiff significant problem all the same people testified the same attorneys and were involved the same ownership so i don't think that issue certainly merits throwing out the jury any time before the trial commences you can bring it to the court's attention by a twelve b motion you can bring it through a motion for summary judgment in this case was extensively briefed there were motions flying back and forth mean were roll the dice and then when i'm happy with the verde with from the from the jury then decides to guess the court has to decide that the wrong party is named so i think they've waive that or they should be at least to stop it from arguing that at that late date if i can take a second or two to talk about one of their issue if the if nobody on the panel has any questions at this point i collusion in akron apparently last november well obviously something in the record below no not at all it's something that amounts in my opinion to appeal by ambush to give any new exhibit two opposing counsel fourteen minutes before the arguments to begin with i haven't even tried to open it well we don't usually except exhibits in any of there was evidence all through the trial that was are approached if they had good reasons to fire because she's an unsafe pilot at the end of the day or at the end of the five days of trial the jury heard all of that  and they weighed everything they heard from fourteen different witnesses against her single testimony and the jury who's the trier of fact who weighs credibility who weighs all of that evidence decided that that evidence didn't pass muster they didn't find there was a safety violation what they found was that the argument that there was there were safety violations was a pretext it was a pretext the reason for all of  jet chargers to fire her and had they given any credibility had to it at all we might we would have had a different result but they did they heard it over the period of multiple witnesses and they obviously gave it absolutely no weight and i think the defense argument about the safety violations at this point is that they don't like what the jury decided they don't like that the jury didn't believe their witnesses they don't like the jury thought they had a good reason for coming but that was  credibility issue that's that's the weight of the evidence that the jury decided and at this point in time i don't think that those arguments hold muster because the jury made that decision and that's why we have prior if there are no questions from any members of the panel i would just conclude by saying this was an aggressively contests a matter i wasn't involved but you can look at the pleadings you can look at the transcript it was fought aggressively by both sides before during and for a year and a half or two years after the trial the jury heard both sides over a five day period in the jury decided who to believe who should be believed and what evidence w yes regarding the issue of the l l c versus inc the court should bear in mind that we raised that very issue at the very beginning of the case in our pleadings we're told this is a this is a converted it's a conversion under the statute what does it mean when it says conversion because this guy problem is not the one reference in the answer to his been converted the problem here is the remaining trial of the case in which the the the entity against whom the judgment was actually taken was named and represented in the trial and it was there was never there was never an argument rose that this is not the correct party by the defendants nor was it further discussed in any way that would deny the applicability of a judgment against the party that was before the court under the second circuit case all of us led that court and the court allowed to believe that it should just be corrected because the parties together had litigated against the entity that was now liable the unfortunate thing is i've checked all over the country and there is no authority on the conversion statutes with the conversion statute itself says is that once the converted and i get these wrong all the time the old entity once that transaction completes the old entity disappears it's dissolved it doesn't exist happens if you then litigate on behalf of the elder entity without any expression that the entity is  but i did say that it that had been converted but then you litigated against it allowing its nine to be used before the court allowing a judgment to be taken against it without any statement about a motion to dismiss on the basis of the fact that you can a clade could be made against the entity god they were converted i would do that is if they had a name the new entity in the new entity hadn't been the appropriate one in other words as an attorney i'm looking for liability on behalf of my client if they had named the new party and it was in fact the only party i would have brought the motion to dismiss well i have to say that the your brother counsels observation that she quote lay  wait and quote seems to fit this at some point it was ethically if not legally on you to speak up and say you've got the wrong anted to hear one thing i think needs to be more in mind about that first of all i believe it's true stiction the proper party was and served and we told them secondly i believe it's it's incumbent upon the plate or that you know the plaintiff once he knows that to correct the record i said at the very beginning secondly this is not a situation where you have a successor entity these people as we put on evidence how does that fit with your duty of candor to the court i very short statement that was in that year and then you continued to litigate in the name of that entity including including its name in documents filed before the court including references to it in appears that you might have waived or have placed before the court testimony of people who sit in both entities and thereby eventually bang around to the judgment that was  twenty seconds the substance of the claim regarding whether or not we should have or whether or not there was sufficient evidence to go to the jury on the question of whether there was a protected activity turns on that very essential element of whether or not the company did it in this case the company