have a full day of arguments today so we're going to try to hold the clock because we have another matter to attend to at two o'clock and we need to compare the words and so just a word of warning in advance i is renewed motion for judgment as a matter of law under rule fifty be as to the claims of the plaintiffs washer and walker for one simple reason these plaintiffs prove premised their claims throughout the case below on a theory of constructive discharge and only constructive discharge not actual discharge not actual terminations and not as would be later presented involuntary separation constructive discharge essential element of constructive discharge under both state and federal law is that the employee have resigned get a trial both washer and walker testified over and over that they did not resign that they were laid off or otherwise terminated therefore no reasonable jury could have found the st element of constructive discharge resignation is it really that clear i mean they were they were told if you don't accept you will be terminated right and so they made a choice not to accept these time and knowing what result would be judged in a traditional situation i agree with you that  if an employee is presented with a demotion and refuses the demotion knowing that it will result in terminations standing alone that can qualify as a resignation for constructive discharge but here we had a different situation the undisputed  evidence primarily from the nola scott but i believe also confirmed by the plaintiffs themselves is that their security investigator positions had been eliminated they had been laid off from their security investigator positions those positions were gone  scott testified the senior h r manager that made the decision to include them those positions had been eliminated i don't understand why that makes a difference i guess i'm not sure you lose me i certainly judge there they still had a decision to m regardless of whether their positions were terminated the choice was still the same for them take a demotion or or you leave i think choice is there and that choice is what is akin to the resignation i understand the question here it was wasn't a demotion it was an offer of alternative employment that alternative employment happened to be at a lower level and a lower pay but it was not a demotion from security investigator to biometric clerk rather the employee had been laid off from security investigator position isn't not a question of fact here aren't the plaintiffs here arguing that that was intentionally a lower level of pay intentionally in a far all location or less desirable location and doesn't that all play into the facts related to construct a discharge the jury eventually found against you i think that when a plaintiff as as this court recognized in the romero case that when a plaintiff characterizes his or walker he says you feel you have no recourse there is nothing you can do except either take the harassment that you are receiving or leaving that sounds a lot like constructive discharge to me in another place you've got an issue of fact don't you the district court didn't think so at least when we argued our post trial motion the district court understood that right down the line it was we were terminated we were terminated we were terminated if i did this record is the one that made the make a choice right weren't they arguing terminations they were arguing resignation they had claimed they had claimed that they had that they had set the attorneys for plaintiffs and claimed that they had satisfied the problem of resignation the plaintiffs th this charge correct ok because the fact is and that's another argument that the plaintiffs make here is what difference does it make it to prove retaliatory discharge you need a discharge and how you get there if you want discharge is through constructive discharge  harder to prove than discharge i don't understand how ultimately this makes a difference you seem to be recognizing they were discharged they were actually discharge which is the st thing the jury wouldn't have had to find had everyone conceded that well i think there's a couple of issues there the st is what does it matter let me tackle that st election of firies between constructive discharge and actual termination does make a huge amount of difference lie because the defense defendant has a right to understand what kind of case they're defending against frame their questions their arguments and the thrust of their case in a particular way and again if they evidence would have come in as to retaliatory discharge which is the pla it's all relevant to motive whether it was relevant to the constructive discharge or relevant to the ultimate question which was were they discharged tell a patient where they're protected conduct if that evidence is coming in he either way how does that impact the defense plaintiff's counsel mr martin st of all acknowledge that that would not be the case that if in fact the plaintiffs had elected a theory of actual discharge said we were laid off but we were included in the layoff for reasons of animists or for reasons of retaliation that none of the bad history none of in mr martin's words none of the bad conduct would have come in none of the nine months of we were in outlying cases one of them was rocket city i had nightmares the food wasn't good the lights went off none of that would have come in because the focus would have simply been on vanilla scott's decision in june and july of two thousand and fourteen whether to include mr washer mr walker in the layoffs the entire body of i believe i refer to it below in the hearings on the post trial motions as as sexy or jury appeal material was able to come in and that was prejudicial that did matter the nd and i think more importantly is defense counsel principally myself once we had heard that the theory was constructive discharge and only constructive discharge repeated over and over in the complaint at the pretrial conference in the pretrial order on june th the trial after several hours to consider the matter to be told it's constructive discharge and only constructive discharge our focus shifted away from those june and july layoff decisions we still touched on then we still introduced evidence but we focused on the elements of constructive discharge and so our defense case was framed around that again although the district court ultimately we believe got it wrong in denying a role fifty emotion at the hearing and that transcript shows the district court fully understood the kind of prejudice that ensued and when plaintiff's counsel said oh we simply proved the more difficult burden well actual terminations is not to borrow a criminal law to or a lesser included offense in constructive discharge there are completely different things struct of discharge is an employee who involves an employee who resigns because conditions that become objective lean subjectively intolerable actual discharge focuses on the motivations and mental state of the company side decision maker who included them in layoffs so we defended against one case and respectfully i think we won it i think is the court said in romero i understand it's persuasive but the court said paraphrasing there is no greater evidence of whether a plaintiff employee has resigned than the  plaintiff's own statement resignation is uniquely within the employee's mentals the testimony and remar as much more clear though as in the it's in our case it's the portions that you call unequivocal and then there are others that are equivocal but the ones that you call on equivocal largely the terminations sort of language is in the body of the question rather than out of the witnesses mouth doesn't matter well i think ordinarily that is what happens on cross examination and admittedly most of the good testimony for us came out on cross examination however there simply is no other real evidence of resignation there's no resignation document there's no email from washer and washed walker and washer saying i resign they themselves never said we want marched into the know the scotts office and said we resign the only thing that they can point to is this declaration of alternative employment and i would she has been equated by many courts with a re facts here is that this was not a demotion this was not the kind of situation where you're currently a security investigator that position is going to remain in effect but h r is demoting you mr washer to biometric clerk rather i think everybody it's undisputed floor eliminated those security investigator positions my client could have simply not offered the alternative employment not offered the biometric clerk position and said you're on a plane home we're going to hire into the biometric clerk position from somebody else we're going to publish it no they were offered alternative employment so i think it it take those facts certainly take it out of the typical which i agree with you in other cases could constitute a resignation the typical demotion being declined situation well and you look at all of the facts right yes and that's what that we have to decide whether any reasonable jury could have decided that this was a constructive discharge looking at all of the evidence not just a portion of the plaintiff's testimony and one of the things players said is they kept getting transferred to less desirable locations basis that were subject to more heavy rocket attacks and various things and that looking at and after they were transferred then those bases would close and they'd get transferred somewhere else and mean at some point all of those facts come into the mix and the question is could the jury have found constructive just charge here well i think the question has to be could the jury have found that they resigned could the jury have found that they resigned that's the st question the  intolerable conditions come nd so i think the st question is could a reasonable jury of found that they resign i think given their unequivocal testimony on cross examination which the district court recognized they said terminated terminated  once even in direct not once even in direct i think did either washer or walker say i quit i resigned this is what i said i have that walker agreed that he terminated he agreed in response to a question that he terminated his employment on july  and then he represented to a state agency that his position had been eliminated he was and washer completed an x a questionnaire that your company gave him asking him his primary reason for leaving and he said and he responded personal issues slash reasons why did you give him an exit questionnaire if you were uncertain about what is grounds for leaving or i met my three minutes but your honor i will certainly answer that question it's standard company practice that whenever someone is separated from employment they're given that x a questionnaire i think that his statement there still does not state i quit and i recite thank you to steven hartman and we have ray martin we're co counsel for the plaintiffs i'll start with this constructive discharge issue that chris does not challenge the jury special verdict findings that the plans were whistleblowers that they were engaged in protective activity that directors knew they were whistleblowers that vector for tallied against the two for terminating them that they retaliated against walker washer by making conditions so intolerable they had to resign and they did all of this with actual malice none of that's being challenged today they don't challenge the jury instructions conceding that the jury was properly charged on constructive discharge the only thing they're challenging is this issue of whether they resigned or whether they were evidence is very strong that there was plenty of out in support the jury's verdict that just very quickly learned that these four plaintiffs whistleblowers within four months they were all gone from the main base to terminated and to transfer to the forward bases now all the bases in are in a war zone where they're all dangerous but the forward bases are really dangerous and could be rocket city is that it's nicknamed the cut country manager said i had to get walker out of bob graham because he was a pain in the behind that country manager was removed by the military the new country manager came in and said washer is never coming back to b tried to take the company down what about counsel's point that these jobs expired and that it would have been perfectly permissible to say your job is expired thank you for your service good buy so that's just not st of all it's a red herring and not based on the record both to red herring because that crist employs these four plaintiffs not floor on top of are you saying that they the for discriminatory reasons they chose to eliminate their positions but they didn't have to eliminate their dozens they did it because this was convenient for their plan i'm not understanding your argument there were openings at bob ok so they chose for the same position yes the record is that that from david cleary who was the department of defense supervisor he was asking for walker unwashed to come back by name there or that they were desperate for more there was a surprise the supervisor robin said there were openings and he saw the pursed at reports daily staffing report in ever introduced them those documents with infectious is control if they really supported their position they would have brought them in and shown that there were no openings they didn't instead they were lied into nola reilly's testimony she  credibility was destroyed it trial she lied repeatedly she lied about whether she had seen the witness statements that she got from dubai she lied about whether she knew the plaintiffs were the whistleblowers she lied about whether she was the one who made the decision on  transferring walker and washer in the st place the jury found that her actions were retaliatory and taken with actual malice so the jury absolutely could disregard everything that she said and i think they did the on top of all of that her testimony was well there were openings that barbara before we gave them ultimatum and then later that year there were fourteen more openings that came up but at the moment that we gave them the ultimatum there were there were talk to you about that the whole issue of actual discharge versus constructive discharge and we have a strange scenario here because normally it's the employer who saying you resigned we didn't discharge you and you weren't constructively discharge you resigned therefore there's no there's no action there's no there's nothing at st nothing happened to you here we have the employer saying we admit she was discharged which wouldn't that have been easier for you to prove constructive discharge which is odd to me but because that would allow you to bring in some present a different case essentially is what i gathered from the brief well we presented it this way from day one constructed because that's what we believe the facts work they were given offers of demotion the declined it we're aware of the case law that that's and constructive discharge the evidence would have been the same we wouldn't have been easier had they had you just accepted yes they were discharged if i lay were discharged for retaliatory reasons it would have except i was we were worried about the issue of them coming back and saying well how can you say you have damages you quit you were signed and we would have been faced with that and that's and let me that's generally the way it works we would have an website on it and that's why we didn't do it it was not a strategic trial decision to expand the scope of the case a with all respect to mr martin he was under fire and speculating about what would have or could have happened if we had put it this way it was it was what the facts supported your honor it put it in in fairness if you had if everyone was focused on just why they were discharged everyone agreed they were terminated then you wouldn't have had as much leeway on evidence trying to show that the conditions were horrific for these employees it would have been true but it would be the same evidence would have showed a telly ation for the whistle blowing because because the whistle blowing retaliation had happened you know the whistle blowing started in september and october and then carry through with the the stret their strategy you put them on the forward bases that are about to be closed and then no surprised they're closed closing and so then oh they're the last ones in what we do i guess we have to terminate them it was part so that all of that would have come in to show their motive in retaliation which wouldn't change the the trial at all that's a tougher argument for you though isn't it to have to say all right well even if they weren't constructively discharged you know all this evidence would have come in so there was no prejudice because you you asked the jury to make these findings and you presented this evidence presumably towards the constricted discharge elements that the jury had to find i mean that would be asking us to just disregard sort of a portion of your case i mean that seems to be your secondary argument which is well it doesn't matter if they were discharged either way the in well that's what the judge said the district court gave an alternative holding he told us to pick we picked we proved it and when the jury found that it was constructed district but i believe the judge giving an alternative basis for upholding the verdict was right to do so and of course this court can affirm on an alternative basis as well it doesn't matter if the question is voluntary it is not technically the label of whether they are resigned or terminated i mean we didn't really touch on this and the opening argument was that truth entitled to jam all wow on the claim for wrongful discharge in violation of public policy under colorado law because these plaintiffs had employment one year employment contracts no your honor they just ignored the controlling supreme court decision  which expressly made clear wanted to find the doctrine that the doctrine applies to employees whether at will or otherwise whether their employment be for a designated or unspecified term in the supreme court cited a case which involved a union employee that was allowed to pursue a constructive discharge case and made clear in that decision that employees employers cannot contract away from public policy right and then also scope of the doctrine is defined by the supreme court in it some in all decision they don't even talk about that in well the problem what they do say is that the lawrence case that you're relying on they did make the statement that you just pointed out but the court also in several places recognizes it repeatedly says it's an exception to employment at will and that's that's throughout several cases i understand your argument but but these employees  weren't employees at will they did have a contract it wasn't a it wasn't a can to the collective bargaining agreement but they did have a contract so if we disagree with you and we suggest it is only an exception to employment it will you respond they effectively were at will your honor they had they had no we don't have a finding from the district court nobody argued that and as far as i know or at least i don't think the district attorney said i find that they were effectively i think th gets in the judge's decision that effectively they were at will because they had no real how can they do it will they had one year contracts and even though they could be terminated at the convenience they still had to give thirty days written notice which that's not out well it's not much protection it's not much protection but it's not it will at will is any time any or no reason correct this you had to give them thirty days written reason convenien correct they go back and make a point with respect to the construct of districts that had to make a if that's all right that chris's argument is centered around misrepresenting the record they say repeatedly in their briefing today that walker and washer testified that they didn't resign that they were terminated that's not correct their testimony was they were laid off so i want that to be clear well can you explain the significance of that distinction yes the decision that they made to return or turn down the demotion under that circumstance knowing that would result in being separated that was the constructive discharge that was the sum that was the act that happened and the facts  happened and why and her decision were that they were designed they were constructively to start at that point in time whether vector has actually implemented the separation as a layoff or in some other administrative way doesn't change the fact not they're not lawyers i mean it's not a it's not a fact like for example in the remeron case where you know where that was really a fact i don't know if you want me to talk about the america case but it was it's so different than our situation it was literally aced eight supervisor employee meeting where the employee said the supervisor said signed this blank discipline form or you're you or leave and he said he he shook his hand and he left and then he testified i did not resign i was terminated that was the testimony knew well  i'd like to at least mention the waiver argument vectors absolutely wave this argument as to the statutory claims it was an inadvertent strategic decision by them to try to get an advantage with this motion that they were trying to get and then make so now they are coming back you can't have it both ways they cite no cases allowing excusing failure to raise an argument in your rule fifty a motion and the th circuit cases are very strong and require waiver in this case but they didn't at the time that they if they waive was it apparent that you were pursuing a constructive discharge claim as opposed to an actual terminating claim yes yes this was right before the jury i wasn't it wasn't this before the jury instruction for constructive discharge they were that the waiver started during the jury instruction conference and then happened two separate sessions and then finally in the submission they filed so we all through all through the process i see that my my time is almost up and we didn't talk about it at all but as to the new trial issue i would say the proof is in the putting there was a th plaintiff the jury he e district court made a mistake already asking that this court use fresh eyes and look at the language because it covers an actress becker's is a person with awarded a contract you you're going to get an hour minute leeway since your opposing counsel went over a minute will give you that but we're going to hold you to that thank you very much will that be reflected in the clock  motion in order to then be renewed a new rule fifty v motion i would submit it's very clear here that we raise the insufficiency of the evidence for the st prong of resignation in our rule fifty a motion fully and clearly they were  a claim but that's a wholly separate claim your federal statutory claimed claim that is correct but as a judgment you correctly pointed out the jury verdict form had not yet been finalized we did not yet know that the plaintiffs were going to rely solely on constructive discharge also for their tenure excuse me walker for his ten u s c two thousand four hundred and nine claim and once the jury verdict form came out and we saw that that was the case we would have an absurd result here if the rule fifty motion were granted as to the state law claims but not the federal claim i want to tackle the issue of the evidence for the positions being eliminated and that that would judge moore to take us out of the typical situation of a demotion and a rejection of a devotion some aspersions were just cast on vanilla sky but the reality is that the only evidence that was presented as to the elimination of positions came through vanilla scott and thus it was undisputed plaintiffs had no firsthand seventy two which is vanilla scott's testimony about the elimination of the security investigator positions and the offer of completely separate alternative employment and i do want to talk about  the at will issue and i think that respectfully mr hartman misquoted mark mary out of the lawrence it did not hold that the public policy claim is available to someone who is at will or otherwise rather dollars what the court said is an employee whether at will or otherwise should not be put to the choice of either obeying an employer's order to violate the law or losing his or her job that's perfectly consistent with the idea that the public policy claim fills the hole for out will employees or otherwise employees i e those employed pursuant to a contract already have protection a breach of contract claim and so i think you can't just extract employees at will or otherwise i think judge mort's you were correct i believe judge mchugh you said this is well that the cases are simply replete with references to being too this being an exception to the that i mentioned which preceded and was relied upon and more and specifically said it doesn't matter if you're an at will employee it implies if you have a contract it's a public policy to applies across a board that was a color in a court of appeals case but then and it was relied on lawrence i'm not sure how you get past that well i think that that the law developed since then i think number one lawrence is a more clear enunciation than that prior later case but nd after lawrence we have course and we have crawford rehabilitation i be none of those cases are cases where they have an employment contract and they're saying this doctrine doesn't apply there at will cases and they're signing lawrence selectively for what's before them a lawrence you cited part of it but it also says it would be obnoxious to the interests of the state and contrary to public policy and sound morality to allow an employer to discharge any employee whether the when the doctrine was developed and i think what the court is discussing there is that there needs to be a remedy for both i absolutely agree there needs to be a remedy for both we do not want to poison employed pursuant to a contract to be fired for reasons that whistle blow and not have a remedy but they have a remedy already there remedy is breach of contract and i point the court again to dall to that i know that it's unpublished or persuasive i think the district court and all exhaustive leagues in this and explained why employees with an employment contract are already protected and thus don't need a public policy claim this court did affirm for substantially those reasons i do want to turn very quick not to the i'm afraid we're out of time you're here actually a minute over and i try to be fair to both sides thank you very