pages of that opinion discusses miss perry's retaliation case occurred from the time she filed her federal court complaint in june of two thousand and eleven and the time she was suspended in january two thousand and twelve in the original opinion the court noted that a number of discreet acts that had happened to mr perry some counseling some write ups a reprimand enter suspension standing alone or not materially adverse actions or not adverse actions for purposes of retaliation but then the court turned in these two pages to the retaliation claim that looked at the question of whether the time her supervisor was changed there was retaliation by increased scrutiny and discipline and specifically mentioned in that discussion is her suspension of january two thousand and twelve after the opinion was issued in peri one the defendants sought a petition for rehearing a rehearing on bunk pointing out that the opinion was inconsistent internally that petition was denied both re hearing and rehearing on bunk the case returned then to the district court where the defendants filed a motion to basically have the district court reinterpret or interpret the mandate to narrow their retaliation claim to exclude her suspension because this court had held that her suspension was not a standalone act of retaliation judge watkins considering those arguments and noting that they had already been rejected by the court of appeals said no there is nothing inconsistent about this mandate if you understand that there are two ways you can look at retaliation one is by disaggregating in breaking up the acts and looking after them one by one and second it's by looking at them collectively to see whether or not the entire scheme is retaliatory and based on that and judge watkins concluded i believe properly so that the case that had been remained it included the transfer to the new supervisor and all of the discipline that he made it out towards to her up to her suspension including her suspension then because of the well known judicial emergency that was in the middle district at that time judge the hari from the northern district of ohio came down to take over that case and to assist in the emergency at that point the defendants again with new ears began to argue that classification be restricted and that plaintiff should not be permitted to go into her spend ssion suspension or counseling the only issue that could be covered in the trial was the transfer of her from one supervisor to another you can tell us whatever you want but i thought your challenge here was to the jury and structures that were given by the district court to tell us what's wrong with the jury instruction and rather the jury instruction citizenry instruction that ended up being given was that the jury was told they may not base their decision as to whether there was retaliation upon the suspension that happened in january in two thousand and twelve or based upon what the judge the last day of the trial called non disciplinary counseling by removing essentially the counseling and the suspension there's really nothing left i understand the instruction to mean that you can't return a verdict on the basis that in isolation a suspension was the adverse action were in isolation the counselling scrapper sections but rather what you need to consider t it says you can only look at that but that's not consistent with the language of the opinion that perry was by not because he talks about subsequent close monitoring and disciplinary decisions talks about what her claim is that always includes this court always included disciplinary decisions and then specifically says  subjected to these disciplinary proceedings and that others who were not close to supervised who engaged in the same or similar behavior would not have been disciplined because they were not being closely the suspension they were allowed to mention the suspension but could not argue that the suspension or the counseling were retaliatory acts and if and talking about a non disciplinary counseling is a whole separate problem because counseling in and of itself when it's happening you don't know whether it's going to be disciplinary until something later happens and so you know there have been some cases from the circuit the talked about counseling it's not an adverse action they're all looking backwards retrospectively at the facts of those case as a matter of law i don't think you can tell until you see the context in which the counseling is put and that's what many of the jury instructions and the narrow interpretation of the mandate so problematic for plaintiffs here because when they're all said and can say is well they move me to another supervisor who supervised me in and how is a jury supposed to understand that in light of having heard about a suspension having heard about counseling but i'm not allowed to argue they are part of the retaliation and that's where they're not allowed to be counseling some the suspension would not have happened after the close supervision is as i read the directions that the judge gave to plaintiff's counsel right before closing arguments a questions are asked to we need to know what can we do about the suspension the judge hari says it's a fact you can mention that it occurred but you may not rely upon it to support retaliation claim so what do you do with that  the example i have been thinking of it's personal for the last two weeks i make an omelet i make an album kotto pesto album for my wife every saturday morning and she looks forward to it and i look forward to it and two weeks and i'm looking forward to two weeks ago i went to make it and my son diego you can show the jury the eggs but you're not allowed to use the eggs but go ahead make an omelet that this court when it sent this case back and wrote the two pages that it did in the perry one opinion meant something and i think what it meant was that there's two ways to look at retaliation you can look at discreet acts one of the time or you can look at them collectively and collectively all those acts together can be ratcheting up discipline to lead to a suspension and that's what the testimony was it was available that after she is suspended and gets comments made well you got to do what we couldn't get her to do are you really going to leave all of that is there but if you can't make those arguments if you can't really explain to the jury how the counseling cannot support a claim for retaliation however because it does not constitute a materially adverse action so how just calling let's just look at the counseling piece for just a second and the district court when the mandate goes how is that not in keeping with the mandate well if you are looking solely at the counseling and if plaintiff's argument had been the counseling is retaliatory we would say that's right we cannot make that standalone counseling claim but then the court goes on to what i have is page twenty four and twenty five of the opinion where it says finally that the placement under night supervision in his subsequent close monitoring and disciplinary decisions facts in the light most favorable to parry we find that a genuine issue of material fact exists as to whether a b c retaliated against barry after she filed a lawsuit based on the close temporal proximity between the filing of perry's complaint and the subsequent disciplinary activity well that subsequent disciplinary activity or write ups counseling and suspension that a very clear that they pay she would not have been closely watched and th disciplined by night in the absence of a protected activity so at midway there is some tension here but as lawyers we're taught to think about two country things at the same time and reconcile them and under title seven law there's nothing irreconcilable here the magic that the district judge got got it wrong misapplied the mandate in this case should be reversed and sent back instructions that the judge gave to the jury starting with his opening instruction he advised that for the second element of the retaliation claim which is the adverse employment action that is what has been the focus here for the second element you must decide whether the transfer tonight supervision resulted in abnormal monitoring or discipline and if so whether that was an adverse employment action or capture the presentation of the evidence he continued to instruct  every time he repeatedly referred to what he had made a defined term the employment the adverse action excuse me or the action he was referring collectively to the change in supervision the supervise the change of supervision the scrutiny and the discipline and telling the jury that all of that collectively the line that the appellant focuses on was hari's attempt to keep the jury from finding that the adverse employment action was a standalone retaliation claim based upon the suspension itself and the way that isn't to looking at his instructions where he never said you can't consider the suspension as discipline and scrutiny he only said it can't form of the basis he didn't say it can't be a basis he said the basis because to do otherwise would contravene the parts of perry one where two things were said about the suspension one that had not been raised below and was not before the court as a basis for ruling and two in the alternative even if it had been raised it was not temporally proximate and there was nothing else in the record to connect that suspension back to her filing of the complaint seven months earlier so it's interesting too because even after he had given the entire written out charge which he sent back to the jury room with the jury he returned again while miss hands was setting up to do her closing and reminded them again that  that refers to the assigning of the plane up to a new supervisor in this case and the knight who allegedly unfairly scrutinized and disciplined her he's not unpacking those things from each other he's telling them every time he addresses the jury it's that collective item that they should consider in that sense it is consistent with the mandate of the perry one case even as argued by appellant submitted they sed posit that the instruction to the jury should have been as a matter of law that the written reprimand for insubordination and attendance and the twenty twelve suspension were much simpler and actions to do that would be to wholly ignore the earlier discussion in the perry one case and to ignore the fact that the april two thousand and eleven reprimand for for insubordination and attendance issues was given by stan goolsbee prior two months prior to the filing of the lawsuit three months prior to the assignment of mr perry to mr knight's supervision importantly in addition to the instructions if the court looks at the evidence that the jury had and the testimony judge hari allowed testimony in from both from both knight and goolsbee about the entire time of the supervision of keesha perry under night including the acts of the suspension anything that happened during that period counseling or not the jury heard that testimony and received those exhibits in evidence and had them back in the room with them so they had the basis in the plaintiff's opening to the jury they were allowed to argue that anything that happened under night supervision was scrutiny and discipline that was what he was doing to punish her for her lawsuit and they could have argued that in the closing what judge sue hari did not want them doing in the closing was arguing that the suspension  itself satisfied the second element of the retaliation claim and i realize the court didn't have any questions on the appellant's other arguments is do you want me to address them at all or is it your time and you can do what you'd like with regard to the jury instruction question document two sixty six and eighty seven i think that's a transcript the district court instructed parries counsel that she may mention the fact that the suspension but may not make the argument that it is part of the retaliation it cannot be mentioned in the context of retaliation and he'll be instructing the jury that it cannot be the basis for their verdict the verdict form that the court sent to the jury had a paragraph or it asked them to identify the adverse employment action or actions that plaintiff had proved there by inviting them to desegregate the actions when i think under the mandate it was clear perry had to show that this entire period of supervision and discipline was a materially adverse action collectively and that was the obligation we had and she was denied the opportunity to do that and then just like to point out how this played out during closing argument and if you read through the plaintiff's closing argument a volume for i think starts at route eighty two you can see the plaintiff's attorney is struggling to try to figure out what is it you can tell the jury was the adverse action but when you get the defendant's argument volume four eighty four eighty five defendant says the judges told you that counseling is aren't adverse actions so counseling is on out page eighty five in a formal counseling while a formal counseling is not adverse neither is informal counseling evers performance evaluations are not discipline they're like a report card you have the judge's instruction that the january suspension this is not something you consider you can consider as an adverse and then employment action it's not something you can base your verdict on so what's out what's left and that was clearly the plan is to get the district court to abandon the mandate desegregate the claims and demonstrate that there is nothing there highlighted ultimately by the fact that as we briefed violating the motion in limine e they make reference to miss perry's comments that quote this lawsuit is bullshit and the district court did not let perry go in and