criteria that those professionals must meet and they also give them a job description the primary issue in this case what it comes down to is whether or not the assignment of a professional such as a nurse to perform functions that outside their job description employment action that that's what it comes down to now this is extremely important we have three million nurses in the united states eighty one percent of our us population are professionals which is i'm not eighty one percent eighty one million dollars or fifteen but the best of which is equated to about fifty one percent of the u s working population sixteen in the top of page seventeen you will see what personal services are and the kind of services what in nurses expected to perform and if you look at exhibit two you say what in i d p is an ip is an individual educational program and if a disabled student is required to have medical intervention at any stage in their ok that doesn't make make sense but it did not have to be a registered nurse to change a diaper they have number one that responsibility falls to the teachers a number two it falls to the teacher and there's a responsibility of the principal who has all the money she needs to hire anybody see needs to hire to hire somebody to deliver got a nurse but that's not w hospital don't change diapers that's done by the water well that's right well all right if we're not going to treat professionals as the first perform custodial duties why would you have a registered nurse to perform duties are normally assigned to a teacher's aide or to the teacher but i didn't rape the other thing that i over the course and there was no need there was no justification for lecturing me about leading questions apart from making me look i've seen that same lecture in that same court i don't think it's it's necessarily directed at you i think it's in large part for the aid of the jury so they understand when there's objection someone's as leading it this judge likes the jury to understand what all this lawyer talk means so i don't i don't think it's something you should have taken personally i judge you weren't there you don't know what i've seen the same exact with the same hypotheticals that he gave in your case i've heard that same lecture in that same court so i i just i don't think it was some something that personally directed at you or out of the this is a kind of problem that you consistently run into when you're handling a title seven case consistently his bias is that he's for the school district and against any employee i think you want to get to trial in the school district had some pretty strong arguments about the statue imitation about adverse employment action i mean doesn't seem like and you know the percentages of how few of these cases get to trials and i don't think that's consistent with bias but it has merit i don't think that we have done a very good job we've had to have seven for almost fifty three years and we have not eliminated discrimination in the workplace and the rate we're going to get another fifty three years before we get it done not changing diapers  adverse employment action not for everyone but it is for a nurse for a registered nurse you don't attend school to learn how to change diapers that's a service that one can perform with little or no training the district the jury charge that is to be used on adverse employment if you look at the idea manual which i believe is exhibit two it sets out in there all of the things that are required of a school district in the management of disabled students every school all of disabled students are to be sent to schools who have the equipment and the staff necessary to render services to those disabled students  i think clearly whether or not the responsibility of changing diapers by a nurse has an adverse employment action was a fact issues that should have been submitted to the jury and in this particular the basis for your allegation of sex in any age discrimination she was sixty i think three years old she's a female and there were numerous younger people and less a classification male and female who should have been ordered to perform these duties they were not they were all skipped over and she was ordered to do all of those the teachers and you're talking about some of the teacher's aides or the other one teachers but these are special education teachers you're on are right there assigned to the classroom where the student is assign ichiro if you see in in the idea mainly i believe that's a bit too it shows that each classroom to which these disabled students are assigned are to have all of the equipment necessary to render if the student is to have medical intervention is in that i eighty if it's not in a i e p then there's no need for medical intervention and that's all nurses do is medical intervention nurses don't perform personal services just medical services well there is a function of cleanliness here to take into consideration some childless throwing up all over themselves the nurse how it's not the teacher the same thing with a dirty diaper  was forgotten but at any rate it's clear in the in the transcript of the trial the superintendent for special education she testified about all of that i believe adverse employment action must be an ultimate action hiring firing demotions significant change in responsibilities here lockett cannot show that an adverse action was taken against her some plea by being assigned a back up diaper changing assignment it's undisputed that the district did take an adverse employment action when it non renewed lockett's contract thus terminated good point but in the trial court lockett focused her claim exclusively on the idea that the diapering assignment was an adverse action the trial court properly instructed the jury that the diaper changing assignment was not now versus climate action but left to live lockett's ability to try the case to her determination unfortunately for say i couldn't say that that alone negates your claim if the trial court had not placed a limiting instruction inside the adverse employment action instruction the jury would have been left with the mistaken impression that assigning a nurse backup diaper changing duties was an ultimate employment action it's important here to understand that this was only a back up assignment the teacher in the classroom had ultimate responsibility however the teacher in jes class resigned the next line would be a teaching assistant in this case it was dale staggers mistake or however was excessively absent and h i s to place the long term substitute in the classroom miss collins because she was merely a substitute the principal forms the belief that it would be appropriate for the nurse to take take on the backup diaper changing assignment as you pointed out judge clear that there is evidence in the record that the father had requested that men not change these diaper and the principal accepted that request and thought it would be in the best interest of the child to allow a female and in this instance a nurse to perform the diaper changing assignment the evidence at trial was undisputed and as reflected your questions here today th changing diaper can be within the scope of a nurse's duties it was also undisputed that the principal both under lock its job description and her employment contract had the ability to sign other duties as required that's all that happened here to suggest that the assignment in a backup capacity of an additional duty that's wholly within the scope of someone's employment as an adverse action has no support in the law or the facts so here with respect to lockett's first issue the trial court properly instructed the jury on adverse action it instructed the jury under this court's precedent that it must be an ultimate action and identified for the jury the only ultimate employment action in the case at the charge conference lock attempted to obtain a more expansive definition of adverse employment action by act relying on retaliation case law as the court knows the standard for tally ation cases is different and it is in fact a lower standard it does not require an ultimate action it's not error for the trial court to reject the charge proposed charge instruction that does not accurately state that was a never claimed option it wasn't a petition retaliation now your honor it was not a claim that was tried only the discrimination claims were tried and because judge hitler gave a charge that accurately tracked the governing law and this court's precedent there can be no error in that first instruction ultimately was locked it tried her case to the wrong theory she tried the case on the wrong adverse employment action or what in fact was not that person one action what about the causation instruction do you concede that's error it was erroneous your honor yes unfortunately that error however in this instance it's not reversible error and it's not reversible error for two reasons the first is that the charge conference lockett failed to make a specific objection to the defect of the charge or the jackson was limited to the statement that it is court doesn't review that error under the traditional standard for jury instruction but ms lockett is limited to plane air and under the plane air standard of review this locket cannot show excuse me either that or substantial rights were affected or that the arab would call into question the integrity of judicial proceedings here her substantial rights were affected for the simple reason the she tried the case to an event that was not an adverse employment action having tried the case under that theory no matter how the jury was instructed on the causation point the jury was going to be left with absolutely no evidence of discrimination as evident by the fact that theory found no evidence of discrimination on the gender cl which had a separate causation instruction and what happened when you judgment as a matter of after the conclusion then and yes your honor after of the conclusion the evidence h s t move for judgment of this matter of law on the grounds of one no evidence which the trial court denied and permitted the case to go to the jury but also rearer an argument that had been made a summary judgment and that was that ms lockett's charge of discrimination was on timely and because of her failure to file timely file the charge of discrimination the case should have been dismissed on summary judgment never proceeded to trial in the first instance and that is in fact the case here it's well settled law that an employee has three hundred days to file a charge of discrimination from the date of an adverse action here and in this case miss lockett maintains the adverse action was being assigned to the backup diapering assignment undisputed she knew that by march of two thousand and fourteen that she was excuse me that the principal that issued a directive to her for failing to comply with that assignment yet she did not file her texas workforce commission charge until february of the following year more than three hundred days roughly three hundred thirty or so days that was sufficient to render the case on timely and frankly the trial court erred when it didn't dismiss the case on summary judgment and didn't dismiss the case at the motion for judgment as a matter of law stage now where we sit today even if their corporate to find that there were reversible error in the causation instruction solely on the age claim which i don't think the court should the court should nonetheless affirm the trial court's final judgment for the simple reason that the claims were untimely now this was urged a summary judgment was urged at the motion for judgment as a matter of law stage and it was urged harbury now ms lockett did not file a reply brief before this court so she hasn't responded to that argument and it stands on challenge at this point and i think there really is no challenge having told the court both in her briefing and here today that the adverse action was to back up diaper changing assignment her claims are on time and she's failed to show reversible  the fifth circuit clearly provides us with the jury charge that is to be used in an adverse employment action are are cited in my brief but the latest one was this city of waco thompson b the city of waco which was in two thousand and fourteen now the examples given in those cases is that change is in our loss of job responsibilities similar to transfer or reassign employment action and we also have the jury charge that we are to use in a pattern jury charges eleven point one and and you for look at foot occurred within the limitation period and included the notice of a terminations that fail within the limitation period and secondly failing to raise the three hundred eight statute of limitations