will start with eighteen i think sixty one of twenty six thousand one hundred and sixty five tutor versus southeastern oklahoma state university we have twenty minutes to a side assigned in this case and native american literature of oklahoma that as a native american starting college and she's planned to have to move to texas to find a job teaching in a two year community college and now has been banned by the oklahoma attorney general from totally understand that and we're going to we're going to apply the law i just was intrigued with that kind of popped in the reply brief and i wanted to do so ask you about it so you proceed with your certainly and part of the reason why that issue was brought up that question as best you assume for a moment that we feel it should have been a blow that it was correct here if we agreed with that then does that mood or abrogate a lot of your other damages arguments on reinstatement by the district court was based on one incorrect fact findings of fact findings without evidence essential one about the testimony by randy  tutor seemed to think that he was she had no problems with him personally did not think she was bigoted and yet she said that at least half the faculty posed her possible return he didn't have the money for another position how do you respond to that testimony and correct me if i have this characterize  seven thousand dollars this is based on the present such extreme hostility as to render title sevenths presumptive remedy infeasible even if from pay worthy appropriate award the district court abused its discretion in awarding only fourteen months for the time period between doctor tutors terminations from here from a tenure track brawl as a professor at southeastern and then non tenured contract position that she had at collin college the district court failed to consider four critical factors st the overwhelming evidence of the collin college teaching position was substantially inferior to the tenure track position shit that she had at south eastern and should not have been used to cut off fro don't know that there's case law that really warrants or at least compels us to consider a lot of those much more subjective and hardly qualified wrappings well you're right i think what you're getting to is that the front necessarily one that is predicting the future and how long doctor souter will be working in the future when when she would be able to work which merely emphasizes just how much reinstatement is the preferred and present of remedy and of her title seven as it's the only way to make her whole and to make sure that she is in fact awarded a remedy that fully accounts for the discrimination that she suffered but even in so far as one looks at compensation the salary that the district court nd set consideration was only the salary that doctor tutor had prior to obtaining tenure which the jury had found that she would have received had she not been discriminated against on the basis of gender her salary as the record shows year which is what the district court should have taken into account and really looking at a comparison of the salaries but even objective lee speaking even a surface consideration of the column college position relative to the position that she had at southeastern shows how calling college position should not have cut off the front pay award but in addition there was a lack of substantially equivalent work opportunities and doctor tutors geographic area the job market realities which really make it much harder for an older native american women who is transgendered find comparable employment and the black mark that now doctor peter has to overcome from the discriminatory and i love her tenure for all these reasons your honor at the national and last center in the more than thirty women's right in closing argument planter's counsel remarkably stated that frankly you think that a true man of faith might just come out and confessed to doing the obvious essentially calling with mel in a religious fraud for not admitting his  mcmillan's gone now right yes your honor aside from that statement being incredibly inappropriate and inflammatory defendants believe that this quote actually illuminates the fatal flaws of plaintiff's case of nearly every aspect misleading testimony that indicated somehow that he was making point decisions based on his religion and then when it was turned out later in cross examination those mysterious employment decisions were his helping a widow find a job and so essentially plaintiff was trying to use that to somehow prove religious based discrimination here the simple fact that mcmillan uses wit a fine job and then add another instance plaintiff then had to marry to attack mcmillan on the stand and say you know basically you have a jury verdict that stands that your client did not the doctor kuder tenure on the basis of sex because he was transgender so what you're arguing now to me seems to be a red herring it's a very small art of a very big transcript and i want to get to the issues that are before us on he'll here why isn't it appropriate to reinstate doctor tutor where the jury verdict is but for the discrimination she would have tenure now at this university and your honor with respect we would we i'm that is one of the hostile acts that underlies the district court's holding on reinstatement of the district court held that there were mutual hostilities in this case which distinguishes that from jackson the jackson case the plaintiff repeatedly cite found that there were one sided hostility he's in there also the jackson case didn't have anything even remotely resembling randi presses testimony as just hearts as pointed out where in the process was testified by both sides to be honest and trustworthy and ready cross has stated that for a variety of reasons including the fact that half the faculty oppose reinstatement that it would be bad for everybody involved it would be negative for the universe empress south eastern professors out of the total of twelve in the department who all testified that they would welcome doctor tutor back and did not see any problem with bringing dr to your back outweighs all the other testimony your honor that coalesces perfectly the doctor process testimony doctor presses testimony was that about half the faculty oppose reinstatement so the fact that dr tutor is able to come forth with a jury that has spanned that doctor tutor was denied tenure because because of discrimination how can we make doctor tutor call without reinstating d the reason for it is because there's so many nuances that cannot adequately be accommodated by damage award your honor we defendants are trying to get around that as much as just say the district  hostility and if if we were to look at this record and say that the only evidence the only evidence of hostility now was litigation stress and that's normal in  almost any litigation do you have any i mean i think that if there is no evidence to support that finding that would not be a difficult cold is there use of discretion your honor there is evidence for the finding again joined outside of the litigation for what evidence is there outside of litigation there is a here's a statement that says that some of the faculty would not welcome it but that's not a statement that they wouldn't deal with or they wouldn't work with or that they would be so much  couldn't teach as none of that your honor it is a statement that this would be again from an honest arbiter who play it is called on a saying this would be negatively affect the students the university and the faculty  again the faculty here this is testifying from faculty that were not implicated at all in any of the discrimination accusations so this isn't the case were doctor process testifying about people who were who were implicated in discrimination this is doctor prospects as  testifying about the faculty itself saying that it would be negative it would negatively impact everybody and defendants simply would but of course they put a statement that is would be negative is is not respon e or equivalent to what the law requires which is evidence of so vir so it's clear adversity in the relationship even if we accept this statement in its full force is simply doesn't meet the legal standard and the district court here made a finding that there were severe hostilities present throughout the case based upon a single statement basically based upon litigation conflict and the single statement that there's a certain number of likely members that would not welcome based upon the testimony of somebody who's honest and straightforward with a doctor present and to get back to your point whoa what if the presumption is reinstatement then how can this happen will that the th circuit has denied reinstatement multiple times in the past on this ground and we would point well let me let me jump in there because in those cases the dist person who was discriminated against was the person sterett case in this case was cited in jackson the staircase this court held that reinstatement could be could be denied in that instance based on a case like process of a single witness who testified that it would have th reinstatement would have negative effects that was the stair case from right around the same time as jackson that was cited in jackson if these go this route people can discriminate with impunity and then say we don't have to honor the ten year decision that was denied only on the basis of discrimination because we don't want to work with this person doesn't that just reward the discrimination well come to the opposite conclusion but to say that the district court abused its discretion by relying on somebody who is honest and trustworthy is randy press why are you saying the other six professors weren't honest and trustworthy when they said we'd welcome  district court did not consider them us i want to make that point as well that there was one or two test professors who testified low as a district court found professor cotton alleged as testimony it was was not based on actual knowledge of the plaintiff's teaching and various other things but nevertheless my original point was that if you feel if you say it's an abuse of discretion to rely on randy presses testimony here as well as the hostility of the court itself sa there's virtually no case in which reinstatement could ever possibly be denied but that doesn't coalesce when you rely on litigation hostility there is probably never a case where reinstatement can be awarded because when people in randy process testimony in one issue and one fact that we haven't talked about is the district court also agreed with inmates and findings of fact regarding defendants belief based on post activity posts two thousand and ten activity of plaintiffs that plaintiff had not maintained anything close to the level of academic or academic performance or scholarship that would merit coming back not not relation not in relation to the pre the pre leaving southeastern by plaintiff but did this record also put stock in that in that is backed up by the record especially by the cotton county record which defendants can look at and have looked at and said that that is not that is not a good sign of being able to bring somebody back and we have to honor that unless adverse hostility is so extreme that it's not peaceable and now you're trying to say well unless two things unless the hostility is extreme which you think you got mutual trust or said that that could lead to a denial of reinstatement and also that in that case the record contains examples of starkly conflicting evidence about specific incidents reflecting on plaintiff's job performance so yeah  also look at whether they would have rehired this person just based on the current day merits or not you know the current the her life after she was denied tenure was turned upside down and to expect that she would keep up normal scholarship d when she didn't have a university anger to support that is probably not very fair well going back to ac actually does explicitly say that there was sharply conflicting evidence about specific incidents reflecting on plaintiff's job performance or before or after she was for a minute i believe an actor that was for after but i would have to look back at some other one were where they discriminate against employee he was asking for damages instead of reinstatement correct i believe that's correct your honor which is something huge difference i mean you know if you've got to the person is going to be reinstated thanks please god don't reinstate me it will be a living hell and the court should consider it yes your honor in that and we have and that's why have not sided hackery is our primary case in terms of looking at star the star of case is why we have cited a case where the district court denied reinstatement because one of the points of some witnesses testified that it was a bad idea we just simply point out that there is some multiple times the district courts are given extremely broad discretion to determine remedies so whereas in a case where the district court here had declared that reinstatement was the appropriate remedy obviously defendants would have a huge field overcome to show that  somehow an abuse of discretion but that discretion is brought in when the district court finds based on evidence such as randy presses and others that reinstatement is not appropriate that the district courts are given much leeway  didn't deserve tenure or people who are still for bigoted reasons then in charge of see why that should prevent her being reinstated accusations of anybody that they can't possibly be bigoted because there's no accusations of anybody in the faculty including krus had anything to do with any of the incidents beforehand so the fact that half the factory oppose it is almost per se you can't