caught a key factor on the second point is that interrelationship of the claims and whether there's a need for review the second time around the curtis wright case was that sort of an obvious one where a very small claim one contract claim out of twenty one was virtually undisputed and the guy needed the money the court said ok we'll enter judgment there you can move forward there's another mess can keep going  saying that it's not the norm to have a fixed and we'll have to revisit the same issues we think the same is true in this case the court did go through the factors  i have this one trial hanging out here so they are basically done it's not like they're going to have another trial as a result of whatever happens with  think i hear him saying two things one this is long complicated and everybody agrees here that things are complicated he's saying that mr reveal is really quite distinct because of the nature of the threat made directly to him and that's very distinct from these other people and also to the extent that i'm totally wrong about for example what happened with the two gentlemen hanging around if there's going to be a reversal on that then we would want to have a why why isn't that in the realm of combining the curtis which is sort of both did know and abuse of discretion why isn't that a sufficient rationale well i  all the claims all ten of them arise out of the same initial incident and they have that the facts do overlap and we would be relying on mr i get to prove their claims with respect to the other claim so he'd be brought back anyway assuming they were reversed and importantly iran and the agency it should know here you know that the way you want it as i understand it is to just basically put the summary judgment in the deep freeze and his case is going to go forward right in the agency issues that are raised on appeal right now he would if if the if the court had they would be completely raised again even if the judgment w have them revived somehow but they're over as far as the transporters concerned is that that is true ok so we don't have any problem with point no with factor number one it's a regime that claims that there's obviously a common issue with respect to those  resurrect when when and if mr claim goes forward so tell me specifically what you're talking that whether the issue of whether mister moran was in fact liable i mean the co still in the picture and mr argue that could come back and his and his appeal and say well i'm going to go ahead and appeal these issues with respect to mr moran because i think they are wrong and so he would be well  right with respect to us but no right sector but in terms but of course he's different with respect to mr i and he because of direct conversations but you know the answer to the hanging around the school the hearsay it cetera and to the extent that there were reversible errors there for you then it would go back and have a single trial and i'm very sympathetic with the court ruling not the sense i mean the district court ruling that way but i seem to me we have multiple claimants in a lot of our cases and some of them get dismissed on appeal and you go on in summary judgment and it's not a fifty four b issue so i so what the what you're saying is let's just go have a single trial of mr gila because the whole case would have been over if the court had simply gone ahead and ruled on mr i had a trial and and we would be here all by its i mean all together but you already have told us that he is different while the that it's improper to take an interlocutory appeal with some but not others if the ones left behind are strongly related and if that's the predicate test you have to get over before you ever get to honor that's why we raised it and we think that for example mr that the harm that mr idealist suffered also suffered by his partner because she he told her everything and where he went she went and so did their kid  back we think you should reverse because there's plenty of evidence that mr moran was acting within the scope of his authority when he made the statements that he did to mr merrett to  and that there's a lot of evidence that he that would raise an inference that he and mr sanchez were acting in concert the court said well it's not an unlawful but it is unlawful to to combine together  and with the purpose of suppressing protected activity that's very unlawful so that's one thing you think it's time for you to hear from your ok so thank you you have some rebuttal time but as i understood it you asked for eight minutes at the outset we gave you nine so all right admissible evidence of a threat threat is a verbal whether it is offered on behalf of someone who heard the threat or on behalf of one who was threatened but did not hear the threat second under burlington northern the plaintiff ongoing conspiracy to dissuade the plaintiffs from cooperating with the e e o c in its investigation of sexual harassment evidence fruit forth that the other day of the photographing in spite of the understand they are of a threat that would be strong enough to persuade a normal person from pursuing their rights under the statute when their employees because there's that constant hang of employment television this seems to be the fact that they're out and some of them have been out for many years it isn't that an important distinction between this case and many of the other cases that we would normally run into and tell you well i would agree with your honor that that this case is unique i would definitely agree with that but i would say that there is a president like a it's the plaintiffs chose to meet in the public library in a small town in the public mood i'm needed and they could have chosen the e e o c office or a private law firm or all kinds of ways but they deal were actually made with the specific intent that they would have a downstream effect on other people and i don't see any evidence of that sort appreciate your comment on that and then second most of them one of the theories that if the other theory is the surveillance of itself can constitute adverse action if you consider the totality of the circumstances here look at all the evidence together of how they're trying to dissuade everybody and given that mr murray then you know was very powerful and have been screwed and that he had engaged in bad behavior towards these plaintiffs in the past you know that would be enough to scare a reasonable person from participating in protected activity so i think that the surveillance by itself would be enough your honor and i see that i'm out of my time thank you very much thank you on rule fifty four b there is a distinction and i know the court also pointed us to two cases and i'm a contrary and i chose a different case to talk to you about the difference in this case is an issue of fact versus la has direct evidence his issues will be an issue of fact for a jury to determine whether he's determined telling you the truth or telling the jury the truth the issues we face here today are largely issues of law they're evidentiary issues and you even get to try a fact int side what goes before them and the case that kind of talks about the divisions between law and fact is the continental airline versus goodyear tire and rubber it's an interesting case about a plane that landed in complex case they let them out on fifty four b because their issues were legal and the other issues were largely factual we think that the court did not err in certifying at least nine claimants that that my client is interested in for appeal to the merits of the practical him court though is if we determine there is no jurisdiction then that nine summary judgment will just sit tight it will tell mr gale that's correct and it's ours as far as it is for it's concerned there's there's very little that's going to happen under under the trial that that's going to impact when you see it again but i casey speak of fully to his client but i think there may be some distinctions that's true so this case is a grand summary judgment and we have to assume that all the facts that they assert are true but there has to be facts they present a story of power violence sax and even murder these are based on conclusory allegations speculation and inadmissible evidence each play chip has to present specific inadmissible facts to prove their claim of retaliation courts do not presume missing facts so what are the facts here first we have this meeting in a public library a brief common presence in a public location is not surveillance nor is it retaliation and the more complicated part of this case i think is is the threats the claimants also assert that they were threatened there was a statement from alberto sanchez t they knew who was in attendance at the library the other nine claimants learned of this threat indirectly and that was not serendipitous counsel but those nine people in a room and told them you have been threatened testify when asked have you ever heard alberto sanchez threaten anyone or i think it is that there was a statement you have never heard him threaten anyone and he says correct and so they just report says i have to take him at his word that he never heard him maybe that's why i played to treated him differently so i you know the records not completely clear on that but i think the district court had a reason for treating that differently from you even though he was part of that phone call that if you considered your own testimony said you did it's such an easy rule to say and such a difficult rule to apply and in court statement offered for the truth of the matter asserted you know and when you have multiple layers of hearsay each one of them have to meet a separate exception and that is because when you have successive they are inherently trust in here inherently untrustworthy like that telephone game the children play one person was in someone's ear they say peanuts and it comes out  something completely different on the other and this filter is is inaccurate and so the rule requires that every step of the way have some sort of exception so rather than talk about in the abstract i mean take one claim and i run through the steps and kind of walk through where they hear why verbal act of aguilar which is completely admissible does not get you to retaliatory conduct downstream says i know who participated and i'm going to get you that said that he said that to you he says that a verbal act it is definitely not the truth of the false that i mean is it true is it false doesn't matter and then we get to a really garcia and you say two truths you mean two statements that would only be useful if you could rely on them for the truth of the statement regrets not that they were in fact true statements but correct truth is an essential requirement before those courthouse you don't really matter whether it's true or false as if if there is an act on which they could take action in the same way the employees could say if i think he's going to get me i'm not going to talk to the e e o c anymore i don't know if it's true or not he's going to get me i don't know if it's true or not there's a bomb on the courthouse so why isn't that the same it is different because you're talking about a fact or notice and that's the why we don't want to know what happened we want to know whatever you did why was your reason for you to do it so if we cases so if there really garcia was threatened and then thought oh my gosh i'm going to i'm going to she quit your job right that's the effect but for here the underlying purpose of the communication is the fact that she has been threatened so there's a truth there so that makes it distinguishable from the notice in effect cases because you need to see you need to have a threat a substantive threat in other words that you think has to hinge on a truth and it has to be to be materially adverse there has to be a threat and otherwise a fact or notice is immaterial because it's an object of standard so i think or response is immaterial because first you have tells the client right and the call and the opponents want to argue that just the threat itself is enough to get to get them there and that makes they they liken it to criminal statutes where only uttering the threat is that leg that's the liability but that's not title seven retaliation in of itself is not illegal it has to be objectively materially adverse so that makes it different from say eighteen u s c section one know there are instances where you could you know you could argue it was an argument that somehow if i told my legal assistant to go threaten someone she's my agent that's not hearsay because you have step by step step but we don't have that here the next issue i'd like to talk about is to character evidence versus context we saw it in the sexual harassment case we see it here is that the parents want to aggregate everyone's experiences you know we the search in that one or in is a dangerous and powerful man and that threatening the individuals is entirely consistent with the use of that power that is quintessential character evidence he's a bad man of course he would do bad thing players the context was constructed by counsel largely by putting these people in the same room and sharing their experiences you it has to be an individual assessment you can't take all twenty claimants and have them share their stories and then say well we had removed from the employment context but at least has to be there their context in in their daily life and we simply don't have that you  the the proximity argument wasn't raised in the court below there's not a lot of there's not a lot of discussion about that but the adverse action has to be tied to your protect that's not true the two most on point precedents cited by all the parties in this case tell us it's not true that is the fifth circuit decision of u s information systems in the washington court case of done done that versus weighing and u information systems the relevant point is that quote missed mr pinney's repetition of patrick marshall statement about the shop stewards threat is hearsay because the information is based entirely on mr marshall statement the plaintiffs contend that the threats attributed to the shop steward are verbal acts and hence not hearsay they are correct that the threats are not hearsay and then there's a cite to another case and if mr pinney had heard had received the threats himself he could have recounted them but he was not the recipient in quote so when it's not three scipio trying to offer somebody else's comments you don't get to use verbal act multiple wayne's alleged out of court oral defamatory statement is itself miscible the plaintiffs cannot introduce it by repeating the bank president's out of court statement in quote those speak directly to comments you can consider those that ask me something more actually something edition my opponents in this case say they have some independent evidence but it's completely unlike the true independent evidence of the case they cite bridge informant wanted to buy drugs meet somebody on the street says can you get me the drugs the second person says yes and let me page somebody pages that somebody shows up the informant says there he is then all three of them in the same car or nearby the supplier standing outside do the drug deal the informant hand the money to the second person sees the second person hand it to the third person then the second in the third leave go to the house and come back with the drugs that's independent evidence because it's actual  concert action physical kinetic same place same time action between the suppose a conspiratorial here they don't have that here all they have out of my client to try and establish to suppose a conspiracy is that he said excerpts of record page twenty five where the truck court said and they do not challenge us on appeal courts and quote point is do not contend this statement my mr wrenn constitutes a threat in itself then quote all he said was have you client have you spoken to mr sanchez not have you spoken to him about x y and z not have you spoken to him because he's speaking on my behalf just have you spoken to him these were all workers at the same ranch the record that my client mr moran and mr sanchez also they have rentals he was basically a layperson's type contractor that done construction work for each of them so it's an equally plausible explanation rather than this theory of well you mention his name so that makes him a conspiratorial but he just said have you talked to him because i know he wants to speak to you that's not independent evidence certainly not like bridgeport the case you're trying to rely upon standard of course in this case comes from burlington northern it's a little bit different under washington law the reason it's different under washington law is the transit zero decision from the western district of washington confirms that washington courts have never adopted the federal definition of adverse action there's a difference in washington there has to be an empirical tangible change in the person circumstance not just that you got threatened with your circumstance changed somehow you lost your job you lost your benefits something happened or in the credit union case galbreath versus tap the credit union has the guy his account was canceled something changed there there's never been a decision under the washington law gets discrimination where there was no tangible change circumstance but people who are no longer even working at the company are still allowed to sue including mr rambles and work there a couple of decades but the standard mostly comes from burlington northern us to be an object of finding of an adverse objective from what here we don't know because it's under lock and key attorney client privilege i was impacted take my word for it i'm not going to tell you what i actually heard that impacted me because there's no precedent where that's reason to the leg and the adjudication of this appeal as to mr moore in all claims advance against mr morin have been dismissed all plaintiffs against him have lost he should not have to wait to get his final separate i can see that legally would say look i'm going to be off the hook if you can resolve this appeal but factually those  underlying point i mean the underlying transaction is similar to the underlying transaction that i kill or would testify about yes there are similar so the jury could do want to two things trial against the evidence for it happens roughly  do things they can either say sanchez is wins or sanchez loses its agel the wins regular loses whichever one of those occurs doesn't impact the case against mr moran it just doesn't because if he loses that that's that's a legal separation my question to you as i thought that the test was not just legal separation but factual distinction as separation i believe that's right but i professed some of my ignorance on that because again i didn't brief  the stand where did you hear a threat yes i did did it extend to all the people who were at the meeting and cooperating with us yes it did we prove our case if give us enough do you think it and communicated to do to them was that was the threat with respect to them i understand this and we think the subjective aspect of the object of test for retaliation why did these people why did the people for example why did mendoza and ramos change them put door lighting motion detector light on their house because they were afraid heard about the complaint i mean the threat and they were afraid why did why this is about that it's check what does she have nightmares why she checked the backseat of her car every time she gets in it because she's afraid they heard about these things they