march of ninety eight to august of two thousand and thirteen and in this case the defend its motion for summary judgment was not as was our motion for directed verdict and for judgment of the pleading the jury ultimately awarded the one hundred and twenty five one thousand dollars finding sex discrimination but not race discrimination and the court awarded approximately one million six hundred thousand dollars in front and back pay and then three hundred and thirty thousand dollars in attorneys and twenty two thousand dollars in cost we had biled our people in this matter and are here today because we believe that we are entitled to have our motion for judgment as a matter of law or for a new trial granted on numerous grounds a brief we like to go through is important back before i get into the reasons why we believe we are entitled to have those motions granted as you know when i said it's the title seven action where the plaintiffs was an african american male police officer c m p d the law enforcement agency for the city of charlotte and has numerous directed city officers are expected to follow the one that is most important for our purposes those factors include employee motivation the degree of harm called bad officers conduct the employee past record and whether the errors they make are intentional or unintentional the directed is explicit that past record is taken into consideration to determine whether a consequences are going you know whether the failure to meet department expectations will be considered if you continue to make errors you can expect the consequences of your behavior to become progressively more punitive in stampede a we have three main disciplinary bodies one of which is independent of c m t v we have internal affairs which is played a large role in this case it's important to know that internal affairs is independent of the sergeants work exclusively for at a and they conduct our investigation they do not select the cases which they are someone they play no role in determining discipline they receive are compliant and they each term and what role the pond up are implicated and they initiate charges and conduct investigations they didn't produce and summarizes the allegations the rules implicated in their factual findings from there there they goes to the chain of command review board and i rolls over i start to supervise anyone the chain of command review board is made up of a sergeant a lieutenant a captain in a major and then a civilian represents they take the findings of a and then they make the decisions about discipline the major is the ultimate decision maker finally we have to vote service boards which are appointed by the city council and the mayor they make de novo views of any type of terminations recommendation with  plaintiff in this case when he came to us in one thousand nine hundred and ninety eight within a short time of his hiring he began having performance issues which i have laid out in detail and mabrey as i think you could say i will not spend time going through the details well the last time he was tardy would have been that would have been in two thousand i can give you the exact day i'm sorry  thirteen and i'm sorry i've cited exact date of the last time he was already but as i'm looking for that the one thing i'll mention is the last time that he had an a she was parting it some for it was two thousand and twelve but one thing i'd like to point out your honor who will he does have favorable reviews as some for pointed out in her break he had gotten good reviews in general he had received favorable comments about particularly his patrolling of the skateboard ery the skateboarders in chalk towns so he did have some positives a month this but he had continual issues with discipline and he also had other times that were not reflected in the at i think that the jury only heard about i think that the issue to jury what we're here about today is about the compared to our issuing direct ink the jury heard the jury found there was discrimination here but they were not given a compared to since mid city a the after he was terminated he sued him and the city paid because the city had forced her to be interviewed under the you know because she did not actually report the rape someone else supported it and she really did not want the rape reported and so the city did the city went ahead and paid for it because they had put her in the position to be interviewed and forced her to do that and so the city made the determination that it was in it was the right thing to do to pay for that given they had put her in that position and that is correct ask you about the  the records of the two individuals will simply not comparable that mr timms loses performance record over the years was materially worse and what is your argument with respect to the rotation and allied bore on the all comparator question whether they actually had a part from the people on the chain of command review board because the way they pick that is gray and and they pick people just based on their calendars but it would be virtually impossible to have the same person on the chain of command review board and so they would never be having decisions made bad the same chain of command review board and so that's important it's also important to note in support of playing out in this aquino and that you're tensely did not have the same supervisor correct it could it could lead to the conclusion that this is somebody who's doing a fine job but it could be equally lead to the conclusion that you know it is they was good at the things that he wanted to be good at or focused on but i think that what his entire history from one thousand nine hundred and ninety eight to two thousand and thirteen reflects is that he struggled very much with anything that was not something he wanted to be f on so that was kind of the one area and there's testimony from numerous supervisors about this point he enjoyed that area it was something he liked to do it was something he enjoyed but when there were other things he was asked to do or told to do he would not perform well and he would intend to have you know issues and so i think it does show you that he could do well if he wanted to but i think the other areas illustrate that he struggled in numerous other areas and the thing you were really focused on that area about but surely there must be a remedy under title seven or somebody who has been the victim of discrimination so how where do we go from here on that employee employer if they brought her there disciplinary process and structured their review and decision process for retention in a way that there never is a common supervisor or a common decision maker and thereby tend to avoid title seven liability how do you how do we deal with this problem and i certainly understand i appreciate exactly your concern and your point i think so i don't think it's a situation where and i do believe with you that there are some companies are we seeing cases where there are situations where you have there's where you would never have a title seven claim because the way the company is set up i don't not believe that the charlotte mecklenburg police department is that type of entity but i do just believe this is a particular case where there's such dissimilarity between the two parties that you know you would need the e u would not have that they don't represent today that that is what i'm saying today i'm saying that i think the writer of that is you i'm sorry the because i and i understand that point we've got to deal with this in our decision but i don't think you've really about the need for flexibility which i appreciate understand for the very reason of what you're talking about which is we cannot have a hard line where we say you've got to have the same supervisor you've got to have you know we can't have these rigid rules and i guess and i think that those cases represent the very cases we need to have and i would assume this case of fall into that same game where you are going to have to look at the the the facts here and you would not produce an opinion that says there's a black lawn you know hoard lawn work has to be factored but every case you have to weigh the the variable because we cannot have a law and that says you have to have the same supervisor you have to have the sa saying that because i do understand and i think the prior cases in some of the cases that come for cites in her brief talk about the very fact that you've got to have flexibility in this analysis and so i would think that that is how we would handle that we would say we're not going to have this be an inflexible requirement because if we do we could create situations where we allowed companies and entities to avoid title seven and that would not be the result that we would want to have show it sewed up this particular structure to avoid title seven live billeted there are reasons for this type of structure and i think george keynotes point and if if it's always the same disciplinary panel sometimes they exercise party internally to a degree that they showed and also because  entertaining disciplinary complaints and making the disciplinary judgments over either although all members of the force and so what a lot of institutions do  f they spread it around and they find that it's more equitable that way because they don't saddle one group of people with a  don't believe that she would be a comparative or because i don't believe that i still believe that the same problem i don't break just seen in this so he had the additional thing happen with the church parking lot but then i think we have to remember that ultimately you know he goes before the he gets before the chain of command hearing they specifically say and then you have a civil service board hearing to terminate him which is an independent body and so i guess i'm just looking at this differently i don't believe that's the reason i betcha back i guess that's just my opinion but i don't think that's was the reason he was terminated or annulled sir you ask me that's what the jury believes are you asking  impression for lack of a better word they were not that was what should have been given to this jury and that's what resulted in what we have here today i guess that's what i'm trying to convey your honor to well i mean the civil service board said that they looked at his entire record all the way back to ninety eight but yes in that late in the last hearing he had they said that the thing that was added was the or charges from the what they found for her was she received forty hours without pay as a result of what they found on her phone and then he reached the four dollars charges but what they found on his and then an outside party submitted a complaint about something that happened on the parking lot so those were the things that were going into that final chain of command hearing and then they said that ultimately major lester said they all unanimously agreed with determination decision and just one final point i'd like to add is it's important to realize that the civil service board hearing where they voted to terminate him under that stance in the city of tuscaloosa case i would say that the role of the civil service or arguably that that would break the link here between any sort of animus and determination and you know because that is an independent board that is appointed by the mayor and they conducted a noble hearing and they alone have the power to do determination so i about things that he needed to in you'll notice that in the brief i had no time to read been told certain areas where he needed to work on and things like that but he'd never specifically then you know he'd received three day suspension  according to the trial testimony they took into account everything as they are supposed to so they had everything a grunt of them not just this they had everything she said it was to a guy or did you do so that you could have  make a decision so the chain of command hearing major lester said that they will that you know they would get the whole record over his whole career when they made their decision and their civil service board said they looked at the entire history and his entire record and what they relevant respects and that means look you have different decision makers different you know different supervisors you're seldom comparable to establish a problem of a case of discrimination and so i'm not trying to suggest that the law i harsh i'm just looking at heywood and that line of cases and trying to apply it here and it would seem to me that under niche will be to lead a hospital under all those cases that what we have here is not a comparative or and so that that is even though he was not disciplined for the rape itself there was this testimony actually all where it was said that he told three different stories about what happened on the night of the race so i think it is something that is important and that chief monroe later stated that you know that would be something that he would no longer be able to utilize as miss officer tenderly in the same manner due to that finding he would not be able to testify at trial it's better so i think that is an important piece of the puzzle here that in addition to everything else in the record chief monroe did make that comment that would have made him you know he would not be able to utilize him in the same way due to the funding and the lack of transparency and so yes i do think that is thank you for bringing that up that is an important piece of the puzzle as well in all of this and again i think it goes to the fact that it goes to the whole record in just one little two seconds guys want to add to that that is brought up judge that has been brought up before badges mullen and one thing he mentions is that amy keno was not punished for her lack of candor and this is an important point there's been criticism of the fact that she was being on during the two to three am window when she was allegedly raped and he took that to mean that she could not have been right in that window but i will just point out that obviously she could be right between two and three am in spite of the fact that she was texting for some small period of time during that window so i'm it was an unusual thing to be put in a court order that someone could not argue or integrity was called into question because they claim they were right in a certain time period and they were texting during some small window so i just wanted to mention that because that was brought up about mccain as integrity but yes i do think the integrity issue is relevant to the overall and at this particular occasion it was a time when she heard her testimony was that she refused it on this occasion went on so it was on and on and off again and then no if you're hearing you said no she told me to stop yes and that and then that's the this is the the the difficulty that i'm having with the know they're not ideal officers and in my view of the record but for a variety of reasons i just i just i have my doubts that some real d this appeal the defendant has the burden of showing that the judge did not heard the motion for judgment as a matter of law discretion what we have in this case are sure employ cool marriage inappropriate behavior by a coworker one was a female engineer you know the other was a male their complaints were treated differently by i a e a and bar the department in order for you to understand why we say any of you know is a comparable i need to walk employer's name for its policies are what matters is how it applies policies and so as far as mr tinsley is concerned they can call their disciplinary policy in a thing they want they so all of your questions and concerns about whether a policy such as this autumn at include present seven applications might be for another case not in this case the evidence presented to the jury showed that there is no what that there would ever be the same supervisor in the cases in the violations which were brought before this court but the sentence policy clearly say that in disciplining employees there are certain violations for sugar busters are responsible and certain for bridge the internal affairs department is the sponsible the issues in this case only handle discussions with then chief munroe about what was happening in the investigation so this notion that the internal affairs investigation is independent is not true and the record the testimony in this case who did it was not true and the jury accepted that and said that when the a completes its investigation and determined that a violation of certain rules have occurred they don't make the decisions about punishment but they sit in those recommendations to the chain of command  who then review board threw out the entire process including its deliberations now the client is not allowed to sit in on the deliberations the client is excuse in the present case it would be at a pitch initiate the action and for all intents and purposes is analogous to a supervisor taking action police makes recommendations to the civil service for and on pay for the civil service board appears to be independent undisputed evidence in this civil service board for a full turn in his reactors and had been scheduled to do another term but he quit the sit the action that stand the way that the police department was dealing with a different type case he specifically pointed out ha where he thought the civil service board and the chief of police work together his example of that was prepared to discharge too but the chief of police came over and prevailed upon the civil service board to model a a common tenant and rule that said that a the number of disciplinary actions that she should have we see now what happened st of all is there was a relationship between them she wanted more  stalking of a citizen of another person especially while she is on duty and sometimes meeting her decision amounts to rule violation including a criminal charge i was made aware of it in and work it is in his crawl testimony that tinsley told him about it turned out the record shows her supervisor and this was then they asked two thousand and thirteen in january of two thousand and thirteen her supervisor had gotten the reports from we don't we what we have to go on is not all of these accusations and counter accusations surrounding their relationship because there's a lot of background here and there's a lot of the way there always is there's a great deal of acrimony when we're in relationships are all one and all for jan and when there's when they break all mrs you know it was all one sentence he was not harassing her he was not showing up at her places creationism and stalking her she  city of charlotte hired an attorney to go down and represent aquino on that charge and they worked out of several injuries where she agreed to to which constitutes numerous rules violations but never saw a initiate in such rules violations so when i say to you that the internal affairs office did law when she alleged that he did rape her and she did not bring the charge until may th which was the same day that she got a ride she went and told a  coworker that she had been raped that coworker was bound to report there and he did make a report and it was her report that's a great book but on april nd between two and judge you talk about a few short texting period it wasn't the time it it was a telephone conversation for more than twenty one and then another the twenty minutes later another phone call to the saying that the jury heard that evidence and decided that she was treated better and division and no investigation started in addition she ran reports on driver's licenses and automobile takes on women with whom  one thing i'm wondering is that a lot of what you're you're saying has to do with their private relationship and the fact that they are is all of these infractions those documented in the record have to do well but how do you know all of the job which doesn't which doesn't impact relationships with suspects or victims or internal employment punctua that would take it out of the private realm and actually reflect on somebody is veracity and who said what was that person's word may not be trustworthy and of course you want police officers sort of a very messy sticky private situation and should we just be focusing really here are professional misconduct in professional behavior because messy situations you know often take place off hours and there are a whole lot of people whose professional make  professional conduct may be exemplary or may be the problem but we but we try to draw a certain line between the personal people's private business and their performance on the job you know i'm i'm trying to struggle with this should go that's not an issue in this case that's not the issue in this case and it's not what that since that they may have between themselves what is at take on that i appreciate your question if the descendant maintains that it looks at the cumulative record when a session discipline if there is evidence in the record that she engaged in conduct which would amount to rule violation but be confident the discretion that hand it decides not to bring them then that is the difference in treatment and that's what i'm talking about when i'm saying this case is now out of the descendant administer its policy if i a has the discretion to shop things under the rug for some people but not then i believe that that is evidence of animal and because the chief of police when he makes the ultimate recommendation to the civil service board has no personal knowledge has not done in this to geisha and he says he's only relying upon the information which comes to him so if i left in what it charges and who charges then then it becomes a question for the jury that she was similar and not only your honor if i could address a part of your question and a part of those wilsons in addition the city would not have a basis or hiring a lawyer to defend her and for paying the judgment that was rendered against her she was sued only in her individual capacity for her slander with respect to the allegation of rape but to cindy it's in action even though it is so and not come to the conclusion that a rape had occurred and no criminal investigation was started but they didn't even bring criminal charges against him so when we look do with the criminal investigation so i don't know and then my question was but if the person ever required to participate in a criminal investigation then her answer was no they are not so even with the city the jury heard all of them include could easily conclude that there was a difference in treatment so the verdict came out in two thousand and sixteen clearly in the chief of police knew that credibility that information is to be shared with the district attorney so that the district attorney can get leo obligations that was not done in two thousand  aquino was still working in the department as a patrol officer so the chief of police shows up at the of civil service for indecent drawing of integrity and truthfulness and mr really undercut what this department did with any new keno these are all professional issues judge workers and that's not a personal issue that's all  is giving you the evidence that the jury heard which allowed it to reach its conclusion on pretense so the evidence is that the to the police basically court on appeal to nd guess the credibility determination or i don't think the don't think it's correct to say that the question of similarity and com invariably a question of fact cases all the time where judges say as a matter of law they're simply not enough similarity or there's not enough  speaking it's a common denominator because he would be the ultimate decision maker with any employee who received rules violations based on recommendations from  record this month supports it at all there's no such evidence and that i want to also tell you that that was done while she was in uniform and on duty is evidence upon which a jury could do a search of analysis and determine that she was just flat out lying you know sometimes mistakenly was for instance of shoes of saying different things at different levels of the investigation and i and he also answer the questions that were asked of him different questions asked of him at the civil service not the civil service step the command they find that officers change their testimony and it's up to them to decide whether they are going to charge them for doing so his actual testimony was that discretion that the internal affairs to tar people and to take actions based on what they want to do rather and to use the department took her allegations very seriously but that's when allegations were a against her not just mr tunes but those women who were who deceived the threatening taken against that and i cannot believe the fact that it is not being fully offenses to the mood and efficient operation of the police department to have a pull that this court has gone as a matter of law there was not enough similarity between aquino intensely and even if the court would wish to decide as a matter of fact that like what could occur the court could decide that it is a matter of fact that there was not enough motion for a new trial and in ruling out a motion for a new trial this court is permitted to weigh the evidence and consider credibility under why it be interstate notion transportation so i just wanted to point that out  for has brought up the fact this notion that we did not the city did not address complaints that were made against aquino by can flee and i would just want to briefly point out to the court that i believe the record before you  division and list out different things she is not to do that said we will meet to discuss this further a no if you have any questions blah blah blah but that was a direct result of a complaint made by officer tensely so that would certainly go against the shorter before they went on the record and so i was not aware that anything was left out of the record like that no it was not aware of that but in conclusion if i can just finish i find i might have as almost  not asking this court your honor to give consideration to the fact that there was not a proper compared to all here and also consider the fact that the award the front and back pay are excessive under the circumstances and to take into consideration the fact that he was offered reinstatement and to likewise consider the issue of attorney fees as set forth in our brains thank you for your time to me know that