eighteen one three seven three and eighteen dash one seven two seven cheryl versus feather smart post incorporated arguments not to exceed fifteen minutes per side mr burke you may pursuit for the appellate process happily morning your honour's john version on behalf of fed ex i have reserved five minutes for a bottle fed ex appeals a six hundred twenty four thousand dollars judgment for alleged employment a variety of retaliatory acts but the district court correctly determined that the majority of those claims were not actionable under this court's precedents did that pursuant to the wrong standard would you agree with that didn't apply burlington northern in that determination here but can you elaborate on that are you talking about sort of the mistreatment the scrutiny and all that yes and he went religiously through this cour court i'd have to look at his opinion i'm not sure that that's correct i mean you're familiar with burlington i am of course yes would you agree that the court did not apply the burlington northern standard in making the determination on summary judgment it's potentially wrong you've got the wrong standard correct but two thoughts on that first that issue was never raised again in the district court there was no motion for reconsideration on the summary judgment ruling there was no attempt to ever resurrect those claims other than to introduce  potential you're asking us to take a determination by the wrong standard and quite possibly a wrong determination and use that somehow to reverse potentially correct that your nation by the jury based upon the correct standard well i think even on the burlington northern standard these de minimus impacts on her working life were not to the level where they constituted materially adverse impacts such that they none of the attorneys or the judge were talking about burlington northern there was a ruling made and so on appeal my job is to defend what happened in the trial court and point out the areas where it's incorrect that relate to your hand to the court and the requirements of professional responsibility rules that govern your price because you're under the issue of the summary judgment ruling wasn't even at issue on appeal there was no cross appeal there was no motion for reconsideration before of course and your honor i take that you know i take that obligation very seriously but i wasn't even looking at the question of what the proper law was applied to that summary judgment ruling because it hadn't been challenged it was the law of the case i was focused on the consequences of what happened once that ruling entered now now if you want to review this to no one of that standard it we're happy to file a supplemental brief on that if you want to remain at it to the district court so he can reconsider pick any that instruction first of all doesn't to my knowledge object to the admission of the evidence which as you know the court let in on grounds that it would show discriminatory intent was prob right for count one and there had been briefing on that and we had lost that issue ok motion so three times that these are the only claims in the case this is the evidence that relates to those claims were entitled to judgment as a matter of law and we're not going to quibble with your honor in the district court judge with respect to your ruling that this evidence that she originally tried to get into these other purposes could not be relevant to count one but however it's insufficient as a matter of law to establish your claims for retaliation under counts two or counts for it was saying on the merits that this would all call materially adverse action or as you said in your order or did they say judge that stuff out of the case for purposes of liability which which one did they say but without having it right in of the tenor of all three motions and i know for certain the written motion that was post judgment was that the count too was limited by the prior ruling to the time clock theory and so nothing else no other evidence was relevant i know that's your theory but that's not the way the case when that is the problem the way the evidence went in was under the judge's ruling on the motion in limine that all of this was relevant to the count one discrimination claim and so there was nothing wrong with the a ruling by which he applies the wrong standard and have that be kind of governing forevermore in the case including here notwithstanding the fact that all the evidence went into the jury and so far as the instructions were concerned they were able to give it plenary consideration well you know we're up here and we're bound by a judge he is mistaken by all appearances determination on that you know that evidence in his s j order seems that treatment began and when she was demoted which i think was in august august if you look at her testimony which we must view in the light most favorable to the jury's verdict in one place she says it was after after i was demoted not when i was demoted after which obviously would encompass which would allow a jury to to look at her other testimony where she said it started in peak season which starts in thanksgiving which is after the complaint so i am struggling to see how we can read the record in the way that you're asking us to we also have the evidence i believe it's the second ego see complaint which is not a basis for any of the claims she makes in this case in which she likewise indicated that the time change took place before so that say that there but and so that was the basis for the district court's concern that summary judgment he said i'll allow you to clear up t it's a difficult one it is it's tough for you and you know she testifies a trial testimony as opposed to an ego see complaint that it was around it was peak season which is later and i mean if we're viewing this record in the light most favorable to the jury's determination we had a jury trial here yes you know that's not a it's not usual so don't ask a case where it's like you know what feel back and give it more plenary consideration we're viewing it in that light i mean how how do we disregard her testimony that it's peak season and that's after the motion not contemporaneous with that respectfully judge catholic if the best that she's got is that this happened around the time that i was demoted that's and the time clocks what she said in the complaint that's not what she said to try she said a trial after demotion number one number two peak season agreed she did but the day for you know why why doesn't that govern here as opposed to frankly some ambiguous testimony i guess she gave on cross after demotion just more big why did why doesn't govern over that and you know an c complains because we've got a three month lapse between that demotion and when the first e e o c complaint is accurate if i have two events that happen in my life say my my birthday happens in august and then i get a new job in november and i say my child was born after my birthday no one would think that i meant after november that there's got to be some recognition that when you're talking about something happening in proximity with an event that is three months away from another event it's not a reasonable inference for a jury to draw that it happened after them of the past few months why don't why doesn't that change why doesn't that allow them to and for a three month you know within the briefs specifically that it was really simple math was closer to two months and not a three month differential so to clear up that factual math dispute it's closer to two months i did notice something in the in preparing for oral argument that fed ex had not objected to plaintiff c e o c secondly you'll see complaint being admitted to trial and that was in the joint final pretrial order document number fifty nine page eighty one five three nine it just sort of a belt and suspenders in terms of what's already on the record which is your honour's are correct defendants didn't object to this evidence coming in and i think one thing that is  second complaint the second complaint correct and i think what purpose well it does because the title there was a tidal wave of retaliation against my client after the second he'll see complaint and linked in time to certain adverse employment actions where she did actually lose money because she was sent home you didn't make any claim based on the second complaint you're nowhere at trial right i mean your you at paragraph number forty four plaintiff filed another charge with the e e o c michigan department of civil rights against fed ex mark on or about march tenth two thousand and fourteen alleging retaliation this is document number this that fed ex retaliated in response to that that particular complaint correct ok that is page id eighty and then i excited to have all of the nice little tags here where it goes through each paragraph and talks about the retaliation after that we'll see complaint it goes into the dates it goes into the details and many of the details which my client has testified to and so that that isn't in issue one point of side in that all that evidence was proven and that tidal wave came after that ios the complaint and so there is a separate link not just the first you'll see complaint there's also the second you'll see complaint and then there was for filing of the lawsuit and then a termination which fall followed two months later i didn't see any affirmative evidence at all that anyone other than i think the lawyer person fed ex who served with the suit that any of the actors here knew about the lawsuit chris johnson did chris johnson had a conversation with mr blackshear and i didn't really read him to say that he basically said i guess i wouldn't disagree with mr black sure that's what he said at first he said he didn't know about the lawsuit then he changes mine and says well i don't know and then i asked him about the conversation in this a black church i spoke with mr blackshaw and he did have a conversation with that's not much to rest a verdict on we've cited to about ten instances where mr jensen testified differently from his deposition transcripts to his trial transcript and i had to walk up to him about ten times and i  each time that occur on the record and said to those pages coupled with the fact that the other manager also nick testified that he didn't know about this complaint and then later when showed him this signature upon one of the documents he drafted this hubbell indicated this is a retaliation for filing my complaint so he lied to the jury well you know there's a difference between substantive evidence and just impeachment and i think what you describe in your briefing where you're scribing now is impeachment of testimony that two guys didn't know but it's not really substantive testimony they didn't know you bore the burden i mean i don't want to belabor it i just opposition we didn't understand the distinction that there was little evidence on the knowledge of the filing of the complying but the way the jury was charged and the way the evidence was presented was based on that there was there was this kind of discrimination in retaliation for either the o c complaint or complaint or the lawsuit i think that held the jury considered it sure i  can't tell you i can't answer that question as to the best evidence all i can say that is that i listed the best evidence and all the evidence as best i could within the trial brief itself and highlighted and outlined incited do anything without even going to the bathroom i think that was the testimony so there was a targeting right after her first complaint within that time frame and then when miss hubbell spoke to lauren fishwick about her filing the first me  and so that that is a two day wink right there and then miss hubbell detailed the discriminator the retaliation that followed in terms of her being watched more closely in terms of the discipline in terms of the doctor notes where fed ex admitted he exhibited in didn't attach the doctor who no where as we did in mr mclaughlin testified even that she should have been disciplined because she had a doctor's note so their own witness testified she should not have been disciplined when was that twelve through say eighteen of the the brief itself and i specifically mentioned mr magoo often in the timeline there and your honour's hit the exact testimony in regards to the peak season which is accurate she testified it was around peak season fed ex admitted a trial that that's around thanksgiving or christmas time and so what happened approximately three weeks after her first complaint that's how it went to the jury that brief second complaint was march the tenth two thousand and fourteen thank you for and then within sixty days april twenty third miss hubbell was disciplined and then she was sent home early by management in her peers continued to work causing her to lose money and then there was another instance where everybody was sent home except miss hubbell and she was the only one working at that time and that happened again after the second he complained so there's a plethora of retaliation the kurds in this case in regards to the attorney for the issue briefly as i understand i'm not going to bottle time the trial court stated that the defendants did not articulate a challenge to plaintiff requests for attorney fees or costs for interest and that is correct and so i cited the case law were no objection is made the amount requested is normally approved in judge has as moved in made those decisions in the past i mean it is that he's not bound by what the parties say i mean when he enters an order ye discretion use his own judgment about what's appropriate the best i can ask for and i think any united states citizen can ask for in this country's consistency not only by judge but by the courts itself you know if there's ever  an issue for ad hoc determination it's attorneys in terms of the number i mean he's i mean you do cite other cases but those are different cases and he looked at the specific facts here he made a judgment about what he thought was reasonable in terms of the rate in terms of the hours he thought some work might have been duplicative problem is he did easy to distinguish prior cases in this area he didn't follow michigan law and by state law say that to the state law i stated to this court stating that the court must abide by state law i said it's a case of purview i believe that this court stated judge he should follow one of the  major issues we talked about this and we had a few settlement converses with judge the on two separate days and he did mention this specific case which was the thirty two hundred dollars verdict driver and he told us i've had this thirty two hundred dollars heard but i had to reduce the fees because it's just thirty two hundred dollars so he emphasized that in this case we're above the cap well above the cap and so when you have excellent results you should receive your full compensation we cited to that case law the the amount of time that we spent on this case that we build was less than what we put into the billing itself but second of all the billing was appropriate in terms of listing trial preparation but then we also defined what trial preparation was and then asked if the court wasn't satisfied to let us know the court did not the court submit in the order we filed a detailed more detail than anything else a judge he had ever dealt with and in the port didn't even address it and so when you take these cases on a contingency fee basis you take a risk is a lawyer you do you you never know what's going to happen you know court of law you know if you're going to win are you going to lose but when you get to this point and you've done all the w and you're cut down sixty percent of it was thirty five percent that's part of the continue no risk one takes i suppose a district judge is going to make a determination of her i understand it but the problem is he reduced the thirty two hundred dollars by twenty percent and reduced the five hundred nineteen thousand dollars that we had by thirty five percent almost double it is it's unconscionable what it is when you can't do that in particular when the detail was your own your hunch and ability is by comparison to this other cases though that balland him to an upper limit of twenty percent reduction or something it unconscionable in regards to the specific cases the judge has dealt with himself correct unconscionable in regards to the law that we've cited in terms of having to follow state law of the second part i understand the first part  sort of you're saying that there's horizontal stari decisis on this type of an abuse of discretion motion i don't know if i would say horizontal that is within the same court in this case within the determinations in other cases either it may not get you very far the other case argument which i just yeah i'm sorry that i don't know what else to go off of other than the actual law that we've cited i mean that's why i cited to judge these prairie cases because if he's going to follow the law in those cases just follow the law in this case file be consistent follow the law they're pretty extraordinary thing to say district court acted unconscionably really that's a very very tall step thirty two hundred dollars for going to twenty percent reduction versus the five hundred nineteen thousand in a thirty five percent reduction when those billable hours are accurate they're accurate i mean you can help i mean i understand we understand your argument and we understand that it's an important issue so very important and rest assured i mean you're got the road like it's one hundred fifty thousand different rebuttal thank your honor just wanted to clarify a couple things now that i've got some documents in front of me first i went back and i looked at judge the summary judgment ruling and obviously i don't have the ability to look through the cases that he cited but in this very holding where he says that these other de minimus things were not actionable retaliatory conduct at page twenty nine he does cite one of the court's decisions in two thousand and thirteen i don't know whether that has the burlington northern standard or not but you know again looking at this from the perspective of the parties in the way this case was tried you know it would appear that he was relying on a law that was up to date and relevant at the time no one else to attention of the court and the whole case was tried on the basis that case and you independently think that even under the burlington standard you know these things might cross that line i think the appropriate thing to do is to go back and give fed ex an opportunity to try the case on that basis because you could put the me your honor we weren't focused on the standard that he was applying at the summary judgment stage we're accepting that ruling and looking at the natural consequences of that and i apologize if you feel that we did something improper because clearly that was not intent or the goal but we were taking the case as we found it and the case had carved out a significant piece of these allegations and said as a matter of law they were not actionable and then the district court was not applying that ruling later on in the proceedings that's what we were point well i mean that would be a basis to uphold the verdict it stand it would then you would have to get into this morass of whether he applied the correct standard or not so i went back and i looked at her testimony and these are the same pages that we cited to you in any one of our brief one of six to one the seven and the question from her counsel did anybody tell you that you were not allowed to work i'm sorry you were not allowed in the area before or after you clock in and out of fedex after you were demoted and then she says yes sent me an e mail telling me that i could not clock in only three minutes prior to the start of work comma and after i was demoted at some point chris johnson and vivian carey told me not to work more than eight hours and so the testimony that she gave relative to what happened after demotion had to do with not working more than eight hours i think the only reasonable inference from this testimony is that at or pitot before the time that she was demoted she had been instructed by mr macleod flynn not to clock in i mean what do we do with the peak season she just misspoke there i mean that's that's a little more straightforward than sort of parsing you know the restrictive and non restrictive clauses and this is a sentence of somebody a trial except peak season kind of extends throughout that whole period you have any testimony records cite to that effect we don't have any testimony other than hers as to when the peak season is i thought she thanksgiving i mean i thought that was kind of common ground a trial that fed ex agreed it was thanksgiving through christmas right and the problem is you can't in testimony that's as broad as that within each o c complaint that was filed in november and say whether it happened before or after so what you've got is  previous testimony to the notion of can the jury i don't think a jury reasonably looking at this question and her answering at the time a demotion i had the time clock e mail and sometimes after  sometime after that i was told no more than eight hours and reasonably conclude even regarding the pixie's of the evidence and the record are in your position that nothing can be considered by the court except for that one issue of the time do you do you return that position in light of the application of correct law burlingham northam i think we could have a good argument about whether some that she had and looking at the floor and things like that even satisfy the burlington northern standard so let me let me understand that so you have independent testimony in the record from the security guard that she was the only employee whose comings and goings he was told to track and he was told to track her going to the bathroom alfonse read testifying that she was the only employee he could not talk to because managers were constantly watching the testimony that she was subject to numerous disciplinary ride that she was written up for unexcused absences when your own witness said that she had a doctor's note to cover the news that she had three disciplinary writeups within two months of filing her first the e e o c comply one merely four days after that comply and it's your position that that doesn't meet burlingham standard of materially a adverse which let me make sure i've got it straight might have been dissed might have dissuaded a reasonable worker from making or supporting a charge of discrimination is that your position i think that's the accurate standard i think you quoted it from burlington northern exactly correct i think when you look at the evidence as a whole there's in the light most favorable to hubble's jury and there is no genuine issue of material for the jury and reasonable minds could come to but one conclusion in your favor issued the court in correctly determined the law and the trial away out all that evidence before the jury which it did then that evidence before this court under the burlingham the order and standing right but here's the problem your honor the texas trial counsel never had the opportunity to make to the jury the arguments about the very evidence that you're discussing we're all asking what could the jury have concluded based on the evidence that was in the record which is an appropriate standard but the case wasn't tried based on that if you look well that we have a problem here too there supreme court cases are not hard to find correct but at some point counsel has an obligation to go find the cases were not going to set aside a jury verdict and remain because somebody didn't go didn't find it a patently a political supreme court ok let's not even talk about a blown call on both sides and the judge we're all proceeding on on one basis if they had known the standard surely includes nobody knows the standard in this case until the e e o c shows up is that the good point i'm trying to make is that if anybody had brought it to the denny bodies attention surely trial courts coun would have been argued to the jury by the very evidence that you're talking about in conflict with other evidence doesn't satisfy the burlington northern standard job there that was trial counsel's job and that was your job and consequences i'm confident that trial counsel was not disregarding the rules of professional responsibility i'm confident that as possibly judge steve did now though you have to look at that later case and certainly as plaintiff counsel did it was just something that everybody missed but if that's something that that misses it's just as much on the plaintiff's counsel as it is on the defense counsel and the fair thing to do is to give everybody an opportunity to complete the case on a level playing field just real quick if you exhibit one eighty three yes as to to judgment as a matter of law i don't see it mentioned at all well as we explained in their exit one eighty three doesn't relate specifically to an investigation of retaliation and discrimination charges that were brought here because those products policy would go to the legal department and so there was no testimony or documents for that attorney client privilege stuff exhibit one eighty three was introduced to demonstrate and argued again on appeal to show that x does respond when complaints are made at least in those no we understand that that's why i explained in the reply brief that this document doesn't relate to the investigation of these complaints because those were done by the legal department our only point was that one of the three tends to show that when complaints were made fed ex did spring into action and so her claim that fed ex didn't do anything when she made complaints was wrong but i mean there was testimony that no complaint was i guess the terminology they use was they open a complaint if an employee complains about these sorts of things yes as i understand the record please correct me if i'm wrong the testimony here from fed ex people was no complaint was oh not quite that the testimony was they were not aware that anything was open was that when an ego see charges filed it goes to the legal department and h r department doesn't have anything to do with it so she wouldn't have any reason to know whether that investigation took place or not and we don't have any testimony or evidence because of privilege and work product issues but but but to answer judge catholics question as clearly as i can there's no evidence affirmative evidence in the record that shows it did happen all we have is the testimony that no one knows if it happened to me but doesn't that shoot down your your argument  that you're entitled to a judgment as a matter of law because the record shows good faith implementation not just having the policy but the implementation and i tell you how we have any evidence of it but that's where we're exhibit one eighty three and it's some evidence that when