we will call the next case and listen ron first nutrition management services company may please the court my name is alan epstein and i'm here and privileged to represent nutrition management services company in this matter i would like to reserve three minutes in rebuttal re interesting situation in iran or so because of time limitations i'm going to be only addressing the three major portions of my brief and will leave the remaining two regarding liquidated damages and fees to the briefing and and to any questions the court may have with specifically i'm going to be addressing the first issue as to whether or not the lower court should have granted a new trial or whether it abused its discretion in doing so number two mon get past that issue if it should have just avoided the new trial scenario and her judgment should have entered judgment in favor of nutrition management because under the f m l a there simply is no room for nominal damages and the third issue is once we get into the second trial if we have to that the court erred enough following the precedent in this court and kind of shanti in other cases  parker case and the third circuit model the model jury instructions we are in there directed to recognize that there is a a nap salute offense to a claim for interference a distraction on the facts in this case are rather simple and really uncontested and that's important in the context of the granting of a new trial because the facts really are somewhat uncontested nuances of them or not as to how you reflect on what  comes out melissa brown who had limited education and had experience as a worker and as a mid level supervisor was granted the position of food service director a very complicated process at the plymouth home plymouth house home and was in charge of serving food to the residents of that home in two thousand and four and new director came in that the time ms brown  on the record that she had problems on the job that she was criticized and that she has no evidence to demonstrate that the criticisms of her in not being able to run the kitchen properly were unfounded the new owner brought in nutrition management and i refer to them as nutrition management who are people who service the seventies like nursing homes and smaller hospitals and provide the service of running the kitchen they order the food they they have the people who prepare the food in this particular instance nutrition management only hired three individuals when they came in the rest of the workers remained employees and said i'm pregnant and i'm concerned about my benefits and recognizing that they normally don't cover people who come aboard his new employees he said we'll cover you you're here we'll give you an opportunity  to continue and during that period during that normal period we will cover you for your benefits and did during that same period of time numerous problems arose and it came to the attention of both  immediate supervisor who the regional supervisor and others mr blake grave who was the vice president of operations tracing the lawyer who was the dietitian assigned to the plymouth facility and actually the  that this brown just wasn't up to the job that was dictated by nutrition management standards these weren't the same standards as before but mr brown couldn't do the job and they called her in after consulting with scott murray who is both h r director and a lawyer who had had thirty years experience in the field who was well versed in all of the was a dealt with these issues and called her in and said you're being terminated because the ninety day period recognize that you're pregnant we're going to allow you to continue your benefits and continue to be paid those benefits and a vacation even though we didn't accrue them through the end of your pregnancy and will allow you to go out now earlier in the month of october before you deliver so that you can collect unemployment compensation as well she did do that she collected unemployment compensation she went back to  work approximately or started looking for work approximately two weeks after her delivery which was the time that she told missive alessi she would need just two weeks in that context scott murray also testified and it's important to know that he was aware of the family he was aware of the issues regarding credit time from his successor corporation and that he was well aware of anti retaliation processes and that nutrition management always rented leave to people in cash in fact parents of a less testified that she had been out on leave during this interim time suit was brought in two thousand and six two issues one was an interference claim it doesn't implicate the erdman decision which dealt with the difference between interference claims and retaliation claims it was only brought as an interference claim and went to both juries as an interference going and it was also brought under the pregnancy discrimination act which is part of title seven the first trial ended in a decision by the jury that effectively required a judgment to be entered in behalf of the trisha management the jury found that there was liability success or liability on the part of interest in management they went down the factors the six or seven factors that were involved they decided that there was liability under the f m l a because as this court knows and each of the judges have been involved with emily cases it's a very narrow  it's not quite strict liability because you do have a defense that well i would have fired them anyhow but the fact is is a very narrow burden on the part of the plate if they found that liability they found however important in part that there was no pregnancy discrimination so that all of the damages regarding pregnancy discrimination were off the book they didn't have to decide those issues and they found that there was no past or future loss of earnings  right there yes or was there any dispute about the fact that she had been making forty thousand dollars a year and that she never made forty thousand dollars they're after or the equivalent there yes there was no other words oh the the was there not undisputed evidence that she suffered some back pay loss no the underlying the underlying record demonstrates the transcripts demonstrate that we contested that very much she got jobs very shortly thereafter she was employed as a line worker how could a rational jury find liability and zero back because we argue that there was no back pay that there was no direct loss to her mr my colleague mr plante argued that she lost something in the area of sixty or seventy thousand dollars we demonstrated very carefully and outlined to the jury and close to the jury on the basis that she didn't suffer any loss whatsoever she came back to work for us less than a year after she left in a much lesser position one that she could handle and she's been an employee ever since she worked during their period on a couple here earlier when she worked she worked jobs starting in early january that more than compensated for the losses that she ha sustained she was making more money as a person working a construction job where she was a flag person then she had remaking with us she had work also a secondary job and we added up all the numbers there was no loss on the part of this individual and there was no inconsistency with regard to that nor has there been any suggestion in this particular case so you want to first verdict the stand absolute she got two hundred twenty five thousand dollars  absolutely not your honor the trial judge made a decision and discuss that decision with us in chambers that's admitted at page twenty note six of mr platts brief and she s that what i'll do is if they come in with a verdict of no pregnancy discrimination but f m l a i'll just mold the verdict because the jury isn't going to be confused by this they're giving damages for something they're not permitted to give nobody argued that she didn't have that discretion we had suggested other methods we both suggested that she separated but she thought it would be better to do it that way and that's the way it went in without objection so that we all agreed that that was a viable method what happened then was is that i'm sorry you're saying that that the trial judge committed to molding the verdict if precisely what happened here did happen yes and that's where we're  show shows that the record the the argument about or the discussion about that was held in chambers on the right was no there was no nothing on the record that was placed there however there is an admission by mr platt at page twenty no six of his brief we are he states in the footnote right near the end i think it's a second or third line from the end where he absolutely states that that's exactly what occurred and both of us said to her we don't think that bethwaite best way of doing it but it's certainly one method that you can use and nobody had a problem with including the judge i'm looking at no sex and i don't see what you're arguing i may read it to the court while you're enough the court believe that too many distinctions would confuse the jury and that the verdict could be mulled that unfortunately that discussion was held in chambers and was not recorded we both agree to that we both cited to that there was no argument about that and in fact it was the judge's suggestion that said that this was the best best method to use after the case without explanation and disregarding her earlier statements that molding was perfectly appropriate and has been done throughout the history of the circuit and condoned by the circuit but the error here was in her favor though it's a very strikes me as an odd argument you're you're saying that yes both sides are saying there was error right not not on that basis i don't think that there was eric well if there was no error then the two hundred twenty five thousand dollars verdict state you know the two hundred twenty five thousand dollars is not allowable under the f m l a and quits all the time very often take away damages that aren't allowed under a particular count if in fact the jury comes back with no liability on that count and that's just what judge disregarding the fact that damages were awarded that weren't allowed but we go let me ask you a question about something you didn't reach but to get it on the floor for discussion  i agree with you that there is an affirmative defense of the character that you describe in your brief and i agree with you that the charge here in the second proceeding was not  ideal however it seemed to me that the court that the charge as a whole told the jury that the plaintiff could recover could not recover unless showed that the pregnancy leave was that it permanent and quote both but for cause of the interference that is the discharge and that this required rejection of the your poor performance very and the net result of this charge arguably seem to me to be only to relieve you of your burden of proof a burden of producing evidence that shows a pretext or they have the burden of showing pretexts she charged pretext terminology she did not charge that we had an affirmative defense which they could consider and she didn't allow a jury instruction in that jury question in that regard that we could come forward and be totally exonerated from all liability if we did that at the same time the sentence before reading what you said she said this is almost strict liability if they stop her from getting her two weeks leave they lose and then they're in the want to say but they can get off the hook if they prove that they would have terminated or anyhow because she wasn't a good performer the jury never considered that issue and in terms of the second argument and second trial if you get that far that's the reason that the sh contested almost all of the facts that he claims were uncontested certainly if you were correct we wouldn't be here we've got a summary judgment the basic issue here is what was judge pyro to do with a situation that she she charged the jury that they could give damages that were not permissible under family medical leave and she created a jury questionnaire that specifically told them they could do that and i had submitted a separate jury question she did not have that difficulty she chose to do it herself i disagree by the way with the account that mr epstein had those as to what happened in chambers she did not say this specific situation it was a very general conversation will mold the verdict but now the verdict comes back and she determined that it would be manifestly unjust to enter judgment on the verdict to either enforce the judgment for the total of two hundred seventy five thousand dollars from his round or do what she did as soon as she correctly did respond most of the responsibility for the just for the problem for the conundrum and say the there's no way the verdict itself on its face and its four corners is not inconsistent the jury did what was told to do this is not a situation where you have in some other cases where a jury finds liability for one  and not liable if the other to it with the second with the first word is dependent on liability on the second you see it in conspiracy cases in the courts looked at this a couple of times and i can give a couple of sites if you like the courts we're jury finds conspiracy liability but they don't find exactly what they were told and we will never know is what would the jury have done had it been properly charge because i believe and i know we're always in a realm of speculation here but the jury well have compromised the first jury and said ok we'll give you the family medical leave we really want to give her damages and few need of damages we don't have to reach the title seven or four argue about that or find it or make the other the final leap to find that title seven liability because we know we can give her compensatory and punitive damages for violin family medical leave don't we know that because the judge told us that and she put it in the in the in the sheet that we're working with that's the problem that couldn't be undone and the mostly case says well what the defense wants you to do you can't do you cannot pick and choose you can't cherry pick part of a verdict and they have shown you no case no case that allows what they want done here in either of their briefs nor did they discuss the cases that i raised a mostly case in a prior case where this court has looked at situations of verdicts that are inappropriate and said the way to do this is not to pick and choose but to have a new trial now the the next point i think 's point that we have another error there wasn't nutrition management entitled to try to prove to the second jury that they had a legitimate  nondiscriminatory reason for the terminals oh and they did prove it they tried it to try to well and it was there an instruction that it said that let me see if you think about it because i think firstly what it's doesn't help much if the trial judge lets you prove it but then  when you read her charges a whole she really melded the family medical leave and the title seven in a way that frankly i don't think was the best way to do it and to first of all but one game that she consistently told the jury that you can only find a bit of family medical leave violation if it was done because she was pregnant and i had argued to her that that's not the law so again the appendix fi into a two fifty one is when she is talking about really the same standards for family medical leave and title seven  but there's another point i want to make too about this but i think if you follow through from those pages you will see that it's all together she never separates out family medical leave and says here's a good find for this and separately from that title seven it all comes together in a way that i believe was unfavorable to the point but the other point that i want to make about this is she did charge it in the first charge in the first year teacher and in the charge conference or one of the colloquy in the second trial she said i'm going to give the same charge again the first time except with some modifications because of the problem that we had so the assumption certainly was that she was going to give the charge about the defense now she did disagree and she did say that she will charge the third circuit my right i mean with all due respect you're giving me a lot of background but show me where in here she instructed the second jur while you're looking for that i might remark to both counsel this case strikes me as an object lesson as to why i counsel even in contentious litigation of this sort really are advised to get together and present joint instructions that  are we have a very able counsel obviously based on your arguments agreeing that the first instruction was wrong well why didn't you walk in the first time in agree on what the right instruction was i'd be hard pressed to think that the trial judge would not have accepted that it had you gone in with joint instructions but that's just my editorializing for the day if your honor there's there's an awful lot of hindsight then it was a guest i didn't say to chastise  much as is the hope that this might prevent future debacle is if if we can all agree this is it on some level of the ball i can assure you that speaking for myself i certainly are i'm aware of the learning experience  she's talking about because she says specifically both f m l a and title seven and then on two fifty two she says if you find their actions were were a pretext or excuse you can find for the p law so sorry line ten you don't consider the wisdom of their judgment that she was incompetent but whether that was the reason that she was terminated or whether that was just one of the reasons and determine a factor was that she was pregnant the did not to the extent that they believed it did not include their defense there was no objection to that charge and the only thing that you will say proffered your own charge that's our case law is pretty clear that sufficient to preserve  review isn't it except that here the judge said i'm going to give you that charge a judge that i'm going to charge the model chart and she had done it in the first day case and so when she says she's going to do it and if they believe she didn't do it they have to stapleton there is no way anybody could have looked at this record and said there was no weight loss absolutely no wage loss no back pay lost no way she never made no matter what she did and still doesn't the same amount of money that she was making in the job from which she was fired the issue that they tried to create out of this was that their only liability for assuming a family medical leave violation would be for the two weeks  was going to take off and they paid or two weeks vacation so they didn't owe or anything that's all that they had to say about it to me the violation as a jury found was terminating her and when you're terminated you have to have a right to the pay that you have lost up until the time of trial and there was no dispute about the fact that her earnings have never ever reached the point that which she was making the forty thousand dollars before compensatory damages includes future economic loss i realize that's nobody's really looked at it that way and that the courts are saying that under title seven it's pretty much an equitable remedy but under the family medical leave its reinstatement is a an equitable remedy and the issue of front page is in lieu of reinstatement and the problem that i have in this case is that even if the jury was an advisory jury they did not decide the second jury did not decide front page they didn't put zero they said omit per judge's instructions and i believe they were confused about her instruction about not reducing at the present value but certainly had proposed as a zero finding and she felt bound by it i don't think it was either i don't think she's bound by it and i don't think it's a zero finding so that's why i think the remedy there is for her to to to to exercise her discretion on the front page which i think was a reasonable request of when  it's been stated by mr platt that we didn't raise the issue regarding the inconsistency issues in the first trial the washer case which was cited in or reply brief in response to his  citation of cases that were clearly inapplicable said that the jury answers don't have to be inconsistent in that case the court allowed the jury to determine damages based upon title seven  case law instead of the age discrimination limitations in the age discrimination act and the jury found damages for back pay when in a circumstance which were in a way out where there was no liability  the this court affirmed the district court's grant of a fifty nine emotion to amend that judgment and to a mold of the verdict and in that case clearly this that dictates what happens here with regard to the other arguments the speculation that the jury we don't forget it on the cross appeal would we be authorized to remain and  have the district judge determined front pay the amount of front there's an inconsistency in that argument for mr platen the answer is no your honor and the inconsistency is you saying you can't mold the verdict to disallow the two hundred  twenty five or seventy five thousand dollars that was awarded by the jury where the damages weren't allowed and clearly you could just lock that off and have a perfectly good verdict because they weren't allowed to give those and it was no harm no foul there you can't speculate that they would have done something else on the opposite end he's asking the court to do something where he's asking the court to go back and where damages that that maxfield in the other cases in this jurisdiction say go to the jury and to that she believed in her opinion and i think rightfully so that if you don't find front page we don't answer the the additional issues as to the first very thin and that's so important i mean the first jury  trial is that that could have been molded easily it was clear what the jury was doing was being passionate about somebody of losing a job but it wasn't allowed to give those damages all she had to do was draw that boehner sense that line and say this doesn't count anymore and that's the end of the case when she formulates that with f e m a it's concluded what i asked the court to do is is to allow this case to be ended after two trials in the peel it should end after the first trial and this court should allow there to be and remain only for the purpose of having the court enter judgment for nutrition management against melissa  evidence because the jury found something that the court wouldn't have are only proper when the record shows that the jury's verdict resulted in a miscarriage of justice or where the verdict or the record cries out to be overturned or shocks our conscience there's nothing in this case as to that first trial that would allow this court to find that joshua pyra was shocked that her conscience was moved such that there was a miscarriage of justice the jury found argument you're saying that it was not a miscarriage of justice that you got hit with a two hundred twenty five thousand dollars for your honor i didn't get hit with that verdict but you can't you can't sure i can take the take the good and and leave the fat which is a a report a decision of this court i can give you the cite in just a second that's ok the watcher case clearly covers just that issue that the court has the right and the obligation to mold the verdict so that a properly accords damages in accordance with a finding of no liability