[00:00:00] Speaker 01:
Mr. Temple, good morning.

[00:00:14] Speaker 00:
Good morning, Your Honours.

[00:00:17] Speaker 00:
May I please record?

[00:00:18] Speaker 00:
My name is Donald Temple.

[00:00:19] Speaker 00:
I represent the estate of Robert Murphy.

[00:00:23] Speaker 00:
Standard review here is as a rule, abuse of discretion.

[00:00:27] Speaker 00:
However, the court, if it

[00:00:29] Speaker 00:
The question is also whether it applies the right legal standard to standard review is de novo.

[00:00:36] Speaker 00:
I'd like to reserve three minutes for my rebuttal.

[00:00:39] Speaker 00:
The government tried this case as a termination case, Your Honors, but it was not.

[00:00:44] Speaker 00:
As a matter of law, this case was a conditional termination case.

[00:00:49] Speaker 00:
And the documents that indicated that, despite efforts to dutifully achieve discovery documents as early as March 2020, were not provided to the plaintiff.

[00:01:05] Speaker 00:
On the eve of trial, two business days before trial,

[00:01:09] Speaker 00:
that document at 464 in the appendix, a two-page document was provided to us.

[00:01:17] Speaker 00:
At that particular point in time, we filed a motion for sanctions.

[00:01:21] Speaker 00:
We were in a situation where it was in our view a trial by ambush.

[00:01:26] Speaker 00:
Our options were limited.

[00:01:27] Speaker 00:
Notably, Mr. Murphy, who had been very ill, had been coming to court in a wheelchair and was intent on having his day in trial.

[00:01:41] Speaker 00:
Yet the court determined that there was prejudice, some prejudice determined that the district was absolutely wrong despite attempting to place the blame on the plaintiff.

[00:01:54] Speaker 00:
And the court found, notwithstanding that, that there would be no sanctions imposed.

[00:01:59] Speaker 02:
Did the court just find that the document was not produced but not necessarily found prejudice or bad faith?

[00:02:07] Speaker 00:
Well, the question is the court found that the document was not produced clearly and that it was not the fault.

[00:02:15] Speaker 00:
It was the government's fault that it was not produced, number one.

[00:02:18] Speaker 00:
Number two, on the issue of bad faith, the court reached this question of bad faith versus negligence by hearing in five-minute arguments from both the plaintiff and defendant

[00:02:29] Speaker 00:
what the circumstances were surrounding the document, who are considered based only on that, without doing a more probing examination of the circumstances surrounding the non-production of the document, that there was didn't rise to mere negligence.

[00:02:46] Speaker 00:
The problem is that that particular document wasn't just an issue of

[00:02:51] Speaker 00:
the discovery, which the court was considering it, that document was structural.

[00:02:58] Speaker 00:
And it's more analogous to what we saw in the Shepard case when a critical contractual settlement document was omitted in the discovery process.

[00:03:06] Speaker 00:
In this particular case, that particular document defined the circumstances surrounding Mr. Murphy's termination.

[00:03:13] Speaker 00:
In other words, it stated that Mr. Murphy had retreat rights.

[00:03:18] Speaker 00:
Mr. Murphy was never told he had retreat rights.

[00:03:22] Speaker 00:
The government suggests that the termination letter, which was given to Mr. Murphy, which omits any reference to retreat rights but cites the statute, suggests implicitly that Mr. Murphy should have known he had retreat rights.

[00:03:33] Speaker 03:
So is the argument that if you read this document for all it's worth, it suggests that the termination might have been wrong as a matter of D.C.

[00:03:44] Speaker 03:
law.

[00:03:45] Speaker 03:
D.C.H.R.

[00:03:46] Speaker 03:
only approved a demotion, but then he was terminated.

[00:03:49] Speaker 03:
And so it suggests that you could have brought

[00:03:54] Speaker 03:
I appreciate the timing, but it suggests that they could have been added or you could bring a new suit to raise that claim, doesn't it?

[00:04:01] Speaker 03:
A wrongful, improper, procedurally improper termination under DC law.

[00:04:07] Speaker 00:
Potentially, yes.

[00:04:11] Speaker 00:
But the suggestion, I want to make sure that I'm answering the court's question, please.

[00:04:15] Speaker 00:
The suggestion was more than a suggestion.

[00:04:18] Speaker 00:
That was a matter of law.

[00:04:20] Speaker 00:
The law is very clear that in the statute cited by the government that the personnel agency has the discretion to determine

[00:04:32] Speaker 00:
retreat rights, and it did based upon the request.

[00:04:35] Speaker 00:
Consequently, the only way as a matter of law that the district could have terminated Mr. Murphy was to have offered him retreat rights, which it did not.

[00:04:45] Speaker 03:
So I guess my question is, let's assume that's all correct.

[00:04:48] Speaker 03:
He was improperly fired as a matter of D.C.

[00:04:51] Speaker 03:
law.

[00:04:54] Speaker 03:
That would suggest that you could have moved to amend the complaint.

[00:04:58] Speaker 03:
It might suggest that you could have or that you still can file a separate lawsuit.

[00:05:03] Speaker 03:
it doesn't really change the character of the retaliation claim, which is you acted against me because of my protected activity rather than because of my own misconduct.

[00:05:15] Speaker 03:
Oh, not quite.

[00:05:17] Speaker 03:
Yeah.

[00:05:17] Speaker 00:
So how does it affect retaliation?

[00:05:19] Speaker 00:
First of all, we filed for an amended complaint in this case before closing to add claims that were

[00:05:26] Speaker 00:
attributed to the information, the evidence that we received, which was rejected by the court.

[00:05:31] Speaker 00:
To the question of retaliation, fundamentally, the retaliation case is based upon a termination.

[00:05:37] Speaker 00:
There was not an absolute termination.

[00:05:40] Speaker 00:
Every theory argued by the defendants

[00:05:43] Speaker 00:
from its answer to its discovery responses to its oppositions to summary judgment were all based upon the fact of an absolute unconditional termination that did not exist.

[00:05:59] Speaker 02:
Well, how about what you were able to do at trial, because you were still able to use the document?

[00:06:06] Speaker 00:
Sure.

[00:06:06] Speaker 00:
And I most appreciate it, Your Honor, but with all due respect, as a shepherd, you can't have a trial for five years.

[00:06:17] Speaker 00:
And everything that you do in that trial is based upon the evidence that the district produced.

[00:06:23] Speaker 00:
But in this particular case, you can't cure, and our position is we can't cure or resurrect from the dead the fact that now, with two days left, we have to go into trial and try to undo everything that has happened in that case.

[00:06:37] Speaker 00:
Every aspect, every legal argument, every factual argument, and not only that,

[00:06:44] Speaker 00:
the time that was invested in that over the six years that we were in the case to come back on the weekend of trial and try to alter that is extremely prejudicial, not only to Mr. Murphy, but not only to the plaintiff, but also to the court.

[00:06:58] Speaker 02:
But let's talk about what you could have cured with respect to the third party retaliation claim where the judge stated that

[00:07:11] Speaker 02:
Sheen was not a DLC employee.

[00:07:15] Speaker 02:
That member got corrected.

[00:07:17] Speaker 02:
There was no attempt at moving for correction of the record or amending the complaint to add a- Well, actually, the judge made that ruling in a summary judgment decision.

[00:07:30] Speaker 00:
And in the latter, the summary judgment decision is before trial and is footnote eight in his summary judgment decision.

[00:07:39] Speaker 00:
But the fact of that is that that issue is on appeal as well.

[00:07:46] Speaker 02:
The extent to which that's only being brought up here is my point.

[00:07:50] Speaker 02:
It wasn't tried to be.

[00:07:52] Speaker 02:
There was no attempt to cure it.

[00:07:53] Speaker 02:
The love like that misstatement.

[00:07:56] Speaker 00:
Well, the problem we had at that particular point is at the trial stage, the judge had made his ruling with all due respect on that particular issue.

[00:08:03] Speaker 00:
We had to honor that ruling for purposes of trial.

[00:08:06] Speaker 00:
We would have to have filed a motion for reconsideration.

[00:08:08] Speaker 00:
Yes, and you could have.

[00:08:09] Speaker 00:
That's what I'm getting at.

[00:08:10] Speaker 00:
Well, the point of that is that we were prepared to

[00:08:15] Speaker 00:
See, that wasn't what we deem an error of law.

[00:08:18] Speaker 00:
We were prepared to proceed on the vicarious retaliation claim.

[00:08:23] Speaker 00:
That's the only claim left.

[00:08:26] Speaker 00:
But the prejudice to that particular point, Your Honor, though, is that the prejudice even goes to that point because we would not have been arguing that particular retaliation claim.

[00:08:36] Speaker 00:
The retaliation is effectively attributed to determination.

[00:08:39] Speaker 02:
But you're asking us to essentially revive your retaliation claim.

[00:08:43] Speaker 00:
No, no, no, I'm not.

[00:08:44] Speaker 00:
I'm not asking the court to revive the retaliation claim.

[00:08:47] Speaker 00:
I'm asking the court to know that this entire case was litigated on a false premise because the district did not provide a critical piece of evidence that was outcome determinative.

[00:08:59] Speaker 00:
In other words, if the district would have provided that evidence, we would know what we now know and what the district knew when it presented that evidence.

[00:09:06] Speaker 00:
There was no termination.

[00:09:07] Speaker 02:
So are you limiting your argument today just to the discovery document, not the third party retaliation plan?

[00:09:13] Speaker 00:
Well, the discovery document has implications for the third party for all of our claims.

[00:09:17] Speaker 00:
And what we've just said that we're not arguing that.

[00:09:19] Speaker 00:
I'm just trying to figure out what's bringing before us now.

[00:09:22] Speaker 00:
The entire case is before you.

[00:09:25] Speaker 00:
The discovery document, the fact that that document was presented, and it altered the entire structure of the lawsuit, as in the Shepard case.

[00:09:35] Speaker 00:
And as a result, we could not, from a due process point of view, following the rules of discovery, we could not go into court and argue a case that didn't exist.

[00:09:45] Speaker 02:
Okay, so on sanctions, an adverse jury instruction is an extreme remedy.

[00:09:51] Speaker 02:
Attorneys fees are extreme, essentially, too, because you have to really find some bad face and prejudice or something like that.

[00:09:59] Speaker 02:
But you were still able to use the document.

[00:10:01] Speaker 00:
Well, there's a fundamental distinction, and I see my time is expiring.

[00:10:04] Speaker 00:
There's a fundamental distinction between being able to use a document that you haven't had an opportunity to develop by that time.

[00:10:11] Speaker 00:
the entire house of litigation, the entire house of cards had fallen.

[00:10:16] Speaker 00:
We were trying to recover from a tremendous disadvantage by not having had that particular document.

[00:10:23] Speaker 00:
And so the prejudice was overwhelming.

[00:10:26] Speaker 00:
And it couldn't be cured by us coming in on the eve of trial and then now having to go without being explained.

[00:10:33] Speaker 00:
But to get to the court's point on the curative instruction,

[00:10:36] Speaker 00:
A curative instruction following Shepard noting there's a distinction between the rule 37 curative instruction and the inherent authority of the court to make an instruction to cure a defect.

[00:10:48] Speaker 00:
This record was fundamentally defective.

[00:10:52] Speaker 00:
The court knew when the information was provided in the exhibit that it was concealed.

[00:10:58] Speaker 00:
The problem is that the court didn't deem the prejudice to be substantial.

[00:11:02] Speaker 00:
The prejudice was overwhelming, not only to ourselves, but to the entire case.

[00:11:07] Speaker 00:
The entire case, all the court's rulings, all the motions, all the oppositions were based on a flawed premise that Mr. Murphy was terminated absolutely without retreat rights.

[00:11:19] Speaker 00:
OK.

[00:11:19] Speaker 00:
Thank you.

[00:11:20] Speaker 03:
Counsel, can I just try to clarify also what Judge Childs was asking about, what's before us?

[00:11:24] Speaker 03:
So there's certainly one argument that you've made and that we understand about the document.

[00:11:31] Speaker 03:
I had understood that in your opening brief, you're also making a separate argument, which is footnote eight of the motion to dismiss decision, dismissed your third party retaliation plan.

[00:11:43] Speaker 03:
That's correct.

[00:11:43] Speaker 03:
And sort of independently,

[00:11:46] Speaker 03:
You think the case should go back so that you can have, I guess, discovery on your third party retaliation claim as distinguished from the perception based theory.

[00:11:58] Speaker 03:
Are you pressing that argument on appeal?

[00:12:02] Speaker 00:
If I may, to show the court the connection.

[00:12:06] Speaker 00:
The third party retaliation claim is substantially implicated because it's based on the absolute termination.

[00:12:14] Speaker 00:
Knowing what we know now, the retaliation case is framed differently.

[00:12:19] Speaker 00:
Faust, who terminated Mr. Murphy, was the party defended in the same case as Pettifid, the sexual harassment case.

[00:12:31] Speaker 03:
I certainly appreciate that.

[00:12:34] Speaker 03:
Let me just ask one.

[00:12:35] Speaker 03:
The last way I'll try to ask is, are you arguing that the amended complaint adequately states a claim for third party retaliation?

[00:12:47] Speaker 03:
Yes.

[00:12:48] Speaker 03:
Thank you.

[00:12:49] Speaker 02:
We'll give you some time in reply.

[00:12:51] Speaker 00:
Thank you so much.

[00:12:57] Speaker 02:
Good morning.

[00:13:06] Speaker 01:
Good morning.

[00:13:07] Speaker 01:
May it please the court, Lucy Pitman on behalf of the District of Columbia.

[00:13:11] Speaker 01:
I'm going to start with what was before the district court.

[00:13:14] Speaker 01:
What was before the district court with regard to this document was identified prejudice, quote, we would have gone to the personnel authority to ascertain the extent to which

[00:13:24] Speaker 01:
They considered the issue in this particular memo.

[00:13:27] Speaker 01:
That's at Trial Transcript 14 and Reply Brief at 10.

[00:13:31] Speaker 01:
So we have identified prejudice, right, that would have done some additional discovery with the personnel authority to determine if this memo is actually has any meaning.

[00:13:41] Speaker 01:
We also have a proposed sanction that was offered.

[00:13:44] Speaker 01:
The proposed sanction is not tied to that identified harm.

[00:13:50] Speaker 01:
As the district court found, the proposed sanction does not provide additional discovery.

[00:13:55] Speaker 01:
It simply asks that the jury find

[00:14:00] Speaker 01:
that the failure to produce this memo was with the intent to mislead.

[00:14:08] Speaker 01:
There were no facts in the record to support that.

[00:14:12] Speaker 01:
And I would like to push back a little bit on what you heard from Mr. Temple this morning, the district court in finding there was no bad faith or intent.

[00:14:19] Speaker 01:
is in the transcript, and there is no pushback whatsoever from Mr. Temple during that argument.

[00:14:27] Speaker 01:
It starts on Trial Transcript 3 when the district court first says there's no bad faith or intent here.

[00:14:34] Speaker 02:
That would be your rationale for why there was no evidence.

[00:14:38] Speaker 01:
I mean, the district court went through all aspects of the adverse inference, and I'm happy to do that as well this morning, although it is before the court, which is that the adverse inference does not tie to the harm that has been identified, would be unfairly prejudicial to the district, et cetera.

[00:14:55] Speaker 01:
There are things that could have been asked for here if there had wanted to be a sanction.

[00:15:00] Speaker 01:
Mr. Murphy could have asked for additional time to do discovery.

[00:15:04] Speaker 01:
That is not an uncommon thing that happens.

[00:15:08] Speaker 01:
The district court can pause the trial even for a couple of hours to do discovery and could have said the district has to pay for that deposition.

[00:15:16] Speaker 01:
But that wasn't asked for, right?

[00:15:18] Speaker 01:
And so we have to, on an abuse of discretion standard, look at what is before the district court and determine did the district court abuse its discretion there.

[00:15:26] Speaker 01:
much of the arguments that were made this morning as well as in the briefing before this court were never before the district court.

[00:15:33] Speaker 01:
I can highlight a few.

[00:15:35] Speaker 01:
Mr. Temple made reference a couple of times to the Shepherd case that appears in his reply brief.

[00:15:40] Speaker 01:
It is about fraud on the court that has never been raised at the district court and was not raised in the opening brief and is clearly forfeited.

[00:15:48] Speaker 01:
he did not raise this there the entire structure of his um of the case has been changed again had that been the identified prejudice you could have had a solution there which is to pause the trial to allow mr murphy to determine what's next and as judge garcia pointed out you know if if the thought was there is another claim a cause of action

[00:16:10] Speaker 01:
under local district law, there could have been a request to amend the complaint, ask the district court to supplement, uh, to, uh, supplemental jurisdiction over the local law claim.

[00:16:21] Speaker 01:
And I will tell you McCormick v. D. C. It's a 2014 case out of this circuit explicitly recognizes that there would be that local law claim.

[00:16:30] Speaker 03:
Anything stop the plaintiff from filing a separate lawsuit in superior court now?

[00:16:36] Speaker 01:
I don't know about statute of limitations or things like that, but that would be.

[00:16:43] Speaker 01:
Without comment on the merits or that, yes, that could happen, I believe.

[00:16:48] Speaker 01:
But again, that wasn't requested.

[00:16:50] Speaker 01:
And I am going to correct another thing that was said this morning.

[00:16:52] Speaker 01:
Mr. Temple said that the question of amending the complaint came up at the end of trial.

[00:16:59] Speaker 01:
Absolutely not about this issue.

[00:17:01] Speaker 01:
The only request to amend the complaint at the end of trial was on the third party retaliation claim.

[00:17:06] Speaker 01:
And so again, this was not before the district court and I think does not reflect certainly an abusive discretion if the district court wasn't even given the opportunity to react to that.

[00:17:18] Speaker 03:
Can I ask you about the third party retaliation claim?

[00:17:20] Speaker 03:
Yes.

[00:17:20] Speaker 03:
So footnote eight of the district court's decision, how do you read that?

[00:17:25] Speaker 03:
Is the district court saying as a matter of law, a former employee can't

[00:17:31] Speaker 03:
bring this kind of claim or that the complaint simply didn't state whether Ms.

[00:17:36] Speaker 03:
Sheen was an employee or a former employee?

[00:17:39] Speaker 01:
Sure.

[00:17:39] Speaker 01:
And I'm going to start with, you've already corrected it, but I would like to point out it is on a motion to dismiss, not summary judgment.

[00:17:45] Speaker 01:
And I think that is important and I'll say why in a moment.

[00:17:48] Speaker 01:
I read footnote eight as saying the complaint does not identify Ms.

[00:17:51] Speaker 01:
Sheen as an employee, as a former employee, doesn't even identify her by name.

[00:17:55] Speaker 01:
Now, that's not what's in the footnote, but it does not actually identify her by name either.

[00:18:00] Speaker 01:
And so I read the district court is saying there isn't a third party retaliation claim in the amended complaint because of that.

[00:18:10] Speaker 03:
So can I just cut through that?

[00:18:12] Speaker 03:
It does say the complaint says.

[00:18:14] Speaker 03:
Plaintiff's wife testified as a key witness against the agency in a well-known sexual harassment lawsuit.

[00:18:24] Speaker 03:
Isn't it a reasonable inference that a key witness in a sexual harassment lawsuit focused on Mr. Pettiford's conduct was an employee?

[00:18:34] Speaker 01:
I think if it said that she had been a claimant rather than a witness, I think that would probably be the only fair inference.

[00:18:40] Speaker 01:
I think here, the inference could be that she was a witness but wasn't an employee.

[00:18:45] Speaker 01:
The word witness, I think.

[00:18:46] Speaker 03:
She could have attended a holiday party and seen some misconduct.

[00:18:49] Speaker 01:
She could have been an inmate who witnessed it and was a witness.

[00:18:54] Speaker 01:
She could have been.

[00:18:55] Speaker 03:
Those are conceivable inferences.

[00:18:57] Speaker 01:
Sure.

[00:18:57] Speaker 03:
In a complaint, we read it in the light most favorable to the plaintiff.

[00:19:02] Speaker 03:
And one reasonable inference must be a key witness in a lawsuit about sexual harassment in the workplace is an employee.

[00:19:09] Speaker 01:
Sure.

[00:19:10] Speaker 01:
But I think when you couple that with what the actual allegation in the amended complaint is, which is that the retaliation was directed at Mr. Murphy, a third party retaliation claim should state something like, employees sheen engaged in protective activity.

[00:19:28] Speaker 01:
Supervisor Petty Ford wanted to retaliate against employee Sheen, so he recommended the termination of employee Murphy, her fiance.

[00:19:39] Speaker 01:
The problem is the amended complaint has Murphy as the target of the retaliation.

[00:19:44] Speaker 01:
And Petty Ford is sort of targeting him.

[00:19:48] Speaker 01:
It isn't written as Sheen as the target.

[00:19:51] Speaker 01:
And so I think when you couple those things, I think that that is a fair reading.

[00:19:56] Speaker 01:
Now, I think that Judge Childs brings up some really good points, right?

[00:19:59] Speaker 01:
This was on a motion to dismiss.

[00:20:02] Speaker 01:
The information that the court said it needed, which was her employment status, Mr. Murphy had that throughout the entire case.

[00:20:09] Speaker 01:
So he could have asked to amend the complaint at any time.

[00:20:12] Speaker 01:
And in doing it early on, right after a motion to dismiss, is almost universally going to be granted, right?

[00:20:18] Speaker 01:
So that would have been a time to have amended that.

[00:20:21] Speaker 03:
Instead, what you see- I think that is indisputably true.

[00:20:24] Speaker ?:
Yeah.

[00:20:24] Speaker 03:
and that if this is what it was dismissed for, they could have amended the complaint and this problem would have gone away.

[00:20:31] Speaker 03:
But do you have any authority for the idea that

[00:20:34] Speaker 03:
You can't appeal a dismissal if the case proceeds and could have but didn't amend your complaint.

[00:20:41] Speaker 03:
I think we've looked and haven't seen any suggestion like that.

[00:20:44] Speaker 01:
No, certainly not.

[00:20:46] Speaker 01:
But I think when we're looking at whether or not the dismissal, and I recognize this is a de novo review, I think that Judge Bates accurately pointed out that in the complaint, there isn't sufficient information.

[00:21:00] Speaker 01:
And I think that

[00:21:03] Speaker 01:
that then can affirm the dismissal.

[00:21:06] Speaker 01:
I think I'm going more now to a little bit on what was actually sought at the trial, as Judge Bates refers to, in the 11th hour of the trial.

[00:21:16] Speaker 01:
So we've already got all of the evidences in.

[00:21:18] Speaker 01:
They've already proposed jury instructions.

[00:21:20] Speaker 01:
And that's when, for the first time, there's a request to amend the complaint to add the third-party retaliation claim.

[00:21:26] Speaker 01:
And that's simply too far.

[00:21:27] Speaker 01:
And I'll simply point out as well, in the briefing before this court,

[00:21:32] Speaker 02:
and also amend complaints at trial based on the evidence that comes into the trial.

[00:21:37] Speaker 01:
Sure, but here that that wasn't that wasn't really there wasn't really evidence again that she was the target of the retaliation.

[00:21:45] Speaker 03:
They certainly haven't appealed on that grounds.

[00:21:47] Speaker 01:
No, no.

[00:21:48] Speaker 01:
I mean, there is a reference sort of at the end of the opening brief about the fact that this should have been allowed at trial.

[00:21:55] Speaker 02:
Is it suggesting that there was evidence or not?

[00:21:57] Speaker 02:
I was just challenging your statement about that you can't amend during trial.

[00:22:01] Speaker 01:
Oh, you absolutely could.

[00:22:02] Speaker 01:
You absolutely could.

[00:22:04] Speaker 01:
And in fact, there may have been things that had he raised that with the discovery violation that perhaps could have been not an abuse of discretion to Grant, but was never sought.

[00:22:14] Speaker 01:
And certainly on the amendment at the end of trial, that is also an abuse of discretion standard.

[00:22:19] Speaker 01:
And I don't see that there is an abuse of discretion there by the district court.

[00:22:23] Speaker 03:
So I understand all the arguments on the factual issue.

[00:22:26] Speaker 03:
What about the legal question?

[00:22:27] Speaker 03:
Can you think of any good reason why a third party retaliation complaint couldn't be brought in this situation?

[00:22:35] Speaker 03:
I know your brief said that was unsettled.

[00:22:38] Speaker 03:
There's one view that if you sort of just read Robinson and read Thompson.

[00:22:43] Speaker 03:
a former employee should be able to bring a claim like this as a legal matter.

[00:22:46] Speaker 03:
Do you have a dispute of that?

[00:22:49] Speaker 03:
We may not reach it at all, obviously.

[00:22:52] Speaker 01:
I would encourage the court not to reach it because I don't think that this is the best vehicle for reaching that.

[00:22:57] Speaker 01:
I get the policy argument of why it would be the idea behind the Title VII retaliation is that you don't want there to be retaliation that if the employee knew about that they wouldn't have engaged in the protected activity.

[00:23:13] Speaker 01:
But I don't think that that necessarily means that everything that kind of fits within that policy argument then becomes a Title VII claim.

[00:23:20] Speaker 01:
And I think that it was in the Billington case before this court that talked about how sometimes it might end up being a First Amendment claim, not a Title VII claim.

[00:23:30] Speaker 01:
And so I think here where the protected activity occurred four years after

[00:23:35] Speaker 01:
Ms.

[00:23:36] Speaker 01:
Sheen was no longer an employee at the Department of Corrections, that might be where the Title VII line actually, there is a line there, and it goes more into the First Amendment.

[00:23:46] Speaker 01:
But again, I would encourage the court not to go there on this particular factual record and briefing.

[00:23:52] Speaker 01:
And if there are no other questions, I would ask that the court affirm.

[00:23:56] Speaker 02:
Thank you.

[00:23:57] Speaker 01:
Thank you.

[00:24:01] Speaker 02:
Mr. Temple, why don't you take two minutes?

[00:24:04] Speaker 00:
First and foremost, at page 567 of the transcript, you'll see that plaintiff prior to the case going to trial sought to amend the complaint not based on the vicarious retaliation, but based on negligent misrepresentation associated with the fact that the representation to Mr. Murphy was

[00:24:25] Speaker 00:
false and wrongful termination because he was not terminated and was led to believe that.

[00:24:30] Speaker 00:
So it is not true that that was the basis for that.

[00:24:33] Speaker 00:
That particular amendment was sought based on the evidence that we learned and the evidence that came into trial.

[00:24:39] Speaker 00:
What's significant on this particular question is that Ms.

[00:24:42] Speaker 00:
Kirby, and I direct your court's attention to her testimony, she underscored that as a matter of law, this

[00:24:49] Speaker 00:
termination was conditional and not absolute.

[00:24:53] Speaker 00:
And there was an obligation associated with that to the extent that counsel suggests that shepherd is waived.

[00:24:58] Speaker 00:
I don't know that you can waive the law.

[00:25:00] Speaker 00:
You can waive the argument.

[00:25:02] Speaker 00:
But the argument is consistent with concealment.

[00:25:05] Speaker 00:
Thirdly, counsel suggests that the plaintiff did not establish with the court the structural implications and harm caused by the omission of this particular

[00:25:19] Speaker 00:
discovery document.

[00:25:21] Speaker 00:
Substantially, counsel underlined that this document and not giving this document to the plaintiff contaminated everything that the plaintiff did because the plaintiff was operating on a false premise.

[00:25:34] Speaker 03:
But not- I think the argument is the one specific thing you asked the district court for was an adverse instruction.

[00:25:40] Speaker 03:
Yes.

[00:25:40] Speaker 03:
You did not ask for continuance of the trial.

[00:25:44] Speaker 03:
You did not ask

[00:25:46] Speaker 03:
for this reason, to add a completely new claim.

[00:25:51] Speaker 03:
And so what's before us is whether the adverse instruction was warranted.

[00:25:55] Speaker 00:
And on that note, in closing, the standard of review for the court, the reasoning for the court, which is not just by the appellee, is that there was no spoliation, and under Rule 37,

[00:26:07] Speaker 00:
concealment was not covered by the Rule 37 argument.

[00:26:11] Speaker 00:
We briefed that case substantially in our briefs and we submit on the record.

[00:26:16] Speaker 00:
Thank you for your time.