Legal Case Summary

Your Honor, good morning. My name is William Courtney. I represent the plaintiffs in this matter, Russell Swite, Tech George, Punley, and Marvin Barnett. And I was serving two minutes for removal. But this case, as you can see by the audience, is in this earth shattering, as the other one. But to my clients, it is. They worked very hard at their employer, and they believed that they were discriminated against. And we tried a case over a matter of several days in the district court, and we got a jury verdict on on Mr. Munley's case. And that verdict was overturned. And it's all- Sure. Can I ask you something about Mr. Barnett, though? Yes. There's this issue about whether, you know, I mean, the gentleman passed, and you sort of, as an aside, and one of your briefs said, yeah, but his son can step in. But aren't there steps that you that had to have been taken in order to make him officially a personal representative that there's not evidence in the record of? Well, Your Honor, I believe that we did make the representations of the court, there was evidence that he has made the application and the papers that were given to him in state of New Jersey, where's sufficient for him to act on behalf of the estate? Where is it? Because I'm not disputing you might have done it, but yeah, they're telling us there's no evidence in the record that you got that you took those steps. Where is it in the record before us that Mr. Barnett Jr. took those steps so that we could properly recognize him as being in the case representing the estate. Other than what we filed with the court, I don't have anything. Well, maybe the opposition will tell us what's lacking

. But we seem like the submissions said we did enough, and the other side said, no, you had to do something actually. Yeah, I think that's what it was, Your Honor. I think the issue was, was the document that my the son obtained was that sufficient to enable him to have standing to bring this lawsuit, and we argued that it was. They said that it's not. There has to be a document, so maybe I'm wrong, but I was under the impression that there was nothing in the record other than your representation, and that might be a problem as a legal matter. That's how I understood the point being made, but I might have misunderstood it. Well, we're here from your opposition. We made it some supplemental information. Thank you. We stick with Mr. Barnett. Well, since we're with Mr. Barnett, is the best evidence in the record the statements by Marooka? I don't know how you pronounce it. Is that how you pronounce it? Yes. Marooka with regard to the app to call it spade. That was the racial epitaph that was stated at work. Not once, but on numerous occasions, basically in meetings. But it's always that phrase, right? Yes. Right? So, isn't that like, the best ambiguous? Your honor

. Yeah. Because, I mean, the phrase you've got to call a spade, a spade is really just a statement of, let's be candid. As I stated to Judge Thompson below, it wasn't that it was just the phrase used. It was, when it was used, it was used only in meetings where Mr. Barnett was present, and when it was said, Marooka would point at him and say, a spade, a spade. I mean, it was not just the comment. It was the pointing, it was the emphasis on the word in meetings where Mr. Barnett was present. But for the purpose of what we're arguing here, whether or not it constituted racial or hostile work environment or racial discrimination, is really not relevant. You cannot raise that on a pale, have you? What's that? No. You've got two arguments. No, I have a raise on that. I have a raise on that. You should have been able to amend the complaint to conform and the issue with the perceived disability correct. I didn't raise that on a pale. My, my, the original appeal with regard to Mr. Barnett is the fact that the jury came back with that question, and it was a question that couldn't have been more on point under the New Jersey Law Against Discrimination. And they asked if we determined that Maruka made a racial comment, but that one, Barnett went to HR and Maruka was mad that Barnett went to HR and fired in retaliation for going to HR about the racial comment. Is it sufficient to find for plaintiff Barnett on question four? Well, the answer is technically on question four

. No, because it was a hostile work, work environment claim. But that's why we moved to that point. No, but I did it. That's why I brought up my problem. Because there'd be no ability to argue now that you should have been able to amend under retaliation if there's not, then this is arguably I'm not positing this. If there's nothing to the, the racial comment. I mean, you, you'd agree for instance that if it was, if it was an innocuous phrase, I know you don't think it's a knockout. I'm just positive. If it was an innocuous phrase, right, there'd be no ability to then argue once we heard this and we wanted to argue retaliation. In that instance, Judge Thompson would be correct to say no, you can't. I disagree. I don't believe that whether or not at that point, when he goes to HR because he believed it was a racial comment, and then he was retaliated for raising the issue, whether it was ultimately true or not, that it was racial, that would be unacceptable under the law against discrimination. Because he went and reported it and he was retelling it. But these are facts that you had before the trial, you could have made a motion before trial. There was nothing new about the facts presented at trial. There was, you had a eureka moment after the question. Well, our belief and the reason we..

. Well, I mean, that's got to be so, right? Well, a eureka moment, it's a way to describe it, but I don't think I would describe it that way. We believe at the time taking this amount of the court that it was so... The issue of hostile work environment was we had so much proof on this. We had testimony what took place that if we couldn't prove the hostile work environment, it would be more difficult to prove the retaliation. However, we made a choice. We did at that time, you're running, but we didn't understand that the proofs were going to go in the way that they went in. But you always have that risk. If we allow people to conform to the evidence, you know, after the fact, they'll say, gee, the evidence came in and it really looks more like a tort than a contract. You know, but we didn't plead that. What authority do you have that would allow us to say that at that late stage of the game, you can basically re-bleed. Basically, your honor is the fact that the issue and the testimony that went in about what occurred and what he did and what happened after he went in was... It went in at trial. It was tried by consent and under the rule, 1515 B2, the fact that it was in. There was no objection to the testimony going in that him going to.

.. But that's why you take discovery is just to figure out how something's going to go in. And even if it goes in differently from what you thought, that's kind of too bad. Can we turn to the other issue which is the perceived disability? I mean, just Tomson clearly disagreed and felt... I guess felt that Maruka thought he was a malinger or not perceived disabled. I myself thought that the jury instructions were pretty sparse on perceived disability. But the jury calls them as they see them. But how is it that the jury could find perceived disability here? What was there to support that burden? Your honor, the whole presentation of this case that these three individuals were the only individuals in had be mismanagement that had taken FMLA leaves. Exactly. But the jury found that there was no discrimination on that basis. I understand. But that the proofs on that and the fact that that occurred can also be viewed by the jury as evidence for the perceived disability. Mr. Munley as a different than the other two individuals, the timing of his termination when he returned, okay, was within two weeks after he returned on his third FMLA leaf. And the case was clear that timing alone is sufficient to base a finding to perceive disability. And did the others have the.

.. I mean, he had three illnesses. He had his leg problem. He had his leg. He had the head injury, the concussion, and then he had the left knee. So he clearly had lost a lot of work. It was not on the job doing his job because he had a whole post of injuries. But he always came back, Your Honor. He came back after he took the permitted leaf and he went back to work and he did his job. And he was doing his job. Okay, but now that you're kind of arguing against what the jury found, the jury found that Marooka perceived him to be disabled. What evidence supported that? The Marooka's actions against him and his looking at his, Mr. Marooka's actions that were testified at length and trial about what he did to people who took time off and who he perceived was not working for the money that they were being paid. He retaliated against him. And exactly what he did when Mr. Mr. Munley came back, he was told he needed some accommodation. He wasn't going to give him that accommodation. The way he approached what Mr

. Munley needed and took it away from him shows that he was retaliating against him because he perceived that he was disabled. I mean, when he told him that he couldn't... Oh, what? Okay, go ahead. I was just going to say, please be specific. What do you point? What do you think exactly shows... Oh, Marooka perceived Munley to be disabled. In fact, you know, he told him, you know, I'm not going to consider a golf cart for you to travel a court of a mile each way that's parking lot back to where was that was showing. Well, that was showing that. That would not be disabled, but you're quite able to walk. That... I understand what they're arguing. But Mr. Marooka did things a certain way when somebody took time off from work for

... And his opinion was getting paid for nothing. And that's what... I mean, is that your answer that he fired? Isn't your answer that he perceived and be disabled? And what showed that is, if I could he fired him? I'm building up to that. Well, you better build the gutters. That's what ultimately it is. He fired him within two weeks and getting there. And I think when you look at this issue in its entirety, what he did with all the people at being miswhen... When they were injured, I mean, even to the extent of following people out of the stretcher saying, you know, sign these papers so you're not going to come back. Well, then you would think that they would find the FMLA discrimination and they didn't do that. And that shows maybe he's a mean no good guy, but does it show that he perceived the man was disabled? And I would have thought that you would have said, he told them he could park next to the shop so he wouldn't have to walk. Or he said something like, oh, you'll get used to it. You know, like, you've got this thing. You

... I'm surprised to hear you say things that seem to cut against it. Isn't there anything that you like in the record to be superceived, his ability? I believe that Mr. Marooka testified that he did let him park there. That doesn't just rule, but he did testify to that. And maybe the jury believed him on that one instance. I don't know, but there he is. And if he did, that's enough to reinstate that jury award. And the timing is enough. And the fact that he fart misandes. All right, we'll hear from Robert Bowel. Good morning. David Garland on behalf of the Beamless Company. What's the definition of disability? I'm glad you asked. You're on a run. I think here..

. It wasn't in the jury instructions. It has delivered. You're absolutely right. It was not. And as you know, from other cases, you're written, including Flailla, where you've quoted the definition of disability. Let's hear it. Well, I can read the whole definition if you'd like, but what I think is important is part of the definition. And that is, a disability is a physical disability. And I'm focusing on that here because we're not talking about a mental disability. We're talking physical. It's a physical disability caused by bodily injury, which prevents the normal exercise of any bodily functions. And that's the portion of the definition that matters here. Well, and why couldn't the jury find that Maruka, who to value his testimony, he was the greatest supervisor. He was nice to everybody. He never retaliated on FMA-Lay. And he didn't do all the things to the guy on the stretcher that everybody else said he did. But anyway, that he looked at Mr. Swite, or Mr. Moneley, and said, I need a warehouse guy or I need an extruder. I need somebody who's going to be here and do the job. I don't need somebody who I need to get somebody else to do their work for him. This guy has had too many injuries. He's not able, not capable of doing the job. He's disabled. He's perceived as being disabled. Why couldn't the jury rationally find that? Because the evidence in the record was not there to support it. When you were questioning a Pellens Council, you mentioned that Moneley was out quite a bit. In fact, that's not your honor what's in the record. What's in the record that he was out for a very short time in 2004, 2005 on FMA-Lay. The head injury, he was out of very, very short time. He did not take any leave with respect to the head injury. The only other time that he was out. To get around the plant. The plant? Well, but again, we actually look what was the evidence in the record. Let's look at what was said. Let me finish too if I may. The last time he was out was for about a month. What's in the record with respect to the injury? It's actually in the record

. I need somebody who's going to be here and do the job. I don't need somebody who I need to get somebody else to do their work for him. This guy has had too many injuries. He's not able, not capable of doing the job. He's disabled. He's perceived as being disabled. Why couldn't the jury rationally find that? Because the evidence in the record was not there to support it. When you were questioning a Pellens Council, you mentioned that Moneley was out quite a bit. In fact, that's not your honor what's in the record. What's in the record that he was out for a very short time in 2004, 2005 on FMA-Lay. The head injury, he was out of very, very short time. He did not take any leave with respect to the head injury. The only other time that he was out. To get around the plant. The plant? Well, but again, we actually look what was the evidence in the record. Let's look at what was said. Let me finish too if I may. The last time he was out was for about a month. What's in the record with respect to the injury? It's actually in the record. What did Moneley testify about with respect to the injury? In 2007, he testified. I've always said about it was that he had inflammation in his knee. Okay, well, that is something the jury heard. But the jury also heard that Mr. Maruka said, I'm going to think about your request for the golf cart. I'm going to consider it. The jury heard Mr. Maruka himself testify. I told the man he could park right by the shop so that he wouldn't have to walk. The jury heard Mr. Maruka had made some off-handed comment about you're going to get used to it. Kind of buck up. In other words, you may have a problem, but you've got to learn to live with it. That's something they heard and they could draw some conclusions about. They heard him suggest that he could use his staff to shuttle things back and forth on the forklift so that he wouldn't have to walk. If one of these things, isn't that enough for a rational jury to say, well, you know what? I think Maruka believed he had an issue and therefore we're going to find from what's irrational about a jury who's heard those things coming to the conclusion that there was a perceived disability. Because we go back to the definition and we go back to it. They didn't have to. They didn't have a jury instruction and everybody has the, nobody objects to the jury instruction

. What did Moneley testify about with respect to the injury? In 2007, he testified. I've always said about it was that he had inflammation in his knee. Okay, well, that is something the jury heard. But the jury also heard that Mr. Maruka said, I'm going to think about your request for the golf cart. I'm going to consider it. The jury heard Mr. Maruka himself testify. I told the man he could park right by the shop so that he wouldn't have to walk. The jury heard Mr. Maruka had made some off-handed comment about you're going to get used to it. Kind of buck up. In other words, you may have a problem, but you've got to learn to live with it. That's something they heard and they could draw some conclusions about. They heard him suggest that he could use his staff to shuttle things back and forth on the forklift so that he wouldn't have to walk. If one of these things, isn't that enough for a rational jury to say, well, you know what? I think Maruka believed he had an issue and therefore we're going to find from what's irrational about a jury who's heard those things coming to the conclusion that there was a perceived disability. Because we go back to the definition and we go back to it. They didn't have to. They didn't have a jury instruction and everybody has the, nobody objects to the jury instruction. Nobody said you're on it. We want you to detail what perceived means and detail what disabled means. You can't argue after the fact that they went off the reservation if they weren't told they had to stay on. Actually, our proposed jury instruction included a complete definition, but we're not, obviously that's not an issue that we're raising here because the jury found or the judge granted our motion. So we didn't raise that issue, but I will tell you below our proposed jury instruction did in fact include the whole definition, but there are cases, including cases in this court, the Kelly versus Dresler University case, where the court has said merely because an employer provides an accommodation, doesn't rise to the level of showing that the merely, but there's more than merely here. I've just, I've just named for you four pieces of evidence and they are not, it's not just merely providing an accommodation, their statements made. Why isn't that enough? You can see, I assume that it's a pretty low bar. It only has to be rational, right? So you're defending this requires you, I think, to point out to us what's irrational about a jury who are those four things, and maybe others, but those are the four I put before you saying, I think Mr. Marooka thought there was a disability there. It's just to that process. First is, on the primothatia case, was the evidence in the record to show a perception of disability on the part of Marooka. I think Judge Thompson was right, when she analyzed the evidence that you've just articulated, that that didn't show on Marooka's part that he thought that Munley was disabled, but even for the sake of argument, that you accepted that a primothatia case was made out, that he still has to show, Munley still had to show that the determinative factor in his termination was the perceived disability. And isn't pretext classically a question of fact for the jury? And the jury found against you so that the judge had no business walking in and turning it around. Just because a case, a plaintiff can make out a primothatia case, that doesn't mean, as the court knows, that the case automatically goes to the jury. But it did. Can you tell us it did, and they won. Your saying is only one way to look at evidence. If there's more than one way, then it's not irrational, but what is irrational about it? What is irrational is that there was nothing, the company's legitimate business reason for acting here. He said that

. Nobody said you're on it. We want you to detail what perceived means and detail what disabled means. You can't argue after the fact that they went off the reservation if they weren't told they had to stay on. Actually, our proposed jury instruction included a complete definition, but we're not, obviously that's not an issue that we're raising here because the jury found or the judge granted our motion. So we didn't raise that issue, but I will tell you below our proposed jury instruction did in fact include the whole definition, but there are cases, including cases in this court, the Kelly versus Dresler University case, where the court has said merely because an employer provides an accommodation, doesn't rise to the level of showing that the merely, but there's more than merely here. I've just, I've just named for you four pieces of evidence and they are not, it's not just merely providing an accommodation, their statements made. Why isn't that enough? You can see, I assume that it's a pretty low bar. It only has to be rational, right? So you're defending this requires you, I think, to point out to us what's irrational about a jury who are those four things, and maybe others, but those are the four I put before you saying, I think Mr. Marooka thought there was a disability there. It's just to that process. First is, on the primothatia case, was the evidence in the record to show a perception of disability on the part of Marooka. I think Judge Thompson was right, when she analyzed the evidence that you've just articulated, that that didn't show on Marooka's part that he thought that Munley was disabled, but even for the sake of argument, that you accepted that a primothatia case was made out, that he still has to show, Munley still had to show that the determinative factor in his termination was the perceived disability. And isn't pretext classically a question of fact for the jury? And the jury found against you so that the judge had no business walking in and turning it around. Just because a case, a plaintiff can make out a primothatia case, that doesn't mean, as the court knows, that the case automatically goes to the jury. But it did. Can you tell us it did, and they won. Your saying is only one way to look at evidence. If there's more than one way, then it's not irrational, but what is irrational about it? What is irrational is that there was nothing, the company's legitimate business reason for acting here. He said that. Your honors. In the appendix, there is the organization charts. I saw that when he's going to move down to an extruder and he's the fourth person. Well, that's right. And part of that, you're on a part of that. You just pointed out, move down to the extruder. That was a physically more demanding position. Nobody's suggesting you didn't have a counterargument. That's not the point. You had plenty of evidence on the other side, and you persuaded the jury on virtually everything. You won and won. So it's not like this was some jury who wasn't thinking they just started checking the box for one side or the other. You won almost everything. But on this point, evidently, they believed the other side's evidence more than they believed yours. So the fact that you've got another side doesn't dispose of this appeal. You've got to show that they were loopy to believe the other side, and that's what we're trying to draw you out on. What do you got? And the difference in the testimony from one side of the other about Marooka's actions was striking. Marooka's testimony about what happened in situations versus the plaintiffs side. A lot of this could have just relied upon credibility

. Your honors. In the appendix, there is the organization charts. I saw that when he's going to move down to an extruder and he's the fourth person. Well, that's right. And part of that, you're on a part of that. You just pointed out, move down to the extruder. That was a physically more demanding position. Nobody's suggesting you didn't have a counterargument. That's not the point. You had plenty of evidence on the other side, and you persuaded the jury on virtually everything. You won and won. So it's not like this was some jury who wasn't thinking they just started checking the box for one side or the other. You won almost everything. But on this point, evidently, they believed the other side's evidence more than they believed yours. So the fact that you've got another side doesn't dispose of this appeal. You've got to show that they were loopy to believe the other side, and that's what we're trying to draw you out on. What do you got? And the difference in the testimony from one side of the other about Marooka's actions was striking. Marooka's testimony about what happened in situations versus the plaintiffs side. A lot of this could have just relied upon credibility. I mean, you're saying they had reasons that jury may not have believed the reasons. The jury believed the reasons on nine of the ten claims that went to the jury. So yes, we two asked ourselves, how was it on this ten claim the jury could find in Munley's favor? I come up with two possibilities. One is one piece of evidence that we objected to. The Kamarasski testimony, which showed that Kamarasski may have perceived Munley as disabled, was admitted by the court over our objection. The jury heard that, but Kamarasski had no input whatsoever. What so ever into the decision making process? Munley and Marooka didn't consult with anybody in the plant about that. Irrational is there's no evidence going the other way. That's one example of irrational, right? What you've just mentioned is not an example of irrational. Help us with this notion of irrational. There is no evidence going the other way on the decision. And that is as of October 16th, or as I should have, October 10th, there were three people selected for the Rift by Marooka. Munley was not one of them. Only when Marooka was told that you've got to go to a fourth. At that point, Marooka went back to the organization charts. Scenario three, which kept Munley in as the extrusion supervisor. At that point, he said, how do I run the plant with the remaining people given how deeply the cuts have been? It says this guy was just out for a month. I don't think he can do the job. What's the next injury he's going to have? I can't do that

. I mean, you're saying they had reasons that jury may not have believed the reasons. The jury believed the reasons on nine of the ten claims that went to the jury. So yes, we two asked ourselves, how was it on this ten claim the jury could find in Munley's favor? I come up with two possibilities. One is one piece of evidence that we objected to. The Kamarasski testimony, which showed that Kamarasski may have perceived Munley as disabled, was admitted by the court over our objection. The jury heard that, but Kamarasski had no input whatsoever. What so ever into the decision making process? Munley and Marooka didn't consult with anybody in the plant about that. Irrational is there's no evidence going the other way. That's one example of irrational, right? What you've just mentioned is not an example of irrational. Help us with this notion of irrational. There is no evidence going the other way on the decision. And that is as of October 16th, or as I should have, October 10th, there were three people selected for the Rift by Marooka. Munley was not one of them. Only when Marooka was told that you've got to go to a fourth. At that point, Marooka went back to the organization charts. Scenario three, which kept Munley in as the extrusion supervisor. At that point, he said, how do I run the plant with the remaining people given how deeply the cuts have been? It says this guy was just out for a month. I don't think he can do the job. What's the next injury he's going to have? I can't do that. He perceived him to be disabled. I.e. not able to do the work. I don't think any rational fact finder can include that. Your honor because at the same time he's doing this Barnett who has eye issues is out on FM like Barnett hasn't even returned yet. But Barnett has been selected for the Rift. Does it start to sound to you like your weighing evidence? Because that's what it sounds like a little bit to me that you're saying if you look at this piece of evidence, you look at that piece of evidence, you weigh these things, then you should come out this way. But that's not our job. That's not Judge Thompson's job. Find a judge as she is. The question is in the face and I'm confident there's other evidence that your opposing counsel might point to. But we've laid some on the table. What would be wrong with the jury seizing on those pieces of evidence, including Ms. Rook's own testimony about, you know, I had them part by the door. What's wrong with that? Because it, first of all, and I may be repeating myself, in the cases in Taylor and escort that doesn't rise to the level of perception that what the court has said has been, if we took that approach and is also an Appellate Vision case in New Jersey, Heidsman versus Monmouth County, where the court in the Pellate Vision said, if we take that approach, then we'll discourage employers from providing good working conditions. Sure. If it were only a matter, if it were solely a matter of making an accommodation here there, there might be an issue. But we have a little bit more than that, right? I mean, wouldn't you agree that the comment you'll get used to it is at least open to interpretation? I mean, a jury could interpret, you'll get used to it to mean either you'll get over your injury or you've got a disability, but you'll get used to that

. He perceived him to be disabled. I.e. not able to do the work. I don't think any rational fact finder can include that. Your honor because at the same time he's doing this Barnett who has eye issues is out on FM like Barnett hasn't even returned yet. But Barnett has been selected for the Rift. Does it start to sound to you like your weighing evidence? Because that's what it sounds like a little bit to me that you're saying if you look at this piece of evidence, you look at that piece of evidence, you weigh these things, then you should come out this way. But that's not our job. That's not Judge Thompson's job. Find a judge as she is. The question is in the face and I'm confident there's other evidence that your opposing counsel might point to. But we've laid some on the table. What would be wrong with the jury seizing on those pieces of evidence, including Ms. Rook's own testimony about, you know, I had them part by the door. What's wrong with that? Because it, first of all, and I may be repeating myself, in the cases in Taylor and escort that doesn't rise to the level of perception that what the court has said has been, if we took that approach and is also an Appellate Vision case in New Jersey, Heidsman versus Monmouth County, where the court in the Pellate Vision said, if we take that approach, then we'll discourage employers from providing good working conditions. Sure. If it were only a matter, if it were solely a matter of making an accommodation here there, there might be an issue. But we have a little bit more than that, right? I mean, wouldn't you agree that the comment you'll get used to it is at least open to interpretation? I mean, a jury could interpret, you'll get used to it to mean either you'll get over your injury or you've got a disability, but you'll get used to that. Even if that were so, it doesn't address the reason advocated, it doesn't, it doesn't address the pretext issue. There was no evidence. You're making a argument, playing this council make argument. You don't see that as a perception? But it's a two-step, it's a two-step. One was did Muruga perceive Munley as disabled? If you answer that question, yes, then the next step is was that perception, the determinative factor, which in the district, and when you look at the evidence as to what the company put forward, there was nothing to discredit that. That's the point I'm trying to make. Except if there's a lack of credibility of Muruga and the jury didn't believe that evidence, then they didn't buy that reason. Ormorn said that Chico had he was joking. The jury could have perceived that he wasn't joking, and therefore that's the basis for them to have come to the decision that they came to. And of course we don't know the basis, and one of the bases could have been the Kamarowski comment that we ejected too. But that's what jury's you don't come to see again. Can I ask you about Mr. Barnett and the personal representative thing? I've got a little bit of, I'm a little workier. On the one hand, we might agree with you and say, no, even on the merits, you lose, but could we even go there if we wanted to if the reality is that there's no case because there's no plaintiff. In other words, do we have a article three case and controversy problem if there's nobody properly in the case so that we can't look past that problem and say you lose on the merits? You're on right at the moment. There is no case because that what's happened is that Barnett made a motion to have a Sun substitute that was denied without prejudice. A second motion that was. Well, what did he fail? What are you saying he failed to do as a matter of law in order to have the Sun be substituted? All these, he's acquired, is being, this is a tennis app, a David of next to the kid, which only gives you rights to deal with matters of less than $10,000. Okay, so what do you have to do that he didn't do? I've laid it out in I thought

. Even if that were so, it doesn't address the reason advocated, it doesn't, it doesn't address the pretext issue. There was no evidence. You're making a argument, playing this council make argument. You don't see that as a perception? But it's a two-step, it's a two-step. One was did Muruga perceive Munley as disabled? If you answer that question, yes, then the next step is was that perception, the determinative factor, which in the district, and when you look at the evidence as to what the company put forward, there was nothing to discredit that. That's the point I'm trying to make. Except if there's a lack of credibility of Muruga and the jury didn't believe that evidence, then they didn't buy that reason. Ormorn said that Chico had he was joking. The jury could have perceived that he wasn't joking, and therefore that's the basis for them to have come to the decision that they came to. And of course we don't know the basis, and one of the bases could have been the Kamarowski comment that we ejected too. But that's what jury's you don't come to see again. Can I ask you about Mr. Barnett and the personal representative thing? I've got a little bit of, I'm a little workier. On the one hand, we might agree with you and say, no, even on the merits, you lose, but could we even go there if we wanted to if the reality is that there's no case because there's no plaintiff. In other words, do we have a article three case and controversy problem if there's nobody properly in the case so that we can't look past that problem and say you lose on the merits? You're on right at the moment. There is no case because that what's happened is that Barnett made a motion to have a Sun substitute that was denied without prejudice. A second motion that was. Well, what did he fail? What are you saying he failed to do as a matter of law in order to have the Sun be substituted? All these, he's acquired, is being, this is a tennis app, a David of next to the kid, which only gives you rights to deal with matters of less than $10,000. Okay, so what do you have to do that he didn't do? I've laid it out in I thought. Well, if you tell me because I forget, I quite frankly looked at that motion and thought a little bit of a give me a break, you know, I mean, what is he, what hoop does he have to jump through at this point? Is it, is it weird? You're not sure I can't lay it out verbatim right now. We did it in the paper. But even before the court, I mean, it was, it was, it was, it just, Thompson was absolutely right to deny that motion that was prompted by the, as what do you call the Enrico moment? And we would have approached the case. Different issue, different question. I'm trying to focus you on one very specific thing because even though one might or might not agree with you on the merits of Mr. Barnett's case, before you consider the merits of Mr. Barnett's case, somebody's got to be in the courtroom representing Mr. Barnett's case. You've taken the position that there's no one in the courtroom to represent him. That raises for me at least a just disability problem that I really, really need you to help me with. So I'm asking you, what is it that's not in the record that you say has to be in the record in order for him, Mr. Barnett, Jr. to properly be a representative. Because if you're right, that's a kind of a big deal. I understand you, Ronner. And I can't help you more at this point than beyond what we put in our paper, opposing the motion. And frankly, that I had thought of the court, I didn't understand whether the court would address the motion before we got here or not. I had forgot to pull that myself. Okay

. Well, if you tell me because I forget, I quite frankly looked at that motion and thought a little bit of a give me a break, you know, I mean, what is he, what hoop does he have to jump through at this point? Is it, is it weird? You're not sure I can't lay it out verbatim right now. We did it in the paper. But even before the court, I mean, it was, it was, it was, it just, Thompson was absolutely right to deny that motion that was prompted by the, as what do you call the Enrico moment? And we would have approached the case. Different issue, different question. I'm trying to focus you on one very specific thing because even though one might or might not agree with you on the merits of Mr. Barnett's case, before you consider the merits of Mr. Barnett's case, somebody's got to be in the courtroom representing Mr. Barnett's case. You've taken the position that there's no one in the courtroom to represent him. That raises for me at least a just disability problem that I really, really need you to help me with. So I'm asking you, what is it that's not in the record that you say has to be in the record in order for him, Mr. Barnett, Jr. to properly be a representative. Because if you're right, that's a kind of a big deal. I understand you, Ronner. And I can't help you more at this point than beyond what we put in our paper, opposing the motion. And frankly, that I had thought of the court, I didn't understand whether the court would address the motion before we got here or not. I had forgot to pull that myself. Okay. We may need something supplemental. We'll see. Yeah, it really, I think it would be a good thing to have 28J letters that laid out, do we have for us? And there's no, there is this in the record and that sufficient as a matter of law under New Jersey to be a personal representative and under the federal procedure or it's not. I think that would be a good thing. I think the best way if you would file a letter along those lines within a week and then within a week opposing counsel can file and say no, we did everything we have to do or maybe acknowledge that what wasn't done is, you know, it's going to be done forth with. It seemed to me like you were talking at cross purposes that you said you filed X and you said you need to have ABC and somebody's right, somebody's wrong, obviously a law that controls that says what has to happen. All right, so if you would do that with the law and then another week counsel. All right. Thank you. Okay, thank you. Rebuttal? Okay, that's fine. Thank you very much, Councillor, we appreciate it. We'll take the matter under advisement. All right. Thank you.

Your Honor, good morning. My name is William Courtney. I represent the plaintiffs in this matter, Russell Swite, Tech George, Punley, and Marvin Barnett. And I was serving two minutes for removal. But this case, as you can see by the audience, is in this earth shattering, as the other one. But to my clients, it is. They worked very hard at their employer, and they believed that they were discriminated against. And we tried a case over a matter of several days in the district court, and we got a jury verdict on on Mr. Munley's case. And that verdict was overturned. And it's all- Sure. Can I ask you something about Mr. Barnett, though? Yes. There's this issue about whether, you know, I mean, the gentleman passed, and you sort of, as an aside, and one of your briefs said, yeah, but his son can step in. But aren't there steps that you that had to have been taken in order to make him officially a personal representative that there's not evidence in the record of? Well, Your Honor, I believe that we did make the representations of the court, there was evidence that he has made the application and the papers that were given to him in state of New Jersey, where's sufficient for him to act on behalf of the estate? Where is it? Because I'm not disputing you might have done it, but yeah, they're telling us there's no evidence in the record that you got that you took those steps. Where is it in the record before us that Mr. Barnett Jr. took those steps so that we could properly recognize him as being in the case representing the estate. Other than what we filed with the court, I don't have anything. Well, maybe the opposition will tell us what's lacking. But we seem like the submissions said we did enough, and the other side said, no, you had to do something actually. Yeah, I think that's what it was, Your Honor. I think the issue was, was the document that my the son obtained was that sufficient to enable him to have standing to bring this lawsuit, and we argued that it was. They said that it's not. There has to be a document, so maybe I'm wrong, but I was under the impression that there was nothing in the record other than your representation, and that might be a problem as a legal matter. That's how I understood the point being made, but I might have misunderstood it. Well, we're here from your opposition. We made it some supplemental information. Thank you. We stick with Mr. Barnett. Well, since we're with Mr. Barnett, is the best evidence in the record the statements by Marooka? I don't know how you pronounce it. Is that how you pronounce it? Yes. Marooka with regard to the app to call it spade. That was the racial epitaph that was stated at work. Not once, but on numerous occasions, basically in meetings. But it's always that phrase, right? Yes. Right? So, isn't that like, the best ambiguous? Your honor. Yeah. Because, I mean, the phrase you've got to call a spade, a spade is really just a statement of, let's be candid. As I stated to Judge Thompson below, it wasn't that it was just the phrase used. It was, when it was used, it was used only in meetings where Mr. Barnett was present, and when it was said, Marooka would point at him and say, a spade, a spade. I mean, it was not just the comment. It was the pointing, it was the emphasis on the word in meetings where Mr. Barnett was present. But for the purpose of what we're arguing here, whether or not it constituted racial or hostile work environment or racial discrimination, is really not relevant. You cannot raise that on a pale, have you? What's that? No. You've got two arguments. No, I have a raise on that. I have a raise on that. You should have been able to amend the complaint to conform and the issue with the perceived disability correct. I didn't raise that on a pale. My, my, the original appeal with regard to Mr. Barnett is the fact that the jury came back with that question, and it was a question that couldn't have been more on point under the New Jersey Law Against Discrimination. And they asked if we determined that Maruka made a racial comment, but that one, Barnett went to HR and Maruka was mad that Barnett went to HR and fired in retaliation for going to HR about the racial comment. Is it sufficient to find for plaintiff Barnett on question four? Well, the answer is technically on question four. No, because it was a hostile work, work environment claim. But that's why we moved to that point. No, but I did it. That's why I brought up my problem. Because there'd be no ability to argue now that you should have been able to amend under retaliation if there's not, then this is arguably I'm not positing this. If there's nothing to the, the racial comment. I mean, you, you'd agree for instance that if it was, if it was an innocuous phrase, I know you don't think it's a knockout. I'm just positive. If it was an innocuous phrase, right, there'd be no ability to then argue once we heard this and we wanted to argue retaliation. In that instance, Judge Thompson would be correct to say no, you can't. I disagree. I don't believe that whether or not at that point, when he goes to HR because he believed it was a racial comment, and then he was retaliated for raising the issue, whether it was ultimately true or not, that it was racial, that would be unacceptable under the law against discrimination. Because he went and reported it and he was retelling it. But these are facts that you had before the trial, you could have made a motion before trial. There was nothing new about the facts presented at trial. There was, you had a eureka moment after the question. Well, our belief and the reason we... Well, I mean, that's got to be so, right? Well, a eureka moment, it's a way to describe it, but I don't think I would describe it that way. We believe at the time taking this amount of the court that it was so... The issue of hostile work environment was we had so much proof on this. We had testimony what took place that if we couldn't prove the hostile work environment, it would be more difficult to prove the retaliation. However, we made a choice. We did at that time, you're running, but we didn't understand that the proofs were going to go in the way that they went in. But you always have that risk. If we allow people to conform to the evidence, you know, after the fact, they'll say, gee, the evidence came in and it really looks more like a tort than a contract. You know, but we didn't plead that. What authority do you have that would allow us to say that at that late stage of the game, you can basically re-bleed. Basically, your honor is the fact that the issue and the testimony that went in about what occurred and what he did and what happened after he went in was... It went in at trial. It was tried by consent and under the rule, 1515 B2, the fact that it was in. There was no objection to the testimony going in that him going to... But that's why you take discovery is just to figure out how something's going to go in. And even if it goes in differently from what you thought, that's kind of too bad. Can we turn to the other issue which is the perceived disability? I mean, just Tomson clearly disagreed and felt... I guess felt that Maruka thought he was a malinger or not perceived disabled. I myself thought that the jury instructions were pretty sparse on perceived disability. But the jury calls them as they see them. But how is it that the jury could find perceived disability here? What was there to support that burden? Your honor, the whole presentation of this case that these three individuals were the only individuals in had be mismanagement that had taken FMLA leaves. Exactly. But the jury found that there was no discrimination on that basis. I understand. But that the proofs on that and the fact that that occurred can also be viewed by the jury as evidence for the perceived disability. Mr. Munley as a different than the other two individuals, the timing of his termination when he returned, okay, was within two weeks after he returned on his third FMLA leaf. And the case was clear that timing alone is sufficient to base a finding to perceive disability. And did the others have the... I mean, he had three illnesses. He had his leg problem. He had his leg. He had the head injury, the concussion, and then he had the left knee. So he clearly had lost a lot of work. It was not on the job doing his job because he had a whole post of injuries. But he always came back, Your Honor. He came back after he took the permitted leaf and he went back to work and he did his job. And he was doing his job. Okay, but now that you're kind of arguing against what the jury found, the jury found that Marooka perceived him to be disabled. What evidence supported that? The Marooka's actions against him and his looking at his, Mr. Marooka's actions that were testified at length and trial about what he did to people who took time off and who he perceived was not working for the money that they were being paid. He retaliated against him. And exactly what he did when Mr. Mr. Munley came back, he was told he needed some accommodation. He wasn't going to give him that accommodation. The way he approached what Mr. Munley needed and took it away from him shows that he was retaliating against him because he perceived that he was disabled. I mean, when he told him that he couldn't... Oh, what? Okay, go ahead. I was just going to say, please be specific. What do you point? What do you think exactly shows... Oh, Marooka perceived Munley to be disabled. In fact, you know, he told him, you know, I'm not going to consider a golf cart for you to travel a court of a mile each way that's parking lot back to where was that was showing. Well, that was showing that. That would not be disabled, but you're quite able to walk. That... I understand what they're arguing. But Mr. Marooka did things a certain way when somebody took time off from work for... And his opinion was getting paid for nothing. And that's what... I mean, is that your answer that he fired? Isn't your answer that he perceived and be disabled? And what showed that is, if I could he fired him? I'm building up to that. Well, you better build the gutters. That's what ultimately it is. He fired him within two weeks and getting there. And I think when you look at this issue in its entirety, what he did with all the people at being miswhen... When they were injured, I mean, even to the extent of following people out of the stretcher saying, you know, sign these papers so you're not going to come back. Well, then you would think that they would find the FMLA discrimination and they didn't do that. And that shows maybe he's a mean no good guy, but does it show that he perceived the man was disabled? And I would have thought that you would have said, he told them he could park next to the shop so he wouldn't have to walk. Or he said something like, oh, you'll get used to it. You know, like, you've got this thing. You... I'm surprised to hear you say things that seem to cut against it. Isn't there anything that you like in the record to be superceived, his ability? I believe that Mr. Marooka testified that he did let him park there. That doesn't just rule, but he did testify to that. And maybe the jury believed him on that one instance. I don't know, but there he is. And if he did, that's enough to reinstate that jury award. And the timing is enough. And the fact that he fart misandes. All right, we'll hear from Robert Bowel. Good morning. David Garland on behalf of the Beamless Company. What's the definition of disability? I'm glad you asked. You're on a run. I think here... It wasn't in the jury instructions. It has delivered. You're absolutely right. It was not. And as you know, from other cases, you're written, including Flailla, where you've quoted the definition of disability. Let's hear it. Well, I can read the whole definition if you'd like, but what I think is important is part of the definition. And that is, a disability is a physical disability. And I'm focusing on that here because we're not talking about a mental disability. We're talking physical. It's a physical disability caused by bodily injury, which prevents the normal exercise of any bodily functions. And that's the portion of the definition that matters here. Well, and why couldn't the jury find that Maruka, who to value his testimony, he was the greatest supervisor. He was nice to everybody. He never retaliated on FMA-Lay. And he didn't do all the things to the guy on the stretcher that everybody else said he did. But anyway, that he looked at Mr. Swite, or Mr. Moneley, and said, I need a warehouse guy or I need an extruder. I need somebody who's going to be here and do the job. I don't need somebody who I need to get somebody else to do their work for him. This guy has had too many injuries. He's not able, not capable of doing the job. He's disabled. He's perceived as being disabled. Why couldn't the jury rationally find that? Because the evidence in the record was not there to support it. When you were questioning a Pellens Council, you mentioned that Moneley was out quite a bit. In fact, that's not your honor what's in the record. What's in the record that he was out for a very short time in 2004, 2005 on FMA-Lay. The head injury, he was out of very, very short time. He did not take any leave with respect to the head injury. The only other time that he was out. To get around the plant. The plant? Well, but again, we actually look what was the evidence in the record. Let's look at what was said. Let me finish too if I may. The last time he was out was for about a month. What's in the record with respect to the injury? It's actually in the record. What did Moneley testify about with respect to the injury? In 2007, he testified. I've always said about it was that he had inflammation in his knee. Okay, well, that is something the jury heard. But the jury also heard that Mr. Maruka said, I'm going to think about your request for the golf cart. I'm going to consider it. The jury heard Mr. Maruka himself testify. I told the man he could park right by the shop so that he wouldn't have to walk. The jury heard Mr. Maruka had made some off-handed comment about you're going to get used to it. Kind of buck up. In other words, you may have a problem, but you've got to learn to live with it. That's something they heard and they could draw some conclusions about. They heard him suggest that he could use his staff to shuttle things back and forth on the forklift so that he wouldn't have to walk. If one of these things, isn't that enough for a rational jury to say, well, you know what? I think Maruka believed he had an issue and therefore we're going to find from what's irrational about a jury who's heard those things coming to the conclusion that there was a perceived disability. Because we go back to the definition and we go back to it. They didn't have to. They didn't have a jury instruction and everybody has the, nobody objects to the jury instruction. Nobody said you're on it. We want you to detail what perceived means and detail what disabled means. You can't argue after the fact that they went off the reservation if they weren't told they had to stay on. Actually, our proposed jury instruction included a complete definition, but we're not, obviously that's not an issue that we're raising here because the jury found or the judge granted our motion. So we didn't raise that issue, but I will tell you below our proposed jury instruction did in fact include the whole definition, but there are cases, including cases in this court, the Kelly versus Dresler University case, where the court has said merely because an employer provides an accommodation, doesn't rise to the level of showing that the merely, but there's more than merely here. I've just, I've just named for you four pieces of evidence and they are not, it's not just merely providing an accommodation, their statements made. Why isn't that enough? You can see, I assume that it's a pretty low bar. It only has to be rational, right? So you're defending this requires you, I think, to point out to us what's irrational about a jury who are those four things, and maybe others, but those are the four I put before you saying, I think Mr. Marooka thought there was a disability there. It's just to that process. First is, on the primothatia case, was the evidence in the record to show a perception of disability on the part of Marooka. I think Judge Thompson was right, when she analyzed the evidence that you've just articulated, that that didn't show on Marooka's part that he thought that Munley was disabled, but even for the sake of argument, that you accepted that a primothatia case was made out, that he still has to show, Munley still had to show that the determinative factor in his termination was the perceived disability. And isn't pretext classically a question of fact for the jury? And the jury found against you so that the judge had no business walking in and turning it around. Just because a case, a plaintiff can make out a primothatia case, that doesn't mean, as the court knows, that the case automatically goes to the jury. But it did. Can you tell us it did, and they won. Your saying is only one way to look at evidence. If there's more than one way, then it's not irrational, but what is irrational about it? What is irrational is that there was nothing, the company's legitimate business reason for acting here. He said that. Your honors. In the appendix, there is the organization charts. I saw that when he's going to move down to an extruder and he's the fourth person. Well, that's right. And part of that, you're on a part of that. You just pointed out, move down to the extruder. That was a physically more demanding position. Nobody's suggesting you didn't have a counterargument. That's not the point. You had plenty of evidence on the other side, and you persuaded the jury on virtually everything. You won and won. So it's not like this was some jury who wasn't thinking they just started checking the box for one side or the other. You won almost everything. But on this point, evidently, they believed the other side's evidence more than they believed yours. So the fact that you've got another side doesn't dispose of this appeal. You've got to show that they were loopy to believe the other side, and that's what we're trying to draw you out on. What do you got? And the difference in the testimony from one side of the other about Marooka's actions was striking. Marooka's testimony about what happened in situations versus the plaintiffs side. A lot of this could have just relied upon credibility. I mean, you're saying they had reasons that jury may not have believed the reasons. The jury believed the reasons on nine of the ten claims that went to the jury. So yes, we two asked ourselves, how was it on this ten claim the jury could find in Munley's favor? I come up with two possibilities. One is one piece of evidence that we objected to. The Kamarasski testimony, which showed that Kamarasski may have perceived Munley as disabled, was admitted by the court over our objection. The jury heard that, but Kamarasski had no input whatsoever. What so ever into the decision making process? Munley and Marooka didn't consult with anybody in the plant about that. Irrational is there's no evidence going the other way. That's one example of irrational, right? What you've just mentioned is not an example of irrational. Help us with this notion of irrational. There is no evidence going the other way on the decision. And that is as of October 16th, or as I should have, October 10th, there were three people selected for the Rift by Marooka. Munley was not one of them. Only when Marooka was told that you've got to go to a fourth. At that point, Marooka went back to the organization charts. Scenario three, which kept Munley in as the extrusion supervisor. At that point, he said, how do I run the plant with the remaining people given how deeply the cuts have been? It says this guy was just out for a month. I don't think he can do the job. What's the next injury he's going to have? I can't do that. He perceived him to be disabled. I.e. not able to do the work. I don't think any rational fact finder can include that. Your honor because at the same time he's doing this Barnett who has eye issues is out on FM like Barnett hasn't even returned yet. But Barnett has been selected for the Rift. Does it start to sound to you like your weighing evidence? Because that's what it sounds like a little bit to me that you're saying if you look at this piece of evidence, you look at that piece of evidence, you weigh these things, then you should come out this way. But that's not our job. That's not Judge Thompson's job. Find a judge as she is. The question is in the face and I'm confident there's other evidence that your opposing counsel might point to. But we've laid some on the table. What would be wrong with the jury seizing on those pieces of evidence, including Ms. Rook's own testimony about, you know, I had them part by the door. What's wrong with that? Because it, first of all, and I may be repeating myself, in the cases in Taylor and escort that doesn't rise to the level of perception that what the court has said has been, if we took that approach and is also an Appellate Vision case in New Jersey, Heidsman versus Monmouth County, where the court in the Pellate Vision said, if we take that approach, then we'll discourage employers from providing good working conditions. Sure. If it were only a matter, if it were solely a matter of making an accommodation here there, there might be an issue. But we have a little bit more than that, right? I mean, wouldn't you agree that the comment you'll get used to it is at least open to interpretation? I mean, a jury could interpret, you'll get used to it to mean either you'll get over your injury or you've got a disability, but you'll get used to that. Even if that were so, it doesn't address the reason advocated, it doesn't, it doesn't address the pretext issue. There was no evidence. You're making a argument, playing this council make argument. You don't see that as a perception? But it's a two-step, it's a two-step. One was did Muruga perceive Munley as disabled? If you answer that question, yes, then the next step is was that perception, the determinative factor, which in the district, and when you look at the evidence as to what the company put forward, there was nothing to discredit that. That's the point I'm trying to make. Except if there's a lack of credibility of Muruga and the jury didn't believe that evidence, then they didn't buy that reason. Ormorn said that Chico had he was joking. The jury could have perceived that he wasn't joking, and therefore that's the basis for them to have come to the decision that they came to. And of course we don't know the basis, and one of the bases could have been the Kamarowski comment that we ejected too. But that's what jury's you don't come to see again. Can I ask you about Mr. Barnett and the personal representative thing? I've got a little bit of, I'm a little workier. On the one hand, we might agree with you and say, no, even on the merits, you lose, but could we even go there if we wanted to if the reality is that there's no case because there's no plaintiff. In other words, do we have a article three case and controversy problem if there's nobody properly in the case so that we can't look past that problem and say you lose on the merits? You're on right at the moment. There is no case because that what's happened is that Barnett made a motion to have a Sun substitute that was denied without prejudice. A second motion that was. Well, what did he fail? What are you saying he failed to do as a matter of law in order to have the Sun be substituted? All these, he's acquired, is being, this is a tennis app, a David of next to the kid, which only gives you rights to deal with matters of less than $10,000. Okay, so what do you have to do that he didn't do? I've laid it out in I thought. Well, if you tell me because I forget, I quite frankly looked at that motion and thought a little bit of a give me a break, you know, I mean, what is he, what hoop does he have to jump through at this point? Is it, is it weird? You're not sure I can't lay it out verbatim right now. We did it in the paper. But even before the court, I mean, it was, it was, it was, it just, Thompson was absolutely right to deny that motion that was prompted by the, as what do you call the Enrico moment? And we would have approached the case. Different issue, different question. I'm trying to focus you on one very specific thing because even though one might or might not agree with you on the merits of Mr. Barnett's case, before you consider the merits of Mr. Barnett's case, somebody's got to be in the courtroom representing Mr. Barnett's case. You've taken the position that there's no one in the courtroom to represent him. That raises for me at least a just disability problem that I really, really need you to help me with. So I'm asking you, what is it that's not in the record that you say has to be in the record in order for him, Mr. Barnett, Jr. to properly be a representative. Because if you're right, that's a kind of a big deal. I understand you, Ronner. And I can't help you more at this point than beyond what we put in our paper, opposing the motion. And frankly, that I had thought of the court, I didn't understand whether the court would address the motion before we got here or not. I had forgot to pull that myself. Okay. We may need something supplemental. We'll see. Yeah, it really, I think it would be a good thing to have 28J letters that laid out, do we have for us? And there's no, there is this in the record and that sufficient as a matter of law under New Jersey to be a personal representative and under the federal procedure or it's not. I think that would be a good thing. I think the best way if you would file a letter along those lines within a week and then within a week opposing counsel can file and say no, we did everything we have to do or maybe acknowledge that what wasn't done is, you know, it's going to be done forth with. It seemed to me like you were talking at cross purposes that you said you filed X and you said you need to have ABC and somebody's right, somebody's wrong, obviously a law that controls that says what has to happen. All right, so if you would do that with the law and then another week counsel. All right. Thank you. Okay, thank you. Rebuttal? Okay, that's fine. Thank you very much, Councillor, we appreciate it. We'll take the matter under advisement. All right. Thank you