Partial transcript of oral appeal on 1-19-17 (OralArg-full-audio), (OralArg-1750-1938)

17:50

Defense Attorney: Dr. Burton is improperly attempting to expand the contours of this case on appeal after she specifically narrowed them before the district court. Specifically, she cannot now bring forth issues and arguments under both her title nine and her title seven retaliation claims, that she engaged in more protected activities that she put forward to the district court; that she suffered more material adverse actions that she provided before the district court. She states that the district court erred, but she, through her counsel, before the district court, didn’t make specific arguments, didn’t raise specific issues, before the district court. There is no way the district court could have erred. What Dr. Burton is trying to do here is to re-litigate her claim on appeal, which is something she certainly can’t do. She has made her bed in the district court and she must lie in it.

Judge: So, this argument she made in terms of her reply which is to look at it through all this additional evidence that came in was just to show that others might view it differently. You’re not buying what she’s selling on that.

Defense Attorney: That’s correct. What it seems to be here is that Dr. Burton is making an argument on appeal with new protected activities, new material adverse actions, making some type of a combination argument that her attorneys didn’t make before the district court. So, the district court never had a chance to analyze those arguments that she is making here.

19:38

My third point is …