good morning everyone welcome to the th circuit and looking forward to this morning's arguments we will call the cases in the order that they appear on the calendar but the st cases anger says things restaurants inc has been submitted on the br so the next case up is ox hearses eugene emeralds baseball club inc if counsel for that case already please the court a reasonable jury could find that the repeated use of language described by the plaintiff in this case created an objective way hostile work environment the testimony describes constant bitch and asked so what rhetorical why do you have to be quote such a bitch this court's on bank decision and cost correctly characterizes that sort of horrid language as gender based  mystic of the court described the word bitch as a sexual effort that a sex based slur offensive sexual language a derogatory term indicating sex based hostility and accounts of can we just rely on the words or do we have to look at the context in which they were used here in no context beyond what apparently he when the context is he called her a bitch that's sufficient bitch sometimes use other ways it can be over it we might say the the players bitched about having to do pushups that's not a massage it except that it's a different usage but so if you want to rx it to an individual that uses the term regardless of the contacts that's enough to create a hostile work environment is how frequently did it occur the testimony here is that it was a constant of the chest and so on those i want to ask you about that because what do we have to credit on summary judgment to frequency at one point your client said that it was almost daily yes and then at another point she kind of backed off on that how frequent and maybe doesn't matter if maybe the one meets the standard but when you having a potentially inconsistent testimony from the plaintiffs which version are we supposed to credit for purposes of summary judgment i think you credit the version more favorable to the plaintiff that would be for the jury to sort out a trial that well what if she had later said oh i actually he only used it once the entire time i was there would still credit the fact that she at one point said that it happened every day or nearly every day there could i think question i think would be whether a reasonable jury could credit though the more favorable account so you could conceivably have circumstances where you concluded a reason very just couldn't believe the st story but but if the standard would be could a reasonable jury credits i wouldn't want to suggest there couldn't conceivably be circumstances like that there's also testimony that she used the word frequently as well and that this was sort of how it was done in a locker room talk might be fairly appropriate for a baseball team here does that have any bearing on that in this case where there appeared to be an acceptability of some somewhat of a sect ability i don't want to state it too far but for the use of those terms in this work environment we think not under the circumstances for a couple of reasons st of all the use of the epithet bitch by a man directed at a woman is in the such a mystic use of the term she might have used it in some other term the the one reference we have is to an e mail where she's expressing excitement about the fabrication of some jerseys for the team that you pursue is the purple rain jerseys and it one  point says bitch is exclamation point i've no idea what that means but it's not a racial well but that's an example where you might say that context does matter because she used the term and perhaps we can say that that was a derogatory use of the term and i guess  trying to understand as if we say that what the term was used is that enough end of story or do we really have to dig in and how deep do we have to dig into the context here i think if it's if it's directed at someone as a as an epithet calling someone a bitch that's all you need to know ok but that's only for the st element correct well there are two i mean you've got you've got three elements for this hostile work environment claim the st is that they're subject to conduct nature because of sex seems to me you've said a lot about that subject of verbal and physical conduct but conduct was unwelcome seems to me we have to have some evidence of that which you may have suggested something about that but i don't know that we've really focused on that and then the last today as of be severe or pervasive right yes if i might direct my attention to those two questions  all a reasonable jury could infer that a woman would take offense at being labeled a bitch a money hungry bitch such a bitch or an effing bitch i think that language is serious enough that you don't require her to have to additional time so we're now to conduct was unwelcome yeah about some beer or pervasive well the this court has on eighteen occasions indicated that whether the conduct was sufficiently severe for bass or create a hostile work environment is a jury question now the testimony in this case would clearly if credited would clearly support a finding this was pervasive as as you see as you noted she repeatedly described it as more times than i can count almost a daily basis throughout the season ongoing and another witness described the use of the word bitch directed her and her is as regularly and multiple times now as it hath right what that was ha also requires not only an objective determination but also subject to be determination in your brief you've suggested and there's not a lot of case law in the th circuit on the subject of portion you've suggested in your brief that her affidavit saying that this made me feel this way in a cuckoo in a conclusive way satisfies that is that your position here or is there other evidence you can point to for the subjective prong i think we would rely on that i'm not sure it would be fair to characterize summary judgment ocean as addressing that elements very rare for a defendant to argue for summary judgment on the subjective side of that i think the objective side is that is the question here will be us i mean you have a duty to show a material issue of fact on the subject of portion i my question is have you satisfied that with her affidavit is that enough in your mind to come forward with an affidavit that has a conclusory statement we think it is but to drill down a bit deeper under rule fifty six dollars the responsibility of the plate of this is show material fact about the issues raised in summary judgment motion there's nothing in the record about the amount of damages she wasn't obligated  that because it wasn't what the motion was about the motion is just about the objective aside then she would be expected to address the subject aside and you wouldn't want to tell litigants that they had to do that because it makes the work of the district well but we have told that against that they have to show that they have to show come forward with some evidence that this is pervasive enough that it alters the terms of her employment and here we have a situation where by all accounts she was meeting all of the obligations that she had she was for the defendant one point that she was so bothered by his conduct that she got in an elevator with him and couldn't even write up the elevator and had to get out why isn't that enough you know where you are i think that's a specific instance where she said that they were in a middle of a fight and she was so upset by it she wanted to get off the elevator that's one instance why isn't that enough well i think the case lies on the that's not enough there has been far worse conduct in oregon cases and in one hundred and thirty dollars cases which weren't found to be severe pervasive under the hostile work environment claim there are cases where people were sexually assaulted and it wasn't found to be enough to get back on the instant yeah but that was one that was a situation where supervisor took action and removed the individual and removed the individual after they committed sexual so your position can't be that if a suit if a supervisor knows that someone just committed sexual assault once and takes no action that that doesn't create a hostile work environment there are cases that have that fact pattern in  needs to be how much more severe improve a sort of would you expect this to be i mean this language seemed to be pretty outrageous as i read it your honor i'm not excusing the language but i think as the u s supreme court has said this is not a general civility test and i think that there is vulgar language that is general civility you're suggesting the generals well i'm suggesting it's not general civility i'm saying a hostile work environment claim is not a general civility test though and it's not looking at just longer statements or even statements of a sexual nature it's completely can textural and it has to be that somebody is harassing alters the conditions of their employment based on their sex i think that there are two instances in the record during  period i agree that you can look to other instances that are discussed the only one instance a bitch is discussed in that the year that is well even if she's not supporting him after this was trying to drill down on how pervasive it is i mean we see th a lot where a plaintiff makes one statement and then counters it with another statement but this one doesn't seem to be quite that even if you took her the least you know the most restrained version of what she said i got to be honest it doesn't look good for you for your client and i don't think my client stands by the fact that he used the term fucking bets but i think that in the context of this case i think you have a lot more evidence than just that you have evidence that she used that terminology against by a disinterested witness her own witness said that she constantly started these fights we have a severe or pervasive environment that doesn't get you by the summary judgment standard that i don't i don't think it does your honor because well frankly find the case that says it does it because on summary judgment i have to ever give every benefit of testimony regarding that this is really unwelcome other than her declaration which says it in a conclusion and i think we've laid out the case law that says you can't just have conclusory statements to meet the elements of your of your claim but isn't there also evidence that she made the statement i thought other witnesses came forward that she had told them this was one welcome during the time of her employment not not any of these particular statements no your honor there was no testimony to that effect in fact i mean her witness is the one who talks about this language being pervasive that she couldn't testify that she was discriminated against or that she hadn't really witness in the of these instances in the in two thousand and fifteen nicole oakes said she broke down every instance of discrimination in an agenda and there were two instances one where she was supposedly called an ass face in a promotional meeting and one where she was called a cambridge i don't think that that instance when they're in a heated fight immediately started because ms ochs question  the radio that the whole staff was on they got in a heated fight and he said fucking bitch i don't think that that that establishes that there was a severe and pervasive environment that was based on discrimination in this workplace i just don't  on the other claims that unless the court has more questions about hostile work environment i think the facts clearly show that these claims were not made those two claims relating to retaliate and then i want to address briefly one is that ms ochs was retaliated other employees made the same unclick complaints and nothing was done ms ochs wasn't terminated intel december after an argument that while there are some details that are just a few did miss opes account describes a legitimate reason why she was terminated nor any time near the last complaint was made sometime in august of two thousand and fifteen and when asked how she was retaliated against for making that complaint she simply stated that she was undermined by her boss she didn't even alleged she was fired because of it the  nd claim she makes is that she made a claim of hostile work environment and she was fired because of that claim that complaint happened after the dispute on december th when she left the office the undisputed evidence shows that immediately after she left the office mr been viewed as e mail to his wife and said i had to fire nicky today he had his assistant general manager draft final paycheck there's been some discussion in the reply brief in this case but the final paycheck shouldn't be believed because eventually she received an additional paycheck that was a different date that i don't think the court should consider that argument given that miss oakes refused to come back or communicate with mr benavides on december th to get that final paycheck so a new check had to be issued at a later date when she would come in and cooperate did mr benavides have sole authority to fire her did he have to seek authority from anyone else he had sole authority and all the evidence in the record and your position would be it doesn't matter whether it was communicated to her that she was fired it's when he made the decision to do that absolutely or in the cases we cited including barno say that the decision doesn't even have to be it just has to be considered and intervening protected activity questions about that because in september he also made a determination that he was going to fire her and then eventually didn't fire her he had decided that it was probably best to terminate most folks but he wanted to have a conversation with her and in her review thought that she was going to make the changes that he suggested but that that's the problem that i have with this is how far down the line do we go with these questions do you have to be fifty one percent sure he's going to fire does he have to be eighty percent sure does he just have to be ten percent thinking about wife and he had his assistant general manager draft up the final check i don't think that there's credible evidence on the record that any of that wasn't a final decision or even final enough decision i mean there was absolutely no evidence that the legitimate non discriminatory reason put forth by the emeralds was pretext there's nothing in the record or on summary judgment was that even argued that this was just pretext everything was about whether or not bitch was a discriminatory  basically and that that was enough to get a summary judgment on every claim in this case because there was no evidence even presented on this fact i don't think that it's worth going into it much farther but i do want to say the single actor and friends also really does apply here for many reasons including the one that mr bin to be deselected miss opes to come to nashville he gave her a raise he continued to give her favors he cannot be found to have a discriminatory animus because there hasn't been an extraordinary question of when the decision was really made in addition to the points that judge nelson made there is other evidence that suggests this wasn't really a final decision there is the initial disclosure in which the defendant asserted  assisted in the decision that couldn't have happened at the climb they contend the decision was made several days after the summer forth there was a conversation between elmore and the plaintiff in which elmore according to plan of said let's try to work this out again a jury could infer from that that they were still considering what to do about all that with regard to the question of whether there's evidence a pretext here as we've said on our brief of the defendant has changed the original account was she was fired because she came in to benefit his office after the meeting and started to scream at him and this went on and on  what was the subjective motive of benevides the time his account is directly contradicted by her account of what happened and that's a jury question thank you very much thank you counsel kids just are you to submit