environment claim under l or how do you have sufficient notice to the employer and failure to act if you will your honor  he was he was making the decisions on the territory allocations he made the decisions on the training he made the decisions on the discipline and he made the decision and he was i wasn't privy to as a matter of fact in m in terms of the more explicit behavior the testimony was that a lot of that occurred in sales meetings that mr spooner was at the sales meetings so he was present and had every opportunity to  see what was going on and took no action to intervene so and the if if you like i can go into the explicit explicitness out of it but he was there in those meetings and that was one of the correct she was a a remote site player in the game ok so if she has not made a hostile work environment going how can there be constructive discharge well in in her and i submit to you that it was her position because that that territory normal run look at what miss lawrence said there was never an occasion and she was responsible for the advertising there was never an occasion where they advertise get your sails and she didn't like that use of the word team because she was male oriented that were that was set of facts the district court said was in play or there are other facts so you believe that that creates a circumstance that is so intolerable that no reasonable person could manage through it any reasonable person would feel compelled to resign under those for position was the culmination of the series of events that in effect signaled to her the end was here so the question for the court and where so many of the court that the answer is favorable to her is that she doesn't have to wait until the slip is handed to her where everything she's getting says that that's the way this is going to turn out so how do how does that differ from what puts it over the line from being someone for seeing that they're going to be terminated and how how does it how does it come how are you to then leave on part of the compulsion your honor is that you can't stay there another day because the situation is such that you can't stay another day as compared to i'm going to be terminated so i'm leaving well in a sense timing could be everything because there is a there is a stigma to being terminated that doesn't exist if you know it's going to happen and that's why is there any case if any case at all that says wanting to avoid the stigma of terminations is is a factor that creates an intolerable situation work i do not know on but your kid but your position does depend on a legal equivalence between i'm about to be fired and things here are so bad i can't work another day right would you address what you believe the evidence shows with respect to the autos the monthly autos produced by plaintiffs  the when you look at the autos the highest producing autos were in the concentrated territories in montgomery and allegheny county that would be with mr stevens for purposes of quota in more concentrated territory was better what is there about the allocation of territories that gives us gives rise to the inference that there was discrimination why is that gender race well if you're away from somebody is it just kind of natural in a work environment to say look i'm moving this responsibility to you don't mention it let me deal with break the news well that it wasn't dealt with that way and the reason i contend and we contend that is gender based is that if you look at the whole picture not at at each piece of evidence the picture that emerges is that there was a pattern in terms of the this company is to generate sales and to make sure i would assume that if decisions are being made with some degree of rationality to it and to recall keep the skills into the employees that  country from our perspective would be it's a larger picture we asked the court to take a look at in not contacts not to dice it up and analyze each one separately of the first being that this court's decision in simpson versus k jewellers is absolutely controlling and directly on point to the plaintiffs disparate treatment gender discrimination claim secondly the second third reasons are both judicial admissions that were made by the plaintiffs the first one of being at the lower court and as the district court noted on page nineteen of its order the plaintiffs admitted with regard to the hostile work environment claim that the locker room talk in and of itself does not constitute a hostile environment and what they've done by making that judicial admission is tied to the hostile environment claim to the disparate treatment claim so if there is no disparate treatment zes the atmosphere of the workplace and it's patiently offensive to women the fact that there are some guys in the room makes it non actionable it makes it less actionable your honor in the sense that it's in virtually impossible to meet the because of sex requirement the very first prong of a hostile environment plain when you have someone who is not targeting their harassment or their conduct at a person because of their gender but rather is engaging in this conduct as part of the office banter and i'm content of what they say could be clearly gender based and in fact the fact that men are there that men are present could exacerbate rather than make you know more innocent of the conduct could not it very well could your honor yes i would i would acknowledge that ok so guys in the room doesn't make really a big difference of mr mitchell's walk around calling women because in the hose right it's not it's not a legal defense to say there was a guy in the room to no it's not a legal defense but what i think it needs to be put in the context of your honor's it needs to be put in the context of whether or not this is severe and pervasive and what it comes down to is that if this if this conduct is being directed not at the plaintiffs because they're female but just simply because this language is being used in the office then that makes it less actionable them for instance in your best argument that it's not severe and pervasive not whether there are men and women it is your honor that's it is that's exactly the point i'm trying to make and you said it more succinctly than i did but i guess i'm saying is that it's less actionable and less severe in pervasive if it's not being directed at a particular employee because of their gender there's a lot of stuff here just a lot of stuff a lot of things how does it not add up to enough to get past so much how do you chip away at stuff sure that you know there's just no way well that the first reason that there's no disputed issue is based on the strategy that the plaintiffs have adopted with their claims by pegging the sexual harassment claim to the gender discrimination claim and that's the point that i made leave the leave the sexual harassment piece the hostile work the guy's got right along with the supervisors for training we did the the guys got better territory we didn't the guys were cut slack on their numbers didn't get action plans weren't put on a short leash that and when we fell short all that happened to us why is that in the light most favorable to the plaintiffs enough for ryan and migraine claims of discrimination regardless of hostile work environment to survive summary judgment primarily or honor because my client fired employees with equal opportunity and this in the statistics i support that there was thirty six sales reps eleven five years over five years yes and my question then i mean i know the district court said in the relevant time period but what's relevant about a five year time period if the employees that are complaining are or their respectively a year unless an ear for them the relevant time period is when there they are isn't it no your honor because of the and the appellant's argued this for the first time in their appeal that it was an appropriate comparison group but the argument supervisors weren't around for that five year period they were there when these people were there the training issues were with those supervisors who were there when they were there not the five years generally but for ryan and migraine the only person well the only person who had the authority to make a decision to terminate the employment was mr le spina and mr lisping is the one who terminated all three of the brief so with that in mind mr le skeen a is the one who is the ultimate decision maker and as as mr wix acknowledged when he was up here it was mr with spina was the one who scheduled the right along it was mr list you know as the one who scheduled the training it was it mr le spina who signed the territory's so other than the hostile environment claims which revolve around mr mitchell everything else revolves around mr le spina and the fact remains that mr le subpoena as the general manager was the person who hired all thirty six of the sales representatives he's the one who fired eleven of those thirty six sales representatives seven men and four women it was his decision he's the one who is engaging in that and even that aside taking your assertion that it was all of you know all the time how does how does the fact that eleven seven out of eleven people fired undercut pacific assertions that the plaintiffs are making that when you look at our numbers and you look at the numbers of the men who were working the same time we were we were held to a more rigorous and intense standard and not cut any slack when we did make there at the same time as the district court pointed out mr peters who didn't meet his numbers was terminated as well but the district court didn't point out that there were other men who were terminated as well like for instance eric words mr w months if you look at james johnson another individual who is employed to shred it from january third of two thousand and six to october twenty third of two thousand and six he was terminated as well company so in addition to to mr peters a sisterhood court pointed out during the time that they were there there were two other males mr johnson the mr works were also terminated for failing to meet their sales quotas and that leads me back to the first point that started in this court's decision in simpson which when you read the simpson opinion is directly on point to this case and in a lot of ways in that case you had a female  older female manager who was demoted and replaced by a younger manager and what she argued is that she didn't get enough training she didn't get enough supervision the district court in that case showed that there was something like thirty thirty five other thirty five other managers over a three year period under the age of forty who were demoted for not meeting their sales quotas that's what's what's your response to their laying out numbers for house rooms palace mr paps and probably missing in name or two  you will first of all your honor mr patterson was put on a final warning and he quit before he before he was fired and that's it page one twenty five of the record that happened on his eleventh month exactly the timing that this happened with mr crane so those employees were being managed they were being given warnings and can you find months where maybe mr p better than miss mcgrane or vice versa sure you can find those anomalies in the sales to fix but at the end of the analysis we have to go back to the plaintiff's own admissions in this case that they flat out weren't meeting their sales forces they can't get over their own admissions in the issue here isn't whether or not the sales quotas are fair whether shred it was wise in adopting those sort of aggressive sales quotas the issue is are they being applied to everyone and there's no evidence to suggest that they're not based on purely on the the turnover in and of itself and the records showing that other employees were not only being terminated but were being disciplined for this conduct as well with that your honor i i believe addressed the court's increase if you have any other questions i'd be happy to answer otherwise i've asked you from the decision of the lower court thank you thank you