right of all when you read it about this morning are subject matter jurisdiction in this case and tangible climate action and the defendant's affirmative defense in regard to subject matter the yes see before she can file a complaint in federal court and the charge that is followed the e e o c sets out the scope of what what the claim can be and the claim has to be based on the specifics of the charge and anything that is reasonably related to that charge as well as the reasonable investigation of the e e o c what would they reasonably determine is related and there was a letter on her lawyers letterhead that she signed that was attached to the charge that set out very specifics about exactly what happened and it also set out it  on the first page of the form that it was a sexual claim sexual discrimination claim and it set a time of that or the occurrence of between february eighteenth and february twenty fifth and it also stated that the point of was suspended now in responding to to the court's request for supplementary briefing on this subject matter jurisdiction question the defendant said that that the charge was insufficient because it did not discuss or did not mention tangible employment action and in researching this i cannot find any any case that says a charge has to refer to tangible employment action and the cases that were cited by the defendant none of those that anything about tangible employment actions what what they were related to was one case was not followed within the time limits another the other couple of cases i believe were brought up charges that were not specifically mentioned there were additional charges by other people i believe other than the one person who was  nineteenth until the twenty fifth her supervisor made a charge that she had again violated mission policy and that was the reason that was given for her suspension european i believe it or argument is that it is reasonably related to the charge because on february twenty fifth when she came back to work that day she brought this digital recorder weather which conclusively showed that the allegations that were made by her supervisor that led to her being suspended never happened that this was a fabricated charge and it relates back to the erast month because a reasonable jury could find that the only reason that he made up the story about her was to either prevent her from from bringing charges of sexual discrimination or of discrediting her as a a witness in the event that she did sa yes i think that that is there are because i think it was definitely was related to the original charge because it was it was also another charge that was brought by the supervisor and it was proven by the evidence that there was no basis for it information that was provided by the supervisor this expansion was not given by the supervisor he didn't have authority to do that but it was totally based on on information that he provided to human relations and human resources and that information was totally untrue to the plaintiff mr crockett testified that it was not true and cheap proved that it wasn't true by the use of this recorder which led to her been terminated ironically going on  the employer who's the defendant in this case mission hospital is vicariously liable for the actions of the of the supervisor and the only  defense that that is if the employer can show that they had a plan in place that it was reasonable and in scope and and protected employees  one aspect of that the supreme court in the cases of l or and farragher set up this this framework that the defendant the employer can bring forth an affirmative defense if they show that as a result of the sexual harassment the employee did not suffer or sustain any tangible employment action in this case the point of was suspended from and the district court found that that did not constitute a tangible employment action and it cited a case from the sixth circuit how inten case and it said that a suspension would constitute a tangible employment action if it was without pay as i pointed out in my brief there is evidence in the record  that that the point of suspension was without pay in this case or it was a loss of benefits when the human resources representative conducted an interview with miss crocke crockett asked her if she would be paid for the time she was out and the representative told her if she had t p s to p t o her personal time off she could use that but if she didn't have any it would be without pay so she either lost pay or she lost benefits while she was out on suspension and the case that was cited by the district court didn't say what the court said it did it did not say that  suspension had to be with pay what that decision said was and it was an unpublished opinion that it said that a suspension constitutes a tangible employment action and it also said that loss of benefits or loss of pay constitutes a tangible employment action so in this case there we have either there's no question she was suspended and she either lost benefits or she lost pay so i think clearly it comes under that that framework it would constitute a tangible form and action there's another requirement for the tangible or an action is that it be related to sexual harassment and in this case it was related because as i said in talking about the jurisdiction question the only reason that she was suspended was because of the information that was provided by her supervisor and that was false information was information that that never happened and she proved that it never happened and it was related to the sexual harassment because a reasonable jury could find that that the reason the supervisor provided this information was to either prevent her from making the charge or to discredit her in the event that he did make the joke i think a reasonable jury could find and this would be a genuine issue of a material fact in this case that her suspension was related to the original sexual harassment and i'm sure that that was his motive so because that was his motive  bringing the charge against yes there she was out of work for the week after the sexual harassment occurred from the eighteenth of february until the twenty fifth and with then an hour and a half when she returned to work she came back to work at three thirty and at approximately five o'clock that day is when he brought this charge to human resources that she had again violated policy and he knew that she was a hong's final warning if  violated any more all things that was violated excuse me what was the policy about alleged using a cell phone while she was on duty what did it have to do with sex they actually use the cell phone had nothing to do with it it would what what we're saying is that it it was an effort to prevent her from from complaining about the sexual harassment or if she did complain about it it was trying to discredit her because she had already been given this final warning two days before the sexual harassment occurred and the basis of that final warning was also based on information provided by the a supervisor and part of it was for using a cell phone while she was on duty but at another part of it was that that she misrepresented facts and her one of her reasons for not coming forward before she did was that she thought she wouldn't be believed while she'd already been on no final facts we think that there that there is sufficient evidence in the record to bore a reasonable jury to find that she stain sustained tangible employment action and that that would be sufficient  deny the motion for summary judgment in this case but briefly the affirmative defense is essentially taken from the law of damages and so the court says you can't you have to a gate your damages and in this case she the first part of it she could have done nothing to have prevented this from happening but this supervisor had never sexually harassed her before she had no reason to complain about his activities and then  after it occurred the damage was done there was nothing that she could have done to have caused her injury to be less that one even though a major part of the defendant's intentions or that she created  problems for self by not coming forward before she did in the ehlers case that was decided by the supreme court the plaintiff in that case went fifteen months and never complained about sexual harassment  c as the district courts and we believe they were correct the charge itself the e e o c charge is limited to the events of february eighteen and february eighteenth only the district court also we believe was correct in stating that there was nothing in the charge regarding any subsequent harassing conduct by mr camp and in fact miss crockett testified that both before february eighteenth and after february eighteenth there was no veracity conduct by mr kim for roughly the seven some years that they worked together it was a one off event on february eighteenth we also believe that the court was correct that  any claim of subsequent conduct to him excuse me subsequent conduct contributed to an abusive environment is beyond the scope of the charge in other words really your honour's february eighteenth should be what we're looking at i am familiar with the ballots decision i have to see it be and i reports monday evening and i believe the ballots decision from this court last week as is controlling here with respect to the c charge  i'm certain you're aware given the recent c of the opinion in the ballots case she was actually operating pro se and working with the e e o c to follow a charge of discrimination she said in a first letter describing  discrimination alleging sex discrimination retaliation and the jeans incident was considered to be evidence of sex discrimination it was not noted to be a continuing action charge at all it was left blank at that point was to amend the charge to add an extra incident where she alleged that her supervisor price had hugged her and so ultimately she filed suit though alleging a variety of claims food for motels where terminations hostile work environment sexual harassment claims and things of that sort and the district court in this code court both said that there was no jurisdiction because the title seven claims were not contained in the e e o c charge what th promotion claim those were all dismissed in this particular case miss crocket as counsel noted was represented by an attorney an attorney drafted her e e o c charge of discrimination the charge itself addresses the february eighteenth allegations in detail and i would submit to the court that we cannot construe it liberally in that case she's represented by coun circumstances is simply amend her charge you had the opportunity to a mentor charge she was represented by counsel and she chose not to amend her chart so the only thing that only notice rather that was given to mission was about the events of february eighteenth which they immediately started investigating in fact the only allegations in the charge were that she was asked to live lift her shirt to prove she's not wearing a wire she feared terminations if she did because of this claim harassment which by the way hadn't been reported and in fact the individual responsible for suspending her and investigating the cell phone usage incident an excuse me kathy jones had no knowledge whatsoever of any allegations of harassment because miss crockett had not brought those forward at all so the decision maker had no knowledge whatsoever about any of the claimed of events of february eighteenth when she didn't even cooperate in the investigation did that is that is correct she didn't cooperate in fact when she was confronted with the cell phone allegations and in fact  disciplined for it so this was the second time that she was being investigated for cell phone use she didn't say a thing about the events of two eighteen in fact your honor if you look at the evening of two eighteen she didn't complain to anybody no one whatsoever and then on the twenty fifth kathy jones who has no knowledge of the events of two eighteen obviously teresa mccarthy from human resources who has no knowledge are discussing with her and the only thing that crockett said is mr kemp did something horrific to me they asked for details and she refused to provide those details they brought her in several times subsequent to that again she refused to provide details what she did do  of february eighteenth in fact it wasn't until almost a month later on march seventeenth that she finally provided some detail about the events at issue so when she was suspended on the twenty first she was suspended pending an investigation into the cell phone use issue and she was suspended by an individual who had no knowledge whatsoever of any issues related to february eighteenth so we would that they knew go forward we have been accused that's done a thing to this employee and not necessarily your honor i think if if that were the case then any employee could shield themselves from potential discipline by making an allegation whether true or not that something horrific and taken place i think in this circumstance mission did exactly what it should have done under the law and that is they suspended her pending investigation into the allegation of cell phone use but they also as the record indicates immedia started investigating to determine whatever it was that was so horrific because miss crockett herself refused to tell them anything and so as the record indicates the very next day they went to mr camp to say what's going on here they re interviewed miss crockett several times they interviewed all of her coworkers they interviewed who were present that evening they interviewed mr chandler who was mr crockett supervisor and they drew blanks absolutely right there so i would suggest to this court that they did the right thing so i don't know where or if it means that nothing happened between it that's not the case is i'm sorry your honor i'm going to crack and say mr wrong about that and i should be asking mr gore that but the no your honor i believe you're correct in that in fact we believe that the district court although its outcome was correct in granting summary judgment to the hospital we believe that its application of the whitten case i hope i'm pronouncing that correctly was entirely incorrect in the circumstances that case which the court said well you know merely a h g was sufficient to be severe in terms of whether or not it created an abusive work environment we would suggest to this court that that wouldn't cases completely in a political for  the employer or there was no appeal from either side about the third element that is whether the actions of the supervisor were sufficiently severe pervasive to alter the terms of and conditions of employment to create an abusive work environment so number one that issue was not for the court it was the imputed will issue and number two we would suggest that the whitten case differs greatly on the facts if you look at the district court's decision it was essentially comparing an individual a male who pressed his genitals up against a female employee with a male supervisor in this case who is alleged to have asked the supervisor actually went up to the employee and placed his genitals rubbed his genitals on her he was also calling her dumb and stupid he was telling her that her life would be a living hell he was she did your honor not entirely all the way i think she says she thought that her nipple was you're correct your honor she said she thought the nipple might have been showing when she raised her shirt she also testified however that it was clear that mr kemp was not seeking this for any sexual reason that he just took it as a matter of fact and then said ok now we can talk he ma sexual advances to her he didn't leer at or didn't reach for her when she briefly exposed her breast it was just up down and then he locked the door well he did lock the door you're on i'll have to give you that request was on account of her sex at all i think it was determined whether or not she was tape recording and it turns out in fact she had been secretly taped were actually later on was secretly tape recording people admission so there's a certain irony to that but i do not believe his request of her to prove that she was wearing a wire was as a result of his acts under your reasoning then that would throw all the case law we talk about strip search all you can search though make a woman take her clothes off because or you know most sex though one of his motives you don't know what he's well you're on i beg to differ with you i'm i'm not certain what you're getting at with respect to strip search cases if you're talking about oh no not that i just because i don't think he was motivated by sex then that would that miss crocker herself testified that this was not about sex in the lifting of the shirt it was simply about whether or not she had a whack if he wanted a kiss or gas a little down on is that the real motive was looking for a wi i mean i don't necessarily agree with that your honor i think given the fact that she did serve tisha slee wind up tape recording both coworkers mr kemp hospital patients and things of that sort he might have had some cause for concern again that's simply speculation there's no evidence to that fact but i don't necessarily agree with that as far as the allegation of a kiss that was denied by mr kim repeatedly obviously we have to look at this in the lights most  favorable to to miss crockett and if she said he history kister now of course that does differ from what she said her e e o c charge of the c charge says he asked for a yes again this was prepared by an attorney after the fact there's no mention of any brief this court and that is that there is no subject matter jurisdiction because the allegations that she made are simply outside the scope of the charge in fact i would direct the court to the king versus m r brown case it's nine eleven if  sixty one and in that particular case all that was a same sex sexual harassment case the only thing in the charge itself was a hostile work environment case but yet when the lawsuit was filed there were for like a better word quinn allegations or tangible form of action or detriment and what the court said there and i recognize it's not the fourth circuit is that these are really two different causes of action and they're not reasonably related nor likely to have been part of the e e o c is investigation in that circumstance and to hold otherwise would really frustrate the purposes of title seven so we would submit to this court that number one there's no subject matter jurisdiction number target of the suit here is a boy you're correct your honor and we would submit that imputing that conduct is not correct under the law and then finally we would argue that there's certainly no tangible employment action here was actually suspended on the twenty fifth regarding the cell phone use and i think the ballasts case actually has some instruction about that there where the alleged harasser complained about timekeeping issues and the department manager who investigated and the department manager who ultimately fired her had no knowledge of the of the claim to rassmann by mr price i see that i'm out of time if there are any furthe thank you just briefly i'd like to up to get back to a couple of points one regarding the subject matter jurisdiction the initial charge was very specific about the incident of february eighteenth that is sufficient to even if you don't go into matters whether they are related or not i guess the court subject matter jurisdiction to to look into what happened on february eighteenth whether it constituted harassment under the law and  case i think the evidence presented shows that it was a a very severe incident at least a reasonable then you've got the affirmative defense of the court man was watered right in order to get to an affirmative defense the  defendant has to show that there was no tangible employment action taken as our position was that the suspension constituted a tangible form of action but if if you find that that that was not a tangible employment action then the employer can present an affirmative defense and what hasn't been mentioned is that the supreme court said to prevail on the affirmative defense the employer must prove by a preponderance of the evidence based these two factors and the two factors are are basically mitigation of damages they have to show that they had in place a program that was well planned and effective in preventing sexual  done while the investigation correct is that that just a big issue there comes down to the is green versus dalton case at all cited from the district court circuit that said the issue is whether a reasonable person under the same or similar or under the same circumstances would have acted differently and i think that's a jury question that's not a question that a court can answer as being established by the preponderance of the evidence we think that is a genuine issue of material fact in this case there's a genuine issue as to as to whether there was any tangible employment action there's a genuine issue as to whether the defendant can prevail whether what she did under these circumstances was was what a reasonable person would or would not have done i think that they are letting you argue that what she did was read because she was under a final warning final warning she was told that if she so much as hic up she was going to be fired part of the final warning was based on misrepresentation of facts and that involved something that she did she had told her supervisor that he did not had this is t days before this incident happened on february eighteenth that if she had gone to human resources and said what happened he denied it he would have been fired anyway and this case a little different because she took a parallel track questions thank you