right the next case we'll hear is perkins versus international paper and i guess you're on again this ball may please the court and i'm here on behalf my name is shannon povey and i'm be on here on behalf of matthew perkins the appellant in this case like miss evans mr perkins was a long time employee of the finished products department he was there for an extensive period of time essentially his whole professional career but he left nine years early and his case was dismissed a summary judgment and i have three kind of key areas i want to address during my presentation to you today the st relates to the constructive discharge and hostile work environment claim and the evidence is before you the avenues of proof for the both cases are both the direct and mcdonnell douglas burden shifting framework st and foremost i want to emphasize the direct evidence that to some of that direct evidence the direct proof comes from a char's its own records that the in to complaints of discrimination in the workplace and concerns by mr perkins were identified and responded by gary nyman the finished products department manager by describing mr perkins as a group of people as part of a group of people that keep things stirred up and that's found on j one thousand and thirty four within a three page summary compiled by the charm of a state are talking about the type of workplace that was in concern for both my clients i need to emphasize again the importance of the overall hostile work environment picture here is that like  for example with mr perkins mr perkins was the st black male to obtain a level position within the finished products department that's essentially the highest level of operating technicians he experience barriers continuously and for instance i think one of the best examples to kind of show it's one that predates the three hundred day window but again in a hostile work environment type of atmosphere there's a continuing act availability of to be suggesting that he was treated differently he doesn't talk about things racial he talks about being treated differently and questions and raises all kinds of questions  perkins claims with different essentially evidence and essentially underlying facts that relate for instance with the disparate treatment my client and i ask you to address that i'm not what i'm suggesting is that your argument seems to be focusing on  treatment and if you're arguing hostile work environment and should argue hostile work environment all right well let me let me distinguish i one of the most important race discrimination hostile work environment pieces of evidence which was my client's continuous efforts to prevent discriminatory treatment and how individuals within the finished products department were being assigned on the winder so this this particular paper machines like a football field size equipment it's huge there's a number of employees working on all different parts of it the winder is one of the very labor intensive hot areas to work it's bottom line is the argument is he complaining about it but how does that create a hostile work environment that maybe the african americans are treated differently which is that totally different analysis and i thought you were trying to focus on hostile work and yes your honor is that there there's nothing in the record to say that mr perkins was was called something so offensive as life and were to his face or some to type of hostile work environment evidence of that sort but when we look at what mr perkins does describe about the the isolation with the responses he received from the managers about when he tried to talk about his own experiences or that of other people he did receive a hostile work environment in response to this  race discrimination opposition both for himself and others race discrimination you know it wasn't performance oriented or employee level oriented or the type of job he was doing or his colleagues where area where he was working in other words to assume that he was yelled at or he was not assigned something or what his views were considered as consistent with almost anything and the question is is the whole picture both of what mr perkins was experiencing and what other people are experiencing that he has several witnesses that within the case know that he is kind of the voice opposing this type of conduct both to himself and to others in the workplace because of race and when we look at for instance calls of race gratuitously what we're seeing evidence with evidence in other words this brit treatment is one thing but you said you saw a white man had a black man but does that create racial discrimination it's the same pieces of evidence as emphasized by judge here and with regard to statements made to other people that are fac racial and for instance where you know the n word was used to miscarry would those things and he doesn't experience them and complain about well ultimately he was complaining about them from an earlier time even up from two thousand and twelve on continuously up to his constructive discharge at the end of two thousand and fourteen is that in between this time he is reporting on his his complaint that precedes is constructive discharge clearly identifies the frustrations in the physical harms he was having over and over again i mean he even includes within the complaint the statistics about the the in equities and the pay and progression system and then tied for other people but is also himself for instance the machine corner position was open and was not provided to him even though it was open and needed to be filled so with regard to i think you know i'm trying not to because i see your point we honor of that because you have to then focus on the treatment based on race as opposed to some other conditional qualifications or whatever and this man apparently was a good worker and risen to the highest level in his particular class and he looked like he was a guy that was interested in assuring that african americans were treated the same as white persons in the workplace that was his but it doesn't there's no evidence that there was retaliation because what he did it's not a fact no one said anything about his having to leave the company or threaten him and so that's the type of stuff in a hostile work environment causing constructive discharge the type of evidence you have to muster is totally different from a disparate impact and he says he has he doesn't have the same kind of evidence that ms ev had directly he has the same affidavits again does have good sense of language racial slurs no question but what evidence do you have that's on a par with in mr perkins case a par with the angela davis you know hairdo that kind of thing that you know overtly racial comments to supplement the rd party evidence coming from those af analogous direct evidence do you have been the perkins case goes to a hostile work environment i think it's mr nine mins response in how he describes mr perkins i mean i think that that it goes directly to the mindset of how he's being treated from the mindset of the leader who's in charge of the department so mr nyman is identifying mr perkins as someone who keeps things start up and he's frustrated for and against mr that matriculate step down from a leader through all of the managers to who are interacting with mr perkins as noted in the record mr perkins tried repeatedly to speak with his supervisors in to a black employee yes your honor and i think that that it goes more towards the circumstantial evidence aspect the one you just mentioned but again it's it's the totality picture here is that i think there's one piece of evidence that can be looked at localized only with regard to the workplace that mr perkins was experiencing i think you know his own words from why he was complaining and why he was leaving are the most evident of what he was experiencing mr perkins wasn't represented by counsel when he wrote that i didn't even meet him till about a year later at that point the things that he was saying in his hotline complaint were things that weren't just the st time he'd said it wasn't the it he tried over and over again to improve the workplace so that everybody regardless of their race and gender would be treated equally in the workplace and for instance you know i think one of the key pieces for instance a white male supervisor manager who didn't even have a high school degree mr taylor had a management position but yet mr perkins someone who has a degree highly qualified by all accounts was an excellent employee was told he was going to be promoted so those type of hostile work environment that's disparate treatment to for us to analyze that particular charge but a lot of almost everything you've said we would have to  see whether race was a causative factor whether there were other factors the qualifications the experience why the decision was made who the job of fulfilled by these these are all aspects that we don't have in the case and  we have both hostile work environment constructive discharge and disparate treatment claims here and i think it's very important from a procedural standpoint as i put forth is that the district court provided no analysis for why this dismissal occurred other than to the court i'm matthew gillie here on behalf of international paper company your honor is this this case reminds me a bit of a story told by one of my former law professors sorry one of my former law partners when he was before this court where he had made his argument was very proud of his argument but the one question that he got from the bench was will serve that's a wonderful argument but can you point me to one place in the record that supports anything that you just said sure enough he couldn't and knew that he was knew that he was doomed the plaintiffs the plaintiff's argument comes from the same perspective here there are innumerable allegations made but in terms of the actual support in the record he does does allow for the consideration of other people's experiences other people's experiences and things like that but we still have to consider in the term in terms of a hostile work environment cause of action or in a disparate treatment case if that is what is what is being brought here is that those those affidavits we have to look at them  less for the quantity which is what the plaintiff wants us to look for and more to their and more of their content and what they reveal to us i think the content is king is arguably pretty damning in terms of consistently use of the n word and  mr nyman just wouldn't talk to him and sensually just brushed off all black employees including him is there any evidence other evidence in the record that you think with support or arguably mean you're saying there's no evidence is there anything else that that we're missing here in terms of analysis i really don't think so your honor because whenever you look at the at the different things that  talked about he certainly satisfied is the subjective prongs of his hostile work environment and constructive discharge i mean that's that's that's pretty much a given in any sexual harassment or any sort of harassment or or constructive discharge case but moving beyond to get to the objective portion of the analysis is where he is clearly falling short for instance  allegation that his perception was that mr nyman ignored him and other black employees if you look at the map via vs baldhead island management case in that case a situation of outright it's possible if the record would actually support that the that had number want to curd and number two that it was that it was because mr mr perkins was black bunch of additional support is it the issue that i mean that's so if the issue is that's not in the record i think that's a problem because a plaintiff's testimony is evidence in the record but is that the issue that that even if except carter versus ball in terms of the way that the plaintiff in that case head objected to the way that his lieutenant was was treating him and giving giving him work assignments and additionally to go back to the record in this case there is testimony in the record from taft gamen who is a an african american supervisor in the finished products department who had worked with mr mr perkins for decades who testified that yes gary i'm and did have an unusual management style that caused the caused friction for both black and white employees in that white employees that also complained to mr gamen about his his his  management style similarly while patrick the director of human resources for the for the eastover mill also testified to a white employee coming to him and complaining about  and perhaps perceived to be an issue of race there is evidence on the record that states that know that both the individuals of two races were coming to both an african american and and and a white manager to to complain about this to complain about this style but to look at the un to look at the claims here of believe that the colloquy that you had with my colleague about the nature of exactly what the what the lawsuit here involves was a very it was a very instructive one because the the fact is the fact that we had pointed out in our brief note six on page seventeen that it's unclear in this case exactly what the claims are st of all do we have a separate hostile work environment claim or is the hostile work environment pled as a as predicate to the constructive discharge claim and also is there is there a disparate treatment claim here is that at the center of the case and is constructive discharge argued to supply affirm the the adverse employment action for the disparate for the disparate treatment claim it's really up in the air and it's and it's very confused and i think that the district court in this case did and did extremely good work in parsing through the record and parsing through the arguments and stating and stating that st of all there is no hostile work environment because the the actions on the record do not rise to the level of severity or pervasiveness particularly to judge keenan's point about about certain of the elements mentioned in the  in the affidavits there may have been racial slurs and there was evidence and there was testimony about that on on the record but in mr perkins as case it was clear that it was not directed at him and number two it was just something that he had heard about furthermore through the testimony of audrey bright and h r generalist at the mill in every single instance where something like that has occurred where there has been an overt racial and racial instance there has been punishment for and students a a an employee who had used a racial slur direct talking about african americans had been suspended for five days and if you look at the cronin versus south carolina department of corrections case from the district of south carolina one of the things that you have to look at in terms of from the employer's perspective is what did the employer do when those things that should not have happened actually happened did the employer sit there and do nothing or did the employer act when it when it learned about it in this case the the the evidence is very clear and it is undisputed that international paper learned of incidents they learned and they immediately knew that these incidents were not in keeping with their policies regarding equal employment opportunity and  sixty four dollars saying that these comments the n word were made without any repercussions on the employee and you're on or that is a the testimony that you just read was a was a conclusion re declaration as to that there were no specifics as to as to time place and what occurred to the undisputed that the international paper company took took immediate action in those situations constructive discharge is that is that we just have a situation of these or workplace disputes regarding some callup possibly callous behavior but don't describe the severe pervasive activity that you normally see finally in terms of retaliation here i think it's very important to point out as we did and as a reminder to what we have briefed that to the extent perkins engaged in any protective activity in this case it occurred after he left employment there has been some argument in the briefing that from from mr perkins that that that he actually left in november and fourteen when in fact his last day of work was august nd and he began his new job the following friday on august th he is he has attempted to argue in his briefing that he remained employed there in november  november st of that year however if you look at the green green versus brennan case it states that a constructive discharge occurs upon resignation and not upon effective date frankly we believe that even without that statement from from green versus brennan that we would win on that point but but it just further further emphasizes here the lack of causation on the retaliation angle and the only other conceivable protected activity was this  this issue of the my colleague pointed out earlier regarding the winder which happened to you about approximately two and a half years before he left his employment so even if there could conceivably be a constructive discharge in this matter to supply an adverse employment action for for retaliation case the two and a half year gap in between those two is just simply too much to to says to sustain according to the causing vs bay log case noting that a thirteen month interval is is going to be too far so at the end of the day your honour's this is a constructive discharge retaliation and possibly disparate treatment case where the record just is is severely deficient and does not and does not provide a genuine disput material fact where any reasonable jury could return a verdict for mr perkins on any of his claims and so therefore we ask that you affirm the district court's well reasoned and and and  and full adoption of the magister judge's report and recommendation in this case which is faithfully interpreted this circuits in the supreme court standards related all these claims the thank your art first i'd like to kind of start where i left off from previous previous presentation was with regard to the order itself is that the district court's order was was three pages and one paragraph cited to four cases as grounds for the severe pervasive dismissal and then the next part last paragraph was the basis for his finding that there was not the necessary refer to exactly and that's the all we can do is to rely on what the report recommendation is for the bases for dismissals and so i just want to distinguish st the disparate disparate treatment claim which is one of the claims involved in this case and as i've previously briefed the basis for dismissal they are now are from the magistrate judge was that a finding that the disparate treatment claims were all untimely which as i note here there's multiple that are within the three hundred a time frame specifically and i can identify you know for brevity purposes the ones as the denial of over time the denial of the machine coordinator position left bank vacant by  your views denial of opportunity to compete for management positions as a previously noted with regard to other white male managers who didn't even have a high school diploma but yet my client has a degree was told can advance to those management positions so that is the underlying disparate treatment claims that are timely and not the only bases for dismissal from the lower court is on timeliness it's not even even the substantive core of of the evidence here it's they were saying that all of the do treatment identities are dismissed on timeliness matters and the ones i just listed to you were within the three hundred dollars days from when my client submitted his charge of discrimination which was in december on december th two thousand and fourteen next i want to segue to the constructive discharge claim because i do think it's important to to see what was precipitating my client leaving  you know we look at the joint appendix one thousand and twenty seven it's actually notes from the mill manager when he met with mr perkins mr perkins talked about that he was leaving early that he felt  medical issues and it's starting to affect his marriage the department morale is an all time low minorities have no voices black people especially women are being discriminated against those are things that my client reported to the mill manager about the workplace and the fact of the matter is it wasn't the st time when we look back at the record from the h r zone investigations they noted that mr perkins had submitted e mails to to wh had not been responded to he was not being spoken to by the management these were all following his protected activities they didn't just happen when he's leaving though he's clear in his hot line complaint in his interview with the mill manager why he's leaving but these acts that precede it show that he was trying to essentially change the workplace how he was being treated and others because of discriminatory bases in the workplace next  know with regard to whether international paper did any action with regard to retaining mr perkins is that ultimately they don't make the same argument here that they he was leaving early because of the treatment he wasn't leaving to go to casa and so i think you know again we have to go kind of the macro back out as one of the burdens here is that this this isn't the trial this is is  paper entitled to judgment have as a matter of law because there's no issue or dispute of material fact it issue and there are disputed facts of the workplace that mr perkins was working in both of what he personally experienced  well as the ski kind of context of what was individuals and has protected a class experiencing in that same workplace in the same time thank you and i'm happy to answer any questions if you have any