sexually harassed by an artisan store manager by the name of mark don and she also alleges that she was subsequently retaliated against after she filed her complaint of sexual harassment against mr  harassment complaint against mark don this case was tragic jury in the western district of kentucky and the jury returned a verdict in favor of mr perry on her claim of sexual harassment and retaliation and in favor of mr quinn to mr harper on their has raised numerous points in its appellate brief but i hope in my time this morning with e that i can address three of those the first honest and ask this court to set aside the jury verdict in grant autism's judgment as a matter of law with respect to m sexual harassment claim based on the application of the farragher ehlers doctrine in this case second on his and asked this court to set aside the jury verdict in grant autism's judgment as a matter of law with respect to mr per claim of retaliatory harassment because the evidence of record even viewed in the light most favorable to ms perry does not satisfy the criteria set forth by the supreme court in university of texas southwest medical center sure you are and two points first is but for causation means that but for the fact that she engaged in a protected conduct she would not have been subjected to the alleged retaliatory harassment and here the evidence showed her allegations of harassment were that her supervisor asked her to do an action plan that he spoke to her like a child then call the store numerous times during the day to check up on her and all of that activity in new york her  was designed because she was under performing and she admitted she was underperforming and that armed her performance had been noted prior to her complaint of sexual harassment so that conduct began before the complaint and about mr house trance conduct before the harassment and bore for her complaint and after her complaint and we have the store manager who was in place before the election last or who worked on her die helstone tell the jury about what mr holster and conduct was like then before the harassment and before the complaint and he talked about how mr helstone called the store hundreds of times a day and he himself didn't buy the tone of voice that mr holster knees  way that while it's response could reach one conclusion and we think the evidence is overwhelmingly that the that reasonable minds could reach but one conclusion and that is that she was not harassed that there was not but for causation because clearly there was causation other than her caught the other than the complaint clearly there was causation in that the evidence showed she was under performing so there wasn't a sole cause it would have been a new group forming admittedly underperforming reasonable and there was a lot of evidence on that point your honor which was while we thought the verdict was it was against the weight of the evidence and so we asked the court to look at that evidence and review it to show again remember khorassan is not only subjective but objective and so from a reasonable perspective with all the evidence that we presented you know it might be one thing if we had her testimony and we had only mr hellstrom testimony but we had others who could relate to the jury their observations of his conduct both before the complaint harassment and after and we thought that was credible and evidence that i'm sure that objectively the conduct that she was subjected to was was not any different than what others were subjected to or that she had been experiencing prior to her complaint and again and again we focus on the but for causation meaning that the sole reason that she was subjected to that scrutiny would be her at trial was sufficient to establish a hostile work environment in the first place but the court may not really even reach that conclusion because we think the application of the figure ehlers doctrine clearly here and prevents liability for autism in this case and as the court is well of the steps that are necessary to establish the fair girl of doctrine the first being that the employer must show that it exercised reasonable care to prevent harassment in the workplace and that it promptly addressed it when it did occur and on this point there was at not him heaven it's a trial about autism's harassment policy in fact i think the jury we could have decided it to us as much as we had talked about the harassment policy so certainly there was evidence that autism had a harassment policy in place during her employment she knew it existed she had training on it there was testimony at trial about the training on autism and harassment policy there was testimony by every employee that they understood they had an obligation to report harassment and every witness testify that they understood that there were numerous avenues for reporting so it wasn't a single avenue there were not a number of avenues including a one hundred number and  amount of time maybe she did didn't yet get around to reporting it what's that what was the employer's requirement with respect to reporting your understand is only a few weeks and she maybe hadn't yet reported back and while certainly that is what happened so it was three weeks before from the first incident to the time she reported it and the policy clearly says that the kind of violations of the of the policy should we be reported immediately and it doesn't happen again for a while you hope after what you said in response to the incident that it's going to stop and then when it started up again couple weeks later it really started back up with a vengeance that was her testimony on that and so at that point she should have reported right if you're not going to report the first time because you want to hope that you have resolved it yourself then when it has not resolved you should then report it because it's serious it's very serious conduct and that first incident was very serious conduct and she testified it was serious conduct and that being the case if you find that what she was subjected to was a series of holes filled me with what happened so it started back up which would have been around the first week of july she then reported it to human resources on july twenty sixth or if you credit her testimony july twenty third difference of maybe three days there so there were was a period of approximately three weeks where there was no reporting and she admits that and her testimony is that she was trying to resolve it herself but that isn't what autism policy requires every quires that you report is serious violation and so the issue that this raises it is the both remind me that the defense is  conclusion that it was not unreasonable for her to wait a couple of weeks to see how resolved but in this case the evidence shows that once she reported there was an immediate investigation and he was terminated within ten days eleven days so in that case you've got a situation then where you have the employee acting reasonably and reporting and you've got the employer responding reasonably and investigating and in the harassment and in those cases we cited to the court to several cases where the courts have said in that circumstance you can't find the employer liable because both parties did what they were supposed to do in both parties satisfy their obligations under title seven and so there been courts that have said we're not going to impose liability on the employer what everybody does what they're supposed to do under title seven and if you look on your hours even the six circuit in a similar case while not talking about the terms that we just did absolutely apply the fairgoer case where a defense where plaintiff didn't report an incident after only a couple of days and there said hey a couple days is a reasonable employer is not liable but we did rely heavily on the index first is framing case which comes out of the fifth circuit which has a great analysis about why in a case like this when both parties do what they're supposed to do then title seven is satisfied and in that case you can't impose liability on the employer because that would be contrary to the purpose of title seven hours i believe i'm out of time so i'll turn the corner podium over to accuse you counsel thank you for your hi i'm maria faulkner and i represent shannon perry damon harper and me in this action and i just want to jump right into what we were just talking about and that would be the fair growth allert defense and auto zones request pronged analysis one is that the employer has to show that they took reasonable measures to correct and protect against the harasser and the second prong is that they have to show that a person like shana perry was acting unreasonably and not availing herself of methods by which to stop the harassment it is in and today years she had never made a complaint before she was a manager in that store auto zone brings in a brand new man store manager he didn't even finish his training before they brought him in pe shows up one day and she tries to deal with who they brought in she has always handled things on her own she was a single mother she had raised her children by working at auto zone and all of the sudden there's this person that are that sane things that are says completely inappropriate she tells them to stop she tells him to leave her alone she does those things thinking that anybody that autozone want to broaden would understand that they need not harass me this way and what happened was that she was written up she was disciplined she was put on a performance improvement plan on july thirteenth she was threatened with demotion by this new store manager who had been there last i think maybe two weeks at that time and she associated all of her pleading for him to stop to leave her alone as he saying yeah you comply with my sexual advances are going to lose your job so here's a single mother twelve years and  don't i don't mean to smirk but the very idea that a policy that supposedly was given to her in one nine hundred ninety seven in two thousand and ten that she understood she said that there was never any training on it and person training not only did she say that but when he said that damon harper said that and then on top of that auto claims that there is some type of meat media reporting requirement when the testimony at trial was very clear that managers have discretion to report there is no where in in the policy that says that a person that's been harassed has to immediately mediately report and even if it did the standard is not auto zone's policy the standard is the law and i fel three week period of time maybe and the harassment was severe in the middle of that period of time that three weeks she is disciplined by this the company jump to attention on eventually fire the fellow well and i disagree with that so i ran out the trial mrs perry clearly reported the sexual harassment on july twenty third out of his own refuses to admit that we're both leaders seem to admit three days later no you didn't rule it's significant to me because they delete their very policy says that are they claim that they have a policy that says that zero tolerance they have zero tolerance for sexual harassment but they leave the harasser the person who they just brought in who they should have no affinity to they leave him at that store their policy says hey we're not going to put up with harassment we're not going to allow someone that harasses does they around with the facts correct because we are told by wolf goldberg but this was very close to immediately even if you disagree with which day he tells us that then twenty third through i think the first time that they even talked to mark the hon was august fourth and they leave him in that position in my mind that's not immediate i don't think that in anybody's reasonable mind that from july twenty third to august fourth would be an immediate action by ottawa's them i think that they  fail yes i don't have a go it's a it's about to be at about two weeks they fire him with and they fire him fourteen days later so that's two weeks and i do not believe that that's immediate based on the allegations that she's making about this man it's pretty swift in a corporate structure is i don't know i think it is kind of the jury heard it in the jury did not believe that it was swift enough and i think that that is that is what we have to look here jury heard all of this evidence they heard every single bit of testimony from witnesses they review documents and that jury reasonably decided that autozone did not meet bill goldberg was clear that witnesses testified that hell stern always called and was abusive to his employees perry said he did not one time call and talk to her prior to her complaint not one time he basically ignored her the time that she complained he started calling her almost immediately three four times a day he decides that she needs to be written up for her complaint he gives her a discipline here her jurisdiction i'm  year of two thousand so not years in years much while its economic i don't know nine nine months i think at that point and he didn't call her he didn't harass her about anything th store the commercial store itself which she was in charge of had been underperforming for a very long time it is in a very urban area of level not a lot of commercial things around that section of town and this was not anything new to autos and the under performing of that commercial department was under nothing more if you're talking about the store under performing store and move goldberg talking about and under performing well that she was the commercial department she was the only i think the only person within what was it was the under performance regarding the production of the store just in the commercial department and she was the commercial department she was the commercial department manager what are we talking about say what are we talking about yes commercial let's say that a auto body shop would call into auto zone i and order parts for repairing of cars and there just weren't a lot of those type of shops around that particular auto zone store so and she couldn't go out and get you know the commercial from going to and robbing other autos and stores of their commercial department so and the fact the fact of that is nothing changed nothing changed between the performance of that commercial department before and after the complaint it was always that way and seanna perry testified in the jury had the right to believe her that he did not call me he did not harassment and that's that's important  and the jury had the right to believe that it was very credible testimony the people that testified that he called and the talked to them saving event is the argued to be what was her complaint it brandenburg about the sexual harassment complaint and hell stern is given information about how to terminate don how to terminate my client's quiney and harper and he responds back well what if what if any for shawn why not schama so it says directly what if any for shauna and he try throughout hell stern tried throughout the trial to say i don't know there was a sexual harassment complaint and then jerry did not like the fact that he lot about that there was an e mail that showed that he knew and then all of this harassment start and the people that testified to him headley he was a store manager he was not a commercial department manager he testified that hellstrom would call him there was also an individual by the name and jacob  and so on a pair he was not a store manager there was a store manager level there was assistant store manager there was a commercial manager and a park sales manager and basically headley said he never went down th chain it stopped with the store manager and that he was there before the complaint took place so he wasn't even around to know how seana perry was treated by holster after the fact investigation and basically giving credence to seanna perry's complaint of sexual harassment autozone claims that they were terminated for a failure to report inappropriate behaviors however there is no policy of autozone that says that you can be terminated for failing to report inappropriate behaviors are that you have to report inappropriate behaviors and  supervisors have discretion they have discretion to and to look at complaints are concerned and decide whether or not those are serious enough to be reported and the testimony was very clear throughout the trial arab the case that this policy gave discretion to people like my clients darryl quiney damon harper who were managers to use their have it both ways but this was a horrible harassment that these gentlemen observed yet they did a fine job in exercising their discretion while what i they didn't see very solich two or three things that they said was inappropriate it wasn't until don brandenburg brought them in and talked to them that made them believe that  it was something more when they got the whole story and in fact shannon perry i'm sorry thank of my last few minutes i can pick up on that last issue with respect to the claims of mr harper mr clooney as i did not have an opportunity to address those initially and you are you're correct there is a policy that requires these individuals to report and that policy is the harassment policy and it specifically says we know you know we if everything's a little different when we hear from your opponent this w them throughout the trial and it clearly says and autism has an obligation to be policy that is in place and no one talks about for years at a time is a different story is it not sure but your honor that's not the evidence that was presenting like who both were looking right your honor even in this perry's case where she says she didn't know about the policy wasn't trained on it there were documents in her file that said she had training that she signed you know i can understand as zero tolerance policy against and harass or but this was apparently a zero tolerance policy against the person being harassed and anybody who supported what she had to say i mean you would think under normal circumstances if there was a duty on these coworkers to report that they would be disciplined somehow that something would go into their files but to fire them for failing to report what somebody had done to a coworker and not to them i mean that seems a little bit out of the i mean the jury must have thought that was pretty harsh ms goldberg clearly clearly they did but about fire everybody that participated grover gens was an employee who participated in support of her claims and they didn't fire him but what did what reason did they give for firing the two coworkers they were managers and they should have known better and they both testified that what they saw i saw you demote them you you suspend them without pay for a week but you fire them for not the evidence at trial from the autism witnesses was that autozone does not tolerate a failure to report rassmann that is how serious it takes this policy and rightly so because of the exposure that it creates for them with people that you've answered my question thank you our thank you for your time today