first this morning which is of law the legal question here is whether the interactions of a costco customer were so objective lisa beer or pervasive that they rose to the level of creating a hostile work environment for one of those employees that this court has found to create a hostile work environment and so to find that this conduct on the whole rose to the level of creating hundreds of thousands of dollars of liability is a significant departure from the precedent in our circuit in determining whether in hostile work environment it is objectively severe or it were there and got a work environment is objectively severe or pervasive the court examines a number of factors for example the court examines the case that all of the conduct occurred in a retail environment environment where three thousand to thirty five hundred customers pass through the doors every day of course employees regardless of the industry in which they work are should be free from harassment but common sense tells us that contrary to the position taken by my opponent in a retail environment it is not reasonable to expect him for employees to expect to have freedom from the unwanted attention of strangers but this course of conduct that thompson the stalker was beyond just occasional unwelcome contact with and trying to date her and typing in the store and video recording her your honor in cases where this court has found stalking behavior to create a hostile work environment the facts in those cases bitch slut whore told her that he was going to take her outside and kick her ass and kill her of the fraser decision which was cited by the e e o c another case in which this court found stalking conduct to rise to the level of being severe that involved a coworker who would sit who would don't park his car next to the plate his car he gave her gifts and broke into her home and told her that you know he had to have her that they had to be together that's a far cry from the conduct that was involved here where there was no no threats no engagement by for interaction by this employee and this customer outside of the warehouse where in frasier for example the guy showed the  plaintiff on the mat where she lived and what else cases don't stand for the proposition that threats are necessary threats are not threats are not necessary but some conduct that is severe or pervasive it is necessary doesn't have to be explicitly threatening it does not have to be support it does not have to be explicitly threatening but it does have to be on the sort of down the egregious end of that spectrum of conduct like you know forcible intimate body contact necessarily it may or may not be pervasive it may or may not be severe but in our case the behavior is there's no there's no conduct or interaction by the user by these folks outside of the casa warehouse  o get a no contact and she got a no contact order your honor but that's not a finding of anything that's not a finding that mr thompson was engaged in stalking it's a prohibited and directive to him as to what kind of he can and cannot engage in in terms of like staying away from her and not contacting her but there isn't any any anything in the record that suggests that there's no stunt no the no contact order was pursuant to a finding by a judge that that mr thompson was in fact for that for a no contact order no stalking order stalking is a little bit of a loaded term yes should is what what what what is the conduct here what are the specifics that you think  should control whether or not this is stalking or not stalking or how would you define absolutely your honor well first stalking would involve some kind of interaction outside of the warehouse so that it's not the only interaction isn't circumstances that i think are absent where we're stalking a threat to kick someone's ass and kill them you just acknowledge that that's not necessary for liability stalking and you're also acknowledge that it's not necessary from liability that there be some stocking behavior it's outside the work place there doesn't have to be stalking behavior at all in order for a hostile work environment to to  court has found a hostile work environment in cases that didn't involve stalking but the question is does the conduct does it rise to the level of creating an abusive work environment and what we're saying here is that in a in a in a case where if you look tried to articulate and present evidence as to the number of times there was a confrontation or there was an interaction between a supper and mr thompson and you came up with a percentage of six point five percent of the time i think i recall correctly that she was working upon it and allison comparison of her shifts and his use of his card there was evidence though also at least an argument that he was there on dates when he would not have shown up on his membership card how how do you i mean wasn't there a basis here for a jury to conclude that in fact it was more pervasive than the six point five percent them had no interactions at all set aside the shopping history and her and her work schedule which we believe are are the best evidence of when they were they were in the store together that set off to the exciting both of them for example when she reported these behaviors to the police or to the e e o c her own notes indicate that they weren't having daily or weekly or even monthly contact and mr thompson's testimony at trial  bore out the same the same thing and so when someone is had not having daily or weekly or monthly conduct and they're saying months went by several months went by when they didn't have any interaction that does not reach the level of being a pervasive pervasive work environment and this court's decisions that involve the pervasive work environment the court speaks to daily or near daily interactions in hall for example it's talks about the harassment being the daily experience of the plaintiff that's not what occurred here by either mr thompson's account or miss up those account and when that's combined with the fact that it's not that it's that it's not that it's not pervasive when combined to the fact that setting side the the dispute over the shop history and the in the work schedule there still isn't evidence that this was pervasive conduct by mr thompson directed at miscible it's not and the court's examination of the context in the pervasiveness we believe that this conduct it's it's not severe it doesn't show pervasiveness certainly not as the court has defined those standards to be and for that reason we believe that the court should reverse the jury award reversed the jury award set aside its appears that much of your argument and evidence in front of the jury bore on miss circumstances from the standpoint of an objective person not a hypersensitive person and that was the point that was made in the prior cases this course prior decision and the evidence at trial put both from miss oppose  severe that's correct your honor and our and we're here because sometimes juries don't get it right and we realize that this court doesn't take jury verdicts lightly we understand that it doesn't set them aside routinely situation that hold holds here the this court has and the supreme court has consistently stated that the statute title seven is not a general civility code that it isn't intended to reach conduct that is merely annoying or offending that it has to be conduct that rises to the level of being severe and we believe that that standard was not met in this particular case turning for a moment to the e e o c is cross appeal your honour's we believe that the cross appeal should be denied for basically for three reasons first the issue of last pay your honour's was part of the claim as a motion for back pay and have sort of are trying to backdoor the dismissal of the claim of their of their own of the only discharge theory they pressed in the litigation it is precisely what this court refused to allow in said no you can't you can't do that hurts our didn't have anything to do with the claim for back pay for unpaid medical leave necessitated by the offensive and pervasive conduct it it did not involve a medical leave it involved a  and that's that's the more limited scope of the e e o c backpay request here the agency is not requesting a back pay award for constructive discharge the agency is asking for a limited back pay award for the period of time that s spent unpaid medical leave with with all due respect i don't believe that's the case you are the e e o c they filed the complaint they allege that all was the original claim but that's gone with the summary judgment not before us what's before us is the district courts to niall of the more limited act a remedy which is an equitable remedy and that man's viable to the extent the towns and permits it to the extent that to the extent the towns and permits it but your honor they're asserting lost pay from the period she goes out on leave to the period she's able to go back to work in december of two thousand and fourteen she was terminated in november of two thousand and twelve and so the e e o c is seeking back pay beyond the period that she was on leave they want that plus the back pay unless i'm misunderstanding their claim the they want to they want the period of the leave and the period after the terminations we say hertzberg stands very clearly for the proposition that unless you prove a unlawful discharge you're not entitled to back pay for that period following or a constructive discharge but you may be entitled to a more limited back pay award for time spent on would allow misako back pay from the period that she went on leave to the period that she's terminated in november of two thousand and twelve the problem with that period is they have a causation problem there isn't evidence sufficient to determine that cosco caused the last pay that missed suppose suffered from september of two thousand and eleven to the time that she was terminated at and over in november of two thousand and twelve plus she was on one pain medical leave as a consequence isn't that clear from the record the jury made no determination as to the cause of miss supposed inability to return to work they made a determination that she was entitled to compensatory damages resulting from the harassment but the jury did not was not presented with any evidence and in fact was instructed not to not to consider any evidence regarding miss suckles terminations because that was that was out of the case own medical providers testified that there were any number of causes for her inability to return to work that had nothing to do with cosco and so the the for the for the period that they could conceptually recover re they have a causation problem and for the period after her turn nation they have a purpose for a problem because for it's very very clearly says in the absence of proof of a of an unlawful discharge which there is no there is no proof of an unlawful discharge here  and you know in this case that question wasn't submitted to the it wasn't what wasn't offered to the judge was it submitted to the jury that the fact question of whether whether costco was the cause was not a question and i think  c conceive this in their in their reply brief there was no determination of causation by the jury or by or by the court what was the what was the the the terminations wrongful termination claim that  dismiss what was the date of the alleged constructive discharge was it the day she went out on medical leave yes oh so according to their center he does so he found that the medical leave or the leaving her absence from work after that time was not caused by i mean was that his summary judgment ruling what he said what he found was then they were arguing that the entire from the time she went out let's stop coming back to work until the time she was she was until the summer of two thousand and fourteen they were called i mean the time she was terminated november two thousand and twelve they were calling that whole denied unless no rational jury could have concluded that experienced a hostile work environment in employment discrimination cases like this one and this court has emphasized that it's particularly important to avoid  supplanting the jury's view of witness credibility and the weight of the evidence and the district court's decision not to set aside the verdicts because the nature of evidence in employment discrimination cases is that circumstantial evidence is severe or pervasive and it could have altered i suppose work conditions a hostile work environment occurs along a continuum and there is an inverse relationship between severity and pervasiveness so as events are more which you can see that the pervasiveness of this behavior is short what are other cases have held to be a hostile work environment no your honor i think that there are a few cases that are very close in terms of the pervasiveness in this case council for costco mentioned harbor city of chicago and we think that case is actually very helpful here that actually involved one incident physical contact b supervisor in a few attempts to bump into the employee there's nothing sexual in that case and not case this court emphasized that it was important to look at the  pointed out that sometimes work consists of busy work here it's not quite so in big us thompson made advances towards he for example videotaped her from afar there reduce the claim of pervasiveness well i don't think it does in this case because we can test that supposed testimony establish that they point to thompson's testimony that months passed but the jury could have chosen to just believe him i think what they're referring to is this is on page twenty one a note fifteen of their response reply brief and they know that there's a police report in september tw has that the officer who wrote this says misako noted that she hadn't seen him in a few months but the thing is that is actually hearsay because said she has the right past and yes but a trial you know if the months long thing didn't that she that was noted in the police report perhaps inaccurately didn't capture her testimony or her sense of how often she actually encountered thomas and what did she say a child this age using the word constant all she said for example that he constantly asked her where she was from he asked her age over and over although she told him she wouldn't respond he still a her he tried to give her his number multiple times and i'm talking about how many days and how many oh yes was she saying he was a daily shopper is he saying when he was in the store he was constantly badgering me so that could mean different she used language such as multiple times constant questions to indicate that no she didn't always remember exact details about when some of these interactions happened although she did testify i think costco counts that out and i am looking at page twenty two of their response or play replay acknowledge nineteen incidents that she described in detail but other than that the testimony about other frequent contact even though it was less specific the jury still could determined the bat establish a pervasive environment is this court pointed out in day versus call construction which had a similar pattern i believe the employee there remembered five incidents in detail and  recalled other frequent contact the court said that she wasn't required to recall with specificity all of those all of those other incidents to establish a pervasive environment and this course of conduct went on for about a year or a little over a year before cosco removed thompson's membership or revoked his membership or told him to shop if a different story right well his membership wasn't revoked for some time so what really matters is not how not so much did they see each other every day but since she's a part time employee what matters is was his behavior altering her work conditions when she was at the store but just to finish that prior thought it started around two thousand and ten and then the videotape incident is in september two thousand and eleven and so that's about fifteen months his membership isn't revoked until after until february stock no contact order and then not immediately but sometime after that a couple months after i believe it was and november sorry it was maybe october they directed him to stop at the  told her about that in november and i could just add one more thing about the stocking no contact order so comes up or costco said that there was no feinstein regarding that stocking had occurred when that order was issue but actually the illinois law that authorizes the issuance of such orders and that seven forty i o c asked twenty one slash a specifies an order issues if there has been a finding stocking which makes sense r was given notice it appeared at the hearing but by that time so that was after the videotape that she got parents and then the was the final hearing after the incident that led to his removal as a member was before the store incident that led to his removal and he actually was in violation of permanent order at that time because he walked after her and was required to stay a certain distance away from her and in fact wasn't it after she got the order that he was told not to come to the store where she was employed anymore i know that she had the temporary order and and in terms of exactly when she received the permanent order and when and cosco asked him to go to the matal restore i'm not certain of the exact order it was around the same time but cosco knew that there was a temporary order and that she had gone to the police again at that stage counsel it be your position that a finding of stocking and the ability to secure either a temporary or permanent no contact order because a stalking behavior would necessarily establish a pervasive pervasive harassment and a hostile work environment well i don't i don't think i would say that that's per se true because obviously you know there is a different standard under illinois law versus title pervasive or purely severe as long as the environment subjectively hostile and falls on that continuum and that's enough because you can obtain under illinois law and you can establish stopping at the no contact order with just one or two instances right that would show stalking behavior yes i think that's correct your honor i believe that's right so i think that's true that it wouldn't necessarily be a per se violation of title seven but it you know again our position is that in this case there was sufficient pervasiveness and also that his conduct was quite serious i think you know again cust go to downplay the serious nature of thompson's con one of the more severe types of harassment so that of course acknowledge is bad that harassment can occur even if the touching is not of intimate body parts and i just like to emphasize that thompson was a with his body and with his carts and that was beyond the context that an employee would reasonably expect from a customer who was a stranger to her i don't think that our position here were wires a conclusion and that i know that any type of coworker i see could speak customer harassment is heightened it's important to look at the details here again and that he touched her without her permission and without her consent after she'd rebuffed him and even after she had gone to the police and complained about his contacts to cosco management that i think really sets  something on our feel on the back pay issue in this case our view is that same versus indiana university excuse me is this back pay in a situation like this one where  in the proposed final pretrial order which is record one ninety four this is at page forty two of the statement of damages that says the e e o c is seeking back pay damages from september one twenty love until december thirty first twenty fourteen in forty six around forty six thousand dollars to be determined by the court so this is not a new claim a new request that the e e o c advanced only after trial it's memorialized in the pretrial order but that period in compass is a long period of time after she was her employment was terminated and you have a legal justification for that towns and dozens more that well  clarified to respond to some of your question and to counsel for cosco i can clarify the scope of what we think is would be the back pay range so the town's the period that's clearly authorized towns and is that period after misako goes and medical do you and it's our position that there's direct causation now she's terminated about a year after that but that is because those policy provides that she would be terminated after more than twelve months of medical leave and so there is still a cause a link it's still  period you've got to prove a constructive discharge and that claim was caught summary judgment to science or stand it so what you're limited to is a back pain a warrant for the period of time she was on medical leave while she was still we really are only asking this court to decide the threshold question and and you know see the person to back pay not to determine whether there's causation because that seems like a question for e mail and but as to the jury's verdict a few things distress was significant and that her medical treatment was justified they order two hundred thousand and emotional distress in fifty thousand in medical treatment and that the district court will make its own would make its own determination but is this court emphasized and pals versus chapal the district court should take that into account when making the backpay determination i think that medical treatment  award is important because it shows that the jury thought that ms supple was actually incapacitated during a certain period of time and maybe there is some debate over how long was that period of time and you know the two parties disagree as to the question about whether there were other factors that might have played isn't that part of isn't that exactly what you  seeking in your in your constructive discharge claimed all the same damage as well we did see and when they went why don't you appealed the trial judge's denial or granting of summary judgment on the the wrongful disturb the constructive discharge claim if those are the damages that were based upon that well that's true that we would have sought although we didn't reach that stage but we would have likely sought backpay on the constructive just charged claim i don't think this is i don't think this is a way to get appropriate and thank you very much your honour's right thank you no question that they are severely lost pay the only construct the only just charge theory they pressed was constructed discharge it was dismissed at summary judgment and they did not appeal the denial of that of that of that water but also needs to determine whether or not it has but it is you know i was there for the trial your honor and there wasn't any evidence about cosco being the cause of the last pay so for to ask the district court to determine that now seems like there seems to that seems to be problematic  everyone was laboring under the impression that it was kind of an all or nothing proposition as opposed to this my limited at that level remedy and amended statute does preserve the equitable remedies that existed of this this conduct by mr thompson asking mr parker and asking her age it simply doesn't compare you know even bumping into her she says constant but when you look at the testimony she says constantly trying to make her business card that's one or three times well that's