cannot maintain an a t a i title seven retaliation claim in the same lawsuit because of the but for causation standard which which prohibited that i'm going to start with a sexual harassment claim because that's the claim where everything else flows from miss jones employed it all state and she was supervised by mr johnson mr johnson was the only harasser she faced at all state and mr johnson h of time problem we have if that's what the district court ruled is that we could not continue with you can't miss jones went out on f mily in december january time period came back in march mr jo johnson continued to come around her to come to her desk to actually look over her cubicle just stare at her deliver out of her minutes she would have to get her then supervisor to have him move she felt uncomfortable running into him but just the fact that they all state transferred johnson after what i'll call the first and sort of more gruesome set of circumstances does the fact that they transferred him after that break the chain that stopped in the staring i don't think so because the staring he would do that also it was something he would do to her also during the first part he was still a supervisor at the transfer and did not stop anything they did not call him about his interactions with her they did not do anything to prevent to make him leave her alone he was still continuing you know here i am i'm looking at you you know it's the same it's only staring right it's only staring at that point which ca talks about sexual harassment about only staring after it because i'm worried about that this summer two thousand and eleven we carry on like that this trick judge where they say staring is sufficient  these horrible comments who is texting or things who was touching her inappropriately whenever he would get her alone it's the same environment is the same actions you know they may have taken a different form but is still the same sexual harassment i'm a supervisor here i've been here forever he had even told her he had had he had complaints of harassment against him before but he was still there and he said he was using as a as a way to show her that you could overcome your circumstances or bad things happening to you there but at the time they transferred him she had not yet made a complaint of sexual harassment percent right she had made these sort of vague allegations about profanity and managerial style so why wouldn't the transfer there be a reasonable response to what allstate knew about that situation because it did not move him out of her area he was still there he was still there every day she was reporting to the same area he was was supervising the same groups of people that she was it's a rotating system of supervisors and i guess i sort of get it if they knew everything that you and i know now rush is disturbing to say the least if they knew everything that we know now that would seem to be an insufficient response but given what they knew managerial style for fantasy why isn't kind of the transfer even not off the floor said well if they knew more there have been two previous complaints against mr johnson similar allegations that he had was doing these things to women it under his supervision that mr prime who was the manager knew about he had been involved in the investigation before he knew there had been allegations but they have found those not to be substantiated is that right they have they're found them not credible they have been substantiated curiously they were not credible because two women told similar stories and so they didn't believe them because their stories were too similar and so they both had said that he had requested sex from them and so when mr jones goes and and she's talking to m what's put you on paper to another supervisor you'll be in the same area you'll be over on him all the time no physical moving of workstation of all go if the site is a large she may have moved chairs but it was still just one big large room a call center could she broke down a couple times with the female supervisor telling her you know that he was making these remarks he was cussing he was using profanity he was you know making her feel uncomfortable but never went further into that and never went any further then she went to mr prime who had knowledge of mr johnson's previous actions and so they never nobody ever went further into that when she comes back he's still doing it she's complaining to mr head her supervisor then she eventually sends an e mail out laying this out he still they are doing the same stuff after she says the e mail you know there's an investigation that goes on for a week or two and she still they are running into him he still coming in staring at her nothing is done to stop whether she diligently pursued the remedies available to him or and and i'm isn't it at least in diggity of of all states response that they when she finally made like when she sort of have been gone when i had it just a curiosity question i'm not really sure it matters but did i read correctly in the record that in the text exchanges they had his his messages but not her respons i ask you a quick question before you get started because i know that sort of the interesting question here one of the interesting questions and i think you're in a position to answer this but don't all of these retaliation claims require an adverse employment action and if there is no adverse employment action then has all of this very interesting stuff about where the cause of action resides and whether mixed motive in a regulation is sufficient post nasser and gross does all that to sort of melt away i'll restrict myself to the f m l a itself because i put it's not really in my lane to comment on the other statutes i'm fairly certain that there is an adverse employment action which my understanding is in this case the allegation is that it was a constructive just charge although i'll leave that to  but but my that's my understanding and so there are two principle reasons why this court should join the second third and six circuits and hold that gross and nasser do not control this case the first being the text of the statutes and the second being the application of reaffirm what is state only two years ago in insert ten enjoy in the first second and third circuits in conclusively holding that a one to twenty six fifteen a one is the source of this prohibition the reason a one best encompasses this prohibition is  first of all that neither of the two explicit anti retaliation provisions in a two or b is on point so they address opposing unlawful practices and participating in proceedings and inquiries neither of which is actually exercising the substantive rights under the f a in contrast on the other hand we have the broad prohibition against interference with f m l a rights in a one which can be understood to include a prohibition against retaliation indeed the second circuit in would recognize that such a prohibition fits comfortably under the thumb l a so assuming you're right about a one talked to us about nascar and gross sure so there's again as i mentioned two reasons why nasser and gross are distinguishable the first is the language of the statute nasser and gross of course both involve similar to a one requires but for causation in light of nasser and gross here what we have the language that we have an a one is broad languages and i interference language that's very different broader language doesn't clean include any language of causation certainly let alone but for causation as the second and third circuits we believe correctly held in woods and egan that that is actually created a gap and indicated that congress delegated a gap filling function to the department of labor under chevron so what's the what's  the best response to this i guess difficult piece of language in nasser i think for you were they say but for as the background rule an absent an indication of the contre in the statute itself that  rule i think i think the way one can read nasser and gross is that first of all that that's the case if you have a causation regime in the statute if you have essentially a cause and effect in the statute in and by default if you have essentially a cause and effect congress is assuming that we're talking about is but for causation here in a one we have this broad prohibition against interference there is no causation language and so that's something where the department understood the and interpreted using a notice in common regulation that segregated retaliation and so it was a reason as long as its interpretation is reasonable the department was entitled to figure out what level of causation the other response they would give to that is and this we feel is really a very critical distinction that that engrossed itself the supreme court distinguished the case of an r v versus transportation management corporation on the basis that that was a case involving chevron deference that was a case involving the n r a the national labor relations act which actually the provision there is an anti interference provision that's very very similar station is reasonable and again i think i think the other another distinction we would make between that the facts of nasser and gross and this case are that now that the statute or nasser engross the statute that issue nasser and gross were both enacted as part of those they were both at least amended as part of  seven retaliation and a then it's reasonable to assume that it didn't want to apply mixed motives to those others who on the other hand this is a completely different statutes it was an act it's two years later and i think congress you know congress couldn't be expected to specify mix motive in the f m l a or it would not be reasonable to simply say well because they included makes motive in a completely different statute passed two years prior they needed to include here as well my place the court your honors charles powell for all state judge newsom i believe you're absolutely correct they are the f m l i argument as to textual structure and burden of proof i think i great law school question it's a great intellectual question i personally believe the department of labor is wrong but i don't think it matters in this case the only adverse action for purposes of the f an ally or the  retaliation claims is an alleged constructive discharge this this circuit has a long history of the level of severity of conduct that is necessary to establish a constructive discharge factually in this case ms jones cannot meet that standard under any test the timing of issues here is as as the questions to mr jenner earlier indicated the agree just conduct that is alleged to have been perpetrated by m johnson seized in two thousand and eleven factually although ms jones likes to gloss over this in her brief she worked for two days in two thousand and twelve before mr johnson was terminated she wrote a letter finally and i paroled during which she disclosed information she worked two days and in her deposition testimony in the record indicated that the harassment by mr johnson seized when he ceased being her supervisor beyond that she took off most of my all of june on short term disability leave in the majority of the month of july she did not resign until september of two thousand and twelve so the bad conduct constructive discharge quite so in the absence of her ability to prove a constructive discharge which the district court found at summary judgment the this issue with the f in that way makes no difference in the outcome of the case whether is a motivating factor or a but for standard does not matter the idea in title seven retaliation claims which clearly have but for standards now in light of supreme court president also don't matter because she cannot prove a construct discharge so as the only adverse action for her f m l a climbing or a da claiming her title seven retaliation claim all of those claims were properly dismissed because there is no there's the evidence does not support and i had bar section on the sexual harassment client the sequence of events is clear all of the allegedly bad acts and the allegations are atrocious occurred in two thousand and eleven it undisputed that all state had a policy that said either complain to your supervisor and if that is not possible go to shuman resources ms jones admitted in her testimony she knew allstate had a human resources department and there was a local human resources person who was available to her in december of two thousand and eleven she admits she did not disclose details of mr johnson's conduct while he was her supervisor she gave a very vague description on the basis of that description the company transferred her to a different supervisor and then we have a four month gap part of which she's on f m l i lave which is why there is no underlying interference client because she got more than twelve weeks of labor and then maybe she works today during which the company is finally investigating a proper report of sexual harassment and at the conclusion of which the company did what they had told mr johnson they would do to him following a complaint in two thousand and nine and that is at its undisputed in the record mr prime testified that what mr johnson was told after the second unsubstantiated allegation is if there's ever another complaint against you you will be discharged which is exactly what a car when ms jones in fact utilized the correct procedure and under madura and other cases from the eleventh circuit if there's a specified procedure the employee must follow it otherwise there's no basis for a notice to the company so to address the fairer question that was posed our  earlier the company has a policy the policy includes a very specific mechanism for how she was to comply and she admittedly did not invoke that procedure at any point while mr johnson was her supervisor she was then transferred which we believe the district court correctly found under morgan constituted an intervening act that severs the supervisory harassment period in two thousand and eleven from the alleged instances of staring as a coworker in two thousand and twelve now it is clear that coworker harassment and supervisory harassment are subject to two different standards of proof if it were a supervisory case there would be an affirmative defense on all state we believe we have met that because ms jones who admittedly while mr johnson was her supervisor did not follow the policy and did not disclose the nature of his complaint she did not avail herself of the policy and we believe all of those actions are time barred the supervisor or the co worker harassment in two thousand and twelve is completely insufficient to establish or climbing and even if you lump it in together and treat all of it is coworker harassment including the untimely events in two thousand and eleven there was no actual knowledge to the company and there was no reason the company should know specifically what she claims mr johnson was doing because the record evidence from her deposition is she does not recall whether she was specifically asked to disclose the details and mr prime testified on equivocally in his deposition that he asked her for details and she refused it is absolutely clear by ms jones own admission though your honour's that she did not provide details of mr johnson's two thousand and eleven conduct so she didn't put all state on notice until she wrote a note in late april of two thousand and twelve which resulted in the investigation and mr johnson's discharged so on that basis we believe the district court correctly found not only that all of the two thousand and eleven conduct was on timely and the separate the intervening act of the transfer severed that link but the judge went on to analyze it under both a farragher allare thing and they knew or should have known coworker standard found she couldn't meet either of those and we believe that decision was correct  happy to address the yes so on the assumption of the risk from your perspective that you might be wrong about adverse employment action let's talk about the law school question i guess let's talk about mean i'm happy to  do you you don't deny i i assume that somewhere in the f m l a or its implementing regulations there is a cause of action for retaliation no your honor i do not dispute that and so it just seems to me i think at least i think i think is that the the this the clearer statutory home for it is a one because aid to take the department's point that a two and b one i think it is a two and b they both seem to be addressing one of them so he seems to be addressing litigation or advocacy and one of them seems to be addressing participation in a call and a complaint procedure and so it seems like if retaliation is going to land anywhere it's going to landan in the interference prong and isn't that what we said in sorting it i believe that was dick to insert tang and this specific issue i don't believe had been has been brought to the court i now know there are recent cases that have accepted the department of labor's position but i submit that i believe those cases are incorrectly decided and i do not believe the statute in fact has the gap that the department of labor says of ports its authority to develop a regulation and i will tell you wh it judge actors cited in the summary judgment opinion the congressional record when the family medical leave act was adopted in one thousand nine hundred three and he quotes in the summary judgment opinion i think it's from a senate report but it could be the house report an indication that congress at the time it was adopting the f m l a believes that the retaliation provision in the f m l a not only was a two but that it was to be interpreted like title seven so it's look at title seven well i'm more interested really in the text of the statute than i am what the senate report says i mean the text of the statute eight too seems pretty tough opposing unlawful practices that wasn't what she was doing when she was taking leave the one filing a charge instituting a proceeding giving information that's not what she was doing when she was taking leave so you're left with interference which is a broad term but you know means impede frustrate metal whatever and it seems enough to include us i suppose one can in my view twists the statute to get there here's the title seven analogy that i believe supports an interpretation that retaliation lies in a two and bit title seven has both an opposition clause and i participation clause it has two types of retaliation all right it also has an underlying provision that says you cannot discriminate on the basis of and then it lists particular characteristics race being one of them gender being another but the interference prong says if you requires if you are a qualified individual under the statute you are an eligible employee you are entitled to certain specific rights you are entitled to late in this case there is no dispute that ms jones was given more than the twelve weeks of leave she was entitled to under the statute and she was returned to work and then chose on her own an additional three months part of that was short term disability lave part of that was just time away from work so she was given the full measure of lee underwood that she's entitled to under the statute but like title seven the retaliation provision you either complain about your rights being violated so you tell your employer i'm entitled to this and you're not giving it to me that is opposition protected conduct that gets you in a two retaliation client or you sue somebody for violent for interfering with your rights i'm an eligible employee i have submitted my medical documentation in you deny me leave to which i am entitled you have now you have now interfered with my rights that one cause of action in my separate cause of action is i'm going to tell you that you're wrong and i'm going to take some action and then it's either a two or bay depending on whether you fire me or demote me or take some other tangible adverse employment action after the protected conduct a carcass but how does the the the opposition clause of the participation clause cover and cover simply taking the leave and then being punished for taking late well not not squawking about it necessarily or doing do anything formally about it but just taking leave now being punished for taking leave and i get it that you say that's a merit list claim here but i'm just interested in where the claim exists well there's a difference i believe in a straight interference claim you have did not mean a right i'm entitled to under the statute and you are intentionally retaliating against me with an adverse mud i believe congress intended that claim the adverse motive claim to lie in a bay and i get ads as the as mr graumann put it a one can be understood meaning you can read it one way you can read it one way you can read it a different way but nasser and gross can be understood what i believe is clear from the supreme court's recent but four cases is that the court looks to the exact language in the statute in the court doesn't say that congress has to specify exactly what is occurring but if congress did not say especially two years after it amended title seven in the a d f a in the one nine hundred ninety one civil rights act if congress didn't say this is specifically what just says f m l what and it indicates that she believes that she was constructively discharged following the taking of f and now i leave that that's the gist of it there's no she doesn't cite a particular provision of the it so is it your position that nassar and gross effectively prevent an agency ever from promulgating a regulation  specifying a mixed motive causation standard because either i think under your rule either congress will have specifically spoken to it in which case the agency has no room to operate and i mean like affirmatively specifically spoken to  congress will have said nothing and i think on your view that nothingness sort of creates a vacuum in which the agency agency likewise is precluded from operating as a result of this default rule well i don't know that i would go so far as to say never your honor i mean i realize bright line rules are easier to enforce and they are easier to provide guidance to lower courts i think in this instance congress included specific provisions to address opposition and participation retaliation just like exists in title seven and so with that backdrop especially given amendments to title seven two years prior to the enactment of the f n l what i don't believe exists in the f in that light which is the only basis for the department of labor to act and under which chevron deference would allow them to to write the regulation that really appears to model a one and a two together that there would have to be a gap in the statute or not believed based on gross and nasser saying you have to carefully read the statute and then read it in context of you know in reading this statute in the context of when it was adopted and in light of the opposition and participation clauses that exist in title seven that mirror very closely the opposition and participation language in the family medical leave act i don't believe the gaff exists here that permitted the regulation on which the but for argument is made in the end but because there is no mr jones does not meet the extent of very high level for a constructive discharge going i think it's an academic argument in this case fascinating though it may be i think it's academic in this case given the time period you know the long gap the four months after mr johnson had been discharged and really the lack of time that ms jones was at work during two thousand and twelve i don't believe the under any of the statutes she can establish are constructive discharge under eleventh circuit precedent there are no further questions than i'm done thank you thank you mr powell we reserve some time yes your honor i believe there was an adverse action i believe the constructive discharge relating out here is what happened to m jones even after he was gone she was confronted by several coworkers about the complaint she had made she was told that no one wanted to talk to or unless they had somebody in the room with her she was  you know people were boarding or they knew she had made the complaint it was just falling on to what had happened before and she did request an accommodation she had the p t s d and depression she let them know that and that's what she was i don't know if my life or and she requested accommodation to not to at least get five to ten minutes when she needed to compose herself she would break down crying she would become very emotional at work and she asked for the accommodation to do that  doesn't the summary judgment record reflect that she couldn't recall a specific instance in which she was denied that accommodation they fish only to doubt it i mean she may have been able to formally given taken those but i don't think they allowed her to have it and we're starting to charge her attendance points for for the time she was missing but you don't deny i guess your opponents contention that constructive discharge this threshold is very heartfelt is very high and i think we have you know different components for each statute the title seven you know obviously we had in the complaint three retaliation from making the complaint the coworkers comments to or the being put on notice that everybody knew this had  the fact that she works so little time is just indicative of how bad it was when when she did come back i mean he was still there he was still staring at her she could not get away from him even moving him out her out from under him in the organizational structure did not stop his harassment intimidation of her that and that is you know with her medical condition that is that is why she took off and it just shows that the harassment was ongoing it was severe is pervasive it was the same as it was before the two week notice aspect she testified that she never intended to to take that she submitted the notice but never intended to work it out that she had just submitted it but was really intent on leaving immediately and that is in the record and as far as her testimony about sexual harassment stopping when she was transferred out from under him testified in her deposition pages fifty two to fifty four fifty nine and ninety one which is document thirty three exhibit one that the staring the all this continued after she was moved after she came so there is evidence in the record that this did continue after after she came back so we do have that the other issue does raise briefly is the a p a and title seven retaliation the issue of can you maintain multiple but four theories at the summary judgment stage i think the savage vs secure first case settled that issue with the district court before but i believe that the law is clear you can