plaintiff on the grounds that the court improperly determined that liability could be imputed to you c h c where you see h c exercise reasonable care in preventing and responding to sexual harassment in the workplace and you see if he had no actual or constructive notice that the plaintiff was being harassed at any time prior to the day that she reported it to the jury to find yes your honor it was ultimately the jury that made the decision however before the case was submitted to the jury there was significant motions practice before the trial concerning this issue the issue was soley a matter of law and  there are limited circumstances under which when question of fact whether the university was on notice of this and the question is whether there was sufficient evidence for a jury to make that finding so i would agree that that would be a question of fact however there were no facts pursuant to the law in the circuit that could support a finding that u c h they had failed to exercise reasonable care or that it either knew or should have against whom the university had already taken action right yes or that action said that he would be monitored he was not monitored i would disagree with you on where is the evidence that he was monitored and that not a reasonable jury find that he was not monitored given that the supervisor had no idea of any of this when an issue of his past when the issue did arise  with respect to ms mccluskey so your honor the incident that was referenced with respect to the the harassers previous conduct occurred in two thousand which was eleven years before the complaint was made in this case and there is a matter of law after how many years is appropriate for the employer to stop any active monitoring so i don't know that i can tell you that there is a bright line rule for a bright mind where is that why would a jury not be entitled to make its own decision about whether the failure to notify the supervisor of the clinic that there was a dentist who was operating with female technicians in an isolated part of the clinic had a prior  finding by the university itself of sexual harassment sufficient to warrant his suspension and sufficient to warrant the imposition of monitoring so your honor i i would start with the fact that i disagree with the finding that there was no monitoring there was no evidence that he was not monitor any evidence that he was monitored there is your honor yes absolutely there is so the evidence that was submitted by  karen wallis she testified that in two thousand all of dr young's supervisors were informed of everything that had occurred with respect to his disciplinary that's not monitoring that's just telling him  present with the dental unit were available at all times to the employees they were physically located in close proximity to the assignments of their subordinates they would walk through the the employer is required to have cameras and to have someone physically monitoring an employee of a piece of evidence that the harassment did occur there was a there was there was some notice for doctor  these pieces up why is that not enough evidence for a jury to find constructive notice so there were two pieces of evidence only that were submitted to the court and to the jury in support of a finding of constructive notice the first was the incident that occurred in two thousand and as a matter of law there's a law in the circuit that says that simply having had a a past incident that you're not you're doing exactly what of course we say you're not supposed to do or district judge is not supposed to do which is to take each piece and say each piece is insignificant let me put the two pieces together dr gambell hears from someone apparently someone in whom is mccluskey confided that there was a situation honor i take it you will not tell me that a jury could not infer that dr guinn dealt assumed that that situation in quotes had to do with sexual harassment you're an instructor again dell then approaches the female underling of dr young doesn't approach the head of the dentist the professional in charge and saves the some kind of problem of some unspecified notice i mean are you not getting the right kind of drills she approaches the hygiene honest the woman the secondary party here in terms of hierarchy and authority and says is there a situation seems to me maybe he'll disputed that the jury could conclude the doctor again and assumed that the situation was one involving potential sexual harassment do you disagree i disagree your honor there was no testimony from the individual who reportedly told dr john bell that there was a concern and the plaintiff admitted that she never referenced either dr young or sexual harassment in connection with this discussion when she had the discussion use this is this is what's concerning me i mean i might agree that  instructions in this matter did not adequately informed the jury of what constructive notice of act again yesterday it would have been appropriate for dr again dell to have this conversation in the hallway if she knew that dr young the person who worked most closely with ms mccluskey the person who had reported a quote situation had previously been found guilty by the employer of sexual harassment that would that have been an appropriate response under those circumstances i can't answer whether it would have been or wouldn't have been there was conflicting testimony but that wouldn't occur would not a jury conclude that it would have been inappropriate is not to blame dr gambell because she did not know about the prior incident but could not a jury have put together the prior incident the failure to notify the incoming supervisor whenever dr gandil took over that there was a potential problem with dr young and then the behavior of dr again bell which might have been appropriate entirely appropriate in her view at that moment not knowing of anything prior to take a such a casual approach to  situation presumably involving sexual harassment that seems to me to be a perfectly reasonable thing for a tree to find i might or might not have found that myself if i were a juror but it certainly seems to me to be information could be put together right here on or the issue here is whether you see h c exercised reasonable care there is no dispute that they maintained and enforced an anti harassment policy at all times there is no dispute that the plaintiff chose not to utilize that policy at any time the plaintiff concedes that it was an reasonable that she did not utilize that policy and if this situation involved a supervisor pursuant to the fair ehlert affirmative defen there would be no liability in this case and it just can't do that because in that event there would be no finding or no need to find negligence and if it were a supervisor it would automatically be imputed to the employer and that's why there is a defense that blocks that kind of strict liability if there is a program once we're assessing the question of is there negligence then the program and the failure to utilize the program and all these other facts it seems to me all go into the hopper as to how would read decides whether there was negligence i disagree i think that the standard is more stringent when it comes to coworkers liability i think that that's entirely inconsistent with all of the established law in this area that it's actually supervisor liability that is supposed to be a more strict standard because the employers are supposed to have more control over a supervisor than they do over all of their general coworkers situations and that's why it's actually supposed to be easier for an employer to prove harassment and to  automatic subject to a defense and so in this case it simply can't be logically if the employee employer is actually found to have been negligent in steps to prevent this from taking place there still can't be any imputation of liability if the employee harassed employee does not take advantage of the program or the program for reporting and is there that is your position is the case you have that applies that in those circumstances so i think that the law as i personally have read it and is as i understand it to be is that the fair ellard approach to supervisor liability issues versus the coworker liability issues is that really they're just two sides of the same coin and that the issue is if it's the supervisor who committed the harassment then it's up to the right your honor i would agree that the jury did find that but i would take issue with the if your instructions you say some time from we'll hear from you yes or thank you should have known about the sexual harassment in the mclusky by dr young and as your honour's question in questioning my own my colleague there was clearly sufficiency sufficient evidence to support the jury verdict because it was determined the dr young was not her supervisor so it only went to the jury based on negligence and the jury found and the jury fully deliberated was a four day trial the jury deliberated the judge denied on several occasions the motions for judgment as a matter him what were they supposed to know i don't think that that's for acquired i think was required and what actually was in their sexual harassment policy is monitoring they have to keep in mind that this wasn't just me well this was in a jail so it's not a normal this was in a mccluskey and dr young in a isolated environment with an inmate or else by themselves so what they could have done is they could have walked by every now and then perhaps because they're there and we know and i mean gotten out of their office and walked by the dental facility or the dental practice or to news well and to see what often determine whether sexual harassment or inappropriate conduct is going on you take a walk around the premises and you see what's going on but they also could have done is they could have given dr young some additional training dr young had no additional re soon an email would like to follow up about two years if she was deterred about discussion discussions in the hole she could have but the other evidence is going to say that one thing they could have done was make incoming supervisors that of this clinic aware that there was a potential problem yes and it seems to me at least that that conversation that took place in a hallway in which the ms mccluskey does not say no one's ever bothered me she says there are issues but i have it under control that to just walk away from that situation that that situation would have been that would not have been an appropriate way to handle that circumstance if dr gend had known that dr young in effect h evidence they had the evidence that after the initial complaint in two thousand occurred that no subsequent supervisor was ever notified and in fact the testimony from karen duffy wallace who is responsible for both investigations was at the university moved on and i think your honor is right on point that if dr john bell and subsequent supervisors had been informed we had a prior problem with dr young then and that conversation occurred the normal reaction would be coming to my office and would have been to explore it and we know the record indicate what dr gend was told about the situation it does not it does not indicate that but what it was actually two situation because she hadn't been informed and i asked would the one of the arguments that the defendant made at trial was that quite reasonable argument seems to me that they were good guys they responded very promptly once this was brought to their attention they had this program that had been affected in at least getting dr young suspended in two thousand and it was effective in getting him fired once there was a  complaint that argument was about their program was made to the jury why would it have been well i wouldn't have been appropriate for the judge to mention to the jury among the other factors that he did mention as relevant to the negligence finding the existence of that program of course leaving it to the jury to decide what significance what weight to give it judge she actually didn't mention evidence on either side  any anything any factors for the jury to take into account my recollection we have we have the jury instructions in the special fenix my recollection was that he said that they should look at the totality of the circumstances and the fact i'm sorry i just left it at that there were no i don't i don't recall him saying specifically and actually in the special appendix this is decision as to why he commented on certain things and what his concern was if he said they had a policy and shouldn't take advantage of it then what would he have said on my side to balance scale and i think he was concerned about over emphasizing any piece of evidence and he sent it to the jury which actually brings me very briefly to the point about the legal standard the legal standard is about to settle is it can be both from the supreme court from the early ninety's and in the circuit in the on him probably going to mispronounce this but the h where this court said that in coworkers sexual harassment an employer can still be found liable even if they have a policy and even if the plane of doesn't take advantage of it if the employer knew or should or had an in the exercise a reasonable care reasonable care would be the same as in any work environment although probably more in this particular work environment and the investigative arm that did the investigation noted not only that his mccloskey was credible but that there was a huge concern about the isolation of the dental clinic and in fact during their investigation dr young admitted to robbing the shoulders of two other individuals also university of connecticut health center was not aware of that so what what most prudent employers would do would be they would monitor the workplace and in fact that's you know it's true in the continent well it does because it's in their sexual harassment policy it says that we will monitor the workplace to keep it free of sexual harassment and actually judge she asked me that at the summary judgment hearing and so my response then was you go by the dental clinic you say how's everything going or you call in the dental system once in a while especially if you know that there had been a prior instance of sexual harassment but of course she didn't because they didn't tell her and you say is everything ok with the two of you you make sure he gets more training the only training that he got from two thousand and till two thousand and eleven was the on line training and who knows if he even got that  and you monitor the workplace just like you would monitor any other workplace you keep in touch with your employees and perhaps most significantly you tell subsequent supervisors we've had a problem with dr young in the past you may want to check on him every now and then and then with this guy sation took place you explore whether it's actually sexual harassment or as your honor said an issue with dental tools so take it if you parse out each piece of evidence is that enough to prevail most likely not with the well not half what happened was we were looking at it from two hundred thousand to one twenty five because the law in the second circuit is that if it's a garden variety emotional distress you're capped at one hundred  twenty five thousand that's the that's the law on the second circuit as opposed to the first circuit so he cut it down to the maximum amount that we could get for garden variety emotional distress and there are no last we just thank you thank you to one thousand and two to one thousand and four one thousand and fifty nine to sixty one thousand one hundred and thirty four to fifty and those pages demonstrate that the supervisors in fact did walk by they did interact on a very regular basis with all of their subordinates and the monitoring requirement was partially met through this sexual harassment policy that the employer is allowed to rely on having the employees have some responsibility to bring it to their attention and the new or should have known standard that's been articulated in a ditch case that's about  is actually something different than what it says the negligence standard requires that the danger be open and notorious that there was an opportunity for the employer to know about it and they didn't take any steps to do that all of the case law that addresses this issue concerned cases in which supervisors got notice that something was happening and they said why don't really want to know about it so that's why i'm using the the turning a blind eye that's specifically what i'm referencing and so with respect to this case the standard is reasonable care the employer has to take reasonable care and the employer maintained and enforced an anti harassment policy at all times in this case the plaintiff had an opportunity to use it she knew how to use it she was trained on it she chose not to do so and there is no evidence here that the defendant failed to exercise reasonable care or that they had actual or constructive notice that harassment was occurring and failed to take action thank you thank you very much