oh yea oh yea oh yea all persons having any manner of form of business before the honorable united states court of appeals for the th circuit are admonish to draw nigh and get their attention for the court is now sitting god save the united states and this hon were happy to hear argument in saunders versus metropolitan property management case comes to you one summary judgment from the western district of virginia there are two issues one concern summary judgment the other concerns a default judgment i will address each in turn if a company tells an employee we're letting you go because you're late to work on tuesdays and your office is messy and you don't get your paperwork in on time and because you're black or a wommen were jewish that case goes to a jury every time discrimination need not demonstrate that the prohibited characteristic was the sole motivating factor to prevail as long as it was a motivating factor in other words it matters not therefore that won or two or three or six of the reasons are permissible reasons as long as one of the reasons is an impermissible reason that violates federal law that's exactly what we have here so when the company came to town on november th two thousand and fifteen saunders told them that she was being sexually harassed by the main machine and at work who would put on her computer keyboard this post it i think we thought because to which i won't repeat the words they're offensive so let's leave it at that but that's what she should have come forward earlier she should have come forward earlier how long did she wait to come forward and least several months at least several months how many are several i think this was in november i think the harassment started in january so that's whatever the math is nine months but the problem here is not what the company did before it's charged with knowledge of sexual harassment the problem is what the company did after it had knowledge of sex are relevant but mr crimes where is the basis in new evidence i understand your case for retaliation based on the company's actions but where is there a basis for imputing to metro knowledge of the substance of this sexual harassment complaint in other words that there was a problem going on before she reported it now that i was aware is there anything in the record that shows she knew what was it that metro should have known what was going on certainly they knew from november th two thousand fifteen forward justice kane and the other thing that's in the record is according to the maintenance man he had complained to the company at least three times that saunders was sexually harassing him now we don't believe that to be true right but it would have to be a complaint that he was being sexually harassed and there would have to be a basis for including liability and that probing for the date of her complaint on november th and where is that of the i just don't see it maybe you can help there no no i can't help judge can before november th two thousand and fifteen there is no evidence that the plaintiffs complained about sex harassment but once it became aware of the sex harassment under a series of four circuit cases am i r m ok ari versus baltimore gas and electric e e o c versus cromer food services liability can be imposed once the company becomes aware of the harassment and fail to take adequate remedial measures and that's our argument our point with respect to that matter either rises or falls based upon whether you find that the company should not have fired her after november th two thousand and fifteen and i'm talking only about the th element of the hostile work environment claim as you pointed out judge kane and we're talking the retaliation claim this is something separate altogether and but i'm but i'm saying that's sufficient with respect to the to establish a th element of a hostile work environment claim the term a nation is part of the ongoing harassment if for example for example and you know see versus crime or f services this court said in two thousand and eleven if the plaintiff is worse off it is unacceptable as a remedial measure and mere mccoury this court said in one thousand nine hundred and five that firing the victim is not an adequate remedy so either we lose or win with respect to that point depending upon whether you find that the company should not to fire her after she complained with respect to sex arrest but some of the problems of i think the problem with your argument is it goes too far as soon as you complain about anything you have a meaning from any discipline or firing according to your theory no that can't be right no no no no no i'm not saying that at all i say because a jury would still have to find that the improper characteristic whether it's being black or white man or jewish or complaining about harassment is a motivating factor in the decision to turn a jury could find that's not a motivating factor in the plan we're not asking for a silver bullet if you will judge much it still becomes in our view a jury question under our jurisprudence with respect to that particular point and either you accept that proposition of law or you do not if you do not we lose on that point but that's the point that i'm advocating here so i mean the timeline here is important on that same day she complained of sex harassment her job was posted on craigslist and when we asked the owner of same day your daughter b posted on craigslist and she was fired on november th everything we're talking about happened over nine days and that's all we're telling asian and that's all your case of her television it's at least retaliation i rest on my other point either win or lose just cannon but yes it is retaliation you want to trial no retaliation we want to trial on both the title and i'll get to default judgment and in a moment i don't want to use all of my time but i wouldn't  allegation of sexual harassment that's direct evidence of discriminatory animus and we asked him why did you stop it suspended or on that same day and he said quote due to the allegation of sexual harassment claim that she had on our maintenance tech clayton carter ok because she made a complaint is that what you're saying answer because she made an allegation of sexual rescue we're going to play hard how can the retaliation claim be any clearer i see i'm fighting an uphill battle with respect to the th element of the hostile work environment cli i can't say any more than i've already said about that so i'll let that point the rest and you've told me what your thought process is with risp well it's just me if you think that's a good argument go go go  under our case law we did everything we could to get the defense to participate we sent a notice of hearings that we didn't have to we suggested they retained local counsel they said we don't want to spend the money to hire a local lawyer because we're spending too much money on lawsuits that  can't be excusable neglect under our jurisprudence and our view is the district court abused its discretion with respect to default judgment those those are my points i'm not going to repeat what's written i'm if you have questions please ask me otherwise i'll may it please the court good morning monica monday on behalf of metro metropolitan property management incorporated as in any employment case that this court sees this decided on summary judgment or after a trial the record is large and there is lots of finger pointing so i would like to start my argument by pointing out several critical undisputed facts in the case which we think demonstrate why the district court was correct to granting summary judgment on the substantive cl the the plaintiff is the supervisor of the alleged harasser nd the st complaint that she made of sexual harassment was in fact eleven months judge king after after  the harassment allegedly began and it was also two days after she had received supervisor supervisory coaching from performance she admitting that st this was in fact the st complaint she had ever made and nd that metropolitan had no reason to know of any sexual harassment before that time next the alleged harasser then files his own complaint against her alleging that she has been sexually harassing him the employer does the appropriate thing it immediately instigated investigation it puts both of them on paid administrative leave it's not a suspension  was offered to transfer and turned it down there was some evidence of that your honor it's a disputed fact but it is not a material fact that would preclude some rolls or i wouldn't it be when put together with the other the case why wouldn't that be a significant fact because mr moore said that they advertise her position on craigslist because of her the very day that she made her complaint they did it because of her complaint and there's evidence that carter restricted better than she was treated so she wasn't ultimately terminated and she was so why wasn't a jury allowed to value weight that i think i think you've raised two issues issues your honor and so let me address them individually st with regard to the offer of a transfer you are correct the record does suggest there was some evidence that at some point he was initially offered a transfer and then he was not given the transfer the district court specifically addressed this and said he was in fact fired ultimately and the record fully supports that you can see the join very narrow scope your honor as to as it relates to the initial transfer but one of the significant and we think that the dispositive answer to that one is is that they were not used as being similarly situated and again this goes back to the fact that she was the supervisor the imp and this is what the case law says this court in walker vs magia craft for example a recent a recent decision there were employees involved in a physical altercation and the employee took action against sort of the employer took action against one but not the other and this court held that was ok because the employer did not view them as being similarly situated now in this case go to trial  claims as a law are too many people just throw around allegations of sexual harassment they posted her job the day she made a complaint just seems to me that this is the quintessential jury question that  the jury decide and decide against her but at least give her her day why wasn't she entitle well and here are some money so that brings me to the i think the nd issue that you raised which was about posting the job postings and i think there's a rd issue as well which are also address d i think the context is extremely important here because the jobs were both jobs st of all both jobs were posted immediately and what happened was that on that fateful call on november for she wanted to resign heard initial reaction she reported the sexual harassment and then she wanted to resign he talked her out of it he said please don't resign see i thought all those facts i think of that i don't think that they were rake your case but what does issue appliance testimony in deposition he says that the the filing the timing of her complaint did not boast her in favor when it came to the final decision if it was something of that magnitude that is sexual harassment he would have expected the corporate office to have learned of the conduct earlier and saunders complaint was also a cause concern considering the fact that if this was going on sunders couldn't communicate something of that importance but can communicate other minor things you know it's not consi but that i don't know how we can get around i think that in context your honor that testimony was relating to the timing of point and this and this is part of the relevance of what was going on she had been twice before disciplined one was a verbal one was verbal one was a brief write up earlier in the year and then we come to the rd write up which was two days before the complaint now here this is the other important context so i think what he's talking about these about the timing there are a lot of other and i want to get to the reasons for the charge but there were it was the timing of the complaint and this is also relevant to the supervising supervisory coaching happened on  november nd that afternoon mr moore actually e mailed her and said i need you to return the supervisory coaching forms and she did not then the next day and h r representative contacts are trying to get the trying to get the sign forms back she doesn't return it then we get to november for mr moore is calling her asking her for the forms and so this is the rd request at two days after supervisory coaching for the forms and then all of a sudden out of the blue eleven months after she says it began she complains of sexual harassment she's also the supervisor on the property he is her subordinate so that is what that is the context you're i understand that that's your position and you can make that argument to a jury but if your client testifies to this to what he didn't his deposition on the stand i think i certainly think you have a jury question well you can talk about context or you want  for example i hate women and then you say to to the judge well you really have to put that in context he had a wicked stepmother and his daughters were mean to him and he never been able to trust a woman before so he didn't mean he really hated all women or the over the employee here it just meant that in a general way he hated it so you can context it all you want but you have the language that your client gave in response to direct questions about why he took why he fired this woman well and your honor and i don't i don't want to argue with you at all and i understand exactly what you're saying i think also too he was he was talking not just about the timing but when viewed in the context of everything and so i think it's i think it's appropriate for us to turn to the actual investigation because mr moore who made those comments did not perform the investigation no is brother did that's correct who was not an investigator now you are and  think the district court found that that metropolitan was relying upon its corporate counsel at that time and the record fully supports that i'd be happy to address that issue as well but so the investigation itself  fully supports the district court's conclusion that this case that oil did a down to pretext and could not be shown and so there were a number of reasons in the the written report and so there was over and there an investigation was conducted there was evidence from both obviously both complainants because this was a cross complainant situation there was a complaint about it breach of confidential information from that kind of right that's all correct you but but you know who was written and it becomes perfectly clear that the person that is being deposed did not write the affidavit and does not say it in that way or even for those reasons so the report stands as the report and maybe if your client had testif testified in a way consistent or entirely consistent with the report you wouldn't have an issue of fact but he didn't your honor and joseph maher who gave the testimony that that we've been discussing your honor he did not wri honor i think i think we have to disagree about that and i completely understood we don't disagree that they gave different reasons i because we have his testimony and we have the report you are i think i think that we i think we disagree about how his testimony plays into the entire do want to make it an important point about that i don't think was really covered in the briefs about the reasons that were for reasons that were stated in the investigative report and again c e o did not did not participate in made the final decision they have and says that the three did your honor that they all contributed to it who made the final decision mr james more conduct of the investigation and the evidence is that the three of them made the final decision ok well i was he was just doing an investigation giving his recommendation i don't i don't remember him saying i made the decision to fire the person i read commended correct he did he did he did recommend and then i think he didn't make but but one thing that i don't i don't think is brought up in the in the briefing very well is is that some of these terminations yes i think there's no question he would ultimately have the final say he did have the function yes your honor he was yes now the the point that i would like to make is that with ours to some of these decisions the failure to return the coaching for the tenant complaint and removing the waiting list on i think that that the plaintiff tends to try to diminish these particular factors  that they're not really bona fide reasons for terminations and it does need to be pointed out that this is a highly regulated federal federally regulated industry there were hugs guidelines you'll see in the in the record particularly of page one  of the joint appendix that the the plaintive had admitted that if she had taken documents that included ten information from the office that in fact it w filed late company policy and this was also it pages eighty six and also at nine hundred and fifty five and this is is really critical so these are these are legitimate reasons that came out during the investigation and that is why she was fired and this is what's in the investigative report and that of that report was adopted by the c e o now in in addressing kind of the unique factual issues in this case i found very helpful the alvarez versus two morning old supply company case and this is a case out of the th circuit in that case the plaintiff had alleged sexual harassment by the coworker after she filed her complaint the coworker then filed the sexual harassment complaint against her so we have the same same situation of cross complaints the company then investigated the complaints and fellow found both of the parties both the plaintiff and the alleged harasser guilty of violating company policy they suspended both with pay and then transferred the co worker and not the plaintiff the the eight circuit  held the district court's dismissal of the retaliation plain on summary judgment and the core pointed out in this case the point that seems very relevant here which is just because an investigation turns up unusual situation i found it interesting that there was this case with very similar facts where the th circuit reached the conclusion that just because you're because you're going to conduct an investigation you have to conduct the investigation the investigation here revealed openings for the offer of the transfer again under the the offer of the transfer they were not they were not simulate situated employees and i also want to make sure that the record is clear that mr carter was actually terminated he was fired and again in terms of the posted job openings this was completely reasonable in light of the fact that she had actually said she tried to resign that very day november for she also previously and and i think it was and and because they were the only two employees at that particular property it was reasonable for the employer to decide to post both jobs not just her job  i would be happy to address the default judgment i think judge king you had raised a question about the the conduct of the of the employer in this particular case and there are basically i think four reasons why the district court was correct in and setting aside the default judgment and st this decision is inherently discretionary with the district court and the district court considered all of the factors in the paint case and found that they w in the joint appendix page sixty where counsel himself says literally i am entirely at fault had originally indicated that his strategy was to get admitted into virginia and education he did he did and then and then to take some steps to get when it appeared that he could not get it made it in a timely fashion he did take steps to connect his client with virginia counsel there's no further questions we would ask that the judgment be topping the group is your honor it is a it's less than fifty employees they do have a number of locations i believe twenty two housing properties that they run all in virginia no i believe that there are also in north carolina and other locations as well your honor and there are usually two employees per location just like this one so we are talking about you said fifty so if you are is how many locations do you think i believe i believe they have twenty two locations and they usually have two employees so not too many people in the main office that's correct your honor it is it is a an low there was a location nearby but they are fairly otherwise known as being really generally the housing that they supervise i don't think it's that many around or i think it i believe if i remember correctly i think it's fewer than fifty units per property underneath that it's a it's a i think it's a relatively modest operation ok thank you thank you to your point joseph moore made the decision to terminate or at least the fox talked with him and he what he said in writing is we're firing you in part because you've had a loss full and flirtatious relationship relationship with the maintenance man that's why we're letting you go walker versus module craft you asked about that judge kane and that was one of my cases that came out of the western district judge conrad with the judge i remember judges name myron agee sat on the panel and i can't remember the rd judge but the important point is this court reversed summary judgment and sent that case back for trial and we lost we lost that trial but we got what we should have had and that is a trial based upon the evidence so that's the most that we can ask of you and we ask that very thing of you here today the final thing i'll point out is with respect to performance issues on october th thousand and fifteen metropolitan issued a commendation to the point of saying in essence you're the greatest thing since sliced bread i'm quoting from it we appreciate your diligent gaffers and are excited to maintain a positive working relationship and many months and years to come that's october th twenty thousand one hundred and fifty three weeks before she complained of sex harassment and then they said by the way you've done the six or seven things wrong and also you've complained about sex harassment and that's why we're firing