the brother in law calling her offensive names at least once your honor ok however to clarify on her she was told more times than that by other individuals who work at hampton in a mass that he referred to her extremely objectionable offensive and that if i think it it demonstrates exactly what the atmosphere was i agree your honor my clients found it to be extremely objectionable and extremely hurtful and crank if you can focus on severe going up necessarily who serve in order to prevail in a particular careers correct your honor you only need severe it to be severe or pervasive however in this instance my clients and myself would argue that this was both severe and pervasive and that the terms were so objectively offensive and that it happened on such a frequent occasion that this rises the level of both severe and pervasive even though that you don't need both there you have three clips yes sure it would appear that alleged here and the record is that both gail and chester kind jr made complaints regarding the sexual harassment again always been subjected to to the chairman of the board chester kind seen on multiple occasions and that gayle and chester kind jr were retaliated against when they were terminated and their ten days to proximately after making their last complaint of sexual harassment to board members didn't even know about those who claims that while here on earth there is actually some record evidence in the  record to thirteen that the other two board members who voted to terminate my clients may have been told about the complaints however even if that weren't so that creates a disputed fact in the record but even if that weren't the case our opinion is that the board members were so influenced by chester kind senior who held a disproportionate level of power on the board and there's record evidence to the fact that he did hold that level of power and that whatever chester klein senior wanted chester kind senior guy additionally the two board members who voted to terminate my clients were members of the klein family they were actually james klein's wife and his sister trac parents are tracy klein and nancy pear stock so we think that that raises the inference that not only could these board members have known about these complaints but that chester klein senior uses influence to get the votes that he needed was in there also a significant family conflict involved in all this your honor there was a significant family conflict involved and that my client gail klein was being sexually harassed at work and she had made complaints about that and it didn't seem that chester jam protected activity speaking of a hostile work environment claim the district court erred when it ignored conflicting evidence to clearly establish that my client's alleged poor performance was a question of fact that was disputed by the parties the district court erred when and how could the opponents fail to counter a colleague's allegations of poor performance there's a record of evidence in this case that james kline testified that he never spoke with any individual holding a position of authority and handed me a message management structure about potentially disciplining my client for legit poor job performance and there's also record evidence that he did not at any time document any of the legit performance deficiencies despite the fact that there is record evidence that he evidence that james klein testified to that fact but my client testified that that never occurred there is also evidence to show that  employer thought that she was doing a bad job and so if there is an honest belief by the board chair that your client was doing a bad job does that still show while your honor i think the other part of the pretext argument is the fact that hampton your mask provided inconsistent reasons for my crimes terminations within one day of her being terminated on the rd of april chester kline sr indicated to my clients that they would be terminated however he did not provide them with a reason then on the th when the board vote was held the minute show that the reasons for their for my client's term nation go pines terminations was that she had allegedly undermined james kinds position and for legit performance deficiencies a man in the letter that was sent to my client on april th a day after that there was no mention made of performance deficiencies so therefore it will require ignore an inconsistency is provided by the employer for the unemployment or for the term a nation of my clients and it was he having problems with billing procedures certainly evidence that james klein testified to that fact but there's also conflicting evidence in the record which is why this should have been a fact question that went to a jury ok so is it your position that that in the st count discrimination  but the board was told about the performance assures and determination letter more about the infighting as opposed to the performance issues so there is a problem there but let's assume that just or the other if there were employed as significant in fighting such of the people really needed to be separated would that be enough reason to terminator your honor i think this honorable court should look at the  circumstances saying that if there were infighting such that the combatants had to be separated would that be enough reason to terminate or just that i'm not asking you to agree to that i'm just saying assume that that's the terminate employees especially in pennsylvania for any reason at all and this case chester klein sr was aware of multiple multiple complaints that were made against james klein jr by both of my clients that beckel fine with a scene sexual by itself the terminator other words your point is they gave one reason to the board another reason the termination letter but which assume it's just a start with the  fighting the nasty in five people would that be enough to terminate her while your honor certainly an employer can make good employment decisions as long as they are not for an illegal reason and this case  go he doesn't tell the board that but that's his reason to bring his deposition is the primary reason i got to get them separate how is that sex discrimination it's sex discrimination in this case that discrimination in this case because a chester klein sr with multiple complaints regarding gales the sexual harassment that she suffered while at work instead of investigating those matters  asked james kind did you do this james kind jr responded no and that was the end of the matter and in my opinion and in my client's opinion that should be enough to raise a question of fact as to whether or not the reasons was that pretext to your honor because there are inconsistent reasons certainly the performance issues were presented to the board there's no dispute about that but there was also other reasons that were a relating to my client's term nation including in the performance issues but also allegedly undermining in james kind authority even though my clients were actually above jim's client in the organization according to an organizational chart that is in the record  there were also issues with interpersonal relationships between james and chester klein jr about were alleged but those were never brought up prior to this moment taking all of those things as a whole the totality of the circumstances conflict going on in such a situation can sexual harassment social discrimination be an element of the bad treatment that gail kahn was receiving if i'm understanding your question correctly your honor yes i do think that is correct but i would also point out that the district court hampton e review of case law in this circuit could i find any case law that determines that if you are a family run business you are not subject to the standards of title seven but have a family run business in conflict no your hon don't believe that that that title seven would would not apply to you know i family business would apply but can you say to fit an element of the family conflict to sexual discrimination documented but that but the me if her performance was deficient in terms of what she did a day to day basis why wasn't she afforded that determination whether you are think the performance was discussed as a smaller part of the terminations or certainly evidence of record their performance was an issue it doesn't matter whether she was told that before hand or not all the members of the voting board are where percolate was doesn't she have a right to know why she really i mean if the board doesn't even know about the conflict and they're told that she's not performing up to snuff so much so that she should be terminated you would think when the board approved the motion to terminate or where they come to came to a consensus to terminate or they would give her the reasons that were presented before the board but of fact they worked so it sounds i mean those are the types of things that would lead one to a suspicion that there might be pretext  occasion undermine jim's authority and overriding is this engine's personnel decisions on suspensions which he had done before gail was hired he was told by the board when she took over that he was still at that role so they were  the ladder that's not reflect trash or you're right in saying the employee doesn't have a right to notice they they don't but you have to show that there was no pretext here and which is in the letter as that there's fighting in the ranks and we can't move for dinners her management structure you're undermining jim kinds of forty it's boiling over to the point it almost got physical big between check on junior and jim klein so that's the overall theme of the letter and i think the judge according underline quote was right when they said it is it's it's a small point it didn't make its way into the letter it in fact is well documented that was a reason and all the board members that voted for them  of that those two reasons were the reason for termination the district court here basically found that the discrepancies between the minutes and the termination letter were just a semantic difference but isn't that in effect finding a fact and a credibility determination that courts are not supposed to do it so my judgment i don't think it's an issue of fact i mean the fact is i think i keep saying you have to look back at the more board meeting that's when a vote happened and i think that's when you're looking for pretax you're looking at the mind of the decision makers and both of those issues were discussed and i believe again the performance was a smaller part of that bigger picture and the bigger picture made its way into the letter gail for me this cold weather has me down i mean is it a material issue a fact that has to be decided by a jury rather than by the judge that was here was her performance affected by the the failure of chester to proctor properly trained her i don't believe her i don't think she can say that she wasn't properly trained and that's why her performance was poor i don't think you look at the reason as to why her performance kind had some discrimination problems work environment problems was he failing to train her properly because he didn't want a woman and this in a supervisory that the issue is whether or not the voting members of the book who are believe her performance was poor and the reason it doesn't matter why her performance was poor she can say it's for one reason jim can say for another in fact her performance was poor and that's one of the reasons it was factored into the decision supposed to train her isn't that material issue the fact that should have gone to the trier of fact now you are i think again i'm going to keep welcome back to that decision about poor performance it's the my decision makers nancy par it to district judge made that he shouldn't have made i disagree or the minutes focused almost exclusively on poor work performance not turmoil where in the middest do you think that there was possible people quitting an overwhelming number of people quitting because of the turmoil that's in the minutes and that's reflected a little more detail in a letter to gail would that it's her if she was a part of that in terms of people  why things happen the other way he said create a toxic work environment that sounds like something that should be presented to a jury we pick up on that reference to a toxic work environment to talk about a hostile work place cl the st questions asked about the facts of the case the pornography one the the evidence of record is that there was one instance when dad was in the presence of pornography and she was in her share office with jim jim was apparently showing something to some other fellow today i'm actually on that i'll tell you i said to my clerks i worked in a factory in the late sixty's and there was a lot of offensive language but if somebody used that you would have gotten canned and that's fifty some years ago you just it's not done and this is back and we're all high up so that kind of language would seem under castleberry to be severe it doesn't have to be pervasive which is what you're focusing on it would seem to be severe and why should that not be evidence that can go to a jury of hostile work environment might think that the court below looked at the time compelling circumstances and that was that was one part of it  offense of language i think the court indicated that it was never used in her presence would that doesn't make any difference if if he's poisoning the rest of the workforce it doesn't make any difference if she doesn't hear it except a few times she's being told it's going on  but i think the case law supports the concept that the hostile work environment elements can be taking place outside of the presence of the  plaintiffs and still create a house to work environment i think you are as correct that she didn't necessarily have to hear it but then you have to factor in all the other conduct and the other conduct here and i think frankly calling consistently calling the person who arguably has supervisory function over you a fucking con is in and of itself a hostile work environment and when you referenced counsel the other conduct the other conduct was viewing pornography on i think the outside of their office and she heard them talking about something i would say that was in her presence it she thought might have been part of b but she never confirmed it was she never solace never heard anything so that she really only has one in one instance where she knows that she was being dela that says words far less than what were used here can get you to a jury can cause a reversal of so we judge with employers favor you know and i think there's a whole list of rd circuit cases where you read through them at the bottom you say wow was never called this to her face i think that is an important fact but the point is not that you don't necessarily win but that we doe in a district judge doesn't make the decision who wins or loses the jurors do your chances of success on this appeal and have you considered the possibility that mediation might be a better solution to this case your honor we've mediated winds but i'm still  think you are it's your call but the point is there anything else you really want to there's just one thing and i won't belabor any points but your honors were asking about pretext earlier and we  had gone back with attorney back to all to go over some personnel decisions that my client gail was allegedly undermining james kline i just want to point that there is record testimony in this case that james kin testified that he was under the impression that he ran this organization but there's also record testimony where he testified at his deposition that james scale and chester junior were all supposed to make decisions together yet he still made these decisions without my clients and he got upset about that when they called him on it even though he has his own testimony that they were supposed to make such decisions together i think that would go to pretext as we've talked about before so i see the rest of my time thinking