came across a couple of comments that i thought were interesting and apropos but with this case this case involves some problems that have been hanging around as long as there have been judges and bono publico but are not the court was dealing with these kind of problems this was from hayden's case seventy six english reports six thirty seven fifteen eighty four or centuries later the us supreme court said it ought to be but apparently is not a matter of embarrassment for the lower court judges and lawyers that the supreme court has felt the need repeatedly supreme court  basically this is a case that appears before this court from a verdict of a motion for summary judgment in the u s district  actually would have four issues that can be bowled down to two but all read as separate issues first a district court determined issues of fact normally left for the jury second to district court heard in failing to consider direct evidence physical admitted sexual abuse and i based statements third the district court heard and its failure to consider or give appropriate white to circumstantial evidence sexual abuse an age based discrimination and forth the court heard in its failure to consider perry pioln appe for title parp title seven purposes last year which said the better course is for a jury to weigh all the circumstances and decide whether gender and age was a factor in motivating the compared to its conduct and whether the compared tours were in this particular case there were seven that were younger in mr records case and i'm not going into the facts it just pointless the court has a question about the facts because i'm speaking to this court not not the audience so i know you're well aware of the facts in that case but i think a key to the argument the lower court's treatment of evidence the lower court said there was no evidence to support discrimination and this is where i have a  real disagreement with the court we had seven depositions lengthy depositions we traveled all over the southern part of the united states to take depositions we had several seven people who summarily said that older employees were treated differently they were targeted for abuse and then we had five different witnesses who testified to mr pyne abusing senior management officials and this is kind of crude but mr pyne had a term that he called kitty twisting where he would approach a male subordinate grab them by the breast and twist them and he did this to mr rickard and said this is sexual harassment i ask the court what more can you have by way of evidence when someone is alleged to have admitted that what they're doing is sexual harassment and obviously the court recognized that hacked if it occurred as sexual well i'm not sure we accept the definition of some lay person who commits a battery on another person what i d s sexual harassment requires sexual desire and sounds more to me like this was an assault were he indeed i mean there's certainly was agreed just it should never been done and all that but for sexual harassment to arise you have to have some sort of sexual desire you have any evidence that this was a more than well just you know physical harassment according to your definition your honor tomorrow to homosexuals are committing sexual act with each other if you took your definition to the extreme wouldn't wouldn't be commit a sexual act people with perversion get different kind of  sexual satisfaction from different sexual acts in my brief i talked about you know you've looked at the law that that's what our law and it's not my definition it's the legal definition well the legal definition since you brought it up says that it can be between two individuals of the same sex doesn't have to be a necessarily sexual act for a person to get sexual pleasure there's a i described sexual torture person it gets a perverted some perverted people get sexual pleasure from torturing people did  this ever occur again was this one act as i understand the record as of the want to act it occurred one pattern with my client but he continued the other harassment and the fact that he did just of the four were senior officials from one over a period of two years creates a pattern to establish that he did get some sort of perverse pleasure out of this if that was the only evidence that you have that he got the perverse pleasure i'm sorry but what evidence was there say that he got a perverse sexual pleasure what in the record did you present type of fact that it over a period of time with four other officials and i had witnesses that testified to their observation and that all of the management personnel were present when this  did not everything to start with i mean he in the end with he denied every question about that he even did it that even committed the despite the fact that we had human resources in texas testifying that he was written up for less that that's one of the second part of it and this goes to the age too and that is that it reached a severity that would warrant a constructive discharge that was whether one of the district court's findings what do you have to say that rise rises to the level level of our peterson case and some of our other cases which are pretty tough sure are now severe must be and that's why i was quoting what i did the beginning of  can't change this court this panel game changed the law the eighth circuit so what was how do you fit within the law the we have right now that we're dealing well first i would i would like this circuit to follow the of the u s supreme court in the intent of congress when they passed title seven in one nine hundred sixty four that's what i would lie but frankly this court has the reputation your honor of being the most conservative court of all the circuits but i practiced primarily employee discrimination and it has become  a consensus among the borrower at least in arkansas all the plaintiff's lawyers representing employees that they are no good longer going to follow any discrimination cases in federal court a web good morning by significant evidence taken from depositions and affidavits and documents from the company and the plaintiff responded with frankly admissions to most of the individual statements of fact but then filed a supplemental document stating additional facts in support of the proof that he would have a trial of his claims of age and sex harassment constructive discharge and retaliation the defendant fell to replot of that and went through the record and asked each one of those facts which had been repeated throughout the appellant's briefs it showed where we showed where none of those claims were actually it miscible facts even if the witness appeared at trial the depositions that were taken were largely  former employees some of whom were had retired or terminated before the alleged wrongdoing in this case perry payne even began to work for swedish match and none of them were in a position to evaluate perry paine's management of the plaintiff few of them ever intersected with rikard during their employment and yet they testified variously that richard had a good reputation as an a sales person that perry paine micromanaged his territory representatives who reported to him and sort of stuff like that that would never have been admissible at trial none of these witnesses testified about any incident that evidence either sexual or ages terror harrison went against record and all of that was before the district court and the district court clearly in its finding said as was criticized in the reply brief by the appellant that there's an overwhelming lack of evidence of discrimination in this case that was not a function of weighing of the evidence that was a function of the fact that the record was the e the record that the plaintiff advanced to support his claims and there was simply no evidence to support age discrimination or sex discrimination the vast book of mr rickards complaints about his supervisor was the management style for example he disputed criticisms that were made of him in performance evaluations and documents called the t r scorecard which was a document  used on a one time basis throughout the year to evaluate a territory representative such as mr rickard over a short period of time he said he disputed those findings but he never said no this is not true but this is true there was not a single fact in the record before the district court that disputed any of this and frankly pains criticisms of record in this case in terms of the performance of his job really aren't relevant none of his criticisms were tied to any a just or sexual animus on behalf of mr paine he simply told record where in his his performance was substandard and mr record doesn't say anything in evidence other than i disagree with it so the performance issue is really of a false issue in the case in any event and yet that's what mr rickard devotes most of his time in his brief to addressing the bottom line here is that there was no evidence before the district court that showed that mr record was subject to a pervasive  legally inappropriate sexual conduct engaged in by anyone at swedish match north america against the plaintiff his construction constructive discharge claims fail because he doesn't even meet the requirements for hostile work environment claims under either title seven or the age act he doesn't appeal the decision against him on the retaliation claim and so it's pretty clear from what the plaintiff you did not do in response to the motion for summary judgment that the decision of judge baker's perfectly correct the case was dismissed as it should have been and where are the court to uphold that judgment steele you have about three and a half minutes left stop at a particular time and if you are a salesman you know that you might spin five or ten minutes at one place in an hour at another and that basically interfered with him being able to  time are supposed to be taken as true as i said the key to our argument in a nutshell is the court disregarded all of the evidence and i've i've got page after page after page in my brief with things from various witnesses court in disregarding the evidence then disregarded are made decisions that would be normally left to the jury and this disregarding the evidence is key to her if she felt this way about the evidence then obviously she's not going to think we had a issue of fact and we just really another comment to to court made earlier about united states being the richest party you know lawsuit