instances as best i can tell in which hate touched or grabbed the plaintiffs are as best i can tell and help me with the record if i have this wrong there's no evidence that the touching itself was accompanied by any sexual threat in new window reference of any kind and that when she was asked if paid had ever spoken to her about anything quote sexual in nature or flirtatious those were the exact words she said i don't know if he tries to flirt i don't pay any attention is there any indication that any of the touching zo grabbing her had anything to do with gender or sexual harassment that act alone is different in character from touching the rom i think that's right but i'm asking a slightly different question i'm just asking whether there were any words either specifically or substance that suggested that the touching of the arm etc had anything to do with you know gender gender discrimination sexual harassment flirting i am not mistaken say is that she actually sayid that on that occasion he had not touched is not true but what i'm gather any is that she said that when she wrote that road out you know the list of six things then trying to remember everything that happened and then she probably laid out on the video that he had in fact touched let's assume that you're right this is not here to suggest that whatever harassment there was was based on sex let's just assume that based on gender you've got to that the conduct itself was either severe or pervasive how do you establish given our case law here that this conduct was either severe or pervasive i think you have ten instances over a two week period does that constitute pervasive it certainly is i'm not sure that that's what you're arguing and if you are you can point me to where you make that claim doesn't constitute intense and ok so we're not talking about the frequency within the timeframe we're talking about the nature of the contact which you suggest is severe so it seems to me your argument is a severe argument not the disjunctive that it was pervasive do i have that right ok so tell me why these ten instances seven or eight times the arm or the the shoulder once touching the badge and once reaching in and touched the on accompanied by any comment at all in context amounts to severe sufficient to alter the terms and conditions of sufficient and we've said it but the question is even taking the stand and acts in concert what makes them arguably saffir sufficient that a jury if they service right but remember you've got to show both subjective an object yes and i have no doubt that you've satisfied the first burden on the subjective i'm worried about the second  would an object of person in those circumstances characterize the ten touching us unaccompanied by anything else as amounting to severe that's that's it that's too much so standing alone touching the thought i was enough i believe so you are ok traffic stops not make it she she would had a duty to make you think a reasonable officer would have i think a young woman who has who this guy is creeping me out i think she's going to do anything she needs to do to stay away from this guy this guy that mask you know what i think is the crucial question it's undisputed that nobody in the department knew about pate actions with respect to this plaintiff the imposition of liability on the city is based solely on the past actions that paid had that the city did deal with the implication of your  reliance on that it seems to me is this your position is that the only reasonable response to pay its past actions was that they should have  or at least they should have done so much more that he would not have been there to allegedly harass plaintiffs and it seems to me that three problems with your implication which you never really know where that's the first one you don't really get that and the second one is you don't really have any evidence of that you don't really go into that both were dealt with one with a three one with a written reprimand warning and one with a three day suspension and one with a five day suspension which they i think say was investigation was and exactly what the remedy was even which is the second point you did not prove that the city's response was so when he the employer is investigating so it seems to me you fail on the on the imposition of liability on the city even if the why and why it was so unreasonable and don't you have to do that just this occasions were the investigations that were referring to the past ones before this incident as opposed to the county dispatch center and walking about on the console where there is a emergency dispatcher there he reaches over there sticks his hand not just in her shirt but inside her bra and he still has a badge incidents where he had engaged in sexual misconduct there wasn't the kind of them think you would do you have perhaps in the present set of events but in that circumstance what they did is one they issued warnings and more than one occasion two they then sent him on for counseling and three they then suspended him without pay they did all of those things right they get they gave him either a five or ten day suspension they did all of the things that i've just summarized correct yes the only thing they didn't do was fire him and then when this incident was brought to their attention they fired him flat out is that a fair statement of the facts yes your honor but before between there are investigations of the other actually that your whole argument turns on the single proposition that notwithstanding demanding counseling warning him and suspending him for two weeks without pay that their failure to fire him based on the past record is fatal and yields liability even though in the context of these claims by the plaintiffs they police department and the fact that they say he never did this on the job the dispatcher she's sitting there taking nine one one calls and this guy's grabbing grabbing her breast inside her bra and they and he's telling them that he is hunting women and they put him back to work and your honor that makes you say negligent thank you thank thought let's let let's sort of work backwards for us let's start where mr am long lead off and let's but asked the question of whether the conduct constituted sexual harassment less past whether it was severe or pervasive and let's talk about the response of the city and their their liability with the harassing employee is the victim coworker they don't dispute that your client's action was prompt remedial and proper once the plaintiff brought the stuff to their attention  dispute this employer acted with great speed and terminated so the only question with reese that was i want to start with is whether or not they did enough in the past or whether their failure to fire could be healed in the inference of liability sure so the and let me frame the question even more precisely than that what did they know that they did prior to the present incidence given rise into this lawsuit summarize for me his conduct sure the first thing they knew was that when he was in a dispatcher's office which was not a this is not the city's employment environment this is over at the sheriff's office that a complaint had been made about  him placing her his hand in a woman's sure that the judge i only hesitate because i'm not sure how clear this is been developed in the facts but i do is i don't know i just want to know what this record reflects that's all so what the record reflects it is that they would have had knowledge of that to which he pled who was the woman it was a it was nickel employee it was somebody who worked for the seminole county or not it's nothing we can excuse me but for the county's dispatch office so he just gratuitously essential assaulted her well we don't know because in that particular call what do we know  we know we know that a complaint was alleged saying that he placed his hands on her breast right reached into her shirt and her shirt correct ok then what did the city do based on that so the was there an inquiry conducted by the city of fort pierce exactly and so my understanding is is that based on the record based on the record is that she did not go forward with the complaint he admitting to the wrongdoing but he provided mitigating circumstances he said that he explained an accident that he was hugging her from behind in his sure and his hand went into her shirt and there is a process under for pierce's police department when an officer at mit's to a wrong doing then they simply that ceases the investigation and they administer discipline based on what discipline the discipline on that was a written warning then the stunned his account that it was an accident not intentional act correct in the failure of the complainant to ok so that's one what else was there so then the second issue that it was w s a citizen while he was at a bar made a comment of being that made a complaint that he made a comment that she would he was able to see through her shirt and see her bra touched her butt area and referred her referred to her as baby and on so that allegation was investigated it was sustained and he received a three day suspension for that and the touching was of her dairy air it's my understanding yes or so and then the final thing was there were and what was the penalty imposed for that one three day suspension without pay so the now close in time what's the timeframe in relationship to these acts the first incident occurred in two thousand and twelve and this was later in two to all of these incidents occurred in two thousand and twelve ok what's the third one so the third one is there was an original complaint that he had gauged in some harassing behavior again the complaint was investigated the women in that complaint one said that there was no recanted said that there was no harassment the other one refused to be interviewed as a witness so there was never a case a sustained finding of some harassment and that again was not in the work place that had to do with residents that the department serves the what it did up happening as part of that investigation there was a consensual incident it's referred to in the plaintiff's brief but there was a consensual incident where he was kissing another woman while he was on duty which of course violates our policies and procedures as well and so although there was no sustained finding of harassment he was he received an additional five day suspension for conduct unbecoming i was the fourth act that was the third act i think those are the agri was that you women had complained one recanted in the other refused to be answer questions well yes a judge said if you want to call a complaint some sort of knowledge on the department's part but when we talk about what our i mean i'm just trying to find out what happened here is this kissing of another woman while on duty different from the complaints that will leveled by these women who recanted or refused to be heard further yes or is that the same complaint it's it arose out of the same complaint i'm sorry it arose out of the same the out of the investigation of the same complaint was that related to that and also i didn't believe so judge no all right go here ok so those are the incidents so now since we have a about the answered on about  his holster when he wasn't supposed to he was kissing a woman while he was on duty and that's what resulted in the five day suspension that you lation there was a compound it was it was a combination of the kissing and wrongfully using the tas and there may have been other things as well yes and when did they order counseling in the sequence of these events that all right so your view is that none of this in the aggregate was sufficient to yield the demand that he had to be fired or put more ought to fully a jury could not find liability against the employer simply because they didn't fire him under the circumstances wrecked and why because that element goes to whether or not there's a basis for vicarious liability and how is vicariously a vicarious liability determine in this context with the words a coworker and there is no tangible employment action we for the first inquiry is did we know or should have known which we clearly did the second inquiry is do we take pro remedial action to stop it there is nothing in your jurisprudence i don't know of any guidance that you have offered us to tell us when does a zero tolerance policy have to go into effect and  so severe that we are unreadable if we don't fire what i do know is that what we should have done is going to be determined in the context and this is a context of a law enforcement agency where police officers have enhance due process rights that are protected by the law enforcement officers bill of rights and that their intitled to be told what the offenses there are there are they are entitled to be investigated it there are union agreements that we have to comply with there's a lot of information that i think would rip preclude the core this court from reaching a decision terminations that as a matter of law we had a duty to terminate in this particular  so with if i've responded directly to the court with those things there's a couple of other issues that have a couple of questions which are he didn't really argue in his brief to us that that that's what should ha argument judge they say two things in their in their brief they say you know here we have a known predator we should have warned her that this guy's a predator they what they fail to they say that in a vacuum without realizing that his confessions about why he had these desires was because he had been prescribed testosterone these are medical conditions and of course we have medical confidentiality laws that we have to comply with and how we deal with those things but to answer question directly judge i do think it's inferred that we didn't do enough i don't think that there was any factual development of that argument about how we would you know why they come to that c any evidence that he was still under the influence of that medication causing the kind of problems when he was allowed to return to work after that just the opposite that issue was handled like any a da issue would be handled he when when he talked about secondary effects to his testosterone at that point he was required to come back with a physician's note that as that he had been balanced out or that he was fit to return to work in his  that there's no evidence that about that and i can't point to the record right now as i so i know that that's what occurred judge and i apologize if the record below is not clear on that one the one thing that i would really like to a couple things that i'd really like to address first is this question that was asked and answered is touching a thaw i threw the call quote car the way it was described in this case is that one incident sufficiently severe to constitute sexual harassment so the case  the plaintiff behind a fax machine is his pal the not his pelvis excuse me his hip comes into touch with her hip he places his hands on his shoulder and when she turns around to look at what's going on he smiling at her so there's much greater inference in a case like that of severity whenever any time the genitals are going to close together i would think certainly creates that type of inference when you have hip to hip but if if it was insufficient in mendoza you all have spoken that is clearly not going to be severe in this particular case and then when you look at the cumulative of the evidence not only does it not touch on  sex and it's such an important concept because title seven of course disparate treatment is what harassment arises out of that's why they have to demonstrate that the treatment is different for women so  the case of the car there is no comment paid denies that it occurs she never describes the incident as being groped being fond old words of that nature she uses words like nuisance and  these incidents were related to sex and with that my my time is up unless there's questions i want to be respectful of the court's time lot of things we didn't cover but i think that the courts decision below was well morgans did you ever argue when district court that the past behavior of the city was sufficiently inadequate because they didn't fire him that's no no but the question that potato this answer was did you argue in the district court that the city's response was inadequate to the past events because they didn't fire him that's what they should have done no i do not believe that that is my role as a title i'm just asking whether you i just that's what i did not i think this precluded by it that's your argument today is they did everything short of firing him right they counseled him they warned him they warned him on repeated occasions they suspended him once for three days then they suspended him once for all i all i'm getting at with the question is this short of firing him was there anything else the city could have done and that its failure to do was action i don't know that he was ever given training i don't know how quickly it was ever made to him keep your hands off women obviously did not see all of this the record reflect the nature of the warnings he was given and he would what they would do is  on paid leave for as long as it took to do these investigations so he's sitting around the house collecting his paycheck and then he gets a three day suspension they just five days suspension or a written warning and he's often wrong again it was during the around l a fitness grabbing other people because if they can just tossed around there is no medical evidence that that was causing anything let me ask you this did the district court get it right when he wrote in his opening in that pa was the subject of at least nine complaints involving sexual remarks or unwelcome sexual advances dating back to ninety seven of the nine four unfounded or not sustained five were sustained and then the talk about the remedy he says that's an accurate statement i believe so ok final question because it's not a lot of time here but i want to want you to go back why is the time the thigh touching the north to make this actionable to make this severe under our case law because the only reason he did not do more if he didn't have more time she complained they were going to yield liability on the basis that he might have done more if he had the putting putting your hands on somebody shoulders bumping your hip against somebody is significantly different than putting them in reaching through a car door where somebody this court will be in recess until nine am tomorrow morning