good morning is back your honor may it please the court so you're nothing but a calm dumpster nice can you look good with the rod between your legs this is just a sampling of the evidence of a district court ignored when it ruled on defendants motion for summary judgment this court should overturn the district court's holding because it made in permissible credibility determinations and inferences contrary to the nonmoving party and violation of federal civil procedure fifty six the district court cherry picked evidence and accepted all of the defendant evidence even in those situations where plaintiff offered evidence that was contradictory as the supreme court noted in anderson vs liberty lobby credibility determinations should be reserved for the fact finder family judgement is only appropriate in those rare instances where there's no genuine issue of material fact inferences are meant to be drawn in the light most favorable to the nonmoving party my examples the improper factual and france is made by the district court where i mean those male coworkers do not report the same supervised our client offered evidence in her deposition that was in the record harassing and discriminatory conduct where amanda did report to gary stillman the foreman is not a decision maker your honor the foreman was involved in the decision to terminate i mean he provided input into that proper more importantly mr stillman was an individual that was an appropriate person to report harassment to this was admitted by mr stillman as well as mr keller and in sims the court recognized that when an organisation denotes individual to receive harassment complaints the notice is an impure did to the organisation so defendant had notice of amanda's complaint given the situation however the district court ignored this fact and focused instead on that band's analysis which was improper did any of the comparison have similar history of disciplinary actions against your honor that was one of the things that makes the compared show even more discrimination there is an inexact history of discrimination our history of improper behavior by the comparatives as was the case  deaconess when you look at that case another compared her and also decided by this court and that case the plaintiff and then the compared to more had different histories of being in trouble different performance issues different disciplinary issues but the court recognized that they didn't have to be exactly the same and one of the factors toward the discrimination was the improper application of that discrimination policy and the improper application of the disciplinary procedures here part of the reason amanda's disciplinary history was different than some of her male compared to yours was because defendant was improperly applying the policy they were discriminatory of planet soil to our client the female individual the record shows that a man one of the instances of a man does discipline was a comment where she stated that her underwear was writing up her but when she was being disciplined for th employees making similar complaints saying things like they had icicles on their balls referencing having pools what about when you sleep with her she made similar complaints about these male coworkers when you look at the comparative analysis it doesn't have to be a perfect clone as the supreme court recognized and right out we can look at the fact that a jury could decide that they wanted to disregard the compared and decide that the factors maybe weren't present to recognize individuals or compared it's more so analysis of whether given the fact if a jury could find that the individuals were compared or as the court recognized and when versus deaconess this is a similar situation when you look at the court and burn versus arkansas secretary of state another circuit decision which involved a black and white officer and that situation the lower court had said this white officers prior disciplinary history where they had completed one memorandum regarding being tardy they said that it was in comparable to the district court but this court then recognized that improper in an even distribution of the discipline and different expectations for the officers went toward the compared our analysis recognizing that they could still be compared because the and proper application the deceitful treatment with that application and burton is one of her complaints that my understanding correctly that her concern is that she was disciplined for actions that male coworkers were not yes your honor if and and the discipline was that was there also suspension and with the something maybe a loss of pay or something yes your honor what would would she have needed to file would that been an actionable claim that where the statute might be running on those particular complaints it seems like a legitimate complaint if she's got something to back it up but it seems to me that maybe the time has passed for that no your honor this was an accumulation throughout her her employment and at the time her final complaint the one that she was terminated for the time hasn't run the situation where she submitted the complaint to supervisor form and stillman and courtney where she referenced being treated differently because she was a woman and referencing the frost incident that was still present this was an ongoing violation throughout her employment and it was and so is that is that her claim that they were improperly applying their policy because it almost seems and i'm trying to just kind of work through this because it's applying as as it applied their policy to other people and how that kind of could co joins in with her claim of of a policy violation there are be improper or unequal application of the policy goes toward the gender discrimination component of her complaint it is evidence of d gender discrimination throughout her employment it also ties into that sexual harassment component that was one of the situations where amanda found it most offensive was that these male individuals wore being allowed to make commentary on her body even attempting to her and there was no response that went toward it being subjectively as well as objectively severe pervasive to her and on welcome the tangible employment action where the statue of limitations would run would be that terminations where there was that adverse action taken against her specifically with regard to the comparative i mean the provided multiple situations in the record bill to the district court and that we provid a kill where instances were reported to her supervisor mr stillman and there was no action taken to correct or provide some type of remedial action this goes toward defendants failure to follow their policies defendants argue that there was no notice to defendant and the district court adopted this how would this ignored the facts and the record but amanda did report complain court made that were improper under the summary judgment rules we can also look cheerio whether amanda engage in protected activity the district court focused on the fact that amanda didn't complain to h r or the plant manager to find that she didn't engage in protected activity this is simply not the standard a requirement that she was supposed to do under defendant's own policy amanda was able to report instances of sexual harassment that she observed what she believed to be a racially discriminatory and spent under this court and our sister circuit says precedent that what she considered race discrimination did not need to be legally cognizable and needed to be based on her reasonable lea letter that the district court and defendants relied on as defendants nondiscriminatory reason was in fact a complaint of discrimination in and of itself how do you look at there's the letter and there's the drawing  seem to me to be different communications st the letter was provided with the drawing and the drawing when amanda was in her meeting with human resources hockey meyer she stated that those words in the drawing were also contained in the drawing one day any reasonable inference of those epithets be in fact that that the figure who appears to be ms gibson is in fact being subjected to conduct in the workplace that was inappropriate using vulgar language sexually suggestive language which she received verbal warning or written warnings for and ultimately a suspension didn't your  supervisors at the time of employment say that it was an environment that was crude and vulgar and that there were all sorts of sort of conversational problems in on this workforce for and  while she may have engaged in some of that herself i mean wasn't she singled out and treated differently no your honor the allegations of what was said all come from the  weren't corroborated but more importantly she was very aware of the fact that it was very clear in the policy that she read acknowledge understood and intimated in her deposition she understood what harassment was as well as to whom to report it and that she had an obligation to report it despite that she never reported it even being after disappear being disciplined both verbally then in writing into evaluations and then suspended for clear violations of that comparing women to motorcycles and to suggest that sexually suggestive manner she was very aware of what was prohibited in this came over a year period of time yet she nonetheless brought in that picture that we talked about that was littered with offensive terms by any measure now i understand and i think it's very important for this court to understand two things number one despite plaintiff's attempt to continually refer to stillman and courtney a supervisors they are not it is very clear under this court's decision in and  joanne's versus john morel company that form an analogous to this case who do not have the ability to hire fire promote or reassigned to significant duties are not supervisors does  it it seemed like the record suggested at a minimum that that was the person that she was supposed to complain to that you were supposed to contain take your complaints to stillman or courtney absolutely absolutely not your honor the record shows that and this gibson admitted that she signed it acknowledged the harassment policy which gives three different avenues the manager of the plant human resources and then also corporate headquarters she admitted  opposition she was fully of where of those multiple avenues and how she needed to report it and she didn't moreover just as a practical matter it seems if i were having trouble on the floor the st place i would go to to my supervisor well they're not supervisors and i would agree with you on that that you would go to your senior former foreman and have a my foreman and that's why jones is such an important case here because jones addressed this type of foreman issue directly and this court would have to overturn that case to find that courtney and still were supervised when would we really have to because weren't courtney and stillman consulted with and did they not participate in the actual terminations what they did is they brought the picture to management and when it was  and they claim the picture was the complaint but as mrs gibson admitted and her actions showed she brought it to stillman and courtney and said do not share it with anyone else they believe they had a duty to share it with management brought it to management when  where it was she snuck in to mr stillman's office took the complaint and ran away with it but fortunately a copy had been made of it so no she was very aware to whom she needed to complain in fact in her own written missions contemporar at the time after terminations when she finally complained after her terminations she indicated in there that she considered her coworkers a bunch of uncles and brothers and she and was with  she referred to stillness and she really respected and respected his judgment and this is after her terminations after her terminations what is more she said that i found very few things offensive and when i did i said something to the offender and it stopped i did not want to report them because she thought they might get terminated we are putting a yoke on concrete equipment company that is certainly adverse to th defense or this is a textbook example of color farragher the whole purpose of that defense is so the employer can learn of the harassment and stop it before it gets a very pervasive not only did she not report even though she was well aware of exactly how she needed to report and she had a duty to report or form an required to report incidents of harassment they become aware of any employee is required to be to report harassment and indeed there are examples where still and courtney did report the harassment despite the fact that miss gibson says there are no comparatives here there were no less than four men who were punished under the sexual harassment policy mr lowe who was fired for making inappropriate comments towards a male coworker and grabbing the coworkers head and pulled me towards his crotch mr horne who made inappropriate sexual comments on facebook regarding a female employee was also terminated mr little and mr kraft were both suspended because a foreman saw that they were looking at porn on a on a phone and didn't report that they were both suspended at that point so there is a consistent record of enforcing the policy once it's no once the four men  known and i think it's very important for the record to understand that there all of the allegations that misgives and arises with regard to mr stillman and mr courtney they were all denied they denied that she reported that to them and there's no ever other evidence that she reported anyplace else other then the referring to a sander as an ass grinder that they had met that was a tool was called that it was  they stopped doing that but miss gibson said that didn't offend me she admitted that your deposition i didn't offend her so it's very important to understand that the policy worked as it should in this case both for male and female employees and  about a tangible employment action mr stillman and mr courtney did not take a tangible employment action against miss gibson it was art keller who was the plant manager who terminator she is not alleging that art keller nor kerry hakan meyer who was r manager engaged in any harassment if they get engaged in harassment then it would be a tangible employment action they'd they did not they're not accused of that so we go to the l or l or therapy or defense at that point and we walk through the steps and it's very clear that the employer did everything it could to give miss gibson the opportunity if she witnessed harassment to follow the reporting requirements and the evidence shows when it was reported then and then steps were tak n it's also important that we look at the district court's decision with regard to severe pervasive there's both an objective and a subjective standard of severe pervasive and we know because mrs gibson admittedly she engaged in all of the conduct for what she was disciplined for she admitted that yes she admitted that but don't you have to put that into context let's start with the objective would would would you agree that there's sufficient evidence on the because i understand she's saying she was not offended by a lot of it but i also understood her testimony to be in part i want this job this job i feel good about having a job here i'm getting a trade i've got something i can i'm a welder i  can do something and support myself my family she's trying to fit in especially if she can at the beginning of her an interview process the plant manager said this is a vulgar place and how are you going to survive in a vulgar place if you don't you know try to step up a little bed and so i'm really i'm interested in the subject of part because i don't know that in as i read the record it's as cut and dry that she was all on board with what was going on there sure i will say two things to that yes the place she was in a well there but the plant manager made sure that she got into the welding program to become well they're very supportive of her employment throughout but miss gibson was warned over and over again that she couldn't engage in that behavior the actual record where we have evidence shows that she engaged that behavior after warning after warning after warning and she perpetrated those things so that goes nestle the subjective nature but also it goes the subject nature is her conduct even after her terminations she was making very clear that i wasn't offended such that i wanted to report any of these people i didn't want them to get into trouble she was very she was well aware that concrete equipment company in force their policy in her own conduct she was aware of it she was aware of others who were who were disciplined under that policy she knew how it worked and it could work but she chose not to do that and she engaged in the conduct that you know she she was constantly using part of her parlance was that kind of words and behavior she admitted to that over and over again a decision authored by you judge grinder where you found the plaintiff was unable to establish that she was subjected to a severe pervasive harassment when the plate of wrote and i quote she had the privilege to work with some very hardworking and dedicated employees including express reference to the store manager she claimed engage in that harassment that's what we have here gary stillman who she claims didn't do anything with her complaint and was involved in the rassmann in her alleged complaint she said gary i respect you and you always seem fair and you like to look at both sides that is more evidence showing that she was not subjectively offended but again even worse she subjectively offended we go back to the textbook application of therapeutic here she was aware she admitted that the company did everything it could to set forth its policy and convey it to her and she admitted she understood the policy how to report when to report what you need to report and she admitted she did not do that that is what more can the company do at that point when they don't have knowledge of it and it's set forth and again she doesn't take advantage of it and again really in the ended up she anytime she objected to it she said it stopped and didn't go on after that and perhaps that's maybe why she didn't report it don't know but we do know that she has that obligation mr moore did you heard judge eriksson's question regarding the characterization of the of the drawing and the letter how how do you respond to that question i say it two ways your honour's number one is that when that complaint was brought in an allege complaint it wasn't brought in as a complaint she just wanted to share that was still mccourt and said don't share it with anyone else and when she found it might be shared with management she ran and took it and ran away ok so it can't reasonably be a complaint in the st place number two  she was warned about using this type of language over and over again in a progressive discipline this wasn't the st time this was the final straw after she had been warned and stillman and courtney both reported they were frightened by this this came in and this had the n word in it the c word and it all these words in there that they were frightened by this picture and it didn't make any sense to them at all and it's certainly not words that speech should be shared in the workplace by someone who has admitted they know the proper channels to make it actual complaint this just simply and that complaint again was for race discrimination with regard to her boyfriend who she called her lover at the time who was at the soda machine and told another person they can go and i can repeat the language but use profane language in it and there was there was no you know even real adverse action there so it's very important the context that you look at that complain it was for race discrimination and again the people her coworkers who received that complaint were scared they didn't know what to do when they see all that which is a clear violation of the policy and when it was reported to management it was addressed and we can't look at it in a vacuum it was after substantial progress of discipline finally again with regard to the compares i do want to mention that the district court didn't find that  they did not report of the same supervisors what the district court found was it wasn't reported to the managers and h r who made the decision if those other things she alleges would have been reported to those individuals they would have been proper compare but moreover there's no evidence of that agree just miss the progressive discipline all the things that miss gibson was subjected to there's no evidence that those folks are comparatives at all for those reasons your hono derogatory they were curse words they were harsh but they were also words that amanda told human resources that she experienced in her employment with defendant in her complaint she stated this is what it's like you know one of only a few women at the plant she talked about frost and said this is what it's like being one of only a few african american men at the plant there's no question as judge erickson seems to indicate as well but this was a complaint of when there are those non moving parties facts but are in contradiction with what the moving party is asking for you need to adopt the moving parties and tolan there are disagreements about whether the deck w lit whether the assailant was in a crowd versus charging position whether the individuals yelling the court relied on individual testimony even if it wasn't corroborated or substantiated because the individual wasn't the moving party with regard to the subjective belief of sexual harassment the record shows that there were instances where amanda fell intimidated where she felt degraded by diffidence employees actions and those are situations that clear dispute of fact that's a situation a jury should decide the jury should hear the evidence in this case and determine whether or not they want to give credence to her testimony that was not a role for the district court judge to play the role of i believe judge bruno you asked how many women were on the floor amanda was potentially one of only i think she might have been the only one on the production for a st significant time period of her sixteen months as an employee also merely because