soon after he began his employment with the company he began to be harassed or subjected to a sense of comments that were both subject  did a main and said that he was basically a bag of shit now these comments mr roberts testified were repeated they were offensive to him they were witnessed by other managers including ryan nurse manager brenda neal and they were reported to managers he reported them to the needle he reported them to bruce evans over four times bruce evans is a higher level manager and equally important lee he reported them to a woman named emma glahn who was the wife of the owner of the company well at the time that he made the report in november of two thousand and fifteen and january of two thousand sixteen was serving in the role of the human resources point person never is there there's no evidence that there was ever in the haitian don there's no evidence in this record that any action was taken to prevent this condo in fact mr roberts began work with the company in july of two thousand and fifteen and his undisputed testimony is that this behavior began soon after he was them well and continues until now is discharged so that at any point in his employment a report his concerns to the president of the company but that failure to report them directly to the president of the company does not absolve the company obvious its obligations and responsibilities to investigate the matter now the big question here is whether mr roberts can make a same sex sexual harassment claim with out of hearing twenty one of the three ave is outlined in non college the last two don't apply in this case there are no female comparables and we have not made any allegations that mr ryan or the person who is primarily the culprit here was homosexual but what we are certain and this case evidence taken in the light most favorable to the left he knows that was quick based he says that it was constant it was repeated and even if the the only as to on cali we would ordinarily tell the district court what the correct standard is and then send the case back and let them in the st instance apply that standard having never applied it before having used it in it even if we soon district court was wrong we did have cases even though one published that seemed to embrace the on tally standard as being an exclusive standards i mean is there a reason we wouldn't let the district court do it in the st instance no your honor and gave you my pr that not only gets all of the facts determine in the light most favorable to him but also all of the inferences and meant terms as winding down so i do want to address the issue of defendant that our client did not complain directly to ric houlihan who was the owner of the company who they say made the decision i say the knowledge of these earlier complaints made to his wife and to the other managers is imputed to him and it is a question of fact whether he knew i would ask you to consider your decision and westmoreland versus t c administration which would allow a jury to make inferences on that evidence also stu's me can you give us some context here just the record deposition he was one of two project managers and that the other one the other project manager was the son of the company the person who was then doing human resources was the daughter of the company and the buys president for operations was the title that the wife had and are we talking about a company that has princeton but fewer than one hundred dollars employees are we talking about thousands of employees do we know that from the made and of course the plaintiffs shows you that even though they said they terminated him because of safety violations that the value that they supposedly safety violations that were not obviously taken seriously they claim safety is important to them and i thank you for that and use the rest of my time on the  extent that it just refused to consider that evidence because it was not facially discriminatory and finally if i could go to be affirmative defense issues that this court which is u any examples of harassment and nd it needs to show that the employee acted on reasonably in failing to take advantage of any this corrective measures or in some other way in failing to d avoid harm and th designed effectively and it wasn't implemented effectively and in addition the response to mr roberts was complaints or it addressed effectively and effect this is an issue that the defendant i feeling to read that in the district in making his complaints to the harassment supervisor to another supervisor but multiple complaints and he also complained to the vice president and she human resources officer and company  sitting in charlotte north carolina with the shoemaker loop and kendrick firm as you know i represent the defendants glenn underwater in this case just to start out you know us sexual harassment claim as we know in the hostile conduct that a sufficiently severe or pervasive to alter you know alter the conditions of the employee's employment and of course it has to be imputed will to the employer the conduct here was not based on  position that on cal is exclusive i believe it is but even if it's not i don't think it matters there's no evidence in the record as the yossi argues that as the e e o c argues mr roberts was insufficiently masculine that he failed to conform to traditional stereotypes let let if i could follow up if i'm remembering the district court's opinion correctly its decision center the only on cali elements that isn't right and did not go any further that's correct your honor and i believe there's i agree with that there's enough evidence in the record for this court if this court wanted to expand the on kelly elements there's enough evidence in the record for the court to do so without remain and i think that would be judicially economical but certainly it is within the purview of this court to remain on the court felt that   my whole career in a predominantly male environment but you know if you said in a woman subjected to this i would be shocked by this  why does anybody get a pass because they're a man for making comments like well i don't think the evidence is as strong on severity or per person of interest pervasive there's not enough evidence in the record for us to decide whether or not it was it might have been severe pervasive but there's just not enough evidence the record for us to for the court to rule on that and i believe that's how the district court about moving on the so if we're looking on kael you know my colleague can concedes that we're only looking at one evidence and that is whether or not the there's credible evidence that alleged harasser is homosexual and made explicit or implicit proposals sexual activity that just did not happen he called them names terrible names but that that's what he did he called him names now if we move beyond i'm cayle there's no evidence in the this you refute that it was not because because of sex this was not because of his sexuality that's the problem here that these were directed at him because he's gay or because he's a man but the evidence was did he say that it evidence on the record that there is any suggestion that he was offended that he was not strong enough that it in fact he was told he was hey he had a retard strength i don't know what that means but you know i think there's nothing in the record that he did not testify that he was told he was  connection whatsoever with the sexual acts they reference you know comes down to the horse play admonition that justice scalia gave us and on kael that there are places where these things happen and you know we shouldn't appendix when eighty or he said maybe when he was asked if he called roberts all those names you know he could have said oh i might have called him something once or twice but you know when you think he said the problem is you know severity aside was this because of his sex or because of his sexuality i mean if we follow the e e o c logic of the say mr autumn's roberts could press  race discrimination claim if his supervisor hadn't to instead called him racial epithets several times over the course of employment and that doesn't make sense why couldn't they why couldn't he bring a case of race called racial epithets that are typically directed at persons of color that doesn't make the same argument right but he's a mate he has a sexuality you know whether it's whether he when he's not gay but he has a sexuality in here and in his person so it's different from just about whether a person is cop asian or african american there you know asian american all different from that well sexuality as it is as a hair and everyone as skin color is inherent in everyone and here his sexuality is straight and there's nothing to suggest that mr reiner was abusing him because he was straight because of his inherent sexuality i guess that we could have a reverse discrimination claim at some points not in this case but in other cases where someone's abused because of their straightness as opposed to being abused because they're stereotyping is that self discrimination or can be discrimination because it's there's no evidence in the record that there was any gender stereotyping going on here if in fact you know he other  other than the words you know there's nothing outside of that other than the words but what else does need to be in terms of heresy is your words cut like a two edged sword often i mean i mean why would why was there at least as a le i think you're talking out an ignorant person who probably i don't know this is on the record who probably opposes homosexuality and therefore thinks that calling someone names associated with homosexuals sexuality is offenses and just wants to call someone names and wants to hurt him right i would assume so and you sexual references that do i would assume so but again as a th th circuit held this is not uncommon and some  agree with it but on the issue of retaliation there's certainly no evidence of knowledge by mr clinton who the handbook says is who you're supposed to report to he did testify that he told anna glenn who was mr quinn's wife that occurred over three months before the decision was made and again the decision was made by mr glenn others no evidence she ever told him but the most important part of the retaliation claim is the but for issue you but for his misconduct you know mr roberts own misconduct he would still he would still have a job there's no evidence that that his complaints of sexual harassment had anything to do with the decision that was made ultimately determinate him  engaged in an unsafe conduct and on two occasions was disciplined about it actually sat down in the room with the owner of the company made no mention of the fact that he was being harassed in the workplace and ultimately was terminated the evidence about the overall safety of the workplace none of it addresses other employees and aging and safety violations it's more of a just a general gripe about you know certain things he was asked to do or not asked to do you know that you don't have any evidence of your comparative evidence about other folks engaging as i think that's just a red herring  say and ask the court to consider the bostic decision in the context that bostic say as basically everybody whatever sexual persuasion is covered by title seven if everyone is covered by the total seven then all of the stereotyping based on sexual orientation or perceptions of a person's sexual orientation or stereotyping is also covered by the title seven and in this case you have those comments which are sufficient to form the basis of a sexual harassment case without what reiner wanted to impress upon him and how he should act and so there is no evidence that either these men were aga but to be subjected to the constant taunting and harassing is a demeaning way that the supervisor misused his position to cast a dispersion on mr roberts in a way that offends title seven it was all because of his sense had he been a woman we don't know what he would be doing but he was a man and he was being subjected to a standard of masculinity if you will by these comments and badness physical aggression and that's why the evidence of that is the goal aggression is important now the no place in the workforce now the defendant is arguing that we cannot attach a retaliation claim to fact that due to the fact that they say th mr roberts engaged in some safety violations well evidence in the record shows a number of instances where more egregious safety violations than a burn on my hand took place and those employees were not disbelieves mister glyn when he says that he didn't know that there were earlier claims of discrimination that doesn't require a finding of discrimination nor retaliation but it is sufficient upon which the jury may base its decision and yes ma'am some to interest seem to mean that the weeks part in your it is no direct evidence of knowledge on the part of the person who's been designated as the reporting individual well you know honor what we have is that  knowledge to other managers can be imputed to him we have a case law on cases that we can consider that we could rely on for that proposition because i think that you can't just say because some just married to somebody he must have known about it i mean that's i take your point and i would refer the court to the cases that we cited and i would tell the nation section including ou controlled by family members would have made him aware of the aca and if the jury believes that he did not know then we won't have that but if the jury does not believe him when he says he did not know the plate of this entitle to should've known cases that you want us to particularly take a look at yes you're on the howard versus winter case anstruther versus the city of laurel now and then thank you for your