judge anderson judge joe flat and i are very happy that you are with us our telephone arguments have worked pretty well over the week the hopefully they'll do so today again valerie will give you a two minute warning when you're about to run out of time so that you'll know and can then be get up wrapping your discovery wrapping up your discussion with that we're ready to go and we will start with our st case  dana andersen at all versus the surgery center of komen its two cases number seventeen dash one for seventy three and number eighteen dash one for eight to mr car appeals these appeals involve three broad issues one relates to miss anderson and the court's decision to grant directed verdict as to her outrage has some other preference i'll proceed in that order starting with miss anderson i believe one of the issues can be disposed of rather quickly and that relates to the samsons constructive discharge claim found she and the other nurses were subjected to a sexually hostile environment while they worked there at the hands of dr johnson at one point dr johnson took a leave absence from the surgery center the question is whether or not miss anderson who quit was constructively discharged in concluding that  she had construct a discharge claim have no merit the district court ironically concluded that she had resigned in march of two thousand and eleven rather than as to whether either miss bates the administrator or miss crooks and i may have them backwards heard that but i don't think the constructive discharge claim will turn on whether or not anyone heard that having been subjected to a hostile environment and two investigations and then to find out that s c itself sponsor this halloween party where they provided the cakes with decorated with it said dr wyndham's botched that no reasonable person should be expected to remain in that environment because it's very staff event that was sexually offensive that led her to conclude that she just couldn't stay around there because they were not going to protect her and that would be a question obviously there's  be since it's a summary judgment that would be a question of fact a jury would have to decide but at this point we just believe summary judgment inappropriate because the only grounds for granting it was an erroneous conclusion that she left without giving them an opportunity what do you make this is judge jordan mr greer what do you make of the district court's partial reliance on the attempts of some of the administrators at confused the status of constructive discharge law there was a time when the courts suggested that you needed to show that the constructive discharge was intended by the employer that's not the law  so whether they did want her to resign or not doesn't affect as a matter of law to construct a discharge what we do believe it shows is they understood the power that they had because they provided the nurses to this facility and they wanted the the conduct to stop they could to stop dr johnson very earlier they could have made the environment safe by merely saying our nurses are good not going to serve these doctors unless you clean up your act they're separate they're separate entity s c a providing the nurses to the doctors if the doctors were going to clean up their act i think a ca has an obligation not to not courage the women to stay there and see what happens but the stand up for the women and say you're right we're going to make certain this environment to say in that context of course they also through their silence misled the women into the sexual harassment and in fact stop right but the construct a discharge doesn't require that there be a continuation of the sexual harassment it can be that the environment continued to be fearful that they failed to take proper corrective actions and indeed the mistreatment of her remember this is a hostile environment case not so much a sexual harassment case so dr johnson wasn't sexually propositioning the women he he was exercising and then sympathy to have women in the workplace unless they did his wishes  yes and he had previously made threats against her is that in the record as to the things that had led to the original hostile environment has improperly taken the word extreme which is to describe the conduct that will create the tort of how courageous or intentional infliction and applied it to the level of distress that the distress required by the alabama supreme court is the distress must be so severe that no reasonable person could be inspected to endure it and endure means simply you shouldn't that you could suffer it patiently without complaining the reading that the court gave to this element is that it somehow has to be your emotional our brief nine hundred and ninety dollars case said that the emotional distress must be of a degree more severe than a reasonable person could be expected to endure that was the jury instruction given to the jury we believe that  the jury follow the jury instruction that there is certainly sufficient facts in the record to support the jury's verdict on a motion of stress damages and well i think in many of the cemetery cases there is it's not really very clear in fact in some instances the supreme court of alabama seems to imply that the outrageous conduct would ordinarily unnecessarily create severe emotional distress with humiliation and embarrassment and so there's no evidence of any o'flynn was on the panel i believe it was just total where there is basically a one month reduction in disability benefits where there's discussion about the individual had depression emotional vomiting no none of those outward manifestations and part of that is that that linking of physical harm to emotional distress is certainly historic issue and tort and forty s or fifty's this reluctance to just find emotional distress damages has been disappearing in tort law and the requirement that you link your emotional distress to some physical be severe and extreme only need to be more than a reasonable person could be expected to endure and we believe the evidence is fairly clear that no no reasonable person no reasonable woman in a workplace today should have to endure being called a dick wrangler and being called a whore and a slut every day and being threatened with being held under the water until the bubbles stop or being ridiculed because of your gender recognized with regard to miss lackey that she was subjected to outrageous conduct through the sexual harassment so for the outrage claimants summary judgment the only question is whether her emotional distress was sufficiently saffir and again at summary judgment we have to look at the facts in the light most favorable to ms lackey and there is evidence that during the six months in which she worked there  the abuse was so bad that she would cry at home thinking how abusive he was and she had no ability to stop it every day when she'd arrive at work she would get not just worrying about what he would do to her that  day she feared for personal safety because he bragged about his gun collection and talked about retaliating against those who opposed him she was fearful that he was she said she saw the way he was treating the  all that he would start treating her like miss anderson and then of course it's the humiliation that she was suffering after the catheterization incident where dr johnson in front of patients and staff didn't complain early enough but of course from the facts it's not clear that the conduct to which she was subjected rose to the level of being a hostile environment until november of two thousand and eleven when you have the dick this lacky had gone to the administration very early when she started and said what's up with dr johnson and they have told her look he is what he is just deal with it  so we think certainly for summary judgment there's enough there to show that she did complain and of course the fairground defense is two parts the nd is did they take prompting effective action to stop it have a system for promptly an effective lee remedying discrimination with regard to the constructive discharge plan again i don't want to lose my time here with out going to the rd issue but we think  we have adequately dealt with in the slack is constructive discharge planning in so i would like to turn to the final issue which is the question of attorneys and we think there are two in consistencies that is that the conduct must be so intolerable that a reasonable person and employees position would have felt compelled to resign as judge anderson correctly noted mr anderson and  both testified that after the complaint early two thousand and eleven neither were subject to sexual harassment by dr johnson that is important further with regard to miss lackies constructive discharge leave he had no opportunity because he was on leave to subject her to a hostile environment during that time farther miss anderson testified that she time and as regards to anderson she knew that what she feared could not come to pass one of the arguments is judge jordan one of the arguments with regard to sanderson that mr greer makes is that your client kept assigning her to work with dr johnson late at night which was in her view distressing given what had happened and there was that staff event that was to put it in one way sexually offensive what do you respond to those two plates as to finding her to work with dr johnson that was within the scope of her duties there has been no again she has complained of sexual harassment she has not raised further complaints because knows that sexual harassment  of employment decisions but what reasonable employer does that after these sort of complaints one who has the recent who believes the rehabilitation it's prompt effective remedial measures have been successful behave he took a leave of absence your honor and went and sought treatment and then returned to the facility he was removed from his position as medical director so he was not in a position resign or to create an environment again mr anderson testified that she resigned because she thought johnson what fire and the court correctly found that dr johnson did not have the authority to terminate her when she knew that he did not have an authority so while she may have been fearful that her employment was going to be terminated and that in her mind justified her but that nation that was not objective really reasonable and that's what's required  require her to complete the documentation for her personnel file again this must be those there's no evidence that any retaliatory acts were taken that there was nothing that changed the terms and conditions a it again it's a subjective figure and there's no evidence that any of these things would come to pass and in fact they did not come to pass she resigned her of leaving right away without giving two weeks notice and then being subjected to an unfavorable recommendation when someone tries to check references and then if she gives if she gives two weeks notice and tries to work through those weeks so that there won't be any such problems then she's told wall you can't have a hostile work environment constructive discharge claim because d you got it out of work the last two weeks is that an impossible choice to be making it is a hard decision here are from the boy's perspective however the standard to construct a discharge again is very high this is not one of harat standards discharge and bring it down and line with a standard of harassed complaint in january two thousand and eleven she did not exercised her ability to complain before then and said she chatted elected not to the court was correct in concluding that sure employers the ability to correct things in the workplace in a prompt matter so sexual harassment does not continue so once the employer is made aware of sexual harassment they can take promptly remedial fact measures to say about that i say about that planet's council again that that is also not presented in their brief and lackey also had complaints regarding  try to find it in the record that should be pretty simple to find but if we have difficulty will lost both parties for supplemental briefing yes your honor i want to make life easy on am i see i'm out of time bill grieves with the jones walker law firm in birmingham al represent dr kevin johnson in this case i'd like to start off with an overview of just basically stating that  when this case was pending for many many years ms anderson worked at the facility for six years she worked with dr johnson that entire time i think the record reflect for all fairness dr johnson's testimony that they were friends they got along things that there are definitely inappropriate allegations here inappropriate behavior so i'm not here to defend that but does it rise to the level of severe emotional distress does it rise to the level of extreme and outrageous misconduct i think it's instructive that the plaintiffs in regard to ms lackey i'll start with that on pa fifty two dollars fifty three cents of the briefs embrase initial break they go into thirteen incidents that they say constitute a tort of outrage now want to point out and i don't know if this is all that instructive or not but i think it's important to put it in perspective this case started out from his lackey with three allegations and one was being called a lesbian with ms anderson the nd was her tiger tail reveal that the plaintiffs in this case where at ease they were having a good time they were smiling they posed for pictures dr johnson took the pictures they were all having a good time the pictures of ms anderson holding her tiger tail to her mouth posing for a picture i mean there was a lot of horseplay involved in this there was nobody required to be there mehta fact they made their outfits they showed up and they wanted to have the party so that's what that has how that came about there was no sexual harassment or harassing reason to have that party the decrying or thing apparently arises out of one incident where ms lackey was having trouble getting relapsing and male patient ask for help dr johnson said exasperated i've done this enough for you and of course if you said this it's inappropriate he said you're going to have to handle your dicks i can handle those for you and and the allegation is you can get pointers from miss anderson because she knows how to handle minutes well that's the alleged incident and that was it enough evidence of severe misconduct or severe emotional stress and then just colossal came along and put it put the case back in for ms anderson for trial and course we had a tragic a soft for her lackey was out of the case those descriptions almost pages you see that just doesn't rise to the level of sex of a hostile environment i cited in my brief about six cases you don't meet a hostile environment you mean sufficient for the tort of outrage correct yes or i cited about six cases in my brief beginning on page twenty three in which scribes cases in alabama very similar these but but wars in which the court in alabama hailed those were not tort outrage claims they did not rise to the level of severe enough evidence in terms of emotional stress or misconduct so i want to move on to i think i think that's a clear case i really believe we're due to be affirmed on that as far as ms anderson goes that's another one to her her allegations morphed as as time went by as well of the allegations that we're talking about her was no loss of employment mr grieve let me ask you this question what what alabama cases hold that medical treatment or hospitalization is required to show sufficient emotional distress you know i have not seen a case it specifically stands for that proposition that you just said however all of the cases that i cited in my brief cases the turner versus hayes law versus prints the crawford case all these talk about emotional stress on comfortable feelings afraid fear crying aggravation in so many words annoyance discontentment and then they say particularly in the state farm case versus morris they say that that this and that would signify are of them or manifestation the stress to satisfy the inner injury component of the outrage is important and they talk about the fact that the plaintiffs did not seek professional treatment or counseling that's in the state farm case so the signifier issue as that after listening to the testimony and he didn't grant the motion until after the trial was over and he said i want to really go back to the record so judge claude written back and read the record and decided that the directed verdict should be granted in regard to ms anderson because she did not prove any evidence that rises to the level of severe emotional distress and he to clearly relied upon the turner versus hayes case  questioned about a private life made sexual and innuendos in general ask her to meet after work looked up try to look up her skirt kept her from doing her job and took a password to a computer away an attack words supposedly this this supervisor hayes was doing everything he could to harass and to severely cause her to be in stress and the court trying to rush says that that was not enough to rise to level approving severe emotional stress does not meet the level of the cases in mike as it was cited in that case as an alabama case where the court found over the top what is this you know and and all this is going to be extreme situations ok this is not your regular recklessness or a vin intentional act of a tort it is is designed for a family better o burial context wrongful misconduct is something about a dead body that the sprinkle of alabama said if you start messing up in treatment of funeral homes and dead bodies then it's going to be almost evidence of total outrage it has to be a barrier methods by an insurance company which is what the m and case was and then also agree just sexual harassment so i'm just concerned that we're getting into an era and i'm very very respectful of the maid to movement and it's collar kanchan as to the importance of recognizing the treatment of women i really do but i think we want to make sure that we don't water down the tort law here where every time a case comes down the pike it's an intentional infliction of emotional stress because that is a very guarded very narrow window of opportunity for proof i want to talk real quickly about the assault battery what we're basically yes again this is charles career for a pal and just a few things that relate to the search for the arguments from counsel for surgical care the circuit's decision tuscaloosa hicks had been and was a police officer who was seeking some accommodation to breastfeed and the chief of police did not provide that in their circuits concluded that the city's refusal to provide the accommodation to miss harris is what compelled her to resign and that meant to construct a discharge standard the important thing is that that standard has changed over time this weiner talks about a th circuit case from the one thousand nine hundred and eighty s and that may be true but since that time the supreme court of course decided souter and decided greta versus brennan just in two thousand and sixteen where they've now made it clear that that in order to prove constructive discharge in a hostile environment situation something more than the minimum necessary to prove hostile environment might be necessary but that doesn't mean that the evidence of a hostile environment if more than the minimum is not sufficient to satisfy that standard then more importantly get it must be c as one entity and the defendants were very successful in establishing that s c a was not a joint employer was not an integrated enterprise with these other entities whatever dr johnson did with regard to taking his leave of absence losing his position as medical director that was not at the hands of s e a s e a did not make that decision they could not make that decision fact they took no the next thing they know there's a meeting where a new medical director is introduced and the women reasonably concluded that that meant dr johnson's good not just as dr johnson p c the corporation but that he was not coming back as anesthesiologist when it turned out that wasn't true it became i think evident to those women and to any reasonable person that s c a was not going to take anything that was going to protect them to remove him from the workplace an essay should not be permitted to take credit for whatever the other corporations did and what dr johnson did himself which he described as a wonderful vacation are the most wonderful things she has been in years  with regard to the whole question of construct a discharge and the slack in the sanderson we do discuss the problem of mitigating damages and these two cases together raise a serious problem that  judge jordan i think you raised is what is a reasonable person supposed to do knowing that this is now the rd to gage and with dr johnson and he's coming back to work he just stick it out and say maybe the rd time will stick well lackey says i don't have to put up with that i know better than that has to misandrous and she could say well ok i need my job it's really important i'm going to have to stick it out is of mitigation  problem with regard to dr johnson's arguments i just want to say one of course judge england is a magistrate judge he did not make any findings rulings or grant summary judgment made a report recommendation that report recommendation was rejected of this lackies claims and then we would like the court to with regard to the block building in the attorney speak section reinstate the hours remove from this haynes's the hours as well as the hours removed from all the other attorneys for which there's no evidence of block building block building and then with regard to the reduction of the lodestar to overturn the district court's decision reduced in the lodestar by twenty