two claims for relief that were presented one for sexual harassment in particular hostile work environment claim and the second for retaliation now fred miss camero was a well experienced retail person he had a bachelor's degree and he was hired by home depot february twenty first two thousand and started at some point there after and while he was employed there he was  under extensive sexual harassment by his immediate supervisor department head rene brennan now the organizational structure for home depot was there were sales associates and this camaro was one of those there were five or six in the hardware department running was the department head of the hardware department and then there were area supervisors the area supervisor over department over the hardware department w ran in that is numerous things that i felt i was in my brief i'm not going to restate those because they were pretty well detailed in there but there were not only was it words that were to him presented to him but there was offensive touching there was talking about the male genitalia in front of him with a coworker there was incidents where she would squeeze herself between him and the railing america touch her box on his genitalia she touched his face his chest calling him various pet names such as stud man stud boy and big strong man she did this on almost a daily basis there that's what the record shows object he objected early on in the early on when well this started right at or near the time he started working and if you in his deposition transcript he said very very early on he did not criticize provider provides a specific date but he did state that he told it right hey we're name come on we're working here stop doing that didn't stop him doing his job army didn't stop him doing his job you know he was able to continue to perform his work there at home depot but it was a it was something that was definitely offensive to him all throughout his deposition he refers to it was embarrassing it was unwelcome it was something that he most certainly did not want to put up all right it was a fancy but there wasn't anything more about this was a married man your honor this was conduct he had never undergone any time during any of his employment this was something he felt was offensive and it was almost on a daily basis this was not the harassment of a violent nature but title seven doesn't require it to be to that extent this was not in a sex sexual assault the title seven doesn't require that type of conduct it requires that the environment be a severe and pervasive hostile environment to an objective standard and to a subjective standard he's clearly testified in his deposition that subjectively he was and i submit to you under the totality of the facts and under the case law that has been litigated throughout the ninth circuit in other district courts for circuit courts that this conduct that brandon put him under rises to the level of actionable sexual harassment under title seven now while he was there he was  when i went to the first complained to the the brain and supervisor that was on around april tenth your honor and that's how long you've been working here in an approximately a month the five weeks he reported that to harassment at this point and then i'll get to the retaliation claim the district court used the test as articulated in harris versus forklifts system and the court found one of the four factors president found that the frequency w high but that the other factors as articulated and harris weren't present now one thing i want the court to bear in mind is that remember ran in was doing this conduct to another coworker right warner and brett warner found it offensive enough to report it to his supervisors so not only do we have that activity take place your honor the best we can tell thanks time was that before or was it after or doing right around  know well actually this comerica testified in his deposition that he stopped granting do this to warner on one occasion we took the deposition or the defense took the deposition of warner and he's testified that it happened on many occasions so we know it occurred concurrently american employee with home depot but it probably occurred after the actual complaint that warner made was after miss camaron was discharged but this conduct had been going on so we have another employee who found almost the identical conduct misc america's put under sufficiently problematic to report it to management remember warner was a long time home oh employee it worked there somewhere six to nine years was throughout the southwest for transferring to a new store in las vegas so the district court found frequency but it didn't find it the conduct was sufficiently some severe or that it was physically threatening late thirty's early forty's at the time this wasn't a brand new hire and it was offensive to him in its detail all throughout that it happened practically from the day he started at least up until he reported it to work well  it depends your honor is you're aware it depends on the frequency there's cases out there to talk about if the frequency is high but the conduct isn't as severe as one might want it to be or in terms of what other cases of hell that there's a lot frequency you you can take it in a sort of inverse relationship this was something that permeated practically daily existence there for fragments camaro and so if you couple the two together you have an actionable sexual harassment claim under title seven where is there any reaction by welsh and any action taken by welsh after nothing was done in terms of what was related back to is something that is just differences between men and women which would not be actionable and conduct that is actual sexual harassment and this is what they say isn't and this i think is very instructive on determining that the conduct here was sexual harassment genuine but innocuous differences in the ways in and women routinely interact with members of the same sex in opposite sex would not be sexual harasser ordinary tribulations in the workplace such as sporadic use of abusive language gender related jokes and occasional teasing would not be sexual harassment in this case i don't think any reasonable person who concluded that these  was genuine and innocuous differences in the ways men and women routinely interact with members of the same sex or ordinary tribulations of the workplace such as sporadic use of abusive language gender related jokes and jury you know even the case cited by the defense this still has to district court case which is a site that's and i did not address it involve the bench trial the plaintiff got to put on his evidence and the finder of fact after determining credibility of the witnesses and all the things that are attendant with a trial found it wasn't sufficient that's a big difference then striking someone's claim as a matter of law so for those reasons i think and for the reasons i've cited and all the other cases practically speaking that the defenses provided are minimal incidents instance in occurred one retaliation claim we know what the standard is with that that engage in protective activity as employers subject him to adverse employment action is there a causal link that exists between the protected activity the district court did not find that one and two did not exist in that test they are attacking and they dismissed my claim because they state or it stated that there was no causal link that exists between the protected activity and the states incorporates his burden shifting mechanism and shows that if the plaintiff can show and work and i'm jumping right now to rebutting the legitimate business reason that the defendant offers namely that there was a reduction in force if the playing of can show a pretext by showing that discrimination more likely motivated by the employer or indirectly by showing that the employer's explanation is  worthy of credence that's the test that is articulated in the vasquez and there's the facts that show pretext or honors falls temporal proximity we have nine days from the day he reported this to the day he's discharged number one number two there's no question it was there that there was a reduction in force you're just arguing that they picked him correct your honor and i want to address the i'll address the reduction of force argument no i don't believe though you may hear the defense argue this and directly  reduction in force doesn't emasculate one's sexual harassment or retaliation claim i think they're going to try to argue that if there's a legitimate reduction of force if you believe that there was a reduction in force that that in emasculates one's claim for retaliation i don't believe that's the law your honor you still look behind the reasons as to why the defendant was chosen and are are with is not a per se things one we know that we know from the conflicting testimony provided and this is where bryant warner becomes very important right warner remember was a long time employee and he had participated in reductions in forces on previous occasions and he said on every occasion there are there was a reduction in force at the department head was consulted and your honor common sense wires that why on earth would you have a reduction in force where you pick individuals from the part months if you don't go to the person that has the best knowledge as to who is the least of the worst or least productive participation now there's a conflict there because mr welch testified he was part of it and we know he was told of this conduct before the rift occurred but the fact is so they've created something i believe they've created under the vasquez case a defense unworthy of credence their own conflicting testimony and fred misc america's own qualifications apply this is a brand new story on it this is a man who was started an entry level position with a bachelor's degree and fifteen years of experience and we have grant warner's testimony again the experienced employee of home depot said there were a lot of other people that were a lot worse than he and i described that in my claim for that but there's nothing in the record that shows what happened to him that's correct your honor i did not put that in i put it is in the record because it's provocative on someone else complained about the conduct that goes to whether an objective person determine the conduct to be sufficiently severe and pervasive and i also produced what warner's testimony in there to show the qualifications someone who has experience with risks and that fred this camaro was one of the better employees in there and if he was why was he chose and it was an eighteen year old kid that was in there brant warner referred to as a goof off there was another lady in there who did not work very hard to put it mildly yet fred miss camaron was chosen after a reported sexual morning honors my name is mike sexton i represent respondent home depot taking the claims in reverse order i'd like to start with the retaliation because i was standing council's arguments and reduction in force did not know was not aware that mr misc amera ever complained either to mr brennan or to mr welch and there is no evidence to the contrary that portelli one who actually made the decision was ever aware that mr mr america had made the complaint so with all due respect the plaintiffs and mr mr meros argument with respect to whether are legitimate business reasons the reduction in force again there's no evidence that a reduction in force wasn't necessary i think what mr mr maritz saying is why was i included why was i part of one of seven again the record is clear that one selected from each department including mr mr maris and the decision the factors that were used according to mr portelli and mr young both who submitted declarations in support of our summary judgment motion or as far as why individuals were selected or terminations were experience performance feedback from coworkers act around skills and qualifications and again you've got mr mr america's deposition testimony where he says he has no hardware experience his experience basically with respect to hardware is working around the house i believe his words were i'm like guy i sometimes work with our tools and with all due respect when the decision makers were making the decisions as to who was qualified who had the experience who demonstrated the performance the fact that mr midsomer had a college degree these of the other factors that were used by those who made the decision for inclusion in the rif simply didn't make the cut and again most importantly mr portelli who made that decision had no knowledge there's nothing in the record to suggest there was any knowledge on the part of mr portelli who made the decision or anyone else who was present that they knew that the complaint had been made and again with respect to the retaliation claim i believe that constitutes a virtual fire wall that you cannot by definition that somebody would stand off and select a person from each department without consulting with the people in that department who well yeah well in this instance mr portelli was the acting store manager at the time of the rift decisions the assistant managers were all included in that decision making i think what mr mr merrett saying is according to mr warner who is an hourly associate and clearly not part of the decision making team in th so that when he worked in arizona when he was a department supervisor that management would routinely include department supervisors and that selection process but that's not what's happened here and there's no evidence on the record that that's required turning to the claim for hostile work environment again this is not a quid pro quo sex harassment case there's no evidence in the record of sexual advances there's no evidence of requests for sexual favors what you have according to the marriage or savings bank is one of the three required elements verbal and or physical conduct of a sexual nature that conduct arguably unwelcome for a limited purposes and summary judgment motion we can see that it was  or he felt that he was embarrassed by it he felt easy he felt that it was silly there is not one citation in the record in the in the record before you that he was offended  by this conduct and even if he was offended third required factor of the harris versus for that case is whether the conduct in question is physically threatening or humiliating and not merely an offensive utterance so i counsel representation to the court notwithstanding that third required element to determine whether or not the conduct in question was severe or pervasive is simply not present in the record before us  with respect to frequency i think what's before the court and what in the record and what was before the district court was the verbal comments that were made for him to mr mr drawing man i think with the words in the record the verbal comments were made in this mr allegedly on a daily basis but that was specifically not the case with respect to the physical conduct according three or four times and according to mr mr america is bright and you know rubbed up against him on three or four different occasions so that's the frequency with respect to the physical conduct question  and ellison versus brady case i think is particularly instructive in this regard you look to the perspective of the victim and when you look at the excerpts of the record which we've submitted again mr misc amera when asked whether he was there he does not answer that question and instead he says that it was embarrassing he felt on easy and that when he actually talked to ms brennan after the third time that it happened again it happens apparently on two occasions where he says nothing and after the third time he walks up to ms brennan and says what's the deal this is silly that isn't stark contrast that with all the met to be required element  that the victim feel that the conduct in question created an abuse of working environment the plaintiff and allison as i'm sure you're aware testify that she was didn't ask that ms brennan be fired he didn't ask to be transferred he didn't ask his brennan to be transferred he just felt that this brennan needed to be spoken with and that he was simply apprising mr welch the assistant manager of the situation  in fact there was a question in the x of the record of page twenty seven did you tell him mr welch that you wanted her to stop doing what she was doing and he answered that question not in so many words to be asking whether or not  they followed up with that complaint and that i believe is also particularly instructive in that you've got to look at the perspective of the victim arguably mr warner and mr mr america were subject to the same type of conduct they both  muffins or stud boys and touched and mr warner basically says i'm writing this statement because i have to and i don't want anything from home depot other than a fair shot at perhaps that someday getting a store manager position that's what's in the record  so that is the complaint that was made by mr mr america to mr welch and again the absolute fire wall between that complaint to mr welch to the decision makers and the reduction of for some you know eight page thirty one were if it had any effect on him which is ultimately at the end of the day when it comes to a hostile environment at least on the third required element what effect did it have on you at work and he answers no i never missed a day of work i always worked overtime whenever requested and i was a solid employee those are the that is the testimony in the record which i would submit as a matter of law that demonstrates that this in particular so sinister miss america is not suffering the type of required abuse of working environment and that the terms and conditions of his employment are not so sufficiently permeated with sexual harassment such that he cannot continue his employment  just have a couple points and then i'll rest mr sexton i think you missed you know you're talking all right sorry mr sexton mentioned in his opening in his remarks at the very beginning that mr to all the area managers and i remember welsh was area manager for department head but that's not accurate i don't think you really meant that and i'll just read the record and this is the excerpt record page six i do not quote i do not even recall mr welch being president for our discussion about misc america ran and paid no played no part in our discussion or decision regarding the ri he and again it goes to this fundamental question of are you going to have a risk when you don't consult persons that are most knowledgeable about who should be let go you are all that he could have looked at and said this guy's been here six can get rid of him it's just almost a temporary cushion of these your honor they were all started ad around the same time this store he started before the story even opened none of these people had been there for very long so have temporal proximity or harm in that and i have common sense and i brought warner's testimony that when riffs are done department heads are always consulted it just doesn't make sense the second thing your hon to bring up is mr sexton mentioned that he didn't miss any work well because of the harassment the fact is if you look at the totality of the transcript he talks at length about how it bothered him not someone who's going to call in sick because of something like this that's not required you'll find many of the cases that involve sex harassment a lot of the women don't call in sick and there's actionable sexual harassment that's not a requirement the fact is eat over and over again as a transcript taken as a whole and pages ninety through one twenty two if you want to look at those pages clearly delineate how much it bothered him and so for those reasons your honor i  requesting that the court reverse and remand the district court's granting of summary judgment one last thing the court never even mention the district court never even mentioned in retaliation warner's testimony never mention