the court counsel again my name is jay dan and i am representing him imola moller in this appeal of the dismissal upon summary judgment of a case involving claims of retaliation and sexual and retaliatory hostile work environment there is a variety of issues raised in this case i'm going to begin by directing my attention to the retaliation claims  point we are making upon appeal relates to the importance and relevance of evidence pertaining to the admission that we claim it relates to retaliatory  level employee of community title various employees had made a specifically charity archer being foremost among them made various complaints of sexual harassment primarily different employees evidence in the briefs so the issue with the court found with the defendants i believe the gist of their argument is is this not direct evidence of retaliatory motive because and i think if i'm reading their argument correctly that it wasn't made to somebody else involved in the decision making process and it wasn't made at the time of the decision making process to terminate so the background of the direct evidence statements by persons involved in the decision making process that may be viewed as directly if relate reflecting the alleged discriminatory attitude and the particular importance of whether something's a direct evidence or not is is different from most in that your client herself did not suffer any sexual harassment or anything like that she's basically retaliation was that they were delegated to her because she complained that others are being discriminated against largely based on claims of others largely or that gets into the issue of this sexual harassment there was an offensive e mail sent to her by mr anderson the sexual part of it we are claiming sexually hostile work environment based upon that incident plus her knowledge of the other incidents as well as dovetailing into a risk to claim for retaliatory harassment and i know that there's one of those issues that the various circuits circuits have come down on that there is a claim for that as far as i know the circuit hasn't had a direct chance to to decide whether there's a retaliatory harassment claim so  it is it's really undisputed that three tally ation that a hostile work environment can already be a determine to be an adverse employment action under the retaliation standard right so under for retaliatory harassment judge judge read determine the district court that it wasn't made in the in the process and it's our position again based upon just reading thinking analytically thinking logically that an admission which directly reflects upon the decision making process even if it was not made in the decision making process itself should still be considered to be direct evidence of a retaliatory motive or discriminatory motive when it gets to be a longer period of time is a need to be clearer you know terminations is not mentioned you know the right they pick at you it isn't you know it seems me like the longer time it is that clear needs to be you could i think statement we submit losing our way to the end bringing up stuff to get people riled up egging on other ms archer to make these complaints about hansen is direct  enough particularly when when he talks about at the end that seems to imply or be directly related to the termination process so i would say the the distance from  terminations i think truth is or a statement is a statement regardless of when it's made but a jury could could analyze that accordingly at the very least even if it isn't direct evidence under the mcdonnell douglas strike so to speak you know it's a i don't think so again i think that that would be a jury question if there was a discussion regarding that and there was e mail in the fact this didn't happen so what was the what was the linchpin what was the deciding factor testimony of archer that mrs talkee if i pronounce her name correctly was told miss archer that while she tends to embellish these things when archer archer was  get that right stalky told archer when she was investigating the complaint that she was checking on mahler because she tends to embellish things keep an eye on or those types of things so i think i'm going to get about four minutes for have met someone reserve my time for him you may please the court chris hoy me jackson lewis on behalf of the police please are various title insurance companies and individuals holding executive offices within those companies under the advertising tagline umbrella the title resource network t r in a mist mahler was employed as both vice president and then promoted to regional vice president of the apple e community title working in the sioux city iowa geographic area we're here today because miss moller has appealed judge reed summary judgment order dismissing her three claims that she was subjected to a hostile work environment based on retaliation and sex secondly discriminated against based on retaliation and due to her sex and then it appears the primary coin that was dismissed miss moller alleges that she was retaliated against for reporting both discrimination and a hostile work environment on behalf of others miss moller alleges that the decision to terminate her employment was motivated by an illegal reason despite overwhelming evidence to the contrary that she was terminated for legitimate legal reasons related to her performance as to the st claim hostile work environment based on retaliate i think judge read in her order at page twelve of the order and this goes to both the hostile work environment claim based on retaliation in the sex discrimination claim based on retaliation in taking one of the cases cited by the plaintiff the burlington case said judge read quotes that  says the substantive provisions of title set seven seek to prevent injury to individuals based on who they are their status contrarily the anti retaliation provision seek to prevent harm to individuals based on what they do their conduct judge reed says neither the purposes of title seven nor the cases cited by mismo or support a hostile work environment coined based on the ledge retaliation and based on that clear coin is the sex component sex discriminant component where basically the court held that there was no evidence from miss mahler that she herself was subjected to harassing conduct and that is necessary and required under the prime aphasia case the only possible evidence was the e mail from m anderson to miss mahler that did have an off color joke in it miss mahler responded to that email as for the record and said don't worry about it no offense taken i did get a good laugh out of it thanks for the laugh the court under the crap sort of case found that this was an admission that the work environment was not abusive and was fatal to the claim this evidence was further augmented by and a text message that miss mahler sent to shannon norton as she was putting together her i c r c information and she said and i quote miss mahler said they are asking how were you sexually harassed and how were you discriminated against and i want to scream i wasn't you blanks i was just fired for reporting it ok and you agree that that could state a violation of law right for rick if you're if you're retaliated against for reporting absolutely absolutely so you better get to that claim it yes yes we'll get to the retaliation claim the direct evidence argument we think in spite of what counsel opposite has argued that the statements by mr anderson and shannon are or mr toki do not constitute direct evidence specifically  we have case law in this circuit that requires there's that direct evidence provide a strong causal link between the alleged discriminatory bias and the adverse employment action and then the bias however that of the decision maker and relate to the decision making process the case law that i know this panel familiar with the ram what case in the twyman case which contains statements from the decision maker during the employment of the plaintiff in these cases in ramla it the supervisor who made the decision to let this person go in the nature case use the term he wanted to hire a bunch of young dumb and full of cum guys he wanted young studs to replace the older sales guys in the court found in affirming summary judgment that this was not sufficient to infer age discrimination the direct evidence conduct as it did not relate to the decision making process was like high frame the key in that case excuse me was the time frame that he that was made four months before the terminations yes you act like it was made right at the time determinat and i didn't mean to mischaracterize it because specifically it said at least within four months it was four months outside which of course we equate to our facts where made six months we haven't years or six months after yes or different because before as you know there's lots of evidence that ramli case yes i know you just want to do with it six months is is is different where the decision maker himself anderson was the person to fire right no doubt no doubt close is this statement to an issue i don't think it's close at all talk about the words it does the words say mahler head egged archer on to pursue a coin moller got us all riled up about stuff that did not matter that does not have anything to do with the decision making process in any substantive way that would be well within the ram wit and twyman cases i think it would take an inference that this court under the standard presented would would say you can't make an inference that has to be basically on all fours this in the opinion of the app police doesn't even come close miss talkies alleged direct evidence without without spending too much time on it the the appellant moller admittedly during the summary judgment process in response to our undisputed facts that dennis anderson was the authority terminating that tookie had no authority to terminate in was not involved so we think that is crystal clear these are not comments from a decision maker and therefore do not fall under the direct evidence again context again this anderson was a decision maker yes but what he did or said was outside the relevant time frame in other words we're not permitted to draw any reasonable inference from what he said or did or didn't yes judge judge reed said it was made outside well outside the decision making process to an individual that was not part of the decision process itself and does not relate to that decision it simply i believe as judge read saw it straight comments that did not come close to meeting the very rigid standard of direct evidence from this circuit i think the case is cited on direct evidence by the lo c case we've discussed where basically yes summary judgment was reversed when the decision maker the plant supervisor auto parts case auto parts industry case where a female plaintiff in a sex discrimination case doesn't get a promotion and during the deposition the decision maker said well i didn't think our industry would look favorably upon having it female in that position and they asked him they said did the fact that she was female impact your decision and ultimately the answer was yes so here we have an admission we don't have anything close to that with the statements by mr anderson and mr toki very briefly the case is in addition cited by the point if outside of the a circuit the wheat case the shelton case i think are clearly distinguish will based on the facts and not applying the same standard which really brings us to the prime aphasia case in pretext part of the retaliat claim what the lower court found judge reed found is that in terms of the prime a facia case almost mother had going for her was some type of temp proximity in a in a three year employment pretty close to temper proximity yes your honor took them were within the two week standard that we see from this circuit the majority of them were outside of that and so on the prime of facial argument judge reid said well initially there may be that inference because it's that close but we think that she thinks that inference was greatly diminished by the fact of  the twenty one e mail that says predating this protected activity within two weeks predating that saying i'm i'm out of the country or i'm not available go ahead and terminate her and this was just on the heels a turf micro managing issue where he just said i'm not going to be around or accessible go ahead and fire her that undercuts it according to a judge read judge read read found that because we have the majority of the protected activity occurring without any negative whether it's an adverse employment action anything else happening throughout her employment that's a negative and then the fact that a constant advocate you know where i'm going you're ready for the question so a constant advocate doesn't get any protection but is that an ad hoc advocate us i would argue and i think we've done this  brief is that it goes the other way where we have a history of high level executive who got a clean gauge and protected activity without anything happening in fact got a promotion in fact got a raise cuts against any argument that suddenly that engaging in practice protected activity mounted motivated a decision to terminate or which brings me to the final point from judge read which was four days before she was fired she contradicted another supervisor's directive to send an employee to another office and said to the employee don't need to do that and that was it and that was the reason that judge reed thought tho those specific pieces of evidence the four hundred and twenty one e mail the lengthy history of protected activity without any negative consequence and the fact that again we had this micromanagement issue raise its head four days before and basically the company said we're out so judge read the evidence and decided that was going to go yes based on the fact that she only evidence and  was severely decreased to the point of not having a fact issue as to the prime official case but then judge reed said ok let's assume based on the temporal proximity within the two week period that we've talked about let's assume there was a prime aphasia case even though i think the evidence and the law is clear that there was not let's look at the text and the court said if you look at pretexts which requires more than tempora proximity the plaintiff is required to prove two prongs one the decision was faults to the decision was motivated by retaliation that miss moller does not even come close to providing evidence to rebut that burden and there was no fact issue and as a consequence there as a consequence the retaliation claim was dismissed on summary judgment journal was compiled in at least august of two thousand and fifteen after her june two thousand and fifteen terminations it was compiled in preparation for litigation the i you your honour's so just a few things i want to cover before versus the after in terms of the whether something is direct evidence of retaliatory motive again not going to rehash what you've already discussed lots of course for months prior versus ours being a statement afterwards you know you think of any analogy you want to whether it's you know premeditated murder case or what have you but it emission after the fact that directs on why i did it you know why i did it would seem to be more direct evidence when somebody four months prior to being an action just for i don't know how to explain it other than that it just logic indicates that you're reflecting back you state this is why you did it that's and that's relevant that's direct evidence and the language of it itself egging on last away at the end again browning in the other cases statements by persons involved in the decision making process that may be viewed so again reasonable jury could they view it may they view it as a direct admission our position on that is yes that's a jury question as far as the timing of the terminations versus the some other of the prior complaints and things of that matter what we have you terminate retaliation they can be case on any case they wait for the opportune time they do it doesn't have to be after the st retaliation and i would echo and agree with what your question was about you know people who complain or advocate more than one should be treated differently than somebody you complains just once as far as the other  the final thing i think i want to just talk about for a minute is the affidavit of ms ms mahler for one is some of the some of the evidence clearly is outside of that and i think that the norton testimony of statement we have more extensive testimony than that with regard to the other thing i would just point out this case law was cited in submit based upon that alone it's fully admissible in these proceedings before before you based on all these reasons we're asking that you reverse in remand for trial on the various claims before for a jury