during this and a mic and i hope everyone and my opposing counsel i hope everyone is safe during this time thank you i am maureen holland along with abby reuben f annie vet kirk we represent sally davis who is the appellant in the current case sally davis is at the time that she experience discrimination was a thirty five year employee for metro she had spent the vast majority of her career working essentially in golf in that area of golf and was exceptionally good at what she did she was exceptionally deserving of an advancement she applies for an assistant director position that at the time was unusually merged with another assistant director position and she is the st candidate and she should have received the sort of more prestigious assistant director position which was in the area of primarily of the golf and golf services and instead that position was given to a male who was less qualified and she was instead put into the position of assistant director for community programs of retaliatory harassment the standard is the burlington northern standard and it has to deter or an employee  employee from filing and i agree with that the burlington northern applies and i know there's a split in the circuits on whether to apply that to retaliatory harassment but i guess my question's a little different i'm sorry for not asking it well which is do you have what i would call a group of events and so are right after she filed her claim and then some or three years later in two thousand and sixteen ok the kind of major events you highlight in your brief and so under the legal weave or factual question i that's a separate question i have is what does occur how do we determine whether something occurred repeatedly if if we're talking we have to look at every event and decide are each of these events occurrences so that those occurrences now have to happen often enough or do we look at each event and say these this collection of events is the occurrences the practice that we're focusing on that would be two different ways of looking at the sequence of facts so justice thomas highlights that in morgan i guess my question is is are they all part of the same coin yes and the reason we had assert that they're they're connected is because of the standard of review which is you have to show that there is a but for connection not the but for connection so if the analysis is you have to show me that the o the that there was a protect activity and there was a complaint about it and everything is the stems only from that that has to be the sole reason these things are all connected that's a standard but we would submit that that is not the standard of review under nascar that is a review and so as well that connection that would be the important thing so if let me give you a hypothetical that's not your case if there's three or four acts right after someone files a point then there's a ten year gap then there's one more event and they file a hostile retaliatory hostile work environment quite are those st fo related to the th it is that by law you're asserting or by fact as i understand the law there are two things that happen with temporal proximity one if it's close in time there's an inference in your favor that they're connected but that's not the only basis upon which the court can make its analysis it can look at other factors that show the connection for example if he has been later on just please give any answer to my question and you can explain for right after just like years one hundred and eleven years or ten years plus later is the st part of the same claim is that  question we ask for a factual question i would submit that if that is a factual one because if there is are facts to support that they are connected including someone saying i'm doing this because of what happened for ten years ago then that would be a factual in corrie that is not simply a pure legal analysis where a judge can say i hear by decide this is our position i hereby decide that because of this time frame you're out one you said three years but in fact she had gone back to the h r in nine months prior to the odom event so it's not just three years ago there was one thing that happened she had gone to h r three times in that time period the last one being nine months before so it's not a three mere thirty three year break the next thing is that there is a sequence of events going on that collectively show that she is being treated differently after she complained after she goes to  prior and they owed him event is a materially adverse event even by the admission of opposing of the opposing party where they reference and we reference this on page fifteen  the so is merely adverse and our client experiences this as essential a demotion and no one else is treated this way especially at her level of position and if there could be a reasonable inference which is a factual factual determination by a jury as to the degree to which this is connected to the prior event looked at in a vacuum here is one thing that happened then that's an analysis that the court did but we submit is incorrect because there are a series and sequence of different treatment that she experiences the negative treatment that she experiences that dissuades her that she says for me is a don't you alleged that the original sex based discrimination claim was in june of two thousand and thirteen canet it's the inference of causal connection not the actual causal connection there can be additional facts that support that there is a connection between the protected activity and the what the plaintiff is claiming is retaliatory harassment and that that is looked at under the burlington northern standard and is not as severe a standard as higher hurdle if you're looking at overall discrimination for instance that retaliatory harassment is a much lower bar for a plaintive to meet and they need only explain these are the kinds of things that if you look at under discrimination standard might not be serious and significant but for me as a person who went through that process the plaintiffs need to explain that i am experiencing as these things in a way that deters me from filing hence the burlington northern standard hence we put in our brief regarding the e e o c analysis of that rule into northern standard discrimination hostile work environment claim on page thirty four dollars of the brief restrictive the e e o c enforcement guidelines talking about what does this mean and terms of retaliatory harassment and this threshold  and there the e e o c is speaking that retaliatory harassment conduct commute challenge under the burlington northern standard even if it is not severe or pervasive enough to alter the terms and conditions of employment so the standard is very different if it's a retaliatory harassment case versus a discrimination hostile work environment case and those things being significant here because i believe you're correct that the trial court analyzed this looking at extreme that was the court's language extreme conduct which would be sufficiently severe pervasive but when looking at a retaliatory harassment case as here the stand the bar is much lower according to the supreme court in f work time because of all the events that transpired she retired earlier and because she was experiencing the anguish and anxiety that was going on because of this that was supported by mr benson's declaration which is here that the court disregarded in fact the court said the removal of your assistant that doesn't count being demoted by essentially being effectively demoted that doesn't count going through all these events reprimands they don't count and if they do count we're going to keep them a separate incidences and we're going to just say they're not connected even though we've shown that they show a pattern of behavior against our client that was very dismissive negative harmful and destructive then you're like continue to get a road arc i believe that our client got the normal rate of pay for her own job but that doesn't mean that she wasn't experiencing negative experiences in the job which she attested to and benson also said he observed and of my time is up sir i'll answer any questions you have  for those that are not time for the extreme length of time and accompanying unrebutted rationale not time barred for a hostile work environment retaliation claim i would agree that they would were determined whether she brought that granted summary judgment on or hostile environment claim retaliatory i should say so why why can't we consider that in so why can't we but even considering that in the totality the frequency was not enough to establish that it was the mirror of a why did why use that is to go back to my example for events right after one  right and i thought he said you could but that it was at least possible but again you would have to the stablished that call the link which the district court properly found has not been done here provision by ask you this it says so i agree with you he says justice thomas says on the other hand if the if an act on for a one had no relation to the acts between days one thousand two hundred and how how do we know they have no relation she's alleging they do she's alleging all these acts occur because of her discrimination complaint she says i was periodic lee making this discrimination complaint and i was treated differently and here's all my examples some of which the district court said were independently severe  have nothing happen and they can be related to the initial conduct so what you're saying is if the harasser harasses you for a year you put up with it because the company says they're going to do something then they're northern in morgan the way i understand it is they say basically a hostile work environment is one claim and all the acts are just part and parcel of that clique ok and they say retaliation is one calling right and so now you have a retaliatory and i agree with you there is no case from the circuit i've looked retaliatory hostile work environment it seems to me it's just a retaliation claim of a different color why wouldn't we apply to any complaint by the plaintiffs miss soto supervisor all of the assistant directors in the email the director of land sent informing the status of this change he specifically said that she would be the st but she would not be and supervisor was not targeted at the point of this additionally the transfer of mr vinson was not at st and not causally related to the filing of discrimination importantly m davis testified that when she moved over to community rather she asked that mr benson be moved with her so when miss davis got her promotion when miss davis is filing  testified that she would be moving the servants and that director latest decides to take that step early for the flames from a soda and move mr vincent prior to that in this context that is not an adverse they action it is a matter of timing and not a matter of retaliation your honor asked a question about frequency with regard to a retaliatory harassment claim i would refer the court to clave united parcel service where this court almost fifteen years ago decided that fifteen incidents over two years was not sufficiently sufficiently severe with her faces if my math is correct are very incensed for a hypercritical supervisor who didn't criticize coworkers and made false accusations about the plan fests the court held again if that was not severe selectively enforced policies unjustly chastise the plaintiff and refused to meet with the plaintiff was also not severe pervasive it noted that these incidents occurred over eighteen months with no effect on her employment and here there was no that she found herself with the financial resources and i ask you one more question i'm sorry to go back to my original question but i just thought of something on the burlington northern question don't do the district court and both of you below cite the burlington northern standard in essence the language might dissuade someone from filing a claim that is the burlington northern language that is the furling to northern no allegations are there no facts that miss davis wasn't doing her job well and she wasn't well respected by her peers or there was any effect on her job performance you so much there is a continuing violation there was retaliatory harassment and it does significantly impact this day this is experienced on the job this is her wor i did it i couldn't even imagine sitting in federal court is not me but i couldn't let it go i just think that is disgusting the way that he acted it ruined my last four years my years of park were some of the best years i've ever spent in my life i loved my job i loved the department i love the people but this destroyed the last four years of my work at parkes four and a half years is not that i had no impact mr benson her assistant in his affidavit which the trial court disregarded speaks to the impact that the retaliation and he uses that word that the retaliation  on plaintive i also want to mention that the other is some internal inconsistency in the court's order in that the court and its original order on page fourteen says that this the comments in affidavit it says could imply the possibility that mr lynch had a vendetta but in the order the judge says there is not enough evidence to show that there was retaliation so that that i think we would submit that the affidavit is sufficient for that in terms of quick response of the court of the court asked about the standard on page thirty six of our brief we say there is no single factor that is dispositive in establishing a causal connection but evidence that the defendant treated the plaintiff differently from similarly situated employees or the adverse action was taken  shortly after the plaintiff's exercise of a protected right is relevant to establish the cause of connection of the claimants can produce evidence from which one could draw the inference this is looking at the avery case out of the six circuit one thousand nine hundred and ninety seven so temporal proximity is not the only factor it is a matter of fact this was a summary judgment issued this is not after a jury has looked at everything and come to a conclusion this is the judge deciding on his own that these facts are in the judge's opinion they don't connect and we submit that they do connect the th