your honor i'm pleased to report that i now have a new understanding of the problem of congestion in the courts may please the court my name is jerrod smith i represent tend to miller who appeals the grant of summary judgment against her on her claims of gender and national origin discrimination and retaliation i wish to reserve five minutes for rebuttal if this if the facts in this case were looked at in their most sinister lights  because she was a female and she competed with a male for a job he would he undertook a campaign of terror against her off he used his position and authority in the detention facility to carry out his policy as he had stated that there is no place in corrections for and women have no place in corrections he would deliberately assign her to work directly with the most dangerous inmates in the facility he would deliberately provoke their resentment immediately before she came on shift and he used his control of the doors to signal to her to the other staff and most importantly to the inmates that there would be no prompt response or aid for her in the event of and emergency or peril he was allowed to do this because he was  spanish and mrs miller was not a she complained and when another supervisor intervened to stop the discrimination that intervening supervisor was stripped of his supervisory authority and because of her gender she and that intervening supervisor were accused of having an affair and we wouldn't expect someone from hawaii to know about alleged affairs in a detention facility in a small town in arizona that in fact it went that far mr lemon spoke with acquaintances in hawaii who had heard about  that she was demoted from a position and banned from receiving any further training at the same events that mr lim lee would attend she was denied pay raises because of her additional job duties and she was not given a merit pay raise at the same time a male coworker received the increase in pay at the earliest practical moment before they even made it back from the airport and dropping off the a c a team she was denied the opportunity to work overtime as other more compliant males and hispanics were allowed to do when mr lemley her supervisor advocated on this issue he was promptly punished by being required to take the rest of the week off and uses vacation pay instead of the accumulated comp time that he should have been allowed to use she resigned because she was concerned for her safety in having to work alone with mr lose anea the person who had been setting her up for harm in the facility her it has been determined that in her application for unemployment benefits that that was reasonable on her part she had good grounds trees on from her employment the district court in arizona has improperly refused to consider relevant and mental miscible evidence in support of her right to trial and has refused to review the facts in the light most favorable her claim and draw any inference is there from in her favor such a decision is contrary to the law in must be reversed in my brief i indicated that i had not found any cases indicating whether or not the standard of review for determining whether or not a case was it whether or not there was a continuing illegal file ation and i have since found a rhode island case that came from or got island o'rorke versus city of providence two the defendants have asserted that ms miller's complaints were outside the scope of her e e o c charge as i look i just interrupt you there for a minute because there's so much going on in this case that it's almost hard to figure out where to start asking you questions but that's maybe a good place to start to try to break this down a little bit now court the district court held that several claims were were precluded because they were not brought in the charge before c charge suggests that that was brought to the e e o c a question that i don't know the answer to is whether or not the charge of discrimination is designed to protect the employer or the employee but the law says that is to be construed liberally i understand that and given you the benefit of the doubt of liberal construction of the charge could you point what in the charge deals with the failure to promote allegation the first sentence says i was subjected to different terms and conditions of employment  then more specifically said since june two thousand and nine i've been subjected to different terms and conditions of employment and so i thank god you have more specific and indeed how is it specific at all i mean if that sentence suffices that's all any ios a complaint would ever say because you would argue you're arguing now that that that encompasses anything that happened who are in it's enough where it is the word of promote or failure to promote or anything like that identified i mean it what seems to me as you're saying just filing an ego see claim means well i was discriminated against so any instance i can come up with later that constitutes discrimination is fair game and i don't think that's what the law is i know that if she were to look at this and the charges are usually drafted by the e e o c and if she were to look at that and say i was subjected to different terms and conditions of employment she would say well that probably covers that so she would not necessarily be alerted to say that but nevertheless this is sort of it's it's related costs such that all you have to do is to say i was discriminated against and that solves the problem of having to identify having to have your subsequent complaint in court the matters that were previously brought to the attention of the  think that this is this is if the law has already addressed that question by saying i don't think it's addressed at the way you're advocating hasn't well yes but because it can you give me a case that says it's enough to file a complaint that says i had different terms and conditions and that's it after that you can raise anything that might speak in this in some general fashion to that in court if they're closely related to the claims that are put in the is i suffered from different terms and conditions as to what i mean that's like filing a complaint and negligence suit and saying i suffered by injury due to defendant's negligence period now with notice pleading that might be enough but usually a little more is required she does reference the assignments that she was given was a new discriminated against miller because of her gender and race through a number of specific acts you just talked about some of those acts that miller complained of the conduct beginning in october two thousand and nine that miller complained about  treatment and she was retaliated against and that all of these things resulted in her destructive discharge that's basically what the charges i'm not of that speaks to failure to promote i just took that one  all right well when was it she didn't get the promotion what we're talking about in a failure to promote well there is the failure to promote when she first applied for the job but when she came back there's a second failure to promote because she had to start and then there was june two thousand and nine that went to present no that's a merit pay increase that went with them the promotion that she did a promotion that she didn't get was they wouldn't give her a prez or a reclassification when she assumed the duties of acting a ca coordinator and she started writing policy and working in at a higher level than the time that she was working on the report we're preparing for the inspection you know actually i believe that she was promoted there is evidence in there that she received the title but she did not receive the re classification of all that the cia assignment was a temper or it wasn't and i've only got two minutes left i want to be able to reply to him i don't know if in ok if you choose not to answer the question that you're option what's what's your question my question was wasn't the a c l u assignment a temporary one of men you're only going to work on it as long as they're preparing for the inspectors yes but if it lasts for over thirty days according to counts but county policy you're talking about ms miller's claims you have to start with a hostile work environment claim that she's made in this case as this court is aware in order for a hostile work environment claim to be actionable it has to be timely in other words at least one act constituting part of the hostile work environment has to have occurred after in this case december ninth two thousand and nine and i think that's where we start with the hostile work  and in this case ms miller hasn't shown that after that date she was subjected to to a hostile work environment there's no evidence she was subjected to verbal or physical conduct of a sexual nature or that she was treated differently from male employees or from hispanic female employees the the terms and conditions she was subjected to after that date weren't sufficiently severe or pervasive they weren't pervasive because they weren't frequent what she complains of after december ninth two thousand and nine is that at some point in august two thousand and ten sergeant los the wouldn't respond in a prompt manner to her radio calls or calls to open doors she testified that that was not frequent and the evidence in this case from losing the a himself and from mr rhonda is that that would happen from time to time but it would happen to men and women so there's no evidence that she was treated differently from anyone else in the facility there's a discussion with respect to a laundry comment that that's not the type of utterance the constitutes an actionable hostile work environment can i just interrupt you for a moment just on the  on the dates issue if we were to find that that some of these allegedly harassing events occurred within the time limits and they were related  couldn't we couldn't we find that the ones that were before what does was it december two thousand and nine yes or the ones before that it was relation back that they were all tied together so when that bring those pre december two thousand and nine events into play it would it would bring those two thousand and nine events into the into play if a determination was made that they were somehow related to the overall alleged hostile work environment and you look at continuity of action you look at timeframes you look at the parties involved the people who are alleged to be subjecting the employee to a hostile work environment so i would submit that even if you get to the point where you determine that there is perhaps a question as to whether it's of a hostile work environment at any point after december two thousand and nine that what she alleged prior to that doesn't come in because there's again there's no evidence that the stuff that happened prior to that was or constituted a hostile work environment whatsoever i think what she's talking about that happened before two thousand december  thousand and nine is the suggestion that she was given a different calendar and not allowed to work in the control room for a certain number of days that and called upon to work in the alpha pod more than and and  that strikes me as is perhaps the sample of a claim that does extend over time in the shift rotation is always going to occur and if you have a persistent or at least an allegation with some evidence of a pattern of assignments that puts her in that less desirable more dangerous location more than others why isn't that enough to make out a case for hostile work environment well i think it would still have to constitute it would still have to constitute a hostile work environment related to her gender so there would still have to be some evidence that the actual evidence that that there are comments that women don't belong in corrections it may not be a spur powerful case but the question here is whether it can survive summary judgment why isn't that enough to survive summary judgment because that's not the type of  that constitutes offensive language sufficient to sustain this type of case let me explain that this is simon pattern where she appears to have been disadvantages compared to the others might be linked to the fact that somebody doesn't think she belongs in that line of work to begin with well i would agree with that if it were the case that the schedule was in fact implemented she objected and it wasn't implemented with respect to the frequency of the of the a pot situation sergeant presents to testify that he is not sergeant lose india is the one who made that schedule so he's the one who determined where she was going to be and when so i'm not sure that any comment by random is tied to the argument that presents he did something with the schedule so i think you have to look at the totality of the circumstances in this case is you know factually there's a lot stuff going on here you know let me so so there's two questions i think one is whether there is some a vent that is after december two thousand and nine that that the plaintiffs can establish is part of this kind of hostile environment directed out at the plaintiff and there are a couple of examples which which could meet that criteria for example the refusal by wood to allow miller to work overtime now the district court said that it was not going to going to consider that our geisha because the county presented a legitimate reason for that if if the plaintiff is correct that that's part of a pattern in practice then that sweeps back into the into the case these predicts ember two thousand and nine events right so that's sort of the first question is there something that allows the relation of severe or pervasive hostility so is that how we have to kind of break it down yes i think you do have to break it down and then get to that second part why isn't it severe or pervasive if you think about you know the incident with the with the toilet brush the starting up of rumors of an affair to kind of discredit her i mean if you put all that together why doesn't that amount to a pervasive or severe sure well i think when you when you put it in those terms it sounds like it could but when you really look at the facts in this case the type of conduct that's being alleged side obviously from the fact  disputed in my estimation was not sufficiently pervasive in other words this stuff wasn't happening with the type of frequency that we typically see in hostile work environment cases the the thing the issue with the radio calls in the ms miller herself testified that happened on a couple of occasions in two thousand and nine in the fall of two thousand and nine and then it it started up again but she doesn't describe any frequency in the summer of two thousand and ten and i also i just don't see that this is the type of behavior that is related to gender discrimination in a hostile work environment claim there's really no evidence that with respect to what she's describing other similarly situated individuals weren't treated the same way that goes to the disparate treatment it claim it does now the comment that you've been asked about already that's what makes it appear the comment women don't belong in corrections that's what makes it ties it up to gender hostility these various like the yearn in the toilet brush event is on its face a gender neutral of if it happened it's a it's a you know ridiculous act of workplace misbehavior right but combined with the women don't belong in corrections comment it could be viewed differently couldn't  well i guess it could be viewed in that light if in fact there was one scintilla of evidence in this case that that lose an ear is the one who put the urine in the toilet brush holder there's no evidence of that and she testified that that happened three times and that didn't really start to happen until the middle part of two thousand and ten when she started to clean the restrooms once a week and there were other people that clean the restrooms too so there's there's no evidence tying around to that discreet act if you will this and i'm going to have to  hope that answers your questions i'm going have to try to blow through this we have some ground to cover and i would draw the note on the hostile work environment claim you know i would just draw the court's attention to western door versus west coast contractors of nevada that's at seven twelve fed third for seventeen in that case a co worker's suggestion that a plaintiff where made costume  and numerous sexual comments to her coupled with the supervisor's apparent at least participation to some degree in those comments and this was over a period of time was not sufficiently severe e and and that's just the way it is so we're really left with the follow up and that's pursuant to the court knows to the morgan case the following acts hypothetically could constitute as employment decision these are the ones that would have happened after december two thousand and nine the reclassification pay raise issue that the court has already discussed that was never raised in the he'll see complaint and i fail to see how an investigation into that reclassification slash pay raise would have naturally sprung from the e e o c charge the may two thousand and ten again mr gala would apparently didn't forward a recommendation from mr langley for a pay raise same issue in july two thousand and ten there was the assignment to work the graveyard shift september two thousand and ten it was plants request to work a different shift for mr lose in the august slash september two thousand and ten when mr garrett would not let ms miller work overtime after she was finished with her a ca tasks and then we have the constructive discharge those that that's the world events that we have after december two thousand  time goes fast i've talked about the pay raise with respect to the july reassignment naam i fail to see how it july reassignment where she's already a detention officer and she's on a temporary duty and part of her job description is to work in the units when she gets reassigned back to the units which is her job i fail to see that that an adverse employment action over time there's no evidence that other similarly situated individuals were treated differently than her the evidence in this case is that mr gatt would just do not want to work on the a c s audit any more that in fact she wanted to go back to the unit go back to the floor it was part of her job she was more than welcome that evidence is undisputed in this case the issue with respect to the different shifts from m which i think sort of ties in with her constructive discharge case  in my estimation that seems like it's better suited for the retaliation plan if it's really for me it's hard to sort of peg that one into a disparate treatment claim but in any event with respect to all of these in order to survive summary judgment not only does she have to make a prima facia case she has to come back with sufficient evidence to sufficiently rebut the legitimate reasons that the county has given and she hasn't done that in this case and i'm going to touch briefly on the in the retaliation claim also point out too that the courts should be aware than in two thousand and thirteen the supreme court established the but for causation standard in retaliation claims and certainly that hasn't i offered to answer any questions if not i'd like to point out that the one investigation that was conducted by the count independent investigator relating to these same charges did bring into its scope all of these things that we've been talking about here when i when they dug into the issue of discrimination gender discrimination against han miller all of these things came out just let me ask you a question counsel says that anything before december two thousand and nine with respect to the disparate treatment claim and i take it that's also put to the retaliation claim should not be looked at what brings those events whatever they are what brings them into that into your case legitimately brings  the same conduct continued before and after that's the the locking of the doors and i think the fact that lose in the end is the principle perpetrator and i'm out of time in nine seconds ok but thank you thank both of you for the arguments in this case which is submitted and now we'll move to levelly versus graham county