for individuals who reasonably perceive discriminatory harassment and oppose it by trying to stop it that's what happened in this case my client who worked for decades for the phoenix fire department he's going to have his lunch at fire station one in downtown phoenix his chief assistant starts approaching him holding a pretzel jar a pickle jar that he just fetched out of station one for everyone to see that had a penis and testicles scrawled on either side of it and said shift b kid apparently it was used firefighters as you know work twenty twenty four twenty or forty eight on and then twenty four off so they pitch in money for snacks and this was their are receptive coal for receiving those monies apparently and chief jenkins thought it was inappropriate so he took it out he gave it to his boss my client frank cheatham frank cheatham thought it was inappropriate to he continues to walk to station one get this launch and he goes up to a and testicles cartoon like right in the kitchen for everyone to see on the not to cheese machine he doesn't say anything he goes back to his office he writes the guy in charge of station one a captain and tells him hey you know knock this off this is inappropriate then the captain interesting sends him an email talon i'm off telling him hey th house not kept in house i don't know i don't know what he was unhappy about i think he was unhappy about that jenkins initially brought it to chief attention and that he thought the jenkins should have just talked with him directly yes and i think that he was unhappy that cheatham brought it up and that harms was copied on it he should have been happy at all it's appropriately anyone should be able to say hey that type of drawing that you usually see scrawled in a dirty men's restroom is not appropriate in a workplace kitchen so everyone got all mad judge you look like you're about to ask me a question judge seriously concerned about whether this constitutes discrimination and harassment it's childish play be asleep but is this the sort of thing that rises the dignity of title seven klein yes your honor for a couple of reasons first of all just working in a in a kitchen that has a peanut tube to penises drawn in cartoons that you taken away as a result of his well they were but they were because somebody complained about it jenkins complained about it and cheat and complained about it but in addition to complaining it's also important to say hey not only do we not like the ones that are up but we also don't want this back so and moreover did it come back well they kind of did because when he went on record by the way well yeah it is in the record it came back in a few ways if it ever went away you know i'm talking about the drawings for i know it's all my first of all he was working out that's what fire guys do when they're waiting for a fire that's the t shirt incident did you ever see the pickle jar or the nacho or the not a nobody saw the same image on two other t shirts moreover when it was investigated another deputy chief chief cho tobin said hey we've had the part of my language cock and balls problem is station one for twenty years and in fact years ago station one actually been sued for the cock and balls problem in federal court and lost on a retaliation claim so i understand your concern judge hey a couple of distasteful cartoons it was really more than that it was on t shirts the investigation indicated that it had been up for twenty years and the city had actually been sued about it in lost so it was more know this prior lawsuit i don't think you knew of the prior lawsuits do you know of any prior problems the station and nobody wanted to nip any problems in the bud you know of any complaints by anybody there he knew of jenkins complain but other than that no ok but of but but here is here's the point now it's the supreme court has repeatedly said that the purpose of title seven is preventive you don't want to wait until something turns into a lawsuit in order to be able to object to it if people are drawing penises on the wall at work you want to stop it before it creates a big issue and that's investigation judge so it had been going on for twenty years so it wasn't a trivial problem that the district court reduced it down to it at the point that i just made or alien to the district court's order this was a longstanding problem that needed to be addressed and moreover it wasn't a trivial problem at least in most places that i've been that type of stuff is not really drawn on in the kitchen for everyone to see that's the kind of stuff you ever been at derek's a military brat ever in the military and no i was not in a fraternity in college yeah i residences your own business what but what you draw on the workplace that's an entirely different matter so this was a serious matter it's actually led to a lawsuit that the city lost and we're talking about explicit in the workplace that needs to be stopped and it should be stopped if not before it becomes a pervasive problem it's not pornography well i don't you know what whether it's well i think it depends upon context and us in a cartoon penis in the workplace kitchen i think does have i think that it's not unfair to say that is pornographic in context but i would like to save the remainder of my may please the court and king on behalf of amicus equal employment opportunity commission i'd like to just jump in on some of the questions that came up during mr montoya's presentation it sounds like your honour's are particularly interested in the question of whether the district court came to the correct conclusion by determining that no reasonable jury could find that chief tim had a reasonable belief that he was reporting unlawful conduct under and the district court did get the standard right cheatham did not need to demonstrate that the conduct he complained of actually violated title five and he only needed to show that he reasonably believed that there was a violation of the statute and coming back to the question judge bybee that you posed regarding the initial incident with images on the jar in the cheese machine judged by b you asked whether those images were turned and it's true that the fire department stepped in that somebody took steps to make sure that those particular images didn't return but i think the key question when looking at chief reasonable belief is whether he had a reasonable belief at the time that he made the report and at that time he wouldn't know what might happen subsequently in terms of the fire department's action so certainly by the time that the incident with pasta occurred he had a reasonable belief at that time that even though some is the only issue that the commission addressed in our brief and that's whether to gauge to and protected activity and so we didn't focus on the causation issue or faction issue at all  you know judge may hand i think you had a question about the the sort of the tenor of the workplace at the firehouse and suggested that maybe it's a little bit similar to military barracks but i think again and perhaps perhaps going back in time it's unclear whether cheatham had a reasonable belief after the first incident although it certainly as mr montoya was explaining it is not appropriate to have such images in any workplace and she cheatin himself said that he found that those images were inappropriate but again certainly after multiple incidents involving sexual imagery in the workplace that that had  crossed a line and the commission has had argued and asked this court to to also conclude that he could have reasonably believed that the humiliation humility incident and supported a reasonable belief that there was a violation of the statutes or standard to review on that aspect oh yes your honor it's a didn't over standard because again it's a summary judgment posture and the question is could it could the jury could a reasonable jury find that chief when and he made reports of unlawful activity that he had a reasonable belief that he re perceived that those incidents violated the statute where is the line between this is bad behavior that we ought not to put up with here and this violates titles of yes you honor well i think that it is helpful to look at the hostile work environment standard although again she did not need to establish that there was an actual hostile work environment for his retaliating claim and totality inquiry so that would consider the context of the workplace and whether individuals might be offended so it would have to be objectively offensive but something something could be inappropriate but the mouse on the board correct was it was inappropriate but it would by like title so yes your honor that's right that's a good example of something that would be inappropriate and yet not violent and this this surely was  sure act by somebody and may have been may have been tolerated because maybe the jar had been around a bit of wine for a while the chief cheatham had been had been eating taking meals at station one for a long time had seen it before he was he was relatively new to this station he had started i believe in march two thousand and nine and this was around november two thousand six months without seeing a pickle jar that was pretty obvious i had a nacho cheese machine which was pretty good sized and i could push in the other direction that it was a you think i'm going to nip something in the bud before it becomes a really really bad problem does that mean then that any incidental problem that might be com a violation of the statute all of a sudden becomes  in our in our in the commission's brief we advocated for adopting the standard that the four circuit has adopted which is that the boy in the berto that's correct your honor the in progress standard and that's if a hostile work environment is in progress and that would support a reasonable belief title seven violation for retaliation claims but i hear i i don't think that this is that where the fire is then to act to extrapolate and draw the worst out of human behavior in the worst out of every case we could honor i don't think that it's quite right that anything could become a hostile work environment there certainly are limitations and i think a couple a couple of examples that might help sort of suss it out the example of that the dead mouse now that doesn't have a relationship to any protected characteristic under title seven and it's just a juvenile prank it's not related to sex or religion or race and so that it's not the type of thing that could become a hostile work environment there were some other facts that don't exist here and also another example of a district court relies on the clark county versus britain decision which we think is quite different because that involved  single incident and kind of quite a minor one versus the multiple instance here but a situation like that where it's a very minor incident even if that were repeated that would not that would not likely rise to the extent and they you know certainly the past incident i think could be characterized as the most extreme of those of those incidents although at this point that one is directed at crowder if he's complaining that he is being forced out that all of this was devoted to him that all of this was to offend his sensibilities that would be a very different case than saying i'm stepping in because i'm afraid other people are going to see the nacho cheese drawing of a drawing on the pickle jar the pasta really doesn't add anything to that theory well it it adds something i think just to the idea that at some point he did have a reasonable belief that he was after the pasta and perhaps a jury could determine that even though there were people who were angry about his prior reports it was really the pasta that was the nail in the  incident and his reassignment i believe it was about three or four months your honor before the decision was made and we did not address the causation issue because the district court didn't focus on that at all we've good morning your honor peter print kevin littler mendelson for the city of phoenix your honors i would like to emphasize and highlight two issues for the court's consideration and discuss them in the context of the record that's before the court the first issue i want to talk about is protected activity and then the second issue is causation because although the the district court didn't focus on causation that was an issue that was briefed as well and is an issue that we raise again for the court's consideration now with respect to protected activity the issue is is the record is the evidence in the record sufficient to support a reasonable belief that chief cheatham reasonably believed that a sexually hostile work environment existed based on what he knew at the time and what he said and what he did so regarding that i think it's important to set the scene for your honour's station one is a separate building it's right across the driveway from south deputy command were chief chief and work almost every every shift he ate dinner there almost every shift at no time from march nine two thousand and nine to november for two thousand and nine he see any sexually explicit material whatsoever on november for two thousand and nine he saw the courtney jenkins bring the presell jar across the driveway that same day he went in to eat dinner at station one and saw the nacho cheese machine now he didn't do anything about the machine  take telling when to take it down at that time he went back across the south deputy and wrote the e mail to battalion chief brian johnson of italian chief your honour's is a supervisor of multiple stations ok and the captains chief battalion chiefs report to deputy chiefs who is chief cheatham and chief cheatham reports to an assistant chief who was chief arms so that was the one incident he wrote to brian johnson the in the nacho cheese machine was cleaned up the press will never came back the second incident shortly after november fourth two thousand and nine was when he saw a t shirt in the gym at south deputy across the street not at station one one more thing i forgot to add your honour's chief cheatham regarding what he knew at the time he didn't know how long the press was or was there he didn't know if anyone had seen it he didn't know if anyone was offended by it he didn't know how long the drawing on the not to achieve machine was there he doesn't know that he had just been there two days earlier and it wasn't there so that's what he knew at the time regarding that incident regarding the t shirt in the gym at south deputy there was nobody with that he picked it up he took it up stairs he asked a few people about it including a female no one said they were offended by it and he didn't he took it back downstairs and put it back folded it up and put it back in the gym where it was the second time he saw the t shirt was just a few days later also in november where deputy chief brian tobin was wearing it in a common area and it was not on duty i think there's evidence in the record in the excerpts of record that chief tobin said it wouldn't been appropriate to wear that shirt on duty but he was off duty again in from chief cheatham or no knowledge nothing in the record as to who saw the shooter who was offended by it or or anything and then the last thing is was it inappropriate for him to comment on this no it was not in a why would why is it not phoenix be concerned about those kinds of drawings well he should be concerned about those kind of drawings and he was concerned about those kind of drawings because he thought they were inappropriate for the workplace are they appropriate for the work like they are not appropriate ok so we don't we don't we don't so he was doing the right that he was doing the right thing and in fact judge tying this into the causation when he reported it to chief harms and mr montoya mentioned earlier that brian johnson who was a subordinate to chief cheatham wrote back in the e mail he said we're going to take care of it we're going to have a meeting we had a meeting it's all taken care of but she should've kept it in house and you know what you're always coming over here to eat meals you know the complaints about the about the meals i just trying to figure out at this point  suppose so you just have to understand this to be contrary to your argument and i had a lot of questions about this but let's suppose that cheatham could show that there was some that there was some causal link between his complaints about this somebody said man you just got a hair trigger you're going to you can be jumping all over these guys we don't want you jumping all over these guys when they're just being guys so that we could show the causal link why is it in a if it's not inappropriate for cheatham to be commenting on this because phoenix doesn't want to be in the supposed to do and if i don't do it it may become a whole lot worse the answer that judge bybee is because there has to be some objective standard in title seven there's objective standards all throughout title seven and the objective standard that we're dealing with here can the employee reasonably believe that there is a hostile work environment that exists and if so it's based on his reasonable belief you can't be protected for any kind of complaints the most complaint is an example there are sexual issue remember what happened in the breeding case is the employee and her supervisor were reading psychological tests and one of the answers was making love to her like making love to the grand canyon and the other male employee said the male employee was reading it i don't know what that means the other male employee said i'll explain it to you later and started laughing and the female employee was offended by it it was a comment of a sexual nature talking about making love that was a sexual comment that if that kind of thing kept on going over and over and over and over that might rise to the level but there the supreme court said no reasonable person could reasonably believe that this constituted a sexually hostile work environment and that's because remember how high that standard is it's it's so severe and pervasive that it actually alters the condition of the victim's employment and creates an abusive working environment three incidents here the two involving the drawing the two involving the t shirt and the one involving the pasta that it's deeply offensive i can't work it can't concentrate this would be very different problem but the problem is that he's tried to stop it and he claims that he was disciplined for that but he was assigned to a much lesser  position the safety station where he was so we're here on a retaliation problem retaliation for calling attention to something that you conceded that the city concedes was inappropriate but when we're here in retaliation that's right judge  but we have to look at the hostile environment standard because that's what you do you have to see is there enough based on what chief cheatham knew at the time for him to have reasonably believed that there was a hostile environment standard objective lee but in order to find to to determine that and consider that you have to look at what the hostile environment standard is and this judge is much more like what the supreme court has said over and over the kind of juvenile offhand teasing inappropriate stuff for the workplace but does not rise to a hostile working environment and so that's that's what the argument of the city is making with respect to the protected activity secondly i also want to do at least address the causation argument before i move on  anyone else your honor to have any other question on protected activity what i guess we respond to miss king's comments of bad the in progress theory coming from the fourth circuit boy can't thank you the the city believes that that is not the proper standard for title seven remember what we have here is the opposition clause in the text of title seven employers are prohibited from discriminating against any employees who oppose an unlawful employment practice this court and others have already added to that by saying it's not only an unlawful employment practice that you need to oppose if you oppose something that you reasonably believe to be an unlawful employment practice you're covered now the e e o c actually asks us to take another leap from that point to say not only is the standard if you reasonably believe it's if you reasonably believe that a hostile environment is in progress  so that it's any kind of so let's look back to the clark county vs britain matter discussion of sex laughing about it that's offensive to a female one time like that is the supreme court said not sexual harassment but you're not really disagreeing with the in progress theory you're focusing as you have done earlier with respect to this particular conduct as well as to whether it really rises to the level of a hostile work environment well just and i am focusing on this  record and saying it's not doesn't meet that standard either but i am disagreeing with the in progress standard because i think that expands liability way too far and it gives us the chance to anything one time if it's repeated or if it happens or if it's in progress and there's no way to know if it's in progress you have to assume that that's going to happen so that would be just way too expensive or you would suggest we not follow the fourth circuit i would have said suggest you not follow the fourth circuit and also the keep in mind that in boyer libido even the fourth circuit limited it at least somewhat they said the incidents here which involved a particularly egregious racial slur are so far so humiliating that maybe this falls under the the supreme court's statement that isolated incidents unless particularly severe do not meet the standard they said these things are so severe coupled with the fact that it was a supervisor who was making the comments someone who was threatening her job as well that's what the fourth circuit focus on in that case your honour's if i could just take the rest of my time to talk about causation as well because that's an important issue as well and we're talking about but for causation which in this context means that chief cheatham would not he has to show that he would not have been transferred reassigned to safety unless he made it with an aussie made the complaints to chief harmes so that's the standard what he has to prove but when we look at what happened on the record again he advises chief harms of these issues at no point and this is based on his own testimony at no point is chief arms ever express any unhappiness with him and he anger at no point does he do anything to leave lead chief cheatham to believe that he's unhappy with the with what chief cheatham is reporting so that's that's an important issue and the second thing is keep in mind that the fire chief in the executive staff make these reassignments regularly look at chief cheatham his own personal example february twenty five two thousand and eight he's a deputy chief he's assigned aviation he's there a little over twelve months march two thousand and nine he's assigned to south deputy command he's there a little over twelve months because march twenty eighth and he and fifteen other chiefs are reassigned and chief cheatham is assigned to safety at this point but there's no reason to believe there's no evidence in the record other than the fact and i know that there are council bring it up the timing of the issue which is he complains november two thousand and nine the reassignment is in march but that's when the reassignments are every year and that's in the record there are multiple memos in the record on these reassignments so since she had been assigned three times in two years as the deputy chief there's no basis to conclude that his complaints were the but for cause of his transfer here particularly in light of that the complaints were received and what had started to say before was that when brian johnson kind of chided chief cheatin for making his complaints there was a meeting between   arms chief cheatham and brian johnson in which chief arms coached brian johnson to say that was inappropriate you're not to tell a deputy chief where they're to take their meals and in fact courtney jenkins was proper by bringing it to cheatham and this kind of behavior can should not be tolerated so everything that happened when chief cheatham brought these matters to chief harms or a higher at the assistant chief level they were acted on the matters were taken care of they never reappeared and no one indicated any dissatisfaction the chief cheatham whatsoever so for that reason your honors we would ask the court to affirm on the basis of there is no protected activity and affirm on the basis that there is no causation and unless the court has any questions that's it for me ok thank you very much thank you your honor the supreme court of the united states in burlington industries versus the foundational case on page seven sixty four of the opinion ruled that title seven should be construed quote to encourage employees to report harassing conduct before it becomes severe or pervasive  ignored that principle in this case the objective standard that the court is searching for is is in this case how more objective can you be there is a graphic drawing of the male reproductive organ referred to by fire department executives as the cock and balls the symbol of station one scrawled repeatedly where everyone can see in station one causation that's addressed on page forty five through forty six eight of our opening brief first of all the timing after he complains four months later he's gone other sal shift commanders had actually been positioned there for years and years he was the only one who was only there for a year only four short months after he complained they never gave him an explanation for you or yes judge my feeling is that that you think that the records sufficiently developed that we could decide this case on causation if we decided to well your honor the record and that's what opposing counsel wants us to do well  questions seems to be seems to be that yes we can do that your honor they moved for summary judgment on that issue we responded so the answer would be yes but he was given no explanation for not from sao shift command in other shall ship commanders had been there for years and years from five to eight years moreover after he complained the captain of station one actually told him and that's ridgeback our on this is on page forty five of our brief that cheat him wouldn't last it's our shift command long because he had the temerity to believe that he could quote make them follow the  rules and was bower in a supervisory position he was a captain and he was one of the captains of if the above cheat i'm a no no he wasn't above cheatham but he was a supervisor so i sort of schiedam know he was a supervisor happened who made the decision to move the chief and that's a good point i would go arms no that would be robber con and he was silent as to why he made the decision in fact to this day judged by the city of phoenix hasn't articulated the reason why it chose to transfer chief cheatham he was doing a fine job itself if command that's undisputed and there's no other reason for transferring him other than the reason that four short months after he complained of these graphic drawings in the phoenix fire department he was transferred how much time did your honor give