good afternoon your honor the appellant reserves three minutes for rebuttal my name is john perrin down in along with christine clarke who's sitting at the table we represent t estabrook in this appeal of the district court's order granting judgement on the pleadings and dismissing the complaint in its attire to the district court's decision was in error we're asking that this court reverse it and allow the plaintiff the appellant to have her case decided on the merits as you most likely know there are three claims that issue here that were planted in the complaint one a claim for sexual harassment coworker sexual harassment second secondly retaliatory harassment and third retaliation itself by the employer safety in a college equilibration i think that the easiest  issue the most if i may say flagrant error in the in the lower court's decision dealt with the second or second issue of retaliatory harassment the district court held that that claim should be dismissed because the plaintiff hadn't pled that the harm was severe or pervasive and with all due respect i believe that the lower court simply misread the complaint the lower court interpreted the complaint construed the complaint as simply a civil workplace civility complaint it focused on the fact that peta people didn't talk to her but it ignored the most important allegations of coworker retaliation and those were that mr chase sex or ass or spoke  maligned her and said that she was saying that her immediate supervisor was incompetent ineffectual and the second act was that her coworkers set her up as having tampered with when coworkers falsely accuse a plaintiff of misconduct of serious misconduct not only is that severe or pervasive but that rises to objects of intolerable conduct that warrants a finding of constructive discharge so i think that's that's the first error if i may say the second the second complaint deals with sexual harassment the issue there grounds on which claiming that such such liability is appropriate and we relied upon this is all under the new jersey law against discrimination and that that statute is based on own negligence theory in deciding whether the employer has been negligent if you employ or is negligent in preventing or stopping the harassment then it is liable for co worker harassment and you're talking about the harassment that occurred to her because presumably the employer was on notice for when the remark was made on why the management hasn't done anything about chase that basically that's correct you're not a sex harassment once you complained to black correct that's correct and i think that's of all the issues maybe that's the one that needs to be addressed most because that's what the district court hung its hat on and it saying that because the  employer's liability for the sexual harassment and there are two responses to that one is it wasn't effective because it allowed her to be vulnerable to  retaliation it made it put her in a worse position than she was in when she was being sexually harassed that's the first point that it was not affective i also want to just add there's nothing in the record that what what what the what the supervisor actually did there's nothing in the record that she disciplined mr chase that she warned mr chase that she moved him from the facility all we know is my point is the same she was put in a vulnerable position to the point where she had to quit excuse me but there's another there's another argument which says that even even assuming it was affected that under the law against discrimination that doesn't cut off all of the negligence proceeding that that allowed the sexual harassment to happen and that relates to the prior individuals and whether there was notice to see about that such that she should never have been subjected to it in the first place because they did not they did not do anything when they knew about these other individuals that that that's exactly right that appellate division cases from the from the new jersey courts where if even even though the harassment stopped because there was a lousy policy in place there that was if if that lousy policy allowed the harassment to happen in the first place and that was a proximate cause of the sexual harassment it didn't cut off the liability simply because the harassment stopped well and you wonder with the remarks that were made by a lot of the male well gosh just the males others about you know whether she was flirting and that's just florida that i guess you're you are you would like to be able to at least a if i may the discovery question here is we only got discovery the appellant after we submitted our preferred so when we submitted our preferred to the district court we didn't have any discovery that those requests have been honors that's correct they have received that's correct and all of my point is just a dot in a harassment case that's very minimal about amount of discovery and if i may say one other thing about this issue plaintiff did request that the motion  had it in the docket docket sheet number thirty nine i wrote a letter requesting that now this matter should be converted into a summary judgment so it wasn't so even if i should you know i think i think we covered all the bas s if if i may i'll just briefly talk about the retaliation claim itself we spoke about the coworker retaliation but this is retaliation by the employer for adverse employment actions  because her responsibilities as a chemist were taken away and she was given much lesser menial responsibilities so it's it doesn't matter what term you apply to it was an adverse employment action either way  basically i only have a few seconds left but on the issue of retaliation it's our position that the court engaged in fact finding and and in selective reading of the complain able to expand on that thank you may please the court good afternoon your honour's my name is david harvey and i represent safety ecology corporation your honour's mr brooks complaint does not state a claim upon which relief can be granted therefore i ask this court to affirm the judgment of the district court dismissing miss her complaint in its entirety first mr brooks alleged sexual harassment complaint was effectively dealt with she complained using the it's harassment policy that she was provided with when she became employed follow the steps the sexual harassment completely stopped there is no facts or allegations in the complaint that mr chase ever spoke with mr and mr brock again well we're talking about before that and the allegation paragraph seventy one before chase a sexual harassment  z management at the mayfield new jersey facility were aware of sexual harassment yet allowed him to continue to sexually harass female employees with impunity so i mean the point is she says i should never have been subjected to in the first place because they did not properly react to the fact that he had harassed other people so the fact that finally you know he stopped it with her but that's beside the point well and i think you have to look at the nature of this  sexually harassed chase harassed and so forth those are legal conclusions i don't know her are factual allegations have to be almost all of which are factual allegations well what we would argue is that the term sexual harassment is a legal conclusion and she provided no facts of w not maybe that's not accurate but you know that's what discovery is for for finding out you know from third parties and she's not related to these other people she can't find everything out immediately are you saying she needs to court stated that in this type of claim or your pleading negligence that the the facts that the missing mr brooke should plead some facts had notice of sexual harassment by the alleged harasser upon evidence that the harassment is similar in nature and near in time and i think what the district court said is there were no allegations of what the prior alleged sexual harassment was or one of the curd you know how close in time and is that i mean that this record itself said the standard if no relief could be gran under any set of facts that could prove consistent with the allegations the court may dismiss the complaint for failure stated claim is that what we have here no i believe that the i mean under any set of fact with regard i know we touched on discovery before we did respond to twenty one in a rugged tori's of which some of what was asked was name the prior complaints all the district court never ruled on the motion till december twenty eighth two thousand and twelve the plaintiff have well over five or six months to look in that discovery and if there was anything in there and that generalized grievances should be backed up with specific facts that would give rise to a plausible entitlement showing of relief and what is kind of like saying you know if you want to say that something is obscene and you of are in a pleading that is i've seen you have to avert chapter and verse of exactly how you believe it is and to me it seems a little bit like the same thing with sexual harassment you know and i sort of said you know when you see it with the same thing with sexual harassment if we're going to start saying that every every little thing of sexual harassment has to be laid out every instance in a complaint that's that's clear that's creating evidence well i don't think that the district court meant that they had to plead every specific thing what the only thing that the plaintiff pled in this case was she averred that mr chase had previously harassed several women but and she named one in the full name and two others right and she worked with gail and felicia but provided no facts of the say as a legal conclusion someone sexually harassed with out saying what's what basis if a call you do could use name a few facts that would give rise to a sexual harassment a in holmes versus gates case that this court decided it says threadbare resettles of a cause of actions elements supported by mere conclusory statements do well but i didn't save this one well it does have a lot of stuff in it but what we would say is what we would say is even when you look at all that stuff that never even knew until about two weeks after mr estabrook was suspended but she never made a sexual harassment complaint and even though and this was undisputed at the district easily amended to say that well but just because a complaint could have been easily amended doesn't mean it doesn't meet the standards for withstanding  i think in this case the fact that the one of the key elements in retaliation is that the retaliate the retaliator must have known of the protected  is clear that they had no idea that she had engaged in that there was a sexual harassment complaint that was affected and don't discovery and evidence may come forward that you are absolutely right and that we're talking about reading and i understand that and i would proffer that the discovery that was provided has come forward and has answered those questions and i would say that there is an obligation  if this goes to move right but it's i just think it's one of the pleadings themselves fail to satisfy the elements of certain employment claims it's you know to subject our client to that which more expensive discovery which we've already provided a lot of it that may answer all of the questions in this complaint then it's like an exercise in you know we would say it's an exercise in futility and in that dumb but there is an obligation for  adverse action did not have knowledge of protected activity and that's that's a misreading of the complaint and certainly if you read the complaint in a way that favors the non movement it's an erroneous statement and i or refer the court to fifty two of the complaint reads a week later while nikki in lawrence told plaintiff that based upon what they had heard they concluded that she was a temporary s e c immediately suspended her without pay and a school board around the building there's no doubt that while nicky her immediate supervisors and lawrence the head of the mayfield lab had knew about her protect her protected activity she complained to both of them about the sexual harassment and retaliatory harassment and it was lawrence who said he was a friend who had a motive for for retaliating because he was friends with the harasser wanted to promote him so it's i think it's a selective reading of the  the complaint and then the only other thing i think to say is on the issue of did did estabrook plead sufficiently about the previous acts of sexual harassment that i think the key factual statement is she said the two individuals two women who should identify by name complained about the section about sexual harassment that is the fact and that's that that's good enough and with the knowledge factor the knowledge factor yeah that's exactly right ok thank you very much ron thank you thank you will take the