your good to see you judge and i yes i think the radford arsenal case is a good way to describe it that's what we call this work facility in southwest virginia we all call it that the overarching problem with the district court's ruling in this case is that it viewed the sexual assaults and batteries and not as part of the overall hostile work environment if i were drawing a venn diagram an air diagram he viewed the assault and battery sphere and a hostile work environment which he didn't discuss at all as here when we think the assault battery is part of an extension of the hostile work environment secondarily the district court looked at the evidence in the light most favorable to be eighty and contravention of the rule fifty six  such as told in versus caught and we're here of course talking about the th aliment a hostile environment calais there may be no work environment like the one that existed at the radford arsenal it's off the charts there's nothing like it in our case law there was a culture of sexual promiscuity there that is unheard of there was a sex ring there some of the female employees regularly provided sex to hourly workers and members of management things were so bad that the sounds of people moaning and having sex could be heard behind closed doors in a word it was like sodom and gomorrah and a federal munitions plant there charged with making t if you were a woman like carla khan and not part of the sex ring the work environment was hellish men would line up at work to have sex with stacy legace who was the wife of the perpetrator here everybody knew about it it was common knowledge stacy like us bragged about it and said that she had sex with fifteen men it work this created an extremely hostile work environment for people like carla clam and flo bishop and women who wanted no part of it just languish was  d and he said quote everybody is screwing everybody close quote when flow bishop was asked by my colleague who's in the courtroom what was going on with the sexual and it's their work she said answer a lot a lot of sacks and she said stacy like us was very proud of the fact that at that point she'd done fifteen guys that we worked with in the plant in the plant when flo bishop testified about a potential there and she went on to say flo bishop i heard the sounds of sex the moaning of the grounding then we got objection to the form of the question the sounds of people having sex there so that's what the work environment was like there and flo bishop also said that stacy like us bragged about the sale of men's workers penises which in context of everything else we're talking about cuts are relatively minor and talking about having anal work then when flo bishop complained to management all management did is report it right back to stacy best scuse me stacy like us who went to flo bishop and said you ain't sane bitch yet because she was reported view a reasonable juror the adding a sub just told about is not even mentioned and the district court's opinion now in fairness to the district court judge i digress for just a moment we've been down a judge a long time in the western district i have an under our jurisprudence sometimes the harassment is so pervasive or severe that a jury may find that a reasonable employer would have notice of it in alexander versus alcatel this court said and i'm quoting and certain quote from para line that's paralyzed versus unisys corporation the law imposes a duty on the employer to take adequate steps to try to prevent harassment not merely to act after the event but here we have members of ma sleeping with airily workers including a member of the ethics committee to whom you're supposed to report sexual harassment where men like flo bishop and carla claimed i didn't have a chance an employer cannot avoid liability by adopting a quo see no evil hear no evil static strategy vance versus ball state ought to control disposition of this question there the supreme court said assuming the harasser is not a supervisor and look i'm going to concede you not asked me yet that link us was not a supervisor under vance under michael's versus city of durham i think which is out of our control in law here i think we have to conclude that he's not eat that supervisor yes supervisory authority but not advance but under vance versus ball state the supreme court said assuming the harasser is not a supervisor which is what we have here advanced supervisor when i use the word supervisor i use it in the for nakheel or contact in the legal sense of vance versus ball state a plaintive could still prevail by showing that his or her employer was negligent in failing to prevent harassment from taking place evidence that an employer did not monitor the workplace which is exactly what we have here failed to respond to complaints failed to provide a system for registering complaints or effectively discourage complaints from being filed would be relevant and in conclusion the supreme court said and i'm quoting and the poor will always be liable when it's negligence leads to the creation or  continuation of a hostile work environment a word about geography just for a moment because i know none of you have been to the radford arsenal it's an eight thousand dollars acre enclave a federal enclave sits on the banks of the new river there are tons houses there that doesn't do justice to what they are there football sized buildings inside those buildings are huge tubs of explosives being made each tub is seventeen a dynamite so they spread them apart in case one blows and people are killed there from time to time maybe the whole place would not be blown to smithereens that's what that's the work environment there so back to the in the allegations and in the evidence what is in the record about the employer being negligent in controlling the working conditions you've given us a lot of quotes about what was going on there but what went back to the employer if you could to still that price i think it would be helpful yes yes well st members of management were having sex with the our lady of female hostile work environment these to be employers working on the floor yes this is a military style operation all of the employees who received word of sexual harassment are required to saying to what management should have known and you're saying that just because management engaged in sexual activity with one or two workers they should have known that this rampant activity was going that this kind of activity was so pervasive and so outrageous st the people who were having sex have or any knowledge of sex harassment have a duty to report that up the chain in the military style of this organization her vernacular supervisor her not a legal supervisor not advance supervisor yes i've not advancer she told her supervisor she thought she was doing exactly the right thing and the person right  above and that you're talking about the sexual assaults that occurred in may and june of two thousand and fourteen everything i've been describing occur before then and she immediately well st of all i'm just trying to and my view sloan as i'm just trying to connect what complained about in that regard we complained that the district court found that st of all it overlooked all the evidence i've just described to you which which is prohibited by alexander versus alcatel you have to consider it you might i guess maybe but you have to least consider that's why this court reversed alexander versus out to tell the court didn't even consider this evidence all right so again you can't have a we i mean essentially you're relying on a constructive knowledge aren't you in part only in part yes yes only in part yes only in part well what's the other part actual knowledge  having sex i can't get my work done because of the sound of people having sacks and when it's final and i understand that when they finally the worst of it the worst of it from my client's perspective was the sexual assault assault and battery because then it became terribly i and the f b i comes in there the employer fire just like a seasoned federal federal prison now it should have been done well before that in our view and also there's the afterwards after after i interrupt you guess what i'm really having a hard time yes or i'm trying to deal with the facts of this case and the complaints that you make on behalf of this claim yes and i want to know what it is that use the employer did as the judge said the employer the judge said it's a defense of the employer fired joshua link us and of and of opinion the judge didn't look at any of this other evidence that's what he to report this right of way right those were the words and she did the sexual assault yes ok and when the employer didn't find out about it link us was shown the door right i mean they got rid of them right and in fact when there were later complaints that she made regarding a couple of other floyds lesser incidences if you will they found her other positions within the  so i think that it would be really helpful if you could just give us a summary of what the employer should have known based on the information not just people like l a woods who received complaints of harassment should have laughed about it and reported on to to to arlington or wherever a b a is had or that's what should have happened here be a should have come in and investigate they should have monitored their workplace just like the supreme court says and vance versus ball state university so that if nobody tells you as an employer about the situation you still have to monitor for sexual activity is that what you're saying if you josh said the employer had no sexual harassment training it's one thing to have a broken window but you're not answering the question i'm saying that you're saying that there is an independent duty to monitor a workplace for sexual activity if you are  fail to respond to complaints fail to provide a system for registering compliance or fact of way discourage complaints being filed is relevant in determining whether liability should be employed right and not lawyers under the fact question was different though it was whether the employer has an independent duty to monitor the workplace for sexual activity it does according to the supreme court advance vs balls it says evidence that employer did not monitor the workplace is a factor that should be considered activity that drives people like slow bishop into the psych ward that causes carla planned to be laid off for a year and has her health insurance cut off yeah that's you can be disturbed by people having what and that tense your question does a good one or maybe a judge can and that was judge or baskets rolling he was fired end of story let's see what they have to say about it yes yes they do they have some time to yes the thomas winner with mit counsel's table as to clinton sex discrimination and hostile work environment claim the district court correctly concluded that clem failed as a matter of law to survive summary judgment but he did not misconduct while investigating allegations made against lanka's by a different employee sent the equivalent berry in late july twenty four teen and the record confirms until quizon berry no one reported problems with linkous or told anyone in h r about like this is assaults once management was informed its investigation was thorough swift effective and linkous never set foot on the property again here's the harrison employee was mr clinton's  mrs clinton's coworker not a supervisor so the employer is liable if it was negligent in controlling work conditions and to establish that negligence claim has to show that o s i knew or should have known about and the district court correctly found this was a burden that plaintive could not meet because under the case law ms clinton's failure to report and the existence of the employer's effective reporting mechanism defeat the claim employee claiming coworker harris meant there is significant responsibility in notifying the employer because you can't stop what you don't know about that bear that howard versus winter e e o c versus three arguments for trying to excuse her failure and everyone else is failure to report and her grief are used these three things st that the policy was useless and  the hostile environment the sex ring which involved one woman was well known that that's not true at the outset but let's let's take these in turn and none of the arguments has any merit let's start with the claim that the policy was useless and ineffective which is consistent with plaintiffs see no evil hear no evil montra that they've used throughout the case and the facts of this appeal in particular show that the he no evil see no evil jargon is extremely in a political to ms clinton situation because st o s i reached out to clam she didn't report the trouble with linkous at all only a sign management reached out to all the women in contact with linkous after learning of the attack on quiz in barrie on july th two thousand and fourteen they didn't stop it quiz and barry and they could if they had enough to fire but they thoroughly reached out to everybody in contact with them and when they found those victims they helped them with e a p which they certainly gave in this clan with benefits with leave as much as you want which they certainly gave miss clem and with follow up similarly miss klim subsequent problems with thirty seven when he saw her reaction to being around mr barr and he went to her he went to her and he said what's going on and when she told him what was going on that mr barton had kind of goosed her in the shoulder for lack of a better word and it mr kennett had made some some inappropriate remarks both men were suspended and the evidence is they never bothered her again now mr freeman not mr grimes is saying that the record statuses that there was no sexual harassment training you agree with his character say he's in the right not not at all and you know a lot of his sites are to josh josh l well aware of where the rules and the rules are and the joint appendix to so basically this record reveals being a shift change and offer to escort her to her car extended disability leave v a p counseling this hear no evil see no evil thing is really not a political to her it's something they're trying to wedge in everything that ever happened at this in our in our eyes nd let's address clinton's claim that her coworker mr brock was a supervisor so she did actually report the incident to management it's interesting because they've conceded that josh link is the wrongdoer wasn't a supervisor and they're right about that but these guys bronc basically had the same job this ingestion that any job with the word chief in it is management rings particularly hollow on this record the argument is also directly contrary to the holding of vance vs ball state which i'll get to in a little while but it basically says you have to have the power to make a tangible employment action and these co workers union employees did not have that throughout her brief klamath attempts to portray the nitrocellulose chief operator or in c c e o position at o s i as supervisory position for purposes of title senate the job however is neither supervisor nor management chief denotes essentially a higher hourly pay grade for an hourly union worker a significant mentioned in a straight comment that he may have been arrested there's no comment that anything further happened that he actually got charged but that was back in twenty million forty two thousand as and five that's another thing i'll get to but i might as well now they're trying to dredge up a lot of stuff that happened five years before we ever showed up the took control of this plant in july two thousand and twelve and a lot of mr grimes conceded that don't they have a duty to monitor their work environment when they are aware of all that ok bottom line even two of those and again you know they he says there are six assaults and four victims two of those are long before we got there two of those are  is and we've got all kinds of sites in our brief to it no one ever saw him he always struck alone and the victim you know when there wasn't a witness and none of them came forward when somebody came forward we acted very swiftly but but that's that's what happened on just getting back real quick to that to the chief thing supervisors half the workforce would be supervisors and even klan conceded the chiefs lack authority to perform any tangible employment actions that jaylen seventy four to seventy six and that is the test under vance so mr bronc who she notified was not a supervisor two other quick points on the chief issue ms clinton acknowledged to o s i that she never reported lynxes conduct to management  but nd even if wrong status were debatable and it's not clear misplaces reliance on some cases were where some non supervisory acted like they were supervisors so the person telling them had case and that brings us to the constructive knowledge argument the conditions were so pervasive o s i had to know about them and clinton suggests partly that that's true because there were four victims even though two of them happened on a prior watch to you know quick points on this plane if it does take significant liberties with timing in this case again two of the attacks occurred before tw before has o s i ever operated the arsenal but nd throughout this case the whole hostile environment argument they make half of what's in three quarters of what's in their briefs doesn't apply to clan player takes a one thousand employee work site and tries to dredge  every complaint anyone ever raise including those prior to two thousand and twelve and after two thousand and sixteen whether ms clinton knew about the incident or not and that's a very important point because as this court said an author versus booz al claims involving others outside the knowledge and the experience of the plaintiff generally don't help establish a hostile environment mrs clinton's case should focus on what happened to her the district court assumed as we've already discussed a hostile environment and the question was imputing notice to be a and in that regard this case this case is barrett this isn't like ogletree where there was no way to make a report where the h r people's doors were closed in the supervisor was following the victim to the bathroom make sure she didn't try to report the channels were not only open and receptive but o s i reacted immediately to quizzing barry's report other peripheral of venice unrelated to ms quinn's claims i do want to say a quick word about the sex ring even though my whole point is we don't think it's relevant the main reason we don't think it's relevant is ms bishop said clem didn't know well can it be part of a hostile work environment and if she doesn't know about it yet it exists and well our own experience is consistent with that her own situation is not consistent for the exact reason the judge king alluded to write that what i'm saying consensual versus nonconsensual so really the answer is no i mean it really doesn't them are unconfirmed hearsay except for one that's it seventeen o nine flo bishop says happy that they say how do you know this and she's like i've heard it well one time she said she heard people  we're not liable for what we don't know and there's no evidence that we knew about this and let's even go one step further than that when flo bishop sent this notice what did we do they say nothing that's not true we interviewed the people we interviewed stacy link if she denied it but we also put up a secret camera for a month in the place where they she over this happened and they laughed about it well they also went to the department heads and it stopped happening and that that's admitted by the woman that made that claim which again was in tw long after all of this was involved and it's an eight hundred and seventy dollars where she admitted he went to the department heads so to sum up o s i had a strong harassment policy in effect this defense also covers the barton and kennedy and clarke incidents where as soon as ms clinton let o s i know about the problem the incident stopped and the coworkers were disappoint under search seize and spicer summary stake like well the retaliation claim is the same i would say that the respond to that claim is the only claim that might have a different life but it it shouldn't have different life because the law is now were you doing something in the service of your employer and in a lot of cases you were doing something in the service of your employer here he was not ken and could an employee sexual  would that be in the scope of the job base you're saying likely in a rare i could see in a rare case somebody getting there and i thought maybe i would ask me that but generally no and here and twelve he basically described what he did he lay in wait and dragged her off and the nd time he was at lunch break and dragged her off he was not doing anything with his job i'm over my time and i stacy legace i was aware that stacy was having sex on be a property during work hours is with members of management and it was common knowledge this was going on yet it continued to happen that's when the sac it rang developed she talks about that while this case was bending pending because b i did little or nothing other than interview stacey legace for fifteen minutes and put a camera and an eight thousand acre facility maybe if a deer walked by they would catch it but when they didn't do that that that's proof of an end effect of any harassment pos you don't have any training how they going to what to do so that's the bottom line there all right so the final thing with respect to the response superior the assault and battery claim if there's any question about the bible that climb a ask you to do what judge traxler suggested in his dissent last month and a sorrow versus virginia he suggested certification of the question i suggest the same as obviously this is an important question so look