mr wood good morning your honour's miss meltzer and are thrilled to have the opportunity to speak with you all today we're seeking a reversal of the district court's order because for you to affirm it you would have to agree that as a matter of law miss melter who testif that she heard racial slurs and racial jokes on a daily basis that culminated in use of the term nigger that she reported that racial harassment the day she heard the term made to terminate your are you've hit the nail on the head as to the problem we've had conveying the time line and i think the district court actually found contrary we've cited to that in our in our brief but it started with that miss smallwood in the smelter had an argument in the office as the first thing that happens on september ninth that dictates this case says she called her happened is that told him calls miss raleigh in the small wood both of the white ladies in the office there is the next part the next conversation is ms talking remembered that miss meltzer called her back and smelter didn't testify to that but miss talking did remember that mr called her yet again takes playing her side of the story one more miss talking about the harassment smelter has presented in very clear in her testimony i told her when i called her she was out in the field i called her and told her about what happened and i reported the racial harassment the only issue is it's not it's not which conversation took place it's what was said in the conversation is part of the coping with this yes or home is there any based on circumstantial evidence that temple proximity is a huge piece of evidence in that regard since this all took place in one day but i don't even really have to go that far because one of the the primary theme of our case and what i would present to a jury is this is a classic cat's p that ms told him told her that smelter in fact started the argument but that's not the testimony on the record smelter certainly didn't say she started the argument and miss reilly testified they were sort of bickering at each other when mr houghton spe doesn't report the harassment she just says smelter started the argument so that means we need to go back to judge prior's question was what is the evidence that the decision maker mcdougal knew about the report by miss melter and here you have as you said you have the chronology that talked to mcdougal before mcdougal said fire her we know nothing about the content of that conversation and are are clover case we said that there's a difference between evidence that the decision may or maker could have learned or could have known and evidence that the decision maker actually knew so how do you answer that problem well i answer it that a jury can certainly infer from the very close temporal proximity that i do go did in fact have knowledge but your honor i could also present to a jury that told them had the knowledge no one contaminated the process i kind of temple proximity is what if there is knowledge  right and then the adverse event occurs we've said there can be that kind of inference that one cause the other i don't know where we've ever said that the fact that the adverse event occurred soon thereafter meant that there was a reasonable inference of the knowledge we have or so that i and what will equip makes that a reasonable inference well to the extent that temporal proximity is so close i think a jury could infer from a conversation takes place in the same day and the swift sort of adverse employment action that follows this result the problem is that that we have to be to be concerned about that in that event anyone who wants to complain on the day of the discrimination i do see that i do see that your honor but that's not that that's not the facts here because we do have this court of classic cat paul problem because taught in his the supervisor in the office absolutely knows that the racial harassment and doesn't report it to m dougal instead she says the a different strain of facts this mother has relayed to her oh you say that and i did read potions of the light of step is asian and she does say that  the only way i could harmonize those was to think that tell them i had heard about it later second hand and laughed it off that's the only way i could reconcile if you try to rather than correct the racial problems of smallwood and raleigh that is your theory on appeal and the district didn't mention argument to the district court but came up with it because it was clear that that there was this kind of concession of no racial motor get motivation and you made it for the first time on appeal  made you think you made a nuanced argument in your briefing to the district judge your i believe i did ok we'll look at that and we'll look at that but even if you did it seems to me that there's virtually no evidence to support it is whatever plaintiffs could have told her on the telephone on that very day and it's pretty clear to me that even the was adversely affected so that in order to provide a alone your nuanced argument you'd have to show that there was a whole lot said not just a little bit in that telephone conversation that under the hostile work environment claim and our client my client testified very clearly that she heard these things on a daily basis that in of itself is pervasive it's not as severe in pervasive it's just pervasive which should get us past the hostile work environment claim assuming that weigh the four factors equally the frequency severity physically threatening in fire perform your job it seems that you highlighted that judge and we talked about that for a moment it the end of the day to get a bare minimum being called nigger and getting in an argument over absolutely affected her performance because it got her terminated but having said that they they they say she had trouble performing and i can just imagine being in an environment where you're hearing racial jokes and racial slurs every day might actually affect your performance not cleared of not clear to me that the employer needed the testimony in the record as you pointed out maybe there's a conflict even in the plaintiffs own testimony your honor but there is testimony the record that top one would hear the jokes and just laughed at and that when she called her to tell her that she got in this argument i've been called nigger but she reported the racial harassment now the closer question to me and i hear i hear what you're saying the reporting is the day that she's term it before she's terminated yes you're on before she's terminated not the person who makes the decision but that's where the catspaw now says come in and that's where stop versus proctor comes in you have you have a supervisor who has set in motion by failing to admit and then concealing a report to the decision maker and under stop that is sufficient under title seven to create a liability on the part of the defendant and judge it is a nuanced argument i hear you it is nuanced but life is nuanced and when you're in a for profit company and you've got to longstanding white older employees who think it's ok to make these jokes and think it's ok to use these terms you are absolutely as a business person going to think to yourself i'm not letting go of my experience personal in this office the fact that the gal is black is causing a problem for my older white employees the plaintiff hadn't unequivocally admitted that there wasn't any discrimination racial that it was copyrighted somehow under the road case which it wasn't but that you know honour's got it exactly right i want to read what the plaintiff said in deposition so as you sit here today you're not aware of anybody else anybody else that can testify that they heard katherine or kani that's riley or small would make any race related remarks either generally or to you answer not to my knowledge page one ninety four and she goes on to say quote brandi was never there to see any of the stuff that she was doing she being small would page two thirty three for deposition the reason this nuanced argument has to happen because she has to thread the needle around all the admissions that her client has made in deposition and she's admitted in her reply brief that ta clear that smelter did not believe tall and was acting with racial animus when terminating her so what you have here is not a cat's paw you've got a cat's knuckle smallwood that's it it doesn't go on to talk it doesn't go on to the decision maker macdougall there's no evidence whatsoever the mid noodle knew any of thing about this right and in fact if there's an inference to be drawn here the inference is it's the same actor inference dougal someone had hired her just two months before this same african american person two months before hired her hoping she'd be a do a good job the same african american person that wasn't doing a good job based on her fraudulent resume she wasn't qualified and so they sent training down to work we want to help you we want to help you do the job we hired you for and it didn't happen and she got into quarrels and she got disciplined and that's not controverted she signed the disciplinary paper you know missed what doesn't say anything about that she talks about pretext and things that that may have happened it's a theory in search of facts there's nothing in the record that says miss meltzer wasn't disciplined she was so that's in response to what what miss out would said just now but what we're looking at here today is as is your honest well know story client one for race discrimination we fired this at will employee because she's black that's what they're saying then for a hostile work environment that we knew and permitted a severe or pervasive race hostile work environment and that we retaliated against miss melter when she at the eleventh and a half hour allegedly reported that these things were happening but her admissions got all this as i noted in my brief she admitted that neither of the decision makers and i would say mcdougal's the decision maker but if you have credit the top one could be neither of them acted with racial animus in terminate her employer that's not exactly what she said she said she didn't think either of them were racist ok she said both she said that she said the static condition that they're not racist and i will credit you that a racist can act nonracial in vice versa i can also say that with a non racist could still act with racial motivation you going with that salute but she also said did i think brandy was being racial where she fired me not a static condition a dynamic condition was she acting racially when she fired me what does that mean i don't i don't now but i'm not sure it's clear that she's saying she didn't act  discriminatory male case of the standard under ross is if if a plaintiff unequivocally admits that race was not the motivating factor or was not related to their adverse employment action th they've waived their point i agree with you but i'm just not sure that's what we have here and i didn't tell him anything else i don't think there's magic words are required i think those words mean just that she wasn't acting racially when she fired her i don't know if there's something else that means i'm all ears but i don't know what else you could possibly mean and so and besides i think it's been conceded in the reply brief and we've gotten on to this nuanced argument but there's no evidence for this nuanced argument that small woods alleged animus was conveyed to tom i mean that's what the that's what the style case says or has to be some recommendation by the person with enemas to the decision maker right now where that evidence of that i mean to the contrary again the point of says don didn't have any enemies and certainly mcdougall didn't and also knowing about everything well yes so they take one instance of a very vague piece of testimony that she laughed about something racial or racial profiling or something like that there's no facts i mean on the one hand we have all of these direct quotations at the plant sites right for a fact about people in chains and monkeys and all that i mean they're in quotes but with respect to this critical piece of evidence right that might get around her pretty clear admissions it's very vague right and what is what we hear about that she laughed one time so that doesn't mean she's aware of the severe pervasive harassment it's gone on going and it's not really clear what it means to begin   and i will grant you that it seems logically inconsistent with the clear admission that brandy was never there didn't know anything about it never heard anything and then this one laughing part but i don't think that one instance  big testimony about it gets her around to a question of fact as to whether top knew that there was a hostile work environment when it has to be more than just one time does it not so judge abrams saw through this and she decided that there was not enough evidence of severity or pervasiveness under mendoza so what we have here is a conclusory allegation by the plaintiff in this happened every day of course they all say that and if that's what gets you to a jury then i think that's wrong it might get you on pervasiveness it does mean that you have a hostile work environment claim because the employer asked you to be aware of it right but that's correct that's the second part that judge able to decide it i'm not sure i'm in agreement would judge a prims about that well let's talk about what it's required to find employer liability because that's that's all that really matters here right that that is what matters and so there  is no i mean she's admitted again that she never reported it until the eleventh hour to the very end when the conduct already occurred when she was already going to be fired this isn't already been made never reported it so you have to you have to have evidence that there was either actual knowledge on behalf of the employer or constructive knowledge knew or should have known that she reported it they would announce did it never they are never witnessed it never saw it no evidence that she knew of a hostile work environment and permitted it to exist it's just not there so i think she she loses on on proving i mean to her her testimony alone that you on page one hundred four conversation plaintiff would have would have had to have conveyed to tell ten anough of the past racial stuff plus th last one on that bad day to convey to tout and that their head and back then a hostile environment which was so hostile that  facts here's another one she admitted on page one hundred four after before the passage you remember this was taking place when nobody was in the office can quibble with judgments order on pervasiveness or severity you know the mendoza factors i think she got it right but but but you have to agree that there's no basis for employer liability here to find a hostile work environment  with respect to the retaliation again you've got to you've got to draw a lot of inferences and find facts that don't exist in the record to sustain her claim or to overturn what judge abrams found you know you've got to find that despite the admitted history of disciplinary actions and that's there's no question about that it's not in dispute that it was dubbed but for cause her reporting not not anything else just her reporting that day her opposition activity was the but for cause of her terminations you have to find that and there's no evidence that mcdougal even knew about it the only the only in frontier that plant hasn't she said it two or three times just a minute ago is temporal proximity this circuit's jurisprudence says you can't go in and try and save your  allows for reasonable inference of knowledge it only allows you have to prove that there was the knowledge and that temporally proximate adverse action that day that gets you to  the any retaliation provision of the title seven don't allow employees who are already on thin ice who have significant prior disciplinary history that to insulate themselves that are maybe treatments to bring you understand the argument that your adversary opposing counsel made this warning is that it allows for an inference of knowledge because she's got a problem there and i'm just saying i don't think that's ever happened ok that in that case there's not no recognition o push just finish up on what judge amos did find and i see i'm running so let's just let's get to that she found there was upon the face a case fine we think we know what she found god we we can read that and i told and testify that way she put it in her declaration she got an e mail from raleigh saying there's something going on the office and she talked to riley and then she called mcdougal and then as i think she say that throws any doubt on that that timing nothing that i'm aware of she wasn't even in fact she testified in a deposition she wasn't even aware and how could she be y and i'm not really sure the timing is that critical in terms of final tranches of the timing is if the last roll occurred before would say five minutes i have i will try to give you some time back i promised i did argue catspaw and i did so it's summary judgment on pages twelve and thirteen it is been the theory of the case it did not show up at the appeal that's not the new larger argument and the one that your nuanced argument was that these ladies themselves the decision makers in actually harbor racial animus instead they acted on a racial motivation because of the we have a real clear understanding of the testimony here because i think mr bean just just doesn't in miss top ins deposition i go through this day with her and how she hears and who she talks to you and her testimony on pages in the spans from pages seventy eight through about eighty five of her testimony i'm not to read all that to you but i just want to point out on seventy eight's starts that carney had called her i don't know if they were both were yelling and then she says i asked to speak to brenda and she stated that catherine heard had a disagreement so she talks to brenda then she goes on to say i talked to katherine as well that's no small what so then she talks to a small it gets missed small woods version of the events then she says brenda called me that after i talk to them so brenda calls her again but brenda is tell them forgive me i'm so sorry miss smelter talks to her first then she asked to speak to mrs maule wood so she talks to miss smallwood then she talks dispute is and this is where you have to weigh in favor of miss smelter the dispute is that miss melter told her everything that went on right after she's called a nigger whereas his top just doesn't remember retaliate but then she says under a hostile work environment lame that the defendant lacks notice and gets to what my concern has been yes are two different things tallman this is the testimony on the record even if it's even if mrs meltzer sort of conflicts herself in her own deposition we do have the evidence that she heard it and laughed but but the evidence on this is not is not in conflict that when she gets on the phone with her before she talks to miss mcdougal she tells her everything that went on and everything that went on that that phrase in her deposition is after she describes this whole argument where she's been called a nigger so there is notice i will grant you it's right before her terminations but there is notice even if you don't agree that ms top neck surely heard these comments and was aware them she did have notice as of that date not clear to me and your honor under a classic cat's paw analysis which this court has has sanctioned and agreed exist that you she doesn't have to and there are cases that say knowledge can be in close point in time but again we don't have to get there i could try to prove that at trial in front of a jury but a jury could infer from top was own actions or inactions and failure to reveal to ms mcdougal what she had