morning ms ward well miss blake is here to talk about it's not inappropriate misplayed case is a sex harassment age discrimination case and i'm not going to repeat all the facts for you there in the brief but just to set the stage for why we're here i wanted to give you the basic facts miss blake is now sixty eight years old she was a longtime employee in the eyeglass fabrication industry which m j arctic optical operates him for the last ten to fifteen years of her employment ending in may two thousand and thirteen she was sexually assaulted her supervisor grabbed her on the rear end or touched her entire cheek on a regular basis he also escalated that into lewd comments to her about her breasts when she approached him she had heard his desk he would say things like well be careful those things are going to pull my eyes out and it got even worse when he mentioned to her and asked who are those nipples the size of quarters or nickels after that continued for years and at the very end of her employment during the last year it got even worse he asked her are said to her excuse me the only reason i'm keeping you around is to watch you die there's not much more that could be specifically age related then keeping you around to watch you die i would like to address the hostile work environment clay case first and then progress to the constructive discharge issue in reverse order that the district court decided that because i think that has a more logical progression the district court ignored significant evidence of very severe hostile work environment matters as you could tell that physical touching was present mrs blake testified that that occurred at least weekly and that occurred starting in one thousand nine hundred nine when her husband died when he died at the funeral of her supervisor was there her supervisor marty haig was the owner's son and he came up behind her outside the church where she was standing next to the pastor and grab her rear end and she was needless to say very put up that she looked at him and said why would you do that and his answer is quite telling i thought he needed it well from one thousand nine hundred nine on throughout her employment until may two thousand and thirteen that occurred and according to her deposition testimony it occurred at least on a weekly basis she was touched wrongfully or she was made fun of with respect to her body parts at the end he escalated and included the age claims watch you die and in his brief m j has tried to kind of recast for the court the mental picture of the m j workplace and stated in its brief page nineteen blake conceded that the quote watch you die comment was sometimes made in jest in response to her playful questions of why marty was keeping her around in fact in her deposition miss blake completely cuts that possible argument it was not playful she was asked did you ask him why are you keeping me around in a joking manner and misplaced answer was one word no i don't think you can infer playful from it all started in one thousand nine hundred nine and it continued unabated the district court also found that there was no evidence from which conduct could be deemed unwelcome there's no evidence that supports that either could just said she wasn't playing around she wasn't in by doing the conduct in fact she tried to stop the conduct by going out after he made one of those comments about her chest to buy new underwear to make sure he couldn't  general motors not supply surprisingly had an employee handbook had a written policy against discrimination it had a human resources department head and h r person onsite the employees were well aware of what their policies were not so with m j granted it's a smaller company than general motors and most employee ploy players are smaller but and she had no employee handbook it no written policies it didn't have an h r department so in order for ms blake to report this conduct to someone in management she would have had to do one of two things both of which i think you will agree were futile first of all she would have had to report to a supervisor who was a supervisor the perpetrator of the bad acts marty well knew what he was doing when he was grabbing her on the rear end and touching her oh excuse me and commenting about her breasts at her nipples he knew title seven's not brand new it's been in place for decades it's well known what is and is not acceptable either mr blake would have had to report his conduct to marty a futile effort or he would she would have had to report it to the company president above marty well who was the company president marty smom marty's mom wasn't even at the office or at the facility every single day of the week and she was only there a couple hours a day so catching her would be by happenstance but in the past when employees not necessarily mrs misplay had reported her son's conduct to her on any type of issue the response from mrs blake mixes me mrs hey he was my boys wouldn't do anything like that so that was what she was up against she could report it to the perpetrator who knew what he was doing or to his mom who would not accept that her boys could do anything wrong ultimately after this one pattern of conduct years actually was seven hundred forty seven weeks every week every year every month ongoing pattern of this well two things first of all i think be an equal being an equal opportunity harasser or an equal opportunity discriminator does not change the fact that the conduct is wrong and the second thing is that mrs blake's personal perception of what was going on or what happened actually i think that was in reference to the event that led to her constructive discharge marty came at her because of an eyeglass sort of problem and he came at her across the room and she he was sweating and red in the face and chewing on his tongue and he said stop that don't do that  nothing and in he did not reference sex or age in that final blow up but you can't carve up all of these incidents into a single events in the law in this circuit is clear you consider the entire employment process and not only that but when there is a pattern of behavior that comes to a one final event that may not necessarily specifically address say have to be it was a pattern of conduct and the adverse impact i mean the test is whether or not they intended her to leave or whether or not it was reasonably would leak i can see that falls under hostile work environment the constructivist or the trying to see if you're also say in her leaving was age i believe that it wants and we believe that their support for that in the cases not only i mean there's been this pattern it's not the rest or type of case where there was a one time blow up in the employee was mad about that there'd been a year all along there'd been a decade long pattern of conduct that resulted in her being i just can't deal with this anymore i have to go and that was when m mom said to her you go home you just go plant some flowers her claim to being taken seriously there was no question about that what is what is the record show about the structure of the company the management of  lawsuit is against the corporation crack what how many people are made up this organization what was the management i'm thinking about this issue  allege whether notice or complaint to management was truly futile what's the what are the facts in fact i would like to reserve three minutes for rebuttal time for i could but i'll answer your question  the company president was marty's mom there was a layer of management under her and that was supervised of the various areas and her son were marty was one of those supervisors and he reported to his mom there is also a board of directors marty was on the board of directors he was the directors well so marty was m j how many people were boy go i am not certain but it please the court counsel my name is catherine to turkey dinner and on this case i am here representing the defendant an app l e m d a optical the plaintiff in this case voluntarily resigned for reasons that are not actionable and are completely unrelated to her current claims her claims of gender and age discrimination are wholly contrived by her attorney and not supported by her own testimony for example play of blatantly  admits justice reilly stated that she was not treated any differently because of her gender that's on page seventy four of the appendix she is asked if she felt she is treated differently because of her gender because she is the woman and she  you differently because of your gender because you were a woman there response no and what do you think that question means that whether or not she felt that her that the treatment of her was  was based on the fact that she was this she was a woman and whether or not he treated other females in the same fashion was that it was a question directed at these at these kinds of of  comments and physical touching or was it a question related at for example compensation benefits of employment the former i believe your honor i did not ask her about  continuing and did continue and that she was treated differently when you say he believes i would agree that she believed she was treated differently but not because of her gender there was no evidence presented that he targeted women or treated women differently than treated then he treated men well is there evidence that he touched me and that he made comments  that is that she was that this is some kind of contrived recently contrived recollection about actions taken against her by this individual well when you look at the totality of the circumstances your honor  i think that addresses that makes it clear that this was not based on gender it was it was the nature of their relationship they had known each other for nearly forty years and the defend in this case  produced some evidence just describing the nature of the relationship for example the plaintiff attended the wedding of his dove marty's daughter her grandson attended college courses with marty and marty assisted him in his coursework marty lent his hog took her to her church and she introduced him to his pastor so they had a relationship that she describes as close and we believe that the reason why he acted in the manner that he did although unprofessional and borish was not because of her gender but because they had a close relationship on the discrimination claims there's no question that under the mcdonnell douglas tests to establish a prima fashion case she has to show an adverse employment action there's no question that she resigned she said she states that she was not terminated here on appeal plaintiff is alleging that she was constructively discharged and in order to establish that claim she asked to show that a reasonable person in her situation would find the working conditions intolerable and that the employer intended to force her to quit here the intolerable conditions that she describes are not the reasons for her resignation they're completely separate players counsel talks about the fact that you can't divide them but there has to be some sort of connection in between the sexual conduct and the reasons for the final incident that caused her resignation the facts are most similar to the case of rest of the stevens media that the eight circuit looked at where there was an angry outburst by a supervisor in that case he physically battered the plaintiff three times he pushed her into the chair and the court found a summary judgment in that case saying that there was no no evidence of any relation between sex based kind doctored or gender based conduct and that that final altercation here the ultimate circumstance that caused her to resign was much more benign than it was in the in the rest her case plaintiff worked as a bench technician from gap tical so her job was to fit lenses into frames and there was a time period where there were a significant number of frames that were coming out broken in the plaintiff first off took those those frames to the president of the company mary hagy and told her about the problem mary told marty who was in charge of the department to figure out what was going on with these with these frames so marty began to troubleshoot he needed to figure out if it was the machine that was causing the problem or the plane if the machine operator who was causing the problem so he had other employees come in and work the machine to see if the problem was still going on there were other things that plaintive could do she admits that she admits that she was not demoted she was not disciplined but tensions were high for everyone because they had to figure out what was going on with these friends playing if describes an incident when she took it upon herself one morning to just start working back on her machine and she describes marty blowing up about that she says he came toward her and  g get off that machine don't do that she testified that she was scared she was crying she reported the incident to another supervisor and reported it to the company president to marry hagy then without  time any time to resolve the issue she called the next morning and resigned she said in her resignation that she was resigning due to marty's anger issues and that she thinks she thanked mary for being a good boss these are the facts of how her employment and ended according to the plaintiff on page seventy nine of the appendix she specifically asked what caused her to resign her answer is i knew there was nothing that was going to be done about the problem i asked the problem of marty rage of him raging at you or and she says that and the way the work was coming out i knew it was never going to be fixed i said you mean the problem with the frames when you say the way the work w coming out and she says frames and lenses both so she makes very clear that that is the reason for her resignation i then go through her allegations of sex and age based harassment and ask if the resignation had anything to do with those allegations and she says nope that was her answer again that's on page seventy nine of the appendix a says she cannot assert that her working conditions were so intolerable because of age and sex based harassment while admitting that she resigned for completely separate reasons most importantly the eighth circuit has consistently held that an employee who fails to give their employer reasonable and a reasonable opportunity to rectify a complaint cannot be constructively discharged that's the trier wheeler versus well fargo bank never case tied well versus miters bakeries brennaman versus famous daves and ames vs nationwide mutual insurance company all of those cases hold the same proposition that you have to give your employer a reasonable opportunity to correct the problem the complaint and she did not do that in this case she did not there's no question that she did not that she resigned the next day without giving them any significant time since she cannot claim constructive discharge or show any other adverse action her claims of discrimination must fail as a matter of law now on the harassment claims for either or did you cover in the depositions why she didn't go again i understand why she would go to martin would go to the owner or his mother or go to somebody and complain from a nine hundred ninety nine on about i did hear on her and her response to that was that the it would be futile that her that her boss wouldn't wouldn't do anything about it that the president of the company wouldn't do it anything about it but that is contradictory to her to the fact that she did complain to mary about another issue so she clearly shows that she knew who to report to and that she felt you know the exact number but i do know it's less than fifty employees to it is a small family run business regarding harassment claims she has to show the conduct was unwelcome that it was offensive that it was sufficiently severe and pervasive as to alter the terms and conditions of her employment and she can't simply cannot meet that standard under the political circuit case law it's a demanding standard that requires extreme conduct rather than merely rude or unpleasant  conduct in the court must assess the totality of the circumstances here as play of counsel described she states that there was there was a comments from marty that his hands aren't good in her hands aren't good anymore that's in the context of her asking marty for assistance in performing certain tasks that she was unable to do due to weakness in her hands and there's no adverse action there marty simply helped or he jumped in and said sure i can i can do this for you and she also says makes an allegation that marty said that he was keeping her around to watch her die and i would pose that that's actually the opposite of discrimination you're not saying i'm go fire you because of your age you stay and i'm going to keep you here forever plain as counsel also misconstrues that that testimony and does not represent that accurately because she doesn't fact admit that that was said in jest  i asked her this is on page seventy seventy three of the appendix i say is do you think that his response i'm sorry i say were you asking that in a joking manner and she says no then i ask did you think that his response was in a joking manner she says i don't know i said ok and then she says it all depends on the day i say ok so you think sometimes he was joking with you she says sometimes that's that's the testimony  from plaintiff now she has allegations that he did pat her on the bottom there is a dispute a fact on that about the frequency and whether or not she reciprocated the conduct but defendant the comments about her breast is unclear when that comment occurred or the frequency of it but she states that she responded by going out to purchase a padded padded bra and we can assume that she would not go out and do that multiple times so that that was a one time comment regarding her breasts again the defendant is not not disputing these facts and it's at middleby unprofessional and borish comment but it simply does not rise to the level of harassment under eight circuit precedent in the case of record versus swedish match the court makes clear they'd circuit makes clear that behavior that is inappropriate noxious is not indicative of sex based harassment if the employee cannot show that the alleged harasser harbored hostility toward women or pursued sexual gratification and neither of those circumstances were the case here again pla described their relationship as close they've known each other for nearly forty years and they were their example to describe their relationship which i discussed earlier furthermore there is no evidence that the conduct was unwelcome understanding of the law is that that defense comes into play if there is harassing conduct to start with and we're contesting that there was not harassing conduct to start with from the beginning importantly the plaintiff not only did she not report but she never even told marty to stop she never said cut it out or stop it she simply did nothing again her actions were the opposite of that she admitted that she would say i love you to each other and that they had a close relationship based on those facts and we believe that she can't meet her her burden of showing that there was harassment in this case unless there are questions your honor i thank you for your time for the bulk of m g s argument there is a constant theme misplay personally did not answer the deposition questions as she personally believe x y or z happened because  gender because of her age that's not the test the test is whether or not a reasonable person would find that these comments were offensive or that the touching actually occurred and her personal opinion about the last event which i think that her testimony can be attributed to is not controlling in fact i think what is very telling is a quote from the district of kansas court which did involve touching and which this court has previously held that touching coupled with a couple of other lewd comments or obscenities over time is sufficient to state a workplace harassment claim the court in kansas the campbell court said wherever else such conduct might be acceptable a slap on the butt x in the office setting has yet to replace the handshake and the court is confident that such conduct when directed from a man to a woman occurs precisely only because of the parties respective gender didn't have to be explicit i'm doing this because you're a woman that's why he was doing it and the like i started to say there is evidence in the record that he did marty did treat others with hostility for instance with respect to her direct supervisor denise merriman there is evidence in the record that he got so angry with her one time he punched a file cabinet and left his fist imprint in the cabinet so she was treated he did treat women with disdain i think that can only be the conclusion that's reached and in fact the know the nature of the relationship whether or not they were all family friends or new acquaintances this type of conduct is not excuse final if i could close the door quickly thank you i would just submit that the facts in the legal analysis by the district court is incorrect and summary judgment should be reversed thank you ok thank you both for your arguments