case number one six day ash two for one for david high call junior v john hemphill at off or arguments fifteen minutes to be shared by plaintiffs and amicus fifteen minutes to be shared by defendants mr occurred we don't question that it's because of sex that is true even despite the reality that sexual harassment is fraught with many dynamics besides sex it's about power it's about control simulated anal sex but then he also compliment them like when he complimented his physical conditioning or is nice firm ass and he cupped it in his hands he made physical threats he grabbed his shirt he pulled them close and cocked his fist he tried to take them down to the river and kick his ass he threatened his job he threatened to fire him or send him back to the casters which was the previous working place which was supposed to be dirtier and not as desirable as the b o p or basic oxygen processing where hemphill said please bring philco over here he threatened them on multiple occasions to fire him he'd be a little his military service this is a man who led one hundred combat missions in afghanistan he said you can i'm surprised you didn't get your men killed you can't lead them out of a paper bag he called them stripes or lieutenant dan from the movies and give them a mock salute he belittled and others he called them f ing worthless you can have him he made him get coffee for him in front of others the talk was sexual he called him a cocksucker this is an act where you're on your knees you're subjugated to somebody he talk hemphill talk about his own sexual life and ability or he talked about yoko sexual life  ability to please two women he wouldn't let him change the subject then he would brag about his own jenna telia and his sons jenna telia on multiple occasions clearly he's somebody who was intrigued by who goes sexually the end he would be excited at these conversations and have this need to compare himself and he would but to me the harassment was on account of sex and that's what we're here saying that the lower court erred legally about and it's because it was the emasculating on so many levels all of those things that they would still go did the military leadership the physical conditioning pleasing women sexually we associate it with manliness he was belittled on that basis you're not a leader your military service was a joke mine is bigger and so is my son's hemphill told despite all that that he told the hill go on the job when he was called in for the interview he told his superiors in the h r people he's a good young kid i like him and he said i am the teacher this is all you know as in all such a harassment case it really comes down to control now with women we don't ask is it really is he really attracted to her was it a power trip it's just assumed that we say it's because of sex because it's a man and a woman but here all the harassment was directed at heel close male ness and the things we associate with male prowess and he turned them into what he said you're my bitch and that's the ultimate subjugation you're my female slave so yes this is about sex on tail says we have to look at what they called the constellation of the surrounding circumstances in the social context this isn't the example of it on calle used a football coach patting a player on the fanny for a good play and it's not horseplay either i think the smith versus rock town looked at the very similar behavior and said that is clearly not horseplay the jury had a right to determine otherwise somehow though these cases though they put these numbers in front of those nonexclusive complimenting talking like a woman it's not just to be literally him kill himself said i would never treat a woman like that in unlike some of the other cases in the circuit this was a mixed gender workplace tom gunnell said there are about hemphill had that kind of power over helco as opposed to just something more amorphous which is what the court seemed to reject yes well we start with the fact that he initiated yoko's transfer from castres over to basic os oxygen processing a better environment and he initiated that ok so i mean that's i guess i missed that that's guarded that and then there's the multiple admissions vance would not be in the right but there's so much more in a record your honor sorry i believe there's a lot more in the record and i think gunnels i believe admitted that he would have the power to recommend terminations you don't have to necessarily days it's pretty complete pretty sweeping there's a couple there's a yeah you can cause on a supervisor you can think of them as a supervisor that person can tell you what to do that person can change your activities that's not enough because we want and they go through all these reasons we want to know at the outset which kind of proof is going to be made at trial so it's and and so we've got to have something that really shows us that there is that kind of power and you seem to be coming up with examples which have persuasive force but i don't see how they have more persuasive force than what was are you to advance well here's a couple other considerations there's no dispute that he threatened firemen many occasions he admitted that now he went to u s steel and u s steel duly noted all that in their records they of course call them a supervisor to the o c they said we found all of these things were true that he threatened to fire him normally said wait a minute why are you threatening to fire him if you don't actually have the power to fire him us still didn't say that i mean he said yeah i threatened fire me i admitted that i threaten to send him back to casters they call them a supervisor to the o c they admitted it in the pleadings there's one other quick factor that ehlers talks about finding of being a supervisor under vance that is because otherwise you'd be able to avoid liability simply by saying after the fact well oh we just decided he can't really fire him how can you prove otherwise i mean you can go through your entire career and not fire anybody right now whether you have the power or not is something only does the higher ups really know but just the fact that you didn't actually fire anybody is that going to be conclusive proof as a matter of law says that's the reason we're coming to this definition is that there i think that is fair but i don't think vance's that's the truth of every case they said this is if they don't say it's true of every case they said it can usually mark for you it is come up and say this is the kind of thing that should go that but they also reason that the fact that it's usually can be disposed of is part of their reasoning that leads to this limited definition of what a supervisor is and that's part of their analysis but we dispose of it simply not sure that what you have is that kind of showing as opposed to as opposed to the kind of thing that they reject in vans it's kind of a surprising decision but those seem to be what they say i think that  authority case is also a path to vance permits and it can ask a technical question just from my orientation the sume i'm not sure we would but assume that we disagree with you on the supervisor issue that's one of the elements of the cause of action so then you lose or you still have a claim against other parties or what will van save in that type of that hope possibility is that we would rule that way on supervisor what they're left they have says you still have a claim on negligence and that's all i understand that and if you were to lose on that is there a separate claim against the supervisors that oh there's the state court tort claims it was all a court rort claims would be right left over right federal claim would be left if probably not i think the than this co worker liability alternative right then you'd have theirs and you'd have to get into whether the company reacted quickly enough and did enough to respond to the complaints that there's a harder ration if i may in my time is up and that if i can may i one other example that i think is interesting here  on coworker thing there was the one case when we asked about other cases of sexual harassment they gave us a chart and they listed in sexual harassment all the other cases but one stood out it was a female versus female coworker and they called it sexual harassment and that was the dobbins case i talk about in the brief and what they found was the coworker touched her hair touched her necklace and said some demeaning names she got to thirty day unpaid suspensions for that they treated the female victim of coworker harassment much and they also call that sexual harassment which they unite here he treated her much more seriously in that case they also hemphill had shoved the person and got a thirty day on unpaid suspension previously they sent him to counseling in anger management so you've got them being on notice about hemphill they also had a thing about him damaging somebody's scar in a parking lot in their file for which he was sentenced in a crime so they know this guy's kind of a h head so there's those kinds of things that may also go with the coworker liability and there's also the cases that talk about when this goes on in front of other people they're on constructive notice of all these things so i wouldn't necessarily for i understand i understand you have that in your motivation actually was if i were to give a theory i think it's like two gorillas in the jungle you know in you're not the top the real i don't care about your manliness in military service i'm examples but treating them as exclusive so this court hasn't yet that rule on the issue second turning to the vance issue that you were the two of you were interested in vance does stand for the proposition that somebody must be able to take tangible employment action in order to be a supervisor but vance also says it page twenty four fifty two that where you have a situation where those who can take that employment action don't interact with the individual involved and instead rely on the recommendation of somebody who does interact with them they've effectively delegated that authority to the person who has the power to make that recommendation now that's helpful  can you point us to any circuit cases or cases since vance that that give us some data points about what sort of recommending authority is fish and under again and what isn't because recommend  and that case really does look at this idea of what is required and one of the points is who does the person work with this individual and here it was the mr temple was really the only the purported supervisor is referred to here or us steel in mr temple himself and mr hopeful all routinely refer to him as a supervisor i guess i mean do you have any cases that you think are fact pretty how as applied here the harassment that the record clearly shows that there was a tribal issue of material fact as to whether this was harassment because of sex where you have the evidence that mr mel talked about about the touching of the buttocks the touching of the penis the comments about having a nice for a mass that all of that it's so inherently sexualized and then with the overlay of the actual physical contact with intimate body part it's given all of that that makes the connection to sex the title seven requires you don't need you know if x has a lot of different meanings are we talking about sex and terms of like physical action are we talking about desired i think you can have discrimination on the gender sense or on the power sense the i could come into the court the dovi city of bellville decision that goes into how it really doesn't matter what the harassers motivation is what you inherently sexualized it really doesn't matter whether it's because of sexual desire or some other reason with city bellville decision points out if somebody is referred to in racist or religiously discriminatory terms even if the harasser doesn't actually harbor that kind of animist they're just trying to get rid of the person trying to really hurt them in the most fundamental way if they take that route that's enough under title seven and so we that because the workplace was ten percent female women were distributed evenly throughout the mr temple testify that he wouldn't treat women the same way because he would be in his words inappropriate that's enough to establish that compare the case and to this court's stating his ex wife but the form of harassment and clue did some things that were sexual and nation nature what that satisfy even though it was clear that motivation itself had nothing to do with n this one i mean if it was a sexually demeaning term that was used because it was directed at him at this hypothetical victim as a man that i think the case law under on call and the other case interpret it i believe that that does state that that would be enough but specifically here where there's in addition to that the overlay of the physical conduct or the physical contact case upper case says that the most  extreme among the most extreme forms of sexual harassment is this unwanted physical contact with intimate body parts and where the record shows that that happened multiple times over a very compressed period of time to the time that the two men worked together i believe it was two months in of that there were two weeks when one of the other was on vacation so it's within six weeks that that happened so where you have that overlay of the physical contact and it's repeated and the evidence shows that it could be considered hostile or abusive sufficiently to alter the conditions of employment we that's enough under title seven i see my time's up but if the court has a new question thank you element so let's understand first the lower court never said that the three evidentiary routes espoused one cow or the exclusive things to do that is simply a red herring that had been raised here by that mickey and make us  testifies that he would not have done any of this tool why doesn't that just direct and forget the examples it's a direct answer to the question posed by on call namely was he quote exposed to i mean nobody i know woman is exposed to that behavior because he said he wouldn't do it right i mean i'm just trying to this seems to be common sense to me what am i missing because when council is you have to have example you have to have actual x comparative x and y it doesn't doesn't say that oh it's one example you know saying i'm here i got in front of me i have that advantage a same sex harassment plaintiff may also of course offer comparative evidence that's not exclusive it's not a requirement it's just one in a litany of examples of ways that you can show discrimination because of sex interest in that your honor i didn't mean to imply otherwise but then evidentiary route means that you can show comparative advocates it is that way that the harasser acted right but if the written her ass or raises his hand and says forget about inferences her conduct i'll just tell you straight up i wouldn't do that to a woman in you know and he did it to this guy i mean this is like you know the rare title seven case kind of where you have direct evidence rather than have to go through all this what am i missing he said i would do this to he did it to the man stipulated obviously and he testified he wouldn't do it to a woman why can't we just take him at his word particularly on summary judgment well i don't think and in of itself makes it gender based right he had a relationship with why not i would i did it to this man i would never do it to a woman this so complicated well it's not saying it's complicated i'm saying that just not fair to say when you're not presented with it in the workplace and for him to present this is what happened testimony all right so that's why i'm suggesting why isn't your answer simply that the statement is not discriminatory when you take into account the fact that i'm not a gay and so therefore i wouldn't do it to a woman it would be sexual if i did it to a woman but i'm doing it to a man and so therefore it's not sexual i would doubt that dancer well i mean on call says harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex so why do you can let me finish and then you can answer the question so why doesn't that exclude i mean why doesn't that mean that his testimony is and not because it's because of sex again it's i just don't think that you can take that example and without comparing it to actual actions in the workplace and draw from that that it was actions on account of sex because of his gender  t we have here i'm running out of time what we have here is what was said you know that title seven does not apply to the conduct of jerks bullies and persecut it's simply not actually under title seven a lesser acting because of the victim's gender i would add to that litany infant how the havior which is what we have here and just close in that there's there is no evidence that it was because of sex this is good morning your honor sir paul cohen our behalf the united states steel corporation i'm going to wade right in and try to answer your question great because i saw it first of all the testimony i think is out of context of the question was did you ever do that to women back in your party did so to speak no not something you would go up to a woman and tamper on the ass no you know that was inappropriate right that's correct those are attitudes historical evidence his subjective opinion it's not on kali standard which is where the point of offers direct comparative evidence about how the alleged trysts are treated members of both sexes in a mixed sex workplace ok but again that you know that is part of this lit of different ways one can show that members of one sex are exposed to disadvantage terms and conditions to which members of the others sex on which they never presented evidence of they never asked how did you treat clarification of you know the context of it however you know the case comes to us in summary judgment and we have to look at it in the light most favorable to the plain or here so why should we conclude that a jury could could find that he brought those same more protective i guess attitudes about women who are into his role at u s steel i think perhaps it could if it was a mixed sex workplace but there is no evidence the evidence they  cited is taken out of context as well both mr coco and mr hemphill testified there were no women that they worked with on their crews in the b o in the b o p basic oxygen processing was a separate building they've taken testimony of mr gunnell that he had three hundred forty people working under him they've ignored he said only one hundred forty of those people were in the b o p building and there is not a single bit of evidence in the record that any one of those hundred  forty people was a woman it was never presented so so i mean i think we're narrowing this now so you're saying that there's there are no evidence that there are any women in this building and so i guess it depends on how do we define the workplace right fair enough and i think there's two cases that are to the court the herbert you're going to from this court in two thousand and one and more specifically on that point you and that did get particularized from one thousand nine hundred seven to the area of the workplace there were none in that area so so in the harbor you're going taste also there were three women but they were in the office so sort of similar when they're not in that workplace this is a very difficult workplace doesn't mean women shouldn't be there can't be there it's just that they weren't there as far as the record goes ok thank you thank you  would like to address although i think the court has addressed that the vance issue the the specific changes the significant changes in employment status were identified in that case hiring firing failing to promote reassignment was significantly different responsibilities or decision causing a significant change in benefits not firing i think i'm sorry is relying on fire and he said that and there it is in the record but there's no evidence he did have that authority the every witness the fact that he said i'm going to fire you evidence that he had that authority i think it was the bullying argument that he made before it was just his way to to mess with th give him a little grief there's no evidence he ever recommended any of the discharge of any employee at the at that level what he did was recommend discharge of union employees and that's not what mr h that and h r supervisors at least have felt could make recommendations he did he did but i think we have to evaluate was there any could he make an effective recommendation or delegation of authority he had never done so in the thirty years some of that was before with national steel but he had never done so in normally we don't have this fax in areal there's evidence you know who your supervisor is he  evaluates you he does some of these things in evidence you a sharing thing like that here it was teaching it was showing him the ropes it was assigning the duties he was new to the b o p and it is a very dangerous work environment client may not appreciate me saying that but your view who was mr helco supervise mark job mark and that's what is what was his job again i'm sorry i don't have his title it was he in the same building and yes oh yes yes actually what was he doing he he was he was he was supervising that level of manager the he was above mr elko mr hemphill he was supervising the shift managers and co ordinators i think there is an anyone had heard about it and that will lead me to my employer liability argument here a moment but the first thing you did after speaking with mr hope it was call mr joe and say hey you know i don't know if you use these words so i'm play acting but hey your guy just came to me and said this is going on and you know anything about it he said no i've never heard about it never seen it it said it and then that tie into the e e o c is point or somebody point earlier on that side about if  actual supervisor doesn't interact that one should say there's been a delegation to the person who is interacting or maybe that gives more weight to the recommendation well i think mr job and i think did interact i don't think that there's evidence you just didn't know about this right and mr holcombe testified that there was never a supervisor around for this kind so other witnesses also testified they weren't aware of it but i understand it's a fact record and you have to look at the facts as play i would like to address the employer liability though obviously the test turns on whether or not he was a supervisor that is mr hemphill we submit he was t and that there's no basis for a finding of negligence whatsoever that requires a failure to take prompting corrective action when it's brought to the attention and the response if there is one that most manifest indifference or a reasonable us still took quick action investigated it brought the very next day have brought in mr coco for a more thorough interview brought in mr hemphill furth thorough interview took immediate action to separate them before  happened and i do have to address the action that they took simply because there was some tension or conflict but not because it was sexual and i thought their position was this doesn't come under their sexual harassment well they maybe didn't say it did or did they just knew it was inappropriate behavior under their policy their sexual harassment policy they took action they think that was under their sexual harassment what evidence i guess is there that the actions they took and does appear they took some action was under their sexual harassment laws it's a great question your honor i'm not sure that anyone said those words in the record it's it's what they think we're operating under but can i say you to a specific court say that they have taken that action if if it had not been under their policy i'm sorry but they have taken that action or it is not of course of course but i think they understood him to be alleging sexual harassment and that's why the policy was relevant what they were seen in their testimonies we're not concluding it was sexual just like we're arguing about here they they didn't decide it was or wasn't it was just wrong in they felt it was appropriate to separate both parties agreed to that separation plus the five day unpaid suspension i think the record is clear it was an unpaid plus  a warning against any future conduct plus he apologised to mr hokkaido accepted the apology wasn't forced to he was asked if you if you could and would and he said yes and there's a text from him to his girl don't think it's fair to say that those were snippets of a record with without the full investigative file he didn't subpoena or requests the full files those were those were short little actions plus i would say that's a question of discrimination which is not before it was not raised that it's really a question discriminatory sort of enforcement policies which is not before this court it's a question of harassment in this case and i see my time's up you did right but the reverse of that is if he did nothing wrong then you would have no liability without even going through the other steps and i'm troubled by th question of if a person chooses to torture in effect someone in the workplace calling him names that suggests he's a homosexual by using conduct that he might use if he was a sick homosexual even though he knows this person isn't leaning in that direction would that be actionable if that's the device he uses to make one's life miserable framework for analyzing the and i'm not saying it's exclusive i agree with brother counsel in a doctor's comments i don't think the court said that and i don't think plaintiff presented any other argument so that's how it would be thank you thank you first of all very quickly on the comparative evidence bit we're not dutch enough to go to the jury that the admission that hemphill made the mixed gender workplace the thirty five people that's what distinguish it from herbert you are going in washington i think those were the ones where only one or two people were in the mix in your workplace that's enough for a factual issue and that in the vamps issue i'd like to address a little bit more too in us your honor asked about some other cases voltz versus city of erie which is a two thousand and fifteen case that say that in our brief talks about where the catch part theory is enough and there is a an article it's not cited but really it's drawn from the cases of northwestern university two thousand language at seven sixty two and seven sixty three we say you'd be turning agency principals on its head if you didn't find that the supervisor had power to take tangible employment actions merge into a single entity certainly when justice alito talked in vance about that those agency factors in thinking you could certainly have some room for saying that it can be delegated and so forth the effort of your circumstances i'm just curious about the thrust of the vance opinion which is to steer away from sort of well he told me what to do and if i didn't do it i'd probably get fired because i wasn't doing what i was told to do therefore he's my supervisor seems me van vance is saying no that's not enough you've got to have something that's more objective that you don't have to look to day to day activities but you've got to look somehow to that they don't say has to be the structure it's got to be something that we can ascertain objective lee before this thing goes to trial so i know there's got to be some room for delegation in the in the in the various kinds of organizational structures that exist within the economy but but just have a testimony that he was called the boss or that he was told this is what you have to do today you're going to work on the castors are going to work on  the in the clean area or that that he was threatened with repercussions if he didn't do what he was told all that pretty clearly under vance isn't enough interest in the courts concerned here but i think justice alito in vance did in doorstep delegation terry said if you rely on other workers who actually interact with the affected employee for the ultimate decision the evidence we have is just the other workers saying i'm going to get you  i think that's different here but what he was saying was i will i will fire you i will send you back to casters not i'm going to tell on you and get you fired if you look at it in the transcript it's right in the same sentence with i'm going to send you down to the casters  understand of course concern i appreciate it we believe it's in the record one last your honor this information on the nature of the existing cause of action at this time against him tell us what  against him will under state law you can have individual liability versus a supervisor not title seven so we have the state law claim individually against him phil and the state law tort claims for the assault thank you the case will be submitted