plausible claim of a hostile work environment three the miss parker was retaliated against after she complained about treatment that she recently believed was at least in kohut a hostile work environment because was not clearly established that the comics she faced was acceptable under title seven and for her claims of sex based terminations were supported by additional allegations that supplements the claim that she exhaust administrative process the district court and dismissing these claims with prejudice without opportunity to amend and spark to respectfully request that this court reversed the district  circumstances so tell me the specific paragraphs in the complaint that lead scrim anation on the basis of six short paragraphs seven through ten which deal with the content of the rumor being spread there was also went through thinner or all hands meeting at which the rumor was discussed with her coworkers the meeting was called by mr mom pins and what what what makes that on the basis of sexes opposed to the conduct because in that medium only in these cases you've got some statements or e mail orally posted pictures or something like that is as i read it the only rationale given for count one was a paragraph responding to the rumor because in this meeting this was a meeting called for all warehouse employees including those miss parker managed and at this meeting mr pickett who was the male part of the room or he was allowed into this meeting he was given the opportunity to defend himself if we if he chose to do so while the jury being discussed but mr parker was physically kept from attending the room the meeting that our c s i s manager mr mop and slammed the door in her face because of her she arrived right after mr pickett so that shows the disparate treatment between men and women and the way that our c s i was dealing with the room but also then going back to the room or itself and that the content of the rumor is gender based because it attacks miss parker status as an employee it says that her work in the company is not based on her merit but based on her ability to provide sexual favors the rumor in essence reduces heart to our sexuality and if the rumor of the constant of the rumor of that would be true in any circumstance never have a circumstance that would satisfy what the district court said in this case in terms of being it was conduct related it was not on the basis of sex other there could be other circumstances where say there's no power differential is not an attack on the status employee there could be situations i mean there are other cases where the rumors are not found to be on the basis sex because there was a record i saw here you're you're not overreaching it seems to me that your argument is that this rumor was that because she was a woman and was willing to go to bed with an a boss to get promotion they quid pro quo is basically that's the old  me you have to add the facts that the management acted on the rumor not only act on the rumor spread it and then acted on it and said she has now lost all ability to get promotions because of the rumor and then apparently all the time and that they don't take and change provide costs of action seems to me that your argument has to be that they acted on this rumor of a sexual nature as if it were true true that's correct your honor which is a strange how legation but it might it might be a form of yes you're right the it is the looking not just at the room but also at the way that our c s i reacted to it and the way that it discretely treated mr pickett who was the male party to the rumor and the way it treated mr parker mr pickett was not terminated miss parker was there was further disparate treatment in the way that our society reacted to mr jennings and he was the coworker who started the rumor out of jealousy mrs parker had advanced in her career while he had stayed still is clear they had both started at the same time it's when he put in a false complaint of harassment against miss parker it led to restrictions on her and was ultimately given as one of the reasons for her terminations but when she complained about his harassment there was no punishment doled out on him and your honor that i would like to turn to the retaliation point find me and that even if this court agrees with the district court to count employee could be mistaken about the facts but not the law on opposing discrimination in good faith but that framework is not the framework of the supreme court or the circuit and it's contrary to other circuits that have addressed that very issue clued in the ninth the seventh in the d circuit and was also misapplied by the district court because whether or not but for her gender she would have faced the harassment she did is a question of fact unless the district court was trying to say that these types of rumors are always going to be as a matter of law i believe that you can find here from the facts in the complaint that it was really you can hold that it was reasonable and then to reverse the dismissal of the complaint to proceed and that again miss parker was reasonable her belief and both asked of the law and to the fact as the law is not clearly established among the case law that this type of harassment is not onyx is not in violation title seven is not so far afield from title jurisprudence as to be unreasonable and again miss parker was not on reason lost the facts where again there is disparate treatment between mr pickett and miss parker showing that she had a reasonable ness in the gender based nature of the discrimination she was facing discrimination and part of that is in keeping that a broad standard of what is reasonable and your honour's i would just want to briefly touch on the my fourth point which is count three parker's terminations on the basis of her sex a nation that was disparate reapplied between men and women and this three strikes rule is not a new basis of discrimination it's not a new adverse action it's not a classic claim of pattern and practice team it is simply an allegation that supports her plausible standards for a motion to dismiss you're looking at the possibility of the allegation stated in her complaint accepted as true so the only thing you're looking at and that the disregard did not actually apply a possibility standard or mention but in a motion to dismiss posture when there's been no factual when there's no record it's whether it's plausible that her belief was objective lee reasonable so you look at the same standards but instead of saying how she made that out in this case you say could you infer from the allegations in the complaint accepted as true whether her belief was objective lee reasonable and for the same reason we are not advocating for a per se rule in rumor cases well that's the district court in this case fail to understand that the rumor itself was a sex based insult suggesting that she had earned her promotion because of sexual favors with a supervisor rather than merit and a male employee started the rumor a male supervisor male and supervisors and coworkers perpetrated the rumor and then i think it was you that was talking about their reaction you got one of them go on the facts and circumstances of the case if parker had been a man it's quite unlikely the jennings would have started a rumor that he had earned his promotion by sleeping with us picket the supervisor so that's a bu the rumor would that be sufficient your review my reading of the case law is that it depends on the facts and circumstances and there are many ways to get it because of the because of sex finding that the court would be would need to make but at this point the question is is it plausible that her sex was responsible for the harassment that she was subjected to so that is in the form of the rumor it was also in the open hostility and disrespect that she encountered from coworkers which caused her hurt to try to set clear the record and set the record straight which was matt from even more hostility by the head of the office who told her he would no longer allow her to advance in the company kept her out of the meeting and slam the door in her face in front of the whole office while he admitted the male subject of the rumor and then ultimately fired her in part based on our on a  sexual harassment claim by the purse against her by the same person who started the rumor so there's many allegations in the complaint again accepted as true that would would make a plausible case that all of she was subjected to th believe that she the allegations of her reasonable belief that she was being subjected to a hostile work environment were reasonably that she had a reasonable belief that she was opposing unlawful harassment you would then send the case back to the district court to continue on with discovery and then once the factual record is developed then you can get to see get at the facts of whether this actually the factual the record supports these allegations in the complaint but this is a very early stage of the proceedings and the commission is here to remind the court that as long as their complaint states plausible allegations of hostile work environment retaliation discriminatory discharge then parker should be allowed to proceed on with her case discovery and then once the factual record is developed the court can make rulings based on that but here the court did not apply that standard and also applied the same standard to her taliesin claim as it did to her hostile work environment claim the court said because i've decided that she that this is not because of sex there can be no retaliation claim but those are two different independent claims and the retaliation provision is broader than the anti discrimination provision so that was another error in applying the wrong standard so i see my time is up so we would ask that you  this is a relatively simple case it's a title seven case title seven is pretty clear title seven says that no employer is going to discriminate against an individual based on their race their color their sex religion national origin and they talk about sex demanding the prostitution of the woman for her job and it demeans the job because she's a woman and having sex with a boss i actually traditional straightforward case traditional yes quid pro quo where here there's a rumor which doesn't amount to the quid pro quo actually having sex it's a rumor that had it but the complaint goes much further the complaint goes not only was this a rumor based on the fact that she was having sex with the boss to get the job but that the boss spread the rumor he said to somebody else he says i understand you're going to bed with so and so and acted on it and says you're not going to get any more promotions closed the door on it at the meeting and ultimately fire and all because of this rumor now i don't understand what's going on whether he believed it or half believed it but it's all because and obviously the first cases were basically discriminatory pay but then you get the you get the aggravated circumstances or rassmann in the workplace and  i don't believe that the complaint suggests in any way that they acted on a quid pro quo situation what they said there was a rumor of conduct which is the same thing the judge held below hold it there's actual conduct violates the law that dichotomy you keep using in your brief conduct versus gender it's it's like saying it's it's like saying christmas versus oranges i mean it just doesn't compare sexual conduct violates the law gender acting on the basis of gender violates the law and so the comparison has to be your argument probably is that just simple rumor regardless of what the subject is is not a violation of the law but in this case but in this case the allegations i mean i'm not saying that they all can be demonstrated but here we have mr mop unset stated that he had great things planned from his parker but that he could no longer recommend her for her motions or a higher level task because of the rumor he also state he would not allow or to advance any further within the company or the rumor was pretty clear it's alleged in here that she was going to bed with a boss in order to get a promotion correct around all right and then they then they have the meeting where they discuss the rumor and they slam the door and didn't let her participate why would they let her participate in it you know and it would be from the factual allegations that are made it doesn't say that she indicates that she was late for the meeting in the door was slammed in her face and she was right there it says we have a motion to dismiss you are so i can't without going outside of the record d meeting the other correct around that's the allegation that is your hour right and then they ultimately fired or because of this that's the allegation your honor what miss parker has indicated was that this was gender based harassment is because she was a woman in this situation she was as we had always said he was a woman who went to bed with a man to get a promotion because there was a rumor that she went to bed with him down because if it ended there or if they help dispel the rumor there's no problem even though it was all over the workplace the problem was management acted on it they not they spread the rumor and then they disciplined her based on the rumor and then they fired across the room your i'm not sure that allegation suggests that they spread the rumor allegation that mr mop ins actually asked him to derogate to have a derogative manner of mr the other participant mr pickett whether he actually was engaged in this conduct a you sure your wife ain't divorcing you because you're fucking parker estimate derogative manner correct your honor absolutely wasn't spreading the rumor he was asking following up on it what do you think that is when you go up and tease a guy and say what's your wife saying about going to bed with your honor the allegation is that he was teasing it said he was say because you're going to bed with somebody it's no longer rumor your honor at that point which you're suggesting is that r c s i could never have cured the taint of a rumor that the minute they started to investigate the rumor they would be considered to have spread the rumor only to exacerbate the situation further that's not what the law does that's not what the law is going to do i'm talking about allegations i agree you're on your honor one of the other things with respect to how about the meetings with mr mop and said i used to have good ideas about where you're going to go in this two together and say this is untrue and say the two jennings he said if i hear this again you're outta here but now that's the way management would handle it we're going to have them is they acted on it at least on the allegations i don't know if they did and you can prove your case but the question is there was this artificial dichotomy that the district court used and you put in your papers and the court relied on between something called conduct and gender and it that is totally nonsensical under the statute because sexually oriented conduct is violent of a title seven and here the conduct was spreading perpetrating then acting on a rumor relating to sexual harassment and sexual in inappropriate sexual prostitution iran and the rumor that was involved that they are seeking to have facilitate this particular claim is entirely a rumor that is based on conduct i understand your your argument what you're saying with respect to the fact that in this particular instance it is based on a sexual relationship condo it is you're on her sleeping together promotion a correct your honor had it been two heterosexual had it been two homosexual men's doesn't matter the i don't care you can  something else the question is when you tell a woman that she's going to bed with the boss in order to get a promotion that's violates title seven you agreed with me on that that's our hearts ok your honor i believe in this particular case what we have is a situation where miss parker was given three different opportunities to show that there was gender based discrimination going on here at the e e o c in a complaint and then in an amended complaint in all of those situations she couldn't i don't know we're not talking about that we're talking about whether the complaint a eges a title seven violation and you have to tell me why this complaint doesn't allege title seven violations because it talks about a rumor based on sexual conduct which management acted on as if it were true your honor i don't believe that it says that it management acted on as if it was true what was involved in the situation is there is a rumor that whether you want to say that it's sexual conduct or just conduct doesn't make a difference the reality is that there's a rumor that involves an act i know but you're suggesting conduct is exempt from the act statute that was your argument you see it is your conduct not gender which doesn't make any sense you violate the statute with conduct the question is whether the conduct is based on sex and this question is whether the discrimination was based on sex or gender correct your honor so at that point when you look at the remainder of the complaint nothing else in that complaint identifies that ms parker suffered from any sort of gender discrimination outside of the room or i don't understand where you're reading but we going to complaint is totally oriented to her going to bed with the boss to get a promotion that's the whole room that is sexually based and that is unacceptable in our workplace under title seven your honor the way that it was started but miss parker greenhouse started was a jealous coworker who is subordinate or she receiving that's a way to kick and accuse the woman of sleeping with somebody he's taking advantage of the fact that she's a woman if the same accusation was made about him well it may or may not have been made but he didn't get a promotion but wherever the rumor started it was not ended by the management it was promoted by management which are  rumor was started by a jealous coworker and miss parker was a tame through this entire period six different promotions never said one word about it was that was all before though was that it was your honor correct i i think you said something that i want you to follow up on you seem to be suggesting that the rumor alone without more wouldn't been enough to make a claim in this case now that may or may not be true but that the complaint alleges more doesn't it alleges some of the things that just name are talked about that  you know the management instead of squashing the rumors were excluding her from any participation in trying to deal with it that affected her relationship with coworkers and the like so why isn't that enough there to get past the pleading sta which she didn't do beyond the rumor itself didn't show any other gender issues that that came everything's tied back to the rumor everything that she alleged whether it was being screwed from a meeting whether it was coworkers having difficulties with her where there was any other subject that she felt that was an offense was all tied to the rumor she was unable to identify what's wrong with that and i'm missing the point well from that standpoint what is it from my argument you are obviously not judge me miers obviously from the way that i look at it i'm just asking a question and this might help you in response to judge the as a question if you take the hartzell form and you don't look at other people who went who went to bed with somebody you don't look at whether it's male on male and so forth the fact that a woman is going to bed to get a promotion in a workplace at the a boss is instance is a violation of title so because it's treating the woman as a woman and and she's actually  demeaned and getting a promotion based on her basis a willingness to go to bed with somebody as opposed to merit and demeaning the woman where is the man got his had to get his promotions based on merit is a form of discrimination now the question is this does not involve the actual going to bed with somebody but that's the rumor and the rumor took on its own life in this game according to the allegations it did your honor but it's a rumor that equally could insult anyone from that standpoint so with respect to whether hartsell this was a point there what it could it could affect any individual man or woman heterosexual or homosexual us allegation is said based on the fact that she as a woman wouldn't go to she wasn't taken advantage of because moment she happened to be a woman who was the subject of this rumor there's a difference between saying that she was taken advantage of and that's where i believe the distinction it's basically says hartzell law at this point i guess it does you so i don't believe that in this particular case your honor that we've got a situation where that's not her where they actually go to what if this rumor was true let's assume it was true and she'd have a case for quid pro quo harassment which she didn't bring she claims that it's a place that is so inter laced with gender based bias that it is affected her employment in some way but she identifies nothing other than herself as indicating that if there's gender bias going on she doesn't a diet she had in her eyes a variety of female managers woman was being treated on merit like everybody else she's been treated on the basis of she's going to that some whether it's true or not and she happens to be a woman your honor i think that's the distinction that i keep looking at from the standpoint of the fact that she's involved in this rumor which is the source of everything she doesn't indicate she was subject to name calling she doesn't indicate she was subject to different rumors she doesn't is to indicate that there were pictures that there was pornography that anything else happens that's a different i completely agree ron at this point we're talking a very low burden and the burden that she can't seem to stablish here other than the fact that she is a woman there is nothing about this particular rumor that has any gender component to it all nothing there the only gender component is that miss parker is a woman at this point and that seems to be the problem here beyond that there are no other decision making the shows anything that reflects in any way that there's gender bias she herself identifies or for other managers one tap of that your honor she identifies that there was an instance where the r c s i attempted to quell rumor she identifies in her complaint that there was a meeting she thought there were apologies she told the e e o c the same thing she believed it or apologies made and that would bring an end to it that was enough from her perspective to bring an end to this entire situation unfortunately she felt that that didn't end it it continued for one reason or another at that point you look at it you say ok there's not only other than her being a woman there's nothing to suggest that gender has any role that's what the law protects her being a woman and to be treated like a woman as anybody else that she is promoted and treated based on merit and not because she's a woman and she alleges i am a woman and i was treated in this case demeaned as a woman suggesting that i got it's a rumor and it's not true but the allegations of this complaint say it went way beyond that that management the top man in the whole plan acted on it as if why does he say you can no paralegal but they said i had to go to bed my boss said i had to go to bed with them and i refused that file it's the law doesn't it that would be quid pro quo here as a crash right now we're not looking at anybody else we're not looking thing about this rumor that suggests gender or sex is the fact that miss parker is female if the rumor was that she was blackmailing mr pickett to get that they get this there would be nothing in that complaint that suggests anything about gender is not  took advantage of her because she was able to provide sex and a woman happened to she happens to be the woman that can provide sex which is gender based that's a false presumption not it doesn't it is a presumption to say that it has to be a woman and then it becomes not just a talent in the whole body of law under title seven that you apparently oughta look at a little more closely what i am you don't run when you treat women because of their bodies and their ability to provide sex to man and in the workplace and you treat men differently you treat them on merit then you are discriminating and the idea here is that they treated her as if she was sleeping with picket and and got her promotion that way that is discrimination it doesn't hot the other hypotheticals you talk about may or may not happen but you've got to look at the facts of each case you're not one of the case certainly that we cited that identified a very similar situation was case of brown vs the post office how the second circuit court of appeals in that case it was the same situation there were a variety of rumors that the individual sleeping with other people in order to get the boss she was the union steward at the time the second circuit court of appeals took a look at that case and said wow there's no facts outside of this to say that the employer that there was any other gender based activity that was going on outside of the room or of some sexual activity between a man and a woman there were zero things that identified any sort of gender bias that were going on and because of that they said that it wasn't sufficient under title seven the squad case that was out of the seventh circuit same situation outside of an individual being able to identify that there was a sexual affair a heterosexual couple there was nothing that was able to identify that that rumor was gender based sufficient to meet under title seven we cited both of those things what happened in iran and we've got a situation one of the elements the judge tidings relied on was it was not severe pervasive we're talking less than two months that the situation would round between the various parties in addition to that ms parker alleged in her complaint and also with the e e o c which was part of the record that there were apologies that were made at one point at at the behest of human resources as a result of those apologies that were made she felt that everything was fine at that point in time but it turned out it wasn't and that made it even worse well i don't know that does your honor it certainly wasn't any fire that goes to whether it's reasonable whether it's reasonably severe and pervasive at this point we have a situation where the plaintiff also wants to bring in experts testimony w certainly suggest that in normal jury would not be capable of assessing on their own whether in fact this is a situation where they are acting on gender bias or you may as well question what which quickly what your response to the retaliation argument basically our position is that in the event that it is not sufficient either be the gender related conduct that it could never satisfy the requirements for being retaliatory complaint title seven is protecting gender based activities if this was not one it could not e if they're wrong on the law as to the underlying claim there could not be an objectively reasonable leave that's correct i believe that you're a judge titled tell me what your best case for that the best case for that you i guess we go back to mr corkey  put in the false complaint of harassment he continued to harass her and then she was ultimately fired also the brown case especially that mr walsh brought up that was a case that was decided on summary judgment and what was peculiar there was that there was record testimony from the plaintiff that the reason that the rumors were being spread was because of a union dispute and so that the the analysis of the motivation really was pointing to evidence that suggested that the rumors were not being spread because she's a woman  i think also i want to point out that title seven is meant to protect individuals and yes this would potentially happen to anyone but it happened to miss parker and that it could happen to anyone is not a defense to a title seven claim nor is it a defense that there are other women who worked there that may or may not have felt to face discrimination this is about ms parker's discrimination and the discrimination that she faced when there's a rumor that said that her punished her for spreading it he told her to stop huffing and puffing about it basically telling her stop trying to regain your dignity that you've lost about this and then told her that he was going to fire her or he you know had great things planned for her until this rumor so he was spreading the rumor and then telling her the a great things planned for her until it was spread he's the harasser punishing her ass before being harassed which certainly goes to the severe and pervasive prong of a hostile work environment it's either war or guess of the harassment severity and also the harassment didn't end because our c s i out of the goodness target it ended because it fired miss parker in retaliation for her complaining about it and r c i should be able to get off the hook for husband and or y demand sex from a woman in exchange for a promotion and the woman doesn't conform and has been a for it i was just i don't doubt it was acted on eyes if it were i mean that she was treated she was treated adversely as if the rumors were true in other words i don't think i think it's a very dangerous type of complaint if we were to say that just the simple spring of a rumor about sexual favors is an off under the act it seems to me that's just way reaching way too far believe it's actually happening in another time they're not but in any event the way it's all treated it demeans her because of the suggestion that she's going to bed and that's why she's getting promotions as opposed to  then o course i don't know how this plays out but jennings filed his own complaint didn't you see did your honor which led to restrictions on miss parker and was alternately given as a reason for germination but he faced no punishment for his part in the