trial based on statements made by plaintiff's counsel in closing arguments with respect to plaintiff sexual harassment claims defendants assert that there was no evidence to demonstrate that the rescue to she was based on sex with respect to plaintiff's nine retaliation claim defenders assert that plaintiff's coworkers did not know the plaintiff had filed charges alleging racial discrimination counsel did you ever ask the supervisor on the stand whether he had reported those reasonable juror could conclude that even though he didn't i mean in your brief you characterize it as well he would have had no reason to tell them because he wasn't trying to get them to shape the racial slurs he was trying to get them to shape up on the sexual harassment there's plenty of evidence from which a reasonable juror conclude that he told them because he was either generally cry thing about the plaintiff or because he out of spite he wanted them to retaliate against the plaintiff i guess i would make two points first  race again but why couldn't a reasonable juror conclude that the supervisor told the other guys behind the counter about that especially if he was never asked directly did you or did you not he did indicate that he discuss sexual harassment charges with them i know they were named individually although what about the racial i mean you think a reasonable juror couldn't have concluded that he did that just he didn't like he didn't like the plaintiff either i mean he had told them you know you're not welcome here you don't like him so could a reasonable juror conclude that he was just complaining about him and the e e o c charge or that he told them so that they would retaliate i don't think there's any evidence that indicated that that took place did you raise this issue with the district court judge issue was raised as to whether there was sufficient facts to establish retaliation but that's a seventy one question then if you're arguing here that there was no evidence of the racial retaliation claim and that he had told other workers about the filing of the complaint for racial retaliation did you raise that with the district court and if you didn't haven't you believe i don't believe that specific ground for three tell you which race with the district court have you waved at them for purposes of appeal i think our position is that it falls under the umbrella of the issues that were raised with respect to other there was retaliation because you as detailed as what we're presenting here but the issue was raised as to whether there was sufficient evidence on plan of section ninety one to tell you should claim for the verdict let me shift and ask you about whether the sexual harassment was because of sex that the cases in which we have said that perhaps this was harassing or horseplay but not actually sexual harassment for purposes of title seven have involves pretty isolated incidents  that was this pervasive and to this degree i think that's accurate so why doesn't that why couldn't a reasonable juror then conclude that this was because of sex it didn't happen any women it only happened to him and this wasn't just a few incidents this was this  pretty severe and pervasive i guess i'd like to all address the point about having women especially but first it has to be based on sex on film made that very clear and well the frequency of rassmann differs from lord vs high voltage software and schaefer vs cal con the conduct here is almost identical and i don't see the mere fact that the kind of just repeat it doesn't change the intent the conduct in the first time since demonstrating that something other than horseplay just because there was a lot of horseplay doesn't change it from horseplay to sexual harassment isn't that a question for the jury if it's horseplay versus sexual harassment given the pervasiveness of the conduct here i think there has to be some evidence from which they can make that conclusion it is it your position that they can't make that conclusion soly based on it's pervasive extreme if you take the plaintiff's testimony in the light most favorable to him which we must is it your view point that that could never amount to harassment based on sex because it's the same sex i believe in shafer the kind of to issue a less few isolated incidents if it becomes intense and pervasive it seems to me that can shift the motivation or at least as a matter of law it wouldn't necessarily i guess it's going to subject seems point that would be a matter for a jury to conclude i wouldn't say as a matter of law something that might not be because of sex as a matter of law if we looked at two or three incidents as a matter of law that five hundred wouldn't be because of sex i'm not aware of an sheer frequency because there's no there is no after evidence in the record but the nature of the kind of change it was always the same touching throughout the course of the employment so there's nothing in the nature of the conduct that changed it was just i saying nothing in the nature of the kind of changed it was just ongoing it's also i don't there's any evidence in the record that the frequency changed it was just ongoing during the course of the employment and there's nothing in there to differentiate those incidents you know as horseplay from sexual harassment and i think laura you know lord supports that i think the court said there with respect to same sex harassment this court has held th sexual horseplay differs from sex discrimination and as an evidence of sex discrimination and sexual horseplay is not sufficient to support title seven claims i don't think there's any but the way that supports the proposition that sheer repetition control it might be a question of first impression but i guess what judge saying and i are pressing you about is whether one can truly say as a matter of law that the sheer amount and pervasiveness of this sexually tends to conduct touching of fact that it was ongoing over the course of supporting a changed it to something different something based on sex but that original intent wasn't there and what about what exactly when you throw in that the women testified who came and helped out at the counter that this conflict never occurred with to them well doesn't that change a thing or work behind the commute counting it was crowded they were too close proximity was fellow employees all the employees behind me trying to nail but there was testimony that women would come and help out at the meat counter under those same circumstances and never had don't think there was testimony that they would come behind the counter and participate really if they would walk back to the counter to return items and there were also when they would come and help out in the meat counter when they were short handed  think that's what the testimony was whether or not they were behind the counter or next to the counter they were still back working in that same department i think there was also testimony that you know there were other male employees that were employed in the front of the store here none of those jury right you're asking us to overturn a jury verdict and say that no reasonable juror could find such as a matter of law a reasonable juror could not conclude that this was because of sex there has to be a showing that as opposed to whether or not they're behind the meat counter or not while there were no female employees behind me counter but isn't the deciding factor what chapel what department they were working in to be similarly situated i would agree with that  i guess and then additionally with respect to opposing counsel's closing argument this generally it's very rare to overturn or to order a new trial based on statements or closing arguments but here not only were the statements in extreme inflammatory as acknowledged by the trial court the trial court didn't s the objection to those statements but you did not checked on the grounds that they were inflammatory to chew the objection was that they were beyond the scope and that they were based on scientific evidence that wasn't in the record there were two sets of comments second one referenced scientific evidence so you didn't object on the grounds that they were inflammatory or prejudicial those are the trial to words were not used well judge halsall pointed out that during this terrorist shield the jurors were rolling their that the defendant with the most direct conduct that the least amount of damages awarded to him by a factor of approximately turn against him by factor approximate time even if the comments were prejudicial wouldn't judge sustained the objections when becomes were made but he indicated he didn't see anything wrong with that and i think that kind of distinguishes us from a lot of cases that are similar i guess i'd like to reserve my remaining time for a bottle thank you thank you counsel good morning your honor sir and congratulations judge thank you i think what your honor said mentioned a couple times already is how are you going to review the skates and as you've already pointed out we view it by looking at what the jury did and how much argument to say that no reasonable sure based upon this vast creatures that evidence could ever find against where it was applied and that's why we mention in the brief that some of the arguments they made might even be frivolous they have a er based upon credibility based upon demeanor based upon everything they cannot say there's no weapons well that's did they ask they didn't ask any of these employees did you know did you know never asked that question why not the jury could infer that there's a reason for that even as we point out the proper legal case we don't have to prove it's nowhere in the case of that the planet has to prove that each one of these these retaliate years knew that the plane of had complained about race discrimination and now we're going to go getta the jury could infer that they did know or the jury could infer that the general manager said you know what i want you to get the he is not welcome and you know what that means and the jury could infer that because the evidence the vast evidence is judged out said words that things change they were no longer the same but different were using nops slashing the plaintiff's tigers in a gated employee parking lot cracking his window breaking his brand practically brand new t v during the time that he was on and the jury could infer that so for rose what to say there's no evidence what they really want you to do or say you know what we don't need this jury in their second class citizens we will make our own credibility decisions  says you know want to have oral sex this is not just a workplace so how can they get up there is say this is not because sex now this didn't happen in a word what happened in florida is that the guy put his hands between the plaintiff's lakes there's no that this was because of sex and then i might add the defendant keeps mentioning that you know this just happened i quite honestly don't understand the argument that this just happened in the meat department it was a tight quarters whatever wa sn't tight before her this reach elevation but it just didn't happen in the meat department this grabbing of his penis and his testicles happened in the produce department in the storage room in the stock room and happen in north central there's nothing to distinguish there furthermore as your honour's pointed out the women did not have this street and they weren't targeted and notice what these what roles but targeted his genitalia they didn't he didn't they didn't target his lady his arm which is common to women they targeted something that's unique to men because it sucks because of gender and furthermore i meet we only have to prove one prom or not because of sex but i believe the jury couldn't for we proved all three you know number one they targeted his genitalia number two women did not have to endure this abuse and number three  some of the employees admitted that these others were home such rules and whether they are not is not the issue what is the use she is is this because of sex or what's going on this this is the peeps could the jury infer that it is every day squeezing his testicles to the point that he's kneeling in pain with tears in his ox no that's that's that's that's not as a matter of law that's not because of sex then i'd have to ask them what it is they've never pointed  they've never told us what is because of sex i'm curious what is it if it's not that but let's just say this court would it were to overrule the jury or sensually in overrule that just record charge then we would have inconsistent rulings essentially didn't it is your honor pointed out the scope objection the scientific evidence that's not the specific objections they're recent and even if there were some type of prejudice the evidence is  judged outside fast it's a grievous how could any jury not find otherwise despite the closing argument as your honor pointed out the jury instructions were clear the closing arguments are not could not find retaliation here we have him we have a rose bed calling him a nigger or a slave five times a week which in the six months that he was there before he just couldn't take it anymore that's one hundred twenty times why should somebody have to put up with that that's that's retaliation you don't have to put up with that type of retaliation prior to but even if they had call them an hour a nigger more times prior as i pointed out walking around him with  and i might add i know that your honor asked me about the fact that you know he does every employee have to know that mr smith filer is discrimination church but i might add that that's a new argument that was never raised below in your honour's have pointed out many times that you can't raise new arguments that the district court did not fairly have a chance to address i mean you drive a case yes i  may please the court and king for enemy gets us equal employment opportunity commission as your honors you know are pretty focused on the because of sex issue and i just wanted to respond to two points raised previously  the question of how frequency of conduct could change the nature of the behavior and because of sex analysis particularly in a same sex harassment situation and second whether female employees  and as for authority on the link between persistence and because of sex issues shaffer actually points to that and distinguishing other decisions of this court from from the facts in that case and in discussing in particular whether conduct is horseplay suggests that persistence could be an important factor in assessing horseplay versus same sex harassment that's another opinion that might be useful as the second circuit's decision and read which is cited in the e e o c is brief that decision involved three incidents of same sex harassment a supervisor touching a employees asked the court thought that it was notable that there were multiple incidents because it could be inferred that for example the conduct wasn't incidental or just by chance and that it may actually be predicated on sax versus versus other motivation and as for the second point i mentioned whether the female employees must be similarly situated rose but appears to argue versus donahue opinion which concerns the nature of comparative or evidence that's required at the prima facie stage now coleman actually makes clear that that the compared to our requirement shouldn't be applied to strictly and that maybe maybe a bit more strictly in the case of for example performance evaluations where it is it is important to have a supervisor who is the same for the two who who were not targets of harassment might be a way to establish that conduct is based on sex nothing in that opinion suggests that they must be exact compared to ours and indeed you can imagine a situation where for example say and a plant where different players have different jobs and some employees there's some employees male employees perhaps are subject to harassment by not females it really shouldn't matter if they're within the same space their exact job description here it's important that as the company president testified this is quite a small store it's about three thousand square feet and there is evidence that the female employees although they didn't work in the meat  of pointed out came back to the meat department on a regular basis so i don't think that it really matters on this record that the female employees had a different job description thank you god thank you and so i just have a few brief points mr longo indicated that things changed after the plaintiff filed his retaliation charge with the idea chart the sexual harassment changed it started down point we also acknowledge that intimidation started  sexual harassment stopped after the employees were discussed we talked about it with so you can't retaliate by beating nine story that sort of thing for the racial complaint you can my argument is just a factual there's no connection between the two whereas there is a clear logical and place it on his crotch and simulated sex thank you thank you counsel