adverse employment action taken by the city of caldwell as part of his prima facia case and granting summary judgment the district court ruled that mr sorenson could not as a matter of law establish any triable facts under which a reasonable jury could conclude that he would that he constructively discharged from his employment with the city of cold well and now this ruling felled mr sorenson's claims at the very first hurdle the district court's ruling is erroneous because there exist genuine issues of material fact precluding summary judgment and there is more than sufficient evidence and facts upon which a jury could conclude that a reasonable person in mr sorenson's position would have felt compelled to resign and not continue to endure these intolerable circumstances should be the best couple of facts that you have that compelled mr starr's him to resign yes your honor the district court made two factual determination it that mr sorenson could not establish constructive discharge the first was that over a month had elapsed since the last harassment and mr sorenson's decision to constructively discharge reported the harassment to a supervisor there's some dispute as to whether was that day or the next day but it doesn't strike me as material you the way correct your honor it was contemporaneous i think we could all agree with that whether it was that there then there was about a month delay there was about a month ok cations in there there's an eleven day as so when a criminal complaint filed yes your honor i ask you this to kind of because your time is ticking from the time they got back there was they did the report there's an investigation i think we know we understand that then they called him in for a meeting and i'm paraphrasing but when that happened and he was any learned that the supervisor was not to be fired but he wouldn't be as report how long did it take for him to resign four days took him four days to decide whether or not to constructive honor investigation began eleven days after the report it took fourteen days to conclude the investigation investigation results come out on april sixteenth he thinks about it for a little bit he doesn't go to work he's  days a week and did that involve a weekend i do not recall if it involved i don't believe so i believe he showed up on monday so so you've just told us why you're distinguishing this case basically from montero but by piece question was a little different what are your best facts to show that your client was constructively discharged that was the first fact that i would submit because there there is little elapsed time between learning that mr wheeler maintaining your handling it ok to that decision to constructively discharge the two other key facts here that would give rise to a tribal issue for constructive discharge or the fact that we were being sent back to the gulf department simply recreates the exact same command and control structure that was in place prior to august twenty second two thousand and eleven you're going to work in parks and rec yes your honor throughout this entire period prior to august twenty second two thousand and eleven this is a key date august twenty second two thousand and eleven is when they combine  parks and golf into the landing facilities department but there isn't they've divided them i'm sorry they've divided they've they've again separated them correct they separated them again in two thousand and twelve on the gulf on the gulf side correct your client is on the is on the parks and not put any weight or water in into this assertion that we have separateness because of the fact of the conduct prior to the august twenty second two thousand and eleven merger prior to that merger we had the exact same situation that was created on april sixteenth two thousand and twelve which is specifically mr wheeler at golf mr sorenson at parkes this is what existed from two thousand and nine when mr thornton came on with parks until two thousand somebody else that he slapped mr rap a con so i'm i'm having a hard time figuring out where mr sorenson feels that he has been constructively discharged because of the possibility that wheeler might you know bleed over some day and call and call him some names even though he's been warned not to and he's been counseled and he's been and has been advised been put on notice not to do any of those things i mean the city's the city it seems to me has been very responsive here and they certainly considered firing wheeler was one of the options they considered that is either to do something less than that but it's not but it doesn't strike i'm not i'm having struggling to figure out why sorenson had to resign because the situation become intolerable since testimony which we have to credit at this stage of summary judgment proceedings and this is in the record on page fifty six of the record his going back to his deposition testimony now recall that prior to two thousand and eleven  r wheeler is part of golf and mr sorenson says that part of parks he's not a direct report everything is separate we have extensive testimony from mister sorenson that in two thousand and nine that he was reporting age discrimination monica jones at human human resources for the city of caldwell extensively he says i was reporting to venton howell who is my direct report extensively on a daily basis he's as far back as two thousand and nine when mr wheeler is part of a completely separate department mr sorenson is reporting daily about age discrimination not just what he witnessed as far as the terrible incident with mr rapper con but it is also worth noting that as part of that terrible incidents with mr rapper con mr wheeler testifies on page eighty of the excerpts of record that as part of that incident with the threw up a con when he flew off the handle he referred to mr or sorenson as dumb old can't get with it so we have a continuous pattern two thousand and nine two thousand and eleven two thousand and ten mr sorenson is reporting he's doing everything he can but nothing is happening and then the city their idea of remediating the situation is to go is to go back to exactly how things were prior to august twenty second two thousand and eleven so if in february february twenty eighth well yes from the h r director i don't think that's the right title but the h r person jones told we learned not to have contact with the park someplace responsiveness of the city was when that final meeting happened and he was told there wasn't going to be retaliation there was this comment made if it happens again let me know and i'll escort him out of town it seems to be an acknowledgement that we had been given the very same instruction earlier your honor miss l j wait can make the comments that he's on a short leash and cite weight is what where in the hierarchy is the city's finance director he's not a direct report but he's involved in these was in the meeting and and sorensen was there and jones was there and and so in what context can you give me context for that comment if if he does it again it's an understanding that it's a clear representation that there's this known history with wheeler and everyone is when it's not a matter of it it is a matter of when mr wheeler does this again and there's and the evidence is replete that there's no way with the relationship between parks and golf that you can separate mr sorensen from mr whelan so if we had come back and  and called him old again that would have been that was enough to show constructive discharge i'm sorry i'm not calling it if we were if we had come back it was not a matter of if and at sometime after april of two thousand and twelve we had come back into the shop sorenson and called him old this would have been justification for for quitting the job your honor this is this age based discrimination has gone on for years and it has been constantly reported and there isn't any it's never been anything other than names right it is extensive and pervasive name calling and constant comments about a job the job performance the ability to do a job which is the inherent essence of the job is saying that you can't do the job because of your age and that is the inherent essence going to the job performance and the ability and and the right of an employee to be free from that kind of age discrimination your honor counsel and a little bit of the right i'm sorry not his supervisor who is his supervisor and it's not the supervisor that's calling them names right free august twenty second two thousand and eleven mr sorenson direct report is that in the howell but there is a great deal of evidence in the record that even prior when mr wheeler was not mr sorenson's direct report that they interacted frequently constantly this age discrimination occurred these departments even though they were technically separate golf and parks were closely intertwined from august twenty second two thousand and eleven until april sixteenth two thousand and twelve the chain of command is wheeler howell then sorenson and then they break that back out to exactly how it was prior to august twenty second two thousand and eleven and that's their idea of limiting the situation is to go back to exactly how it was the floor when we had years of age discrimination reported to the mayor reported to human resources when on the march twentieth incident which i think correctly no did your client witnessed it but wasn't he wasn't the direct recipient certainly on the receiving end of the of the physical abuse is the record  well i guess i know this part but i don't know why i'm looking for the context of whether or not wheeler it seems like he was making age related marks toward rapper con as well on that day also about getting out of the sixty's and whatnot  i'm uncertain of of age related comments directed to rap the time i both in the record and he i think it's also in the record that he's much younger and that's why i'm asking i can't speak to why he might say that about rap a time i can point to again  in the record on page eighty that as part of that incident that wheeler was directing clear comments about age towards mr sorenson ok so he came in and made those comments towards mr sorenson arch on march car what were they were these performances i would just remind the court again that we are here on a denial of summary judgment and i would submit that these are genuine issues of material fact as well but whether it's really whether or not mr sorenson prevails that's a different question but we thank you your honor may it please the court with the time i have i would just like to go through the facts that were known to mr sorenson on the day or at the time he made that decision it's sort of the reverse question of one of the best backs of mr sorenson as i have it i think there's about seven key facts the first is that mr sorenson knew that there is an investigation into can wheeler based on the march twentieth incident he knew that as part of that mr wheeler had been paid on placed on paid leave which is the normal situation you place them on paid leave so that investigation can be conducted and he also knew that wheeler was disciplined he did not know the specifics of the discipline because under idaho law that's confidential and that's usually not shared with with employees and he also knew that wheeler had been separated from the parks department and  he knew that the mr weight l j weight and monica jones had both provided him in multiple meetings repeated assurances that he would be safe and protected that comment from l j away wasn't just that it was actually can wheeler's not just on a short leash he has and he has no leash if he messes up again he'll hang himself meaning if anything happens again he's out of here and i believe he also said i'll personally drag him out of city or something to that effect what was the status of the criminal complaint at this point sergeant kershaw was i believe conducting an investigation but at this point it had been brought to their attention and they were investigating but it wasn't until i believe later in the summer that he was ken wheeler was charged with misdemeanor battery and then it was pled down to disturbing the peace but that came a little bit response to that mr sorenson didn't know that it happened during the conversation on april twentieth with vince and howell vince and how had it sort of a vague understanding that something like that happened and he tells sorenson and mr sorenson at the time he's handing in his resignation so he's already decided to resign at that point there's a there's some uncertainty as to what those actual instructions were can wheel it was the a superintendent of latin facilities so at the idea was realistically you're global you're in charge of global benton's in charge of day to day you go through vent and for day to day stuff but there was is far as i know there's no there's nothing in the record that shows that mr sorenson knew when he made the decision to terminate that that instruction was given so he couldn't then factor it in as to his reason to resign so he couldn't factor in as far as you know he couldn't factor in that wheeler had previously disregarded an order to stay away from sorenson correct and this issue actually came up at oral argument with the district court judge windmill granted the parties some additional i think three days or so to go through the record it he was a supposed to be there that there's this testimony about wheeler contacting him on the weekends but you're saying that that was at a time when after wheeler been told not to contact resignation if you listen to the audio these these two they're friends they're having a conversation about can wheeler vincent how is a very amenable friendly guy you can hear that in the conversation their subjective opinion was that monica jones who conducted the investigation had to base her opinion and her recommendation based on what the evidence she gathered in the investigation was not any one person's personal belief so by mr sorenson in that same meeting with mr vincent howell says the final straw why i'm quitting is because i don't feel like the city believes me it's years and i complained and i told the mayor and i tell you no and nothing's been done that's his view so why is that inconsistency why why is that this is you that's entirely consistent with sorenson saying look you know you don't believe me i've complaining i think i've been reporting nothing's happening here i think that's his again i'm not making findings of fact it just seems to me that's his version of the history right so his version of history would explain why he has problems at work and what the  negative experience you have was what the reason for his actual decision to quit at least how he explains its events and how on that day is they don't believe me i feel like anything i do in the future now they're not going mr sorenson was not apprised of what happened in mr wheeler mr wheeler was given a final warning he was placed on suspension he was placed on probation he was required to take anger and stress management training they actually separated out the land and facilities department he was no longer the superintendent so it's essentially a demotion and there was a process put in place that if mr sorenson needed to go to the golf department for any reason he was to contact l j wait and l j wait would instruct can wheeler stand side don't talk to just don't contact  mr sorenson knew that when he made the decision to quit because he talks to vince and how about it on the day he turns in his resignation and it's sort of dismissive of it he just he doesn't he's not willing to give it a  chance and he turns in his resignation and that's the end of it at that point it had been a month of since the march twentieth incident i don't think the time whether it's a month twenty eight days that's not really dispositive it's a factor in all of these factors that's why montero was i think three or four months plus a little bit what your response to mr guns argument that even though this the city then separate the gulf and arson and recompute i just put it back in the position prior to august of two thousand and eleven it was that it was the same old situation in which sources on one side wheelers on the other side we're going to cross the line more and call them call them names that they're going to have to interact there is some overlap between those departments and equipment and so on so well i think i have two responses the first is it wasn't the exact situation because there was a specific plan put in place to ensure that there wasn't in a action at least as much as they reasonably can do it's a small city there's probably bound to see each other and the other thing is i don't think that it's it's reasonable to expect absolute certainty and what a city or any employer does to prevent conflict they can only take reasonably calculated steps to do  so and by creating this plan where there would not be contact is i think as much as they could have done short of firing him and putting him in prison or incarcerated in which he was being investigated for the city it was a city investigation county would have prosecuted it i believe but it would seem to me you just you just to miss that you think they could they did as much as they possibly could have done short of just sept to keep them apart short of terminating and incarcerating him because they didn't to some extent subject any questions i think those are the highlights of his state of knowledge at the time of his terminations so i don't have anything further unless you have some listening to this there is he turns in his writing the resignation letter at the end of the meeting he does not turn it in at the beginning there is clearly and again at this at the summary judgment stage of the proceedings considering all facts sorenson and there is no reason to think that he couldn't have been persuaded to stay on talk to mr howell decided you know what yeah i think i am going to give this a chance to talk for about an hour and then he decides at the end of this conversation to inform mr howe that he has turned in his resignation consequent i just ask you this you both give very detailed descriptions of what happened from your perspective small town small departments what judge windmill did in this case in my view was a little unusual for summary judgment but of course what i'm sure he would tell us if he were here is he'd say well i took the  worst sorenson had to say and i put it up there and i believed it and having done so i don't believe that any reasonable jury could conclude that he had any basis for what he did in terms of  quitting at that point if that's in fact what judge windmill did what's your best argument that it's just flat wrong it can't possibly be the way summary judgment works in this case you your honor i believe a careful reading of judge windmill's decision indicates that he does not state at any point in time that age discrimination didn't occur his entire decision turns on remediation his decision turns on the fact that age discrimination occurred but it was remediated and so he had no reasonable basis to constructively discharge and that is where the district court erred in making the conclusion that there is no triable issue of fact as to the remediation we have a man here who has been complaining since two thousand and nine repeatedly to his direct report weekly daily to the mayor to human resources and nothing has been done over this whole period of time and so this is the quote the district court decision turns on remediation not on whether or not discrimination occurred in the miss jones human resources report concludes that age discrimination occurred and i do not believe that that was the basis for judge when most decision your honor so is the idea that the how should we think about the the march twentieth incident is that the straw that broke the camel's back is that is it is the notion that the city's just not going to rein this guy  in or or or what is it because well or what is it i think that's very accurate your honor we have as the characterization as the straw that broke the camel's back because he saw what happened to rapper con coupled with comments at that time about his age and him being dumb and him and him not being able to do stuff that's that's me this is escalating this is escalating behavior coupled with the rector comments of me about my age and my  prohibition that was put in place in late february that mr wheeler violated in going and interacting with mr rapper con and mr sorenson and so it is clear in his mind that this behavior is escalating and what the what little the city has done so far has done nothing and then their idea of remediation is to revert to a status quo that was already in place for two years in which she suffered this pervasive constant discrimination there was no remediation to me important this point about whether or not the aaronson evidence knowledge of the earlier history where really disregards the direction to stay away from sorenson and opposing counsel is right that that happens in that last meeting where he signed yes your honor it's discussed in that meeting and i submit that again at the summary judgment stage taking all the facts unlike most perilous response when it clearly indicates the mr storen son was not learning about prohibition for the first time but also to that point i would submit that he made the report clearly in late february a nother report of mr we learn gauging age discrimination and then we have this march twenty incident so even even assuming for the sake of argument he didn't have direct knowledge of what was said from monica jones to mr wheeler we have him he knows he made a report in late february and you know this happened on march twentieth so it is reasonable to presume that the city didn't do anything or if they did something then mr wheeler completely ignored it that is a complete new reasonable presumption on his part at that point in time and neither one of those is a good outcome for mr sorenson's point of view either the city did nothing or they did something and mr wheeler ignored it either one of those is going to give rise to facts on which someone could conclude that he constructively discharged ok thank you mr god we thank both counsel for the argument sorenson vs city of caldwell is submitted with that