took this away from a jury granting summary judgment and sexual harassment retaliation case and i think that the record is clear that there was abundant evidence below from which a jury could have found harassment the court went wrong in a couple of different areas in its analysis however what happened below and i think this is clear what it did first of all is the lower court really weighed the facts on the issue of so there are eighty what the court did is it so look in brooks which is a case that heavily relied upon it said look there was an incident of sexual assault in this case that was not found to be harassment and then it looked at allison and said well there were four unwanted love letters  doesn't say it's not harassment it's just that it doesn't convert the workplace into a hostile work environment well that was of the employer's reaction and frankly it would be helpful to me if you and  the company could focus upon what did the employer know when did it know it and what if any action did it take in response to complaint i don't think you have to spend a lot of detail going to the facts we've read the rest we understand what happened on the road fair enough and i think that's exactly how i see it as well the book's actually has nothing to do with that standard of severity you read correctly it's just all about the employers reaction and what implications your client disputes that mr stern's tried to call her so there the company says i think mr stern's tried to call her to talk about potential other assignments i can't tell if she's denying that that happened she is she is we denied that below and the you know the separate statement she's repeatedly said there's evidence in the records she repeatedly said nobody ever called her from c r s t nobody ever called her the company said that she never requested actually it was in the record i didn't know i had that was not produced by some discovery no that was produced by the other side discover something i can't remember which piece of writing i think that might have been the facts i think i get these confused sometimes to me where because i i didn't really see her dispute that she received  necessarily dispute that she received it but that it came without any cover message or any correction for that that is correct as well i mean she has no record she just received  she didn't know what to do with it once she got it because she didn't hear anything further from the company will she she if i get she disputes that she received it she has no recollection of that the lower of the trial court said there was no dispute it was not because she admitted it but because of technical issues with the trial court said that we didn't cite to the right part of the record in the separate the opposition to separate statement but that testimony was in the record is the state of the record before th order says that they deemed that the court deemed that undisputed although we you know actually it's i think it's e r one eighty seven it looks to me like i think it was their alleged on the speed of material fact ninety six and we list disputed you know we do list disputed so we're disputing it and then the citation except what you wrote was disputed to the extent that the company's claiming that they conducted an investigation which is really a different point than whether she got  perhaps is that the more important argument is that it on its face it creates a factual dispute because even any anyone receiving that document if you look at it it's it's meaningless on its face it's like your objection your objection went to the completeness the company's investigation its efforts to provide more work that i don't see disputed in that answer well i mean the two things are linked i mean it's certainly part of the remedial measures that would come out for no i don't believe that she specifically alleges that she repeatedly called the investigator sara courage or she was told that the state police with i'm in my mind i think we got two separate issues here one is whether or not her work conditions changed as a result of the filing of the complaint and there's just a dearth of evidence here on both sides as to what efforts if any were made to give her more low or to pair with female drivers or know and in order to establish a prime aphasia claim that hostile work environment was created and that she was retaliated against for having the audacity to file a written complaint yes and and  you know we did put for the evidence her testimony that no one ever contacted her despite our repeated efforts i mean you did a better job of presenting that evidence to us and maybe maybe i'll give you the benefit of the doubt but the district court does seem to have a legitimate complaint i think about this way that you brief the disputed facts where you're citing it to us like a deposition testimony that i didn't see cited in the disputed facts document so we can look at this and say oh but there's a  of fact here but it was you made it hard for the district court i think didn't you well i mean i think you know the evidence was there and we need it and at best i mean that goes again after she was not terminated until fifth this was that this alleged no which again on its face and i do believe that if they are going to and remember they are the moving target for job and on a record in which there is no communication at so much that this this is not critical to the harassment claim necessarily so much as a potential retaliation claim they claim she was terminated they cited as their alleged  defendant the material facts are undisputed and the moving party has demonstrated that it is entitled to judgment as a matter of law so if you look at the parts of the record that you the court has been focusing on  t alleged in its disputed it's facts allegedly undisputed number ninety six and ninety nine which are can be found on we are one eighty seven one eighty nine that stern's attempted to contact anderson without saying anything other than sending her that e mail which we've already talked about if you look at the face of the e mail and i could give you the recordset for that gives you no instructions with whoever even attempted to contact anderson why should why wasn't i just record entitle to accept that as fact so i'd like so then c r s to that's my point about will fifty six c r c relies on stern's declaration paragraph fifteen and if you look at that he never says he tried to call her so he doesn't say he has an amorphous attempted to contact her and then the only thing concrete he says there or in the press the following two paragraphs is that he sent that email file statements of this undisputed facts is so that this record doesn't have a route through the record like a pig running for trouble so if you look at the obligation of the yes boyer's to point the court to evidence and that didn't happen so i recognize that the narrative that follows disputed at the r one eighty seven is not permanent but then if you look at anderson's declaration paragraph thirteen to fifteen which is cited there and then again if the other print fact number ninety nine anderson never returned stone's stern's calls for which there's no evidence in the record period that stern's ever tried to telephone her and and here as to what happened the case sort of falls and so i would like to because this is a very important point to the e e o c that in an employer's response to harassment complaints should not leave the complainant worse off and i but like to suggest that it's this the only evidence c r c puts in the record for that they actually reached out to anderson is the e mail which gives no indication that no instructions and then the letter which anderson also disputes you ever received that says if you need help call me which she says affirmatively the record she tried repeatedly to call her never got a response back and there's nothing that seriously ever put in the record to show that it's normal procedure or that instructed inter any time in orientation or any time thereafter that the onus is on her to call her dispatcher when she got up the truck she said i am ready for another simon i'll even take that assignment you just tried to send the two of us on i'll take it but i'm not i just won't drive with him that's the only thing she said and there's nothing in the record that shows seriously ever reached out to her to give her any further instructions on what she should do or even the ball within her court or the company did everything it could take care of the vector problem immediately after this happened are they entitled to some credit for that what what more did they have to do to correct this situation than what they probably did you are beyond my five minutes may i answer the question  are this court has said in the in ellison and fuller that company's response should not only end that harassment it should send a message that that will prevent future harassment so it's very significant here that what serious t did can only be described accurately as a secret response because it teg it tag they tells name with no females he didn't know that and he he left pennsylvania and drove back to california expecting he'd be called in for a meeting he knew anderson was that supplement and we cite in quote from his qualcomm communications to the company saying i know robin doesn't want she's mad at me she doesn't want to drive with many more i'll take my stuff off the truck and i'll go home and i'll wait for that meeting and is it your position that under the brooks case anderson needed to understand that the company was taking steps and that they haven't shown that they took the steps that brooks requires absolutely that's the other piece of it so veg tell needed to understand two things one that the company was not happy with his conduct and they can't say it's because they don't know if it's true because they never at the record would suggest they never asked him or council but what did your client do upon receipt that the record is silent as to the only thing it did was it entered into its computer a notation to the fleet managers don't pair this guy with female drivers it sent her a list which is almost the e mails on the comprehensible as to what she was supposed to do with the list and then it says that center a letter or essentially telling her the investigation had been closed out but the documents produced in discovery don't corroborate that any investigation was done at all well what we do know is that there was the former opened up that the cop and the foreman's blanket right provides statements for witness interview and you know what did the what did the offending employee say and so on and there's nothing there as soon as is the supervisor here mr stearns was made aware of any kind of whatsoever that was the initial text message sent on january fourth it's called driving with female drivers on a going forward basis and isn't that important that she know that some step is being taken to prevent this kind of harassment in this case you know i don't i don't think so and it's this reason we've got a unique situation where the work environment essentially is the inside of a truck and as soon as the companies made aware of the problem they gave the plaintiff the opportunity for an entire new work environment how did she know they gave ok let's let's assume it's uncontested that she received of that e mail how can we tell from that e mail what it meant only by mr stern's declaration which says he tried to pair the plaintiff but it doesn't say that he told her that or that he explained what the m l mentor what she was supposed to do with it correct and i agree the e mail itself is not clear whether those drivers are male or female either but the record is clear that below we know the plaintiff did not dispute that fact other than citing her own declaration which did not address that fact when where you are so that's an abuse of discretion standard well but if the only evidence you're pointing to to say that you gave an appropriate response to the situation was something totally incoherent and meaningless then she did dispute it she didn't give a perfectly answer we could criticize her counsel for that but you still are left with no evidence of any action that's not true especially on a we did make it impossible for her work environment to include mr brecht on a going for basis but she didn't know that right so isn't it important that the that under brooks is an important part of the analysis of whether this harassment could be expected to continue whether the her harassed individual knows that some stuff have been taken and that the employer has responded i think on the books the question is whether a reasonable person and the plaintiff's position w taken her own effort to find the says she was calling the company she said she she said she was calling kurtzer who i think she understood to be the person to deal with sexual harassment called her repeatedly never got a response so it's not like she was making no effort to reach out and ask what do i do next or what's happening but she was contacting h r about the status of her complaint she was not contacting her supervisor who was responsible for getting work the driver's got to started interrupt you know i was just you probably knew what i was going to say so where's the evidence that she had to have the she had to ask him for the next job i need to double check the driver handbook you know i think i believe that's in the  when and what it did and importantly they make a lot of the fact that we didn't interview anybody but there's no rule in the cases that you have to interview witnesses and you when you look at that statement it's very interesting t examples of mr patel making inappropriate comments were on the very first reverse trip the only other reference to something inappropriate having was a description of her waking up in the mill and that with him on  we took care of the problem our yard which which one is your position i don't think it's really both i don't think that's inconsistent because first you judge what we know that was our response reese well in light of what we were made aware of given that there's only two offhand comments and then an event where the driver had an accident and it was changed but that's it just by me so couldn't the jury hear the evidence and decide to we think this is pretty inappropriate environment so you might argue otherwise and maybe the jury could decide they agree with you this isn't so bad but isn't it possible that a jury could say or a reasonable woman in a situation would have felt very uncomfortable uncomfortable suhr i don't think the it seems to me that you're characterizing this as a single incident but it's a series of incidents as they're driving together across the country in the long haul truck and that's one of the one of the points from the statement which has to come it's on the first trip and there's nothing happens until the hotel incident and if you compare this case to western dorf which was a two thousand and thirteen case which also said from this court which also said that the test is permanent feature of employment got to pennsylvania in the truck broke down mr stern said i'm not going to authorize reimbursement for more than one motel room but there was another mail truck driver who was staying at the same motel and when she suggest tell that he go room with the mail truck driver bechtel refuse i mean it seems to me that the company sort of set itself up for exactly this kind of a claim by being a little too in pain for a motel room be forced to share a hotel room with this man and you say no you've got to share a hotel room you're walking into a not great selection hornbook losses an employer can only be liable of that which is made aware or should be reasonably aware there's no indication of record  had any notice that there were any issues on the truck that's usually my only concern is that this whole case could have been avoided with a lot that is perplexing as a practical matter with cation of california law there i think there are records very clear we've cited to two california supreme court cases alaska salmon and also the diamond case that are very clear that when you're looking at this issue you look at where they conduct the alleged on lawful contact occurred and in this case i would ask the court to of course with vitale the only on lawful alleged conduct is the alleged harassment of course he's not involved in the decision as to any alleged germination and it's completely on disputed that all of the alleged harassment occurred outside of the state of california so in addition to that your honors i would also argue that did not raise the issue of extraterritorial application of california law as it pertains to vitale at page two of their brief in issue s presented the only issue presented as to as to california it's issue number four just quoting from their brief whether an employment relationship between  california resident and a trucking company that does business in california should be governed by california anti discrimination law the feed where the employment relationship is formed in california is based out of cards i didn't hear the last question because i was looking at the last question is whether the omissions of your client could lead to fee how liability because omissions or other acts that touched on california or could happen in california are enough to give liability  his client didn't do anything in california but your client at least had omissions in california as it was understand our position there was that the allegedly illegal behavior which is the decision to terminate the employment occurred and i was so th california so it ended in california well the it is a closer call but you look into things both the decision and also where the plaintiff works i think why it's in our favor in this case didn't see in the excerpts that it's not an issue was raised below so i'm not sure if we put it in that the discourse record but it certainly i didn't see it in the record that i just checked if i could make quickly just as of the court from the and the failure to investigate is more then just getting the facts it's sending a message in fuller was very very clear on this for instance we asked like what did the plaintiffs know one thing she knew is that she was reaching out they never interviewed her i mean when you have a claim of harassment the obvious first step to send a message that anything is being done is to interview the complainant it was suggested i think in and the others from the other side that somehow maybe her complaints weren't completely exhaustive or folsom well that's what you know the investigation is supposed to bring out you know she complained about everything she was asked to complain about put in a written complaint and everything else would have come out if they had followed through material but she certainly would have given more detail and she hand wrote five pages as much as she could i mean obviously she's pretty detail it is very detailed and i mean uses of the written complaint the company  least internally prevent him from from work and that was the mother point i don't think they get credit for that because first of all it was mentioned that they somehow prevented him from you know working with her in fact that that's not if you depose him yes and has he ever driven with another female prime or not at that time now you know and it was you know i think a year or more later when it even you don't think you're going to get any credit for that well not  this case because it was she she removed the plaintiff in this case from robin anderson remove herself from this hostile workplace through self help when he got back she got out of the truck and just got out of there and so for them to say oh we took remedial measures to keep them apart no they didn't she did that herself and when they tagged him like they have any idea how likely it would have been for him to drive with another female driver anyway likely yeah like i mean i'm telling you the first female driver he'd ever driven with in the first place he said no he said actually he said that he had had some problems in the past and i can't say that the d and i don't know this is part of the record but it's approximately five percent or less of the workforce is female so you can do the math that's ri off something like that yeah so so just just by happenstance he wasn't that likely to be paired up with a female driver in any event and you know that can frankly be looked at more of like a company's self protection you know they didn't they didn't punish him they just said well if he's a danger will protect the company from liability by just not hearing a woman the other thing mentioned in full or is that doing a fact investigation you know even separate apart from what a company might do to act on those facts is an important corrective action itself because it sends a message to other would be harassers the company takes it seriously enough to even bring them in for you know an interview and get the actual facts i mean when the company won't even be bothered to get the actual facts from either the accuser or the accused it just tells the whole workforce they don't care they just you know they just kept the individual out there knowing or hoping at least