coach female to sue the university related to sexual discrimination title nine claims and hostile work environment and there's a reason for that there is a longstanding problem at the university of minnesota duluth athletic department and for ms warming to enter issues began when shannon miller the head hockey coach at u m d sued the university and during the course of that litigation which the university ultimately lost which were mentioned was found herself becoming more and more isolated in the performance of her job duties she had a hostile work environment she was limited in her ability to perform her duties  coach warmington was interrogated by u m t and she was identified as being placed on a leave of absence because student athletes a complaint against the university had actually used those d athletes to investigate coach improperly accessed her personal devices devices that she used in the performance of her job duties because the university did not supply her with adequate materials for her to perform her job there are a number of other examples in which case the university discriminated against and created this hostile work environment for courts warmington they did not supply her adequate funding to close her athletes and their uniforms they prevented her from being able to travel to certain me it's so she had to use her own personal vehicle unlike other head coaches male coaches especially when she was provided university related transportation those that transportation did not have restroom facilities think about sixty female athletes traveling thirty six more hours away and not having restroom facilities and you can understand the circumstances that occur in in that in that environment so i think you also counsel wants what's your what's your best case for a hostile work environment if you go to page thirty of our brief solace versus the university of minnesota is the best circumstance that i can identify and thank you i don't know your honor that one of the issues that we're arguing in this case of course is that the district court level sauls is also one of these cases where the case was decided on a different standard than should be applied in case in that case it's a summary judgment fact pattern when really we're under a motion to dismiss circumstance here so you know one of our arguments is we made very clear in our briefing is that the district court applied the wrong standard we even get to the question across asia that's my problem and my problem with your argument i would say that the standard is is more than i think which i have to look at your honor i respectfully disagree of course with with with  with with the conclusion that the standard was not met in courts more intense situation i would say that there are a number of circumstances yes if if you said in isolation merely clothing merely locker room facilities you look over a pattern of eleven years for this coach and you start to see the restrictions on her budget the restrictions on her coaching ability her ability to be able to communicate with athletes regarding nutrition and training her the restriction that she had and her team had related to transportation and the restrictions that they had on training facilities not just not just the facilities in the practice times that they had to modify or change or get kicked off the track because the football team wanted to use that it's restriction ability to go to weight training it's the restriction on her ability to communicate with the athletes regarding training for some of their own training programs health and personal nutrition issues but then also you lead into not supplying her again think about one coach sixty astley's and not having trainers to work with the athletes for in greece massages you know d stretching other issues so that those duties as well as be head coach recruit and do scholarship fund raising unlike other coaches in her situation they all had assistant coaches and they all the ability to be able to perform those duties using the proper assistance that the university provided everyone coach warmington and then you have athletes then turn around turn dates yes you massage me it was a sexual nature because she was massaging our legs no she was a coach who was performing her duties that others would not perform because it is a motion to dismiss case and it's a lot similar to this case in that sexually suggestive gestures and this was by over three year period by two different men to a  female and seven specific harassment allegations so if you're familiar with the blogger case is it the most similar to this case i'm not familiar with that case but i would i would argue your honor that the pervasive nature of the university's step by step treatment of coach warming ten manifest itself in her terminations and so what you have to find and when you look at the totality of our complaint you will see that the university was marching to a drum beat of terminations but they needed a cover story to do so and that's why introduce the shannon miller trial to beginning d this university's athletic department could not fire a female coach without some sort of cover so they had to create this investigation in order to find additional information ultimately she was terminated for issues unrelated to the investigation being launched how she was put on leads part of why the universities the ply her with the settlement release agreement that they provided we we put it into our initial complaint and we summarized it in our briefings and you will see that the university supplied that too around three days notice in order to attempt to coerce or to sign the settlement release to absolve them of all employment related claims she had against them because they knew they were exposed to her treatment and how they treated her during the i would i would conclude with the fact before i have about a minute left before i need to reserve time for my rebuttal and i would i would let the court know that these are all these look to be very disparate and far reaching facts and i understand the difficulty sometimes of applying the law to the far reaching facts that occurred over an eleven year period but there is no doubt that and of the pleading standard that we met that we have given the university notice of our claims that they are aware of what these claims are and if you apply the proper standards in this case you will see that at this stage her complaint is plausibly identifying the sexual discrimination the hostile work environment and the title nine issues that we raise our reserve my remaining five minutes thank you thank you miss go home yes good morning your honor my name is kerry bryan  played with passion the issue is whether it states a claim upon which relief can be granted it does not ms warmington presents two claims to the court and her appeal st she asserts that the district court heard in dismissing her on the absence of faction the complaint which in my hand the argument in my view is squarely contrary not only to us we heard the limits of the supreme court but my decision for the a circuit entering almost twenty years ago out that case develops so i think on the title seven klein you've simply cured your defense of the district court tells me there's a serious a problem senate the standard applied your honor the th circuit has also held that the kind of fisa case is a useful tool as a backdrop for measuring the possibility of a doubt that was well it's a let me say this it's almost it goes without saying that you you might you want the judges and lawyers might refer to what ultimately has to be proved to weigh whether there is a fair insurance to be drawn from the from the complaint out of a course of action but here the allegation is that you are your client having good reason to be more than annoyed with coach warmington over the course of years cooper up a a phony suspension and fomented students to make false complaints which were then investigated at great length but without much notice to produce a report on which the terminations was based and that fact that i can't imagine adding to that conclusion reallocations of the requisite title seven bad ten i can't imagine a at the same time the facts alleged and taken as true have to make that claim plausible and what ms warmington has offered the court is a lengthy complaint with nineteen appended exhibits that include the investigative report one mention argues that the university encouraged the students to raise complaints against her but that allegation is not only a complaint the allegation in the complaint is that five student athletes on ms warming chance team came forward and brought claims against her and the university is obligated under federal law and policy to investigate those complaints and its warmington offered to the lengthy investigative report and she offered you her response to that report  court is in a position to weigh the allegations in the complaint and the plaza ability of them and based on what she has offered the court it is not possible that the university was motivated by her saks once implausible about  immediately preceding the suspension there was reason to be upset with her as a coach the gender comes a little in this environment  the relationship the gender is not far fetched it seems to me but her same complaint also alleges that women coaches were treated more favorably than she was she again and again alleges that she was plead enough and i suspect this one is over by the bushel basket but all all we have to we have to do is we have to boil it down and see whether within the horror corners of the complaint there is a you know years of missed up under valuing and under bush adding women's teams was sufficient and i agree with the district court it was ok to me isn't the essence of the title seven wrongful termination why the inferences the court takes have to be reasonable and the university contends that it's not reasonable to infer that this was based on test facts when she also alleges that other teams with women were treated more favorably than other women coaches were treated more favorably and that complaints were brought forth against or that the university was obligated to investigate under policy and law all of that is before the court in th is a flexible standard that will plug into the context of any given case but it can be useful to test the possibility and here she doesn't have any examples of men in a similar situation who were not investigated so those that can be helpful for the court in measuring the plausibility of her cl severe as to permeate the work environment as object and that's an objective standard here she alleges that she was barred from setting up a conference meets certain male coaches play golf in the hallway that she did not receive a gift after winning a coaching award she alleges that the men's track and cross country coach made unwelcome comments about women allowed men to drink alcohol and change on the bus and newman unclothed raikes these allegations fall short of conduct that this court has found as a matter of law not to be severe and pervasive the blanker case of course is an example of that in that case the plaintiff complained of two coworkers threatening to touch her brea approaching her aroused standing physically close to her and spreading their legs in front of her that was found as a matter of law not to be severe or pervasive for title summon purposes the duncan vs general motors court from the general while you're on that what motion you do to dismiss cases you have a hostile work environment besides blanket i think longer is the best case for the university and i can supplement that the only other i don't know the circuit case we can find  it is the most recent eight circuit court case that i have found and i don't recall off the top of my head if there is another eight circuit court case affirming a hostile work environment at the motion to dismiss  you and it can be useful to look at the summary judgment cases looking at them does not change the standard that the court is applying here in a hostile work environment place the unwelcome harassment is judged both subjectively and objectively so  in the position in the pleading to identify the conduct that she has identified as unwelcome then the question is whether that meets the objective standard whether that is objective really hostile for the purposes of title s and where a summary judgment case or a case making a decision is a matter of law after a trial has held that the conduct is not severe or pervasive as a matter of law that can plug into the objective prong of your pervasive analysis to decide whether it's plausible that the plaintiff has met that far in her pleading her hostile work environment claim also fails because she does not allege that she reported any of th unwanted harassment to the university she argues in her brief that she took complaints to you mt human resources but there's only one allegations that a fact in the complaint and it appears that paragraph fifty seven dollars fifty eight cents where she of her complaint absent a report to the university so that the university can take corrective action a hostile work environment claim fails so pretty these reasons your honors and for those in our briefing the university respectfully asks the court from the students that triggered this investigation of the coach was that your assertion earlier i have not found that allegation in the complaint the complaint at the very outset a paragraph or two that says that the student athletes were acting in concert to mean that reads that the five student athletes came together as five student athletes i don't see an allegation that the student that the university approached student athletes said whisper to them please come forward with a complaint give us a reason i don't see that allegation and complaint yes you you read acting in concert to mean in concert with each other that is the five students acting together  form right i think that's the closest i could get to an implication that the university was putting students up to this but i don't see that allegation that the university sort of falsified these complaints are put students  anywhere in the complaint i understand it doesn't say acting in concert with university it sort of five athletes acting in concert initiated a complaint right so that the five women on the team came forward together with their complaints are i understand thank you was placed on administrative leave during the investigation so the five student athletes came forward with their complaint and shortly thereafter she was placed on administrative leave during the pendency of the investigation i thought she'd been orders on that particular fact pattern i would say that part of what we're learning through this investigation is we do not know when many of the complaints from me at the university as claim that these complaints are what prompted coach long into being placed warmington never saw any of the evidence against her and we do not know how many complaints came before you certainly know that during the witness and investigation phase that the athletes acted in concert both with the university and with each other to compare notes and under the political procedures in place by the department of education at that time the university merely merely needed to find a preponderance of evidence standard meaning that if two or more d of the athletes said something they believed it true versus what coach wants and could rebut based on the information that she could provide during the course of the investigation d i will also let you know that when the in doesn't that right there allege the time line that you just disputed your honor i would clarify i would clarify  fact that the ultimate report issued by the universe that he relied on witness statements from thirty individuals d one of which was a member of the public when i was just talking to the timeline because a minute ago you on your rebuttal argument you alleged it's unclear what the order was and whether she was terminated before the students came forward or placed on leave and so forth but your own complaint says the timeline was students complain then she's placed on leave i just wanted to clear then oh yes you're right your honor there were initial complaints by four student athletes that launched a broader investigation after coach woman was placed on leave and that's that was the broader investigation was where then the collusion between the university in the student athletes occur we now know that in aftermath what we've learned about collusion what do you mean by that and where is the allegation thirty four through and i understand you think they got it wrong in the end in that they used the proprietor in standard which is what the law requires some time but how does that alleged sex discrimination so the investigation itself does not allege sex discrimination so answering the st part of your question st if you look at thirty eight through about fifty five of our complaint you will see that the student athletes colluded with each other and we have since learned that the university and they have essentially admitted this fact that the university authorized student athletes to go in and look at personal devices as a follow up during the investigation phase before coach warmington was d placed on leave so we know that there was between the university and the student athletes as far as the sexual discrimination standpoint i would say that the tighter the investigation to sexual discrimination is the investigation became the pretext to relieve coach warmington over duties because  university knew that she had these complaints brewing and that they needed a way to get rid of her and the only way for them to get rid of her was to create this salacious report that she was violating the sexual harassment policy of the university and coercer and just dining at settlement  released without legal counsel representation and therefore absolved the university of all of it in now you're saying that the you since learned that the university authorized some sort of intrusion in the coach's computer is that alleged in the complaint it is not alleged in the complaint your honor but you can draw the inference from the information that we provided in the complaint itself and also have the opportunity to address that