conduct that has to do with awareness of this kind of to the employer has to do with attribution and then a subjective objective qualities whether or not the individual who is opposing his wrongful conduct understands truly unreasonably that this is something that's wrongful and whether or not the prevailing law allows for this to be a reasonable conclusion now the bar to the conduct itself where the lower court found wanting was on these opposition awareness elements and what it said essentially is that on page forty there's a june thirty conversation which is one reporting that was done or lead to the miss ortiz which is the fifty one percent owner and then there's the august th letter that followed that kind of gave more detail parentless it but that is a reference to wrongful conduct that has just been discussed the week prior and the june thirty meeting between mr t s miss allen where she went into detail information about what was going on and essentially tried to keep her job especially trying to the language itself is the special rest of the harassment language it's not explicit in regards to i am complaining of social rassmann but she indicated to mr t s based on a number of other things in that letter that she does not want to be involved in any sexual harassment  points is a part of the question others also cirrhotic concepts that allows the employer to be aware that there's been a complaint filed against them now the courts have said that formal and informal complaints are sufficient and you can have information that's been told him then we won't tell her the real reason the reason they came up with was essentially that there's been some kind of a consistency between soon th meeting which has no record and there's no information that can verify that and the august th information letter th leather and you pointed to the prior meeting and she did use the words sexual harassment but where has she made the accusation that she's a victim of sexual harassment regard the language itself in the letter saying i do not want to be involved with social rassmann is the explicit language in the actual letter itself now there's a surrounding context regarding her actually like an apology and a defense rather than a complaint and the real question is whether there's enough here to suggest that a jury could find that it amounted to a complaint that fell into the opposition category conversation regarding the specific incident she says that conversation with santos was not brought up by me a song came on the radio where the female said blah blah blah santos asked me of my boyfriend blah blah blah he didn't ask anything else it appears as the st time allen described the incident then she goes on to say even though it seems that you have this idea of me being attracted to him or want to get him which i said which i could be wrong but i don't just like i told him i love my boyfriend blah blah blah it isn't important to me referring to oral sex and then she i didn't come here to jeopardize my job or your marriage i'm not that type of female at twenty eight i still have no intentions to be and then you come to the following paragraph sort of the  working here i'm in no place to be involved in any sexual harassment or marital issues that can easily be avoided that reference looked to me as if she's saying she's not talking about herself filing a complaint of sexual harassment so much as saying that she's not involve herself in conduct that could be characterized as sexual  harassment and then she finishes up with i enjoy working here and i'm in no place to be involved in any sexual harassment or marital issues that can easily be over so you've got to be able to say that those words could be found by a jury reasonably that suggests that she was objecting that this was an opposition that she put him on notice could be informal doesn't have to be formal there's no magic to the is sufficient put them on notice because it was not stated in a vacuum that mr t s already had a conversation ms allen there's a history of mr t s doing this to other individuals and so the issue itself was already a sensitive issue based on how mr t s responded to the she sent a text to the employer saying that some of the things said that your husband has done because to sexual harassment so taken in the vacuum if we just look at the language of the august th letter if there is ambiguity the  letter alone would not be enough to state a claim for opposition the letter alone is ambiguous and we can see to that but we also understand that it simply was not so my question if all you had was the letter would that be sufficient to beat back a summary judgment order it would be a put would that be with the would that create a material issue of disputed facts for a jury it would because the party gets the benefit of the doubt when there is ambiguity in the lower court admitted there's ambiguity but the lower court characterized the letter in accordance to friendly relationships that miss ortiz and mr t s had with miss allen now it's not it's a close case much closer case not situation but because the standard  being filed she acted on that information by firing miss allen coming up with a different reason for it that was complete and verifiable and then in the process itself showed that show through the record that she has had a sensitivity became aware of these allegations some between august th and august th whenever mr t s brought the letter to mr t showed him the allegations and he told there was a fabrication aug th came that's when missile was fired and then the text that you referenced came through afterwards that only clarify a corroborate ever that's already been said in regards to their awareness and situation you're not claiming that the aug th text is anyone in any way supports the retaliation claim correct in regards to that is being it's too late but it does show that there is a linear connection between the earlier claim miss allen and then her post terminations idea of what was going on and the awareness runs throughout this entire history well it  shows that in as of august th post terminations she had made that allegation but the text of the august th text is not shedding light on what has happened before terminations it reflects of what has been happening that  an indication of what's been in that school record the written record there's august th letter and then there's the text messages prodder that there's been conversations have been happening between mr t s mr allen to give miss as mr t s sufficient information to know there is something going so our main contention was sexual harassment issue is that it cannot be taken in isolation based on number of incidents as now there are no magic number of incidences that raise the threshold required for pervasive your position is not that it was severe but th that's correct and we're saying that the pervasive itself has to be tested and according to the entire social context now the supreme court itself has explained this well and on kael would ask courts to look at surrounding circumstances expectations  relationships and not to simply focus on the words used or the physical acts performed our contention here is that the purpose of a self was matched by two i aggravating factors the psychological well being was alan she became suicidal through this whole process a try to seek help from mr t s and she essentially told her to pull the trigger and the fact that there was no other reporting mechanisms there was an affidavit from other employer who says that in her entire career she's never seen another employer that  wrongful conduct the only person who miss allen could speak to was the harassers wife and because of that she feel retaliation and when she did finally come forward she was retaliate against in fact you agree there's a subjective component to  sexual harassment claims correct yes so we can look at the entirety of the circumstances to see if she during the course of the conduct that's the issue she was participating in banter or anything of that nature isn't that correct there was a time where she was more amicable to the responses because she was trying to keep her job she didn't understand one of things she testified just branches that she didn't know what type of individual would come to work that day if mr t s would be the more gentle individual who would be caring for her or if he would be the wrestler and so she had to come to work guessing and her environment with no one to report to what kind of individual she would have to deal with on day to day basis t good morning good morning counsel i'm going to go ahead and i think start with the sexual harassment and just kind of get that out of the way i think that we can all agree that  the standard in this circuit is pretty clear and in this case this is not the case to change that or make a substantial change in the standard because  what the plaintiff is asking you to do in this case is to drastically lower the bar on what constitutes pervasive sexual harassment and in essence to encompass virtually any kind of  and i think that would be a clear break and this court's precedent and i would refer the court to the cases that we cited in our brief where the th circuit has found even direct offensive touching in some of these cases is not it's at the same place where she says i had no idea what he was telling the boy because he was speaking in spanish all i knew was the boy came up and did that and then he left but the other thing your honor that at they gits important to note is she inference i think you could draw that it's for john a but i would also point the court to the testimony where she admits that he did that with male employees as well so there's nothing to indicate that that is sexual in nature as opposed to  point there would be that's hardly sexual she also claims there's no propositioning in this case and of course the touching by the son even if that is a touching is not and even if and again i don't believe that to be sexual but it's not anything like the touching that the courts have rejected in some of the other cases where they found that it was not severe provide a sieve i would point the court to johnson for an example of that  disagree that the taken everything that she's got in this case that it would rise to the level of sexual harassment particularly in the context when a jury is it's lots of the year so the only issue is he struggling normally or alternate confused are some of those i do not believe a reasonable jury could find to be a sexual in nature such as the chocolate milk conversation even she said you know the thing that bothered her the most was that it came after hours well of did that would i be able to say well since i reacted that way interpret that way good reason to do the same thing well i think just because one person might i don't think a reasonable juror is each individual  this course some of these you know very well this may be the strangest question i ever ask an oral argument but because she did not produce the text message do we know which tongue a mochi this was we did not because there's more than one i believe that there may be one or so but you know so i think every hearing a song with the lyrics even booty like groceries santos asks alan does your boyfriend eat that sign using  euphemism for oral sex alan answered that her boyfriend did not and did not know how to do so santos answers that he could teach the boyfriend how to do so saying quote i could teach that would be sexual in nature  question is whether it's offensive she claims it is but you have to say someone is looks fine as hell and she takes it as a compliment given the context of this case and how she's being and has been santos tells allen quote she had a body like his ex girlfriend but better with wider hips than on another occasion santos points to alan's growing area which was wet with sweat and and he commented damn that things get wet and then you have an instance on one occasion when they're moving a patient and santos says to you got to watch that stuff on that table with that big box so you're going to knock it down trying to move her some of the stuff is over the line isn't it some of it might be but i believe you have to take it in context if you look at the comment about the butt for example which she never complained about even in her post email post from an asian email that came out only at her deposition she says it was a joke heard if you look at her deposition she said he was joking to me about that so the same thing with even the workout situation i think you have to take those all in contact me she say and we're working out i've got saran wrap around my stomach and i'm sweating  and he says that i don't you know again it has to be offensive and i think if you take all of the comments in context in this case they're not prevail of enough  justify lowering the bar that this court has set as a what kano that i understand that argument i understand that there are too few and too far between that just isn't enough and they just don't amount to anything coming close to what we talked about  board but it seems to me indisputable that some of these are crude offensive and sexual in nature and it's hard to dispute i would agree with you that some of them are but not all of them and i also would urge the court to look at the context tell us about the opposition theory yes or no and in their papers they they said that there were two complaints that were made they initially said that the july th meeting that that was a complaint made there and then the august the th letter i believe i may have conceded the july th meeting is not a complaint i'm not certain so i'm just going to i think that probably be fair to say hundred and forty two extension fifty six which is not a complaint your honor there's no indication anywhere in the record that she complained of anything in that meeting must less complained about mr or ted's doing anything to her so that gets us to the and if you look at if you take it in that context the only thing then read miss ortez is operating on is what's actually in that letter and in the latter she admits that what she was doing was trying to say to  as that you're over you're reacting and i'm not after your husband if you look at page one hundred and seventy eight of her deposition that's exactly what she says what i was trying to do with this letter was detail ms or ted is that she was overreacting and i'm not after her husband so that's not a complaint about what mr ortez is doing to her well the testimony that missed the santos was aware that he was being accused of sexual harassment after th opposing counsel had mentioned that he was on notice and that he knew there was a sexual harassment allegation against him after this letter the august th lawyer well i think exactly what the district court in the magistrate court said about that your honor in that is that a lay person is not going to get to make that decision because people use those kinds of terms all the time and that doesn't change the outcome of what the court must decide as to what is and isn't simply because we don't let experts do that must let the lay person and again i think as the lower court pointed out english is not his st language so i don't think that gets us over the hump so to speak as to whether admitted it wasn't made to anyone i think what he testified to in his deposition was he was asked something along the lines of when did you st know there was a complaint i mean that the  something to the effect of while miss ortez was going to fire her and he said you can't fire her for that and she said i won't tell of the reason or something like that but i don't believe there was an admission  that it was sexual harassment i don't have that in front of me your honor and it's a short declaration so i'd urge the court to look at it but i don't believe any of the declarations in this case cite anything about  and that put us on notice whose decision maker here was it ms that ms or to it was was or was the decision market maker so it's what she knew and when she knew it and what she knew and when she knew it was what's in that letter and there's no question about that there's no indication that the plaintiff in this case provided any additional information in the meeting that was not in the letter and that's pretty clear from her deposition she says i told her everything i wanted her to know i put in that letter a certainly the only thing i would say here is the mere fact that someone mentions the word sexual harassment particular in the context of i'm in no place to be involved in any sexual harassment or marital issues that can easily be avoided  the recipient of the letter thought that the person was discussing sex with her husband and hiding it is simply not protected activity under the law of this circuit thank you thank you very much she was put on notice so there was an entire history of mr t s doing the surety knew this history because that was responding that's one thing that's goes to the sexual harassment but that she was put on notice that your client specifically said i am objecting to sexual harassment but notice that self if we could talk about awareness was was august th was the explicit the complaint she was preempted to this complaint during the july th meeting in addition to the response  said that she knew with beyond a reasonable doubt that her husband was doing this to specific individuals to she knew he had a history of it because she testified that is a weak man and that there was a history of mr t s doing this to other employees like  so you're relying relying on the august th letter we're really relying on the august th letter and the culmination of everything that's happened prior to that and it's confirmed with a text message after that look at the letter in a vacuum itself is to be very difficult to ever have an awareness aspect because if the letter itself in the language in the letter is going to be all we're looking at we're ignoring the entire social context for when this is happening and when you say that she was aware that her husband had done that with other employees do you mean is that simply affairs or sexual harassment those are very different things the social rassmann and the way he was approaching other coworkers during business hours the way he was positioned herself next to miss allen and her response to miss alice complaints was essentially one where i know he does this kind of thing and i'm sensitive to it and i need to get rid of any threat but there is a problem because  testified that mr t s came to him with the need to get rid of mr allen based on her sexual harassment complaint so it's possible that based on that testimony she was well aware prior to even the august th letter when you say positioning himself next to ms allen you mean that he was trying to stand near her and that certain circumstances he was putting himself on the schedule shelf of her he was positioned herself next or physically he was doing the other employers as well trying to push them into his body during pictures and so there's a pattern of this type of kasha traded attempts to be near the employers in a physical almost intimidating way for them to respond to him and miss allen was aware that i missed mr t s aware that based on how she responded to the july thirty conversation you very much counsel thank you both will take the case for under advisement and will proceed to the next of our