and we continue our journey this morning and the mindell matter and  c and she will be arguing for five minutes on the continue continuing violation issue for will thank you according to company literature m and q was founded in one nine hundred fifty six unfortunately management's view of women in the workplace female as judge went greenway stated in the brown broom box versus the in the automotive case decided on june seventeenth of last year in the context of a hostile work environment claim hostile or paternalistic acts  perceptions about womanhood or manhood are sex based or gender based and in that same decision your honor criticized the district court for having parsed out ten incidents and analyzing how each one was not sufficiently severe to demonstrate that a hostile work environment existed well the district court in this case did exactly the same thing describing many of the instances as being not sufficiently severe and parsing them out calling them legs incidents goldmine incidents but all of them had in common a common thread and that is that they were directed to ms mendell as a woman and the jury should have per minute to hear that honor pointed out that the parsing out of incidents is contrary to the supreme court's precedent in harris versus forklift systems inc and third circuit precedent in caver vs city of trenton and cardenas versus mas which require that incidents be looked at in their totality look at the entire scenario look at the entire the entire employment and the incidence the brown bernbach decision looked at the totality of the incidents which as in this facially neutral mistreatment in the form of a female supervisor known to have it out for sales women throwing plaintiff's paperwork on the floor to offensive an obscene conduct such as  text message speculating as to whether plaintiff was wearing underwear and a reference to plaintiff as a mother f ing bitch and based on viewing the incidents in their totality over time the court took the position that there were genuine issues of material fact in hostile work environment and reversed the district court's grant of summary judgment this case presents a very similar scenario in the e e o c charge in a pleadings in depositions ms mendell testifies  unbroken chain of incidents ranging from condescending and rude which was typical of treatment of women in that workplace and had the testimony of others been permitted to come in which i'll argue later should have been and was also or for the middle district court would have shown mistreatment of women in the m and q workplace in the treatment range from condescending and rude to filthy to sexually explicit there are so many in the record that the pla right that evidence your honor that evidence has been mischaracterized that is perhaps the most glaring error of all and the most disturbing was that finding that the behavior was not subjective offensive to ms mandela almost a she asked for rationale because she used profanity occasionally and he e mailed a subject and joked that she therefore consented to being mistreated first its  least one joke there may have been an email of a couple of other tips however there is precedent the fourth circuit case of swine tech versus us air eight thirty f second five fifty two put it very succinctly and made it clear that welcome ness and subjective offensiveness due to past use of profanity or subjective remarks are for the jury and the sworn tekken katz court stated that plaintiff's use of foul language i'm quoting or sexual innuendo in a consensual setting does not waive her legal mean your argument i presume is it pales in comparison yes around the first of all you're talking about a limited number of emails and second of all substantively i think two or three dead words the use of the f word in the workplace which was a common word used in the workplace a limited number of emails however that is not white case the court was very clear that the subject of offensive and that only the objective test should even be looked at by the court it says we refer to the reactions of a reasonable person because we believe the provision standard for judging harm must be objective the objective standard is the judicially administer both standard avoiding unfair discrepancies that can pledge additional efforts to determine a plaintiff's unusual subjective feelings the court in this case found that the conduct of the supervisors at m and q to have been objective lay offensive the issue of subjective offensiveness should have gone to the jury the issue has also been considered by judge to shima in the case of woods versus champion chevrolet which was decided by the ninth circuit on may second two thousand and two and in that case the district court had also minimized the subjective and objective offensiveness of the allegation their coworkers called a saleswoman at a car dealership a lot who are in subjected to sexual innuendoes over two year period unresolved in the face of complaints here miss mendell was told subjected she was told to being told that are there any instances where miss me and engaged in language or banter in which one of her coworkers was the  burberry will likely tell the court that ms mandela referred to mr bachar as being gay however what that really was was mr mr backward had a history of affairs with female employees sexual advances a female employees including ms mandela and ms mandela at one point did joke with him just tell them you're gay so that the husbands won't be mad at you something along those lines but she never was the office bully who made the jokes  wasn't a case of that right and there were this was evidence in the right there's no evidence in the record of which i'm aware this was to the degree that she may have made a joke here or there it was a go along to get along type of workplace if you complained you were out she was there for ten years but should take some action can you go along for twenty years and then suddenly say i've had it well your honor when i sort of seems to indicate that maybe there is morgan maybe indicates that maybe there isn't what well that well that goes to the permanent standard which attorney coleman will be discussing however in this case it was a long time coming but she didn't go along with it for some time she was saying this is disrespectful of my marriage this is wrong she didn't like it but she wasn't saying that her superiors she was and she was saying that she was saying it to michael schmidt all she was in fact saying to michael schmidt although she didn't like it and that's became worse for her she did in fact complain but she knew based on the experiences of two coworkers sherry to heroin sherry buckmaster that if you complained you were out sherry buckmaster was forced protection for that in the retaliation there is protection for that in retaliation claim however protected rights were not given much respect in this workplace this was a permanence issue but permanence in a hostile work environment case is something that is that is extremely elusive the the plaintiffs did complain however there was no one incident until the final incident the final incident where m was screaming at her calling her every profane name in the book and including bitch which is very much a gender based because she asked to have her fabric samples that she needed for a client done and she was yelled that and screamed at and called names that included the f word in a very threatening way and that is when that is when we it is our position that the permanence element kicked in but this was very much a hostile work environment case and under morgan in a hostile work environment case as long as one of the ax falls within the three hundred day period then it can be found to be a continuing violation and in a hostile work environment case the discreet act of discrimination like a disparate discipline where there is any one act hostile work environment claims are based on acts that are there to wear a plaintiff down over time and possibly make her quit and they get worse and worse over time and that's the point of the amtrak vs morgan case and that also is described in the walkman vs international paper case the fifth circuit decision that cited in the district court decision there it was no one discrete act until the very end which was the act that we believe was the act of constructive terminations thank you in moore again the supreme court specifically rejected the permanents test for hostile environment cases in footnote eleven expressly does that morgan established a new standard for statute of limitations there is a different rule discrete events and for hostile environment claims with hostile environment claims the supreme court expressly said that a hostile environment is necessarily made up of multiple acts and she gather all of those multiple acts constitute one single unlawful employment practice so that because of that as long as there is one manifestation of that unlawful employment practice within the charge filing period the entire unlawful employment practice all of us acts can be considered for liability even if they go back thirty or forty years now the supreme court also said in that same case that it recognized that this could allow liability based on very very old evidence and this could be a problem for employers and the court did say that because of this it would permit a district court to apply the doctrine of latches the defendant is now belatedly seeking to invoke latches it never mentioned much as to the district court and it certainly did not provide factor test and then doesn't apply which among other things and then it got this the power of the market opinion then goes on to reject that test so that to the extent that this court has adopted that very test whether in western subsequent cases that is now over ruled so the s c is appearing in this case solely to address the just your court's legal error in not following morgan as a legal matter are all of the plaintiffs allegations related to the hostile environment do you make up by single employment claim a single claim for an unlawful employment practice it is not the case that each act the challenges was a separate claim and that there is a separate statute of chance well the problem is latches does not just have the permanence problem it also has a harm to the defendant problem so even if they could be said to have raised the claim that the plaintiff delayed in an unreasonably long time they still would have to show that that delay prejudiced them and they would have to show that by more than just saying time has past memories are old because that's true in every case there would have to be something about that you know witnesses have died or whatever which they have not shown every morning here on our side may please the court my name is catherine barberry and i represent the appellee m and q packaging corporation this is a case in which a few male employee who worked for a company for ten years actually more than ten did not complain about any harassment while working there and filed a charge with the s c only after she had resigned to take a higher paying job this case raises the issue of whether an employee who fails to complain of harassment despite having been aware that her claims were actionable may take advantage of a continuing violation theory to sweepin alleged harassment by various coworkers over a ten year period i would like to discuss four main points with the court today is ten years she in fact had rights that she needed to assert in fact if you look at the record she was actually called a betcha allegedly by mr packard on two separate occasions one that fell falls outside now the limitations parrot and one that falls inside if that is their standard arguably should have known as hundred six when she was first employed by m and q she then claims to have not done anything for that remaining ten year period so here applying your hypothetical your honor if in fact the plaintiff there testified yes i was aware the first time i was called a horrible word that i had rights that were being violated i needed to assert then then absolutely at that point to the extent you don't then file a charge within a three hundred day period use and waived the right to do so do you reconcile that with morgan which would argue that it's really a one point test at this point specifically whether or not some actionable conduct occurred during the limitations carried in fact if you look at the morgan case what the court actually says yes that's part of it but you also need to look at whether it's actionable harassment is part of the same actionable hostile work environment practice so it's not a one point tests and still fact a two point test and we would argue that to get at that second problem as to whether or not it's part of the same action of a hostile work environment you need to in fact apply the factors as the third circuit has been doing at least since west certainly since rush to look at whether or not in part permanence has been that and here again your honor we have an instance where the plaintiff clearly testified that at least as o'connor very wisely in her dissent in morgan invasion just this case so if you look at her to said she says what i fear is we've got a case where a woman for a ten year period of time sits on her rights for whatever reason then doesn't where does that leave us i mean the problem here your honor is not withstanding appellants counsels argument that she complained she did not what she did in one thousand nine hundred six where she said i don't want to be told i have to make coffee that is not asserting her rights saying that leave i'm being harassed and putting the employer on notice of that are there magic words you have your honor at a minimum the plaintiff would had to have communicated to the employer that she believed that she was being harassed so even if she said i don't like being told to make coffee because i'm a woman i don't think you tell the men to make coffee she simply said i don't like being told to be to make coffee that's not sufficient to put the employer on notice that she believes she's being treated disparate only because she is a woman so i don't need to use magic words such as i am being harassed and being sexually harassed you do need to make it clear that the issue about which you're complaining is something that is protected under our into discrimination laws and there is cases that have held that in the circuit certainly with respect to this continuing violation issue that we argue that the permanence in korea again is continues to be inappropriate in crazy post morgan the appellant concedes that in her briefing i understand they have a contrary position to the s c now but again we would argue that the appellant takes that that's what i heard your honor and certainly in the breaks they certainly can see it that the permanents argument in fact the factors articulated in barry carried into western russia are continued to be appropriate haryana again as the district should have been aware that her rights were allegedly violated well before she felt her charge of discrimination as a result all the time barred incidents as they're defined in our brief should not have been considered by the court even if the permanency in korea were not appropriate although it has not been specifically rejected by this court and we would argue it was not specifically rejected by mark and why isn't the permanence factor one that's not subject to so many judges here needed to assert her rights and believe that she had been treated desperately because she was a woman so because there is no dispute of material fact here it is not an issue that should have or would have gone to a jury so the district court appropriately decided that question or even however if the permanence in korea is not applied here since morgan this court has declined in sloane b pittsburgh to extend the continuing violation theory to discrimination plaintiff who alleged harassment outside the limitations period b individuals other than those whom she claimed to have harassed her during the limitations period it's apparent that even in the post morgan case law this court has looked at other factors to determine whether or not there was acts of alleged harassment are perfectly within the same group that they can constitute a continuing violation here again we've got alleged harassment over a time a ten year period one of the individual actors only worked with ms mandela the very beginning of her employment a one year period of time moreover there's only three individuals who allegedly harassed her both within the limitations period and outside the limitations of her driver so we're talking again about unrelated acts perpetrated by a host of different people different types of alleged conduct i mean e mail your sense of the word that can be your honor however here where you're looking at over a ten year period of time there needs to be some relation between these acts in part these are involving individuals who allegedly harassed her at the beginning of her employment didn't work with her ever again she never complained about them at all you know well yes you may be subject to many different acts over time certainly enslin this court has recognized that to the extent we're involving now different managers even that those are not part of that same hostile work environment with respect to the issue of the severity or pervasiveness of the conduct the district court absolutely looked at the totality in fact it made an exhaustive discussion of the various types of harassment that were alleged by the plaintiff and i actually went through and made an assessment as to whether or not they were sufficiently severe pervasive to your honor to judge ross point as to whether or not the plaintiff in fact engaged in conduct that could have contributed to less stress and she absolutely sent offensive emails i would argue more offensive than some of the  that she was subjected to she absolutely in one of those e mails called a mr bakker she alleges harassed her get in a derogatory manner it's clear as day and now she admits it on several occasions she referred to him as gay to her to his face so while your honor district courts in the circuit have repeatedly determined that in fact the subjectivity element had not been met and have considered that and ruling on summary judgment we've cited to some cases in our brief including no that she was effect and we just disregard that writer in the briefing certainly on the motion for summary judgment there is nothing in the record that establishes that she in fact was subjectively affected by the alleged harassment she didn't submit an affidavit she didn't on the objectiveness test yes the court did say that a reasonable person may in fact have found some of these comments harassing however the plaintiff as a district court found had not put on her and had not provided any evidence that in fact she had subjectively been affected by the harassment again no affidavit no testimony had been cited by her counsel to that effect in fact they continued to not say ten to test one if they just it's argument and argument on summary judgment your honor is not sufficient to establish the this case and we distinguish in our brief the many cases cited by the see as to the subjectiveness element and i'm aware they did not specifically argument here but what i will say is that in those cases there was not an allegation that the plaintiff had in fact engaged in some of the conduct that in fact formed part of the alleged hostile work environment and those are fairly easily distinguishable i'm coming back to the severity and pervasiveness issue we have cited in our there is no respondents her a liability in this case your honor number one mendell has taken a position throughout this litigation that she was in fact a manager and while she tries to claim she was a manager for purposes of her sex discrimination claims and claim she was not her purposes of harassment claims she's now is stopped from claiming that she was not a manager that she was not appear of the individuals who allegedly harassed her so it's undisputed in the record that she was not supervised by the individuals who allegedly harassed or so we're not looking at a supervisor harassment case we're looking at that is whether or not the employer was i notice that in fact i needed to do something to respond to her harassment again it's undisputed that she never complained about harassment during her employment it was not on notice it should have done something in order to stop the harassment again these were coworkers of her she did not invoke the protections other you know policy and complain the one incident that i anticipate that may say too is apparently one point her supervisor mr s said something about either she wasn't sure which either he said you're being too female or child motional when she started crying during a review even assuming that that could constitute a supervisor type harassment again there was no tangible employment action and the district court found she was not constructively discharged there is not sufficient evidence to establish that she was constructively discharged several looking that hostile work environment harassment allegedly by a supervisor for that one instance we would argue that that is not sufficiently severe pervasive a one time comment you're being too emotional to female that one time comment is not sufficient to the rise to the level of harassment and even if it were she failed again to avail herself of the clear procedure for reporting harassment in the workplace so again you're out of there is now responding it's apparent liability in this case and it and if i just may for one second address the latches argument it is true that in the supreme in the summary judgment briefing we did not address latches again it was our understanding that we had available to us the permanency argument under west we did however assert it as an affirmative defense it's our fourth affirmative defense in the answer to the complaint for the questions thank you first again the with respect to the hostile work environment and the permanence issue or lack of an issue of permanence under morgan hostile work environment cases are cumulative the nature there was a continuum of managers has stated repeatedly that ms mandel was not a manager therefore she was a subordinate employee and she did in fact report the harassment issue male she had said that explicit comments were disrespectful of her marriage she also knew that they made the situation worse further there was an employee handbook but conway himself who is the h r director admitted that there was no training on e e discrimination or sexual harassment now if there is adverse employment action that can lead to a finding of if there's adverse employment action and supervisory sexual harassment  with no complaint procedure in place we know that under farragher n l or that that can lead to strict liability for sexual harassment in this case there was no effective communication and of any type of sexual harassment policy there was harassment that was found in cardenas not to have necessarily been unreasonable and in cardenas which was quoted at clegg the court stated in these circumstances cardenas reluctance to file a formal complaint for feel fear of aggravating situation or branding himself a troublemaker might not have been unreasonable there was a question for the jury in the analysis of mandela's case should be the same i don't like to distinguish one case and that is the nolan versus swartz campbell and de case which did address subjective effect or lack thereof and that may have been dismissed because the court found that the worst of the alleged sexual harassment was the unprofessional but clearly not sexually harassed and comment by a partner towards a young worker's comp associate introducing her her name is jill nolan introducing her as the lovely jill nolan the court agreed was unprofessional but did not constitute sexual harassment and the therefore no further analysis was required all right thank you very much frank your honest thank you to all counsel the case was excellently argued and well brief