morning morning please the court i've reserved three minutes for rebuttal time rooms this is a sexual harassment case and i think that the crux of this case what this is about is whether a handful and in this case three incidents of isolated male male horseplay meets title seven is definition of an abusive work environment the jury decided it wasn't horseplay right correct ok so when you categorize it as male male horseplay that up there was physical touching a jury decided that that was more than male on male horseplay why should we defer to that finding well under that i think the court should have allowed this to go to a jury  compelled a district judge to grant summary judgment when viewing the facts in the light most favorable to the plaintiff well i think there are several several reasons of course that agreement summary judgment where there's plenty of law that says that we can revisit the a different argument you're just saying as a matter of law there wasn't enough evidence to correct i apologize if a mistake you're saying the jury shouldn't got yes absolutely absolutely we did two of arguments or evidentiary issues based on what was presented to the jury there is now yes i mean in terms of the evidence regarding there was a limiting instruction given in terms of the evidence presented i guess some questioning about whether the standard that was given to that whether the jury was properly instructed on on what elements it needed to find in order to rico the law was accurately stated to the jury as to how early so you're not challenging how the law was stated to the jury by the judge we are those instructions in the record i'm not sure we didn't challenge that this was not because of sex two because objectively the alleged harassment was not severe or pervasive enough to create an abusive work environment as the case where he was hunching him in the back and all of this is a case where we have three incidents we have one third one is third one i don't know what hunching means but i can sort of i guess well under the plaintiff's under the plaintiff's testimony on this he  eges that i could see a sexual approach kind of thing well he has argued that this was sexual in nature what's a hunch and he indicated that he came up behind him and pressed up against him there was conflicting testimony by the plaintiff and the electric sexual in nature then why do we have to worry about whether it's sexual in nature and now there is sufficient or whether there was whatever the other standards are sure seems sexual no this was hoarse this was even under plaintiff's allegations this was not sexual in nature the fact is the fact that the two of you are having this discussion doesn't that mean if you go to the jury isn't that a jury call the end of the day where the plaintiff says his pal the carrier rubbed up against me it was the thir incident which of course we can consider since you can consider him cumulative the and in the third incident even he at some point in his deposition or somewhere admitted that he meaning mr leonard copped him in the rear and then he put his pelvic area in the rear end and you're saying objective i mean viewing it in the light most favorable to the plaintiff i think if i went out now ask people on the street they'd say yeah that sounds pretty sexual to me and that into account and this is mail me horseplay which is is not protected by title sub and and even under have arguments in addition to the it's not social yes if you for my purposes i'd like to hear those ok well i don't want to speak for my colleagues but i mean i think we're ready for your additional arguments understood in addition is claims burden of proof on it on a claim of non supervisory harassment to prove that the company failed to take prompt and effective action in this case one i'm curious about us and so its plans burned to establish that there was manifest indifference to his rights that we just look at this one decision maker or do we look at the group of people who  superior as a whole i think you can look at w h o oily as a whole you can certainly look at all the facts about all the facts i'm talking about the perspective there's the argument that the person who only gave us a short suspension and waited a week to do it didn't know about all these other things that correct you all to make that mr america childish was unaware back into history mcintosh mcintosh even manly knew about this one incident and so they're for didn't come down that hard right well  his testimony also was that that that prior warning would have made any difference because the investigation that they took which included talking to eight different witnesses of all the people that worked around plaintiffs in the all them didn't see what happened none of them complained do not answer my question do we just look at the information mr mackintosh pattered we look at the information that he and other people in the in the h r system though you would have no you look at all of that so it's all is so so if you look at all of that they knew they knew that there were three of these incidents were allowed and and that there were other incidents with respect to other people we had timely action timely action we're not suggesting that they can't take the i don't know what they understood they can yes and at the time they can and then the jury instructions reflected that we don't have the jury instructions before us at least i haven't seen them like it why don't we defer to the jury determination i don't think a reasonable jury could have taken that into account and found that the company exhibited manifest indifference to his rights plaintiff has the burden of proof to present reasonable evidence sufficient evidence that a reasonable jury could come to that conclusion otherwise it never goes to the jurors happens on june fourth he doesn't get suspended till june seventeenth in the interim they have to work together they get sent to some hearing test together and the company's aware of a few previous incidents involving other people and mr lyman correct all of this is true the company takes no action when he reports it on the fourth they take no action on monday the seven they say we're going to wait for our supervisor to get back they put them back together they send them to the hearing test to get there how is that prompter medio action when you know this guy has been doing this stuff to other people well first of all at the time they don't know that he's been doing this stuff this is an allegation at the time what do we know as to this person it's an allegation but they know he has a history right you know there was one product you know one prior act i thought there were multiple prior at the time of this there was a write up in march of two thousand and eleven with an incident between mr leonard the electricity and kendrick one incident and is that the incident where the company said if you do this again you're going to get fired yes that was a they put him on the warning after that incident ok so they know that they're going to fire him if he does it again they get now a geisha and then he did it again and they do nothing for thirteen days effectively correct it's not that they didn't do nothing wh they say they still continue work together yes aren't to what they do what what disciplinary action did they take in that thirteen days no disciplinary action there there was no corroboration of they did nothing plaintiff got sent home that day they continued to work together yes there was ok so why couldn't a jury view that and say they didn't take prompt corrective action well there's no presumption that a company has to assume that that allegation is true and some of take disciplinary action pending the investigation that's not what the law requires i look i'm as big a fan of the presumption of innocence as anyone but when you have a private previous act where the company says we're going to fire you if you do this again and someone comes in and says roll behold they did it again at the very least couldn't the company separate the two could the company have work on different days couldn't the company say look we're going to pay you we're going to give you leave without pay we do jobs all the time we're going to give you leave without pay while we investigate i understand everything look if you're going to leave without pay it's a vocation for him but at least you're taking prompt corrective action to protect the person who's making the allegation that's consistent with the proper one i don't know why if that gets why a jury can't consider that you're saying a judge should have taken that out of a jury's hands yes and there is no requirement in the law that the company take that action just as there is no even if the company had had found something what does the law require take proper the fact of remedial action to address it to ation to reasonably prevent future occurrence reasonable is reduce some things that are reasonable to some people might not be reasonable to others sounds like you think what they did was reasonable and judge the bar thinks that a juror might think that something else is reasonable but the law requires reasonable is what you just told me and with i don't have the jury instructions and the loss is reasonable why can't a jury say well this wasn't reasonable and though you say it was reason and let me state more fully that the law requires that the plaintiff demonstrate that the company exhibited manifest and to the case i don't think they did that's the the the word i was trying to come up with the standard i think it's manifest indifference but manif way differences or unreasonable ness in light of the facts known or should have been known to the employer's right it's manifest indifference or on reasonable ness in light of the facts known or should have been but i don't have the instructions i take your word for it that sounds right and you're not disagreeing with that right me just why but the those words are not self defining somebody might say this was manic and this was it both of those things why do we why do we i mean i'm you know i'm sympathetic to employers who have employees who do all kinds of awful stuff and it's hard to it's hard to deal with all of that i mean it is hard that's why we have these high standards but they sound like standards that you would give to a jury and allow people to argue the same kinds of things you're doing well at a certain level yes if they reach that level just as with all the elements of the claim are but we're just saying well we're going to say that if a jury finds this to be manifest indifferent or unreasonable we're just going to disagree with them and say it's not that different around reasonable now that's what i'm worried about because i'm not i what i'm asking ahead seems to me a need to have something a little bit sharper cold hang your hat on what i'm saying is there in these cases it's not a right or wrong there's not a one solution situation that we're seeing and what the cup what the company did did not meet that level of manifest indifference in and and i just want to make one point turns of them working together to the district court also found as a matter of law that it was unreasonable for plaintiff to quit in effect finding that the fact that they were continued to work together was unreasonable for him not to accept that so they're for and i'm like i don't reasonable and it never contested that human relations act and there is a one year statute of limitations under the state statute that doesn't exist under title seven and so all the states thing went away and you could get three hundred seven under the state and three hundred under title for that there is a look at the statutory limitations under title seven to three hundred thousand and so he can recover more than three hundred thousand under title per person or per incident or per watt well based on the number of employees but it but it's for the claim it's in it's in total so you that answers my question ok thank you thank did not contest the jury instructions in this case in the record they are not in the written record and they were not submitted to the kind of record could be as well they were not in the they in the transcript they were not in the transcript you're saying we don't have the jury instructions for forcing because they were not contested and there's no appeal regarding them that is exactly what i'm saying i was asking that is exactly what i'm saying the only  instruction that i believe was put into the appellate record was one jury instruction that had to do with backpay and that had to do with their argument about the damage is so the jury instructions are off the table as to whether or not the jury properly heard what the legal standard is so then we go back to what the issues are that the defendant raised the defendant race three issues they raised the issue as you recognize whether the harassment was because of  correct why wasn't there respondent right that if the judge found it was an unreasonable request how can we find that the company was unreasonable to keep them working together he didn't quit until august all of these actions took place in june and so what formed a part of the hostile work environment when they suspended him june seventeenth how long did they suspend him for when they suspended the harasser mr leonard two days so they were working together right because he doesn't get fired until his deposition they are correct they continued to work together they were sent for hearing test there was testimony from my client that they were on that's much more excessive than thirteen days so what the judge if essentially said is look it was unreasonable for your client to quit after three months of working together correct he was out because of what happened to him he was out on medical leave he had to finally after them working together for that week where they're sent on the hearing test and they're seeing each other constantly and keep in mind that his mindset at this time was after the third incident where the harasser came up behind him and i know that they try to minimize this is he just came up behind him hunching him it was an inherently sexual act this is another man coming up behind we get that would look right but the answer my i'm just not sure i understand so the judge says it's unreasonable for your guy to quit even though you have to work with this guy yet he says it's ok for a jury to find that it's unreasonable what the company did that seems it seems inconsistent it said that it was unreasonable three months down the road and it did not meet the constructive discharge standard which you know even though that's not part of the argument in this case constructive discharge as i'm sure you all know is a much higher burden to show  as to whether or not he was constructively discharged in august when he said i just can't come back to work i can't do this and said that at that point that's where it cut off the damages and that goes to part of their argument that they made before zome appeal though that's out of the case that it that the judge has been terminations there only address the issue of constructive discharge correct that this short version of what you're saying correct that is that is not the issue the issues in this case are the three elements of whether or not he was subjected to a hostile work environment and whether or not but we get all that and what i'm saying is i understand that goes to constructive discharge it's a different point i'm just saying there's a logical inconsistency with the judge saying all i'm saying is there's a lot i don't know that has any legal teeth but i understand the judge said it's unreasonable for him to quit but then he's saying it's unreasonable for the company to let them work together to me that seems inconsistent or he says porting the jury's verdict saying it's unreasonable for the company to let them work together you see what i'm talking about as to how there's a logical inconsistency maybe the judge was i'm not saying the judge was right i'm just saying explain to me how that works together sort there does appear to be some inconsistency but it has been recognized in other cases where a client or a plaintiff can prove a hostile work environment because that deals with what they dealt with in the workplace not what happened down the road as to whether or not they made the decision to flee the workplace which is a completely different thing so those are two completely different arguments and you're not required to have the just so i understand it what you're saying is you could have a hostile work environment and down the road it's unreasonable to leave because of whatever actions have been taken or whatever happened but the that doesn't affect whether they took prompt corrective action exactly exactly exactly and i would just like to address a couple of issues that you had that were raised with regards to whether or not they took prompt and appropriate corrective action this circuit and hawkins has recognized then an employer's responsibility is heightened when they're dealing with a known sexual harasser what about their argument that there's one previous incident that they were aware of is that accurate yes there's only one because i had for some reason i thought there were multiple because you disc in the trial when i was reading various was the one who was harassed the first time and that was properly documented they noted on that documentation it's at horseplay slash sexual harassment if this happens again you will be subject to terminations that was in march and eleven then my client was harassed once before that twice after that the first two times he followed policy and he did what you know frankly a lot of men from middle do if the if he's been harassing other people but this is the first time he's been harassing this person you might not immediately separate them as much as if you knew that this is the third time that he'd harass this particular person  might heighten your need to separate them immediately and move quickly and i took from my reading of the briefs that there was this argument that they didn't really know about that the actual decision maker didn't know about the or not because that depends on the idea that the macintosh didn't know of the previous ones but other people in the in the hierarchy did know of the prefer least he said he he reported to them that that is a very good point because those other managers all thought that he should have been terminated and they had the knowledge of the preview has to do with respect to your client the other two acts against mark and the acts against the minor but i thought i now i misunderstood your brief so i thought your client didn't report the first two because they followed company policy so the first time he told them not to do it the second time he choked him and then right third time each second time he grabbed them and ok i'm sorry but the first two we didn't report well it didn't report of the reported them when he reported the third one but he was following policy by telling that i'm not  rude so we did report all three and the final incident he said this happened this happened this happened and at that time is all they knew about is the roper incident or all the incidents judge clay that we all know about now occurred does that make  record appendix twenty four twenty five in smith's note he detailed all three incidents ok that had i question is did the company know about all the previous incidents at that time or just the roper incident all are no not not with regards to him i'm sorry my questions for with regards to the other individuals that mr judge clay just documented so mr i can't remember their names which i quite just mention them yes and the proof of that is in the the one piece of documentation there you know so called investigation in this is what the jury heard and made their determination on and that was the trial court exhibit fourteen at appendix twenty two to twenty three those were hundreds notes from his so called investigation and it had a litany of peeing investigations after your client reports yet so my question is before your client reports is all the company is aware of is the rover incident in other words you said that's the only documented one properly documented is that all the company was aware of before my client reported yes well that part is they because well there was it can't be very good at this point you either submitted to the jury that they knew and you have evidence supporting that or you submitted to the or nothing was submitted to the jury right we know what the record is at this point now there was record evidence for my client testified when he reported to his supervisor divina o om that about the harassment she made a statement to him this is happened before which is roper which is the harasser here not me which is there i understand which is the roper incident judge clay just asked you about specific other incidents all i want to know is do you have any evidence that at the time your client reported the company was aware of those other incidents all we have is the list of people in that thread bare notes when your client reports that a fair statement i believe that's fair but his actual report referred to previous statements with respect to him correct correct correct and again importantly you know unlike a lot of cars i've seen a lot of company policies that say the first time something happened you must immediately go to h r your supervisor these policies are not like that these policies say you first address it with the harasser and tell him to stop but that his conduct is and that's what my client did he follow their policies and then on the third time when it was so bad that the guy came up and hunched on him and you know i know they minimize that and say that's not an inherently sexual act i think most men would disagree having another man come up behind them grab them and have their shoulders and and pelvic area grinding into them would say that that's an inherently sexual act in and made it difficult for him to concentrate on his work because he thought well this guy comes up and does it to me again you know he testified he stopped in itself but the jury can consider his reaction in determining whether people in the workplace would consider it a sexual act right it wasn't a sexual act i mean maybe doesn't do much but if you turn around choking the guy he's thinking is spreading bad and they can consider that not only subjectively but objectively to see what would be to say ok if he's saw what the harasser had to say and how he said it and the harasser mid they did all these things and also key to this is that the general manager mackintosh who didn't know everything when he made the decision just to do time served he stated in to the jury that this was sexual harassment the things that happened he considered to be sexual harassment i think i'm out of time ye thank you let me just add a few clarifications on the fact i think we're all concentrating on this warning in terms of what the company knew and what happened during that investigation the kendrick roper incident was in march of two thousand eleven that was the only incident that the company had ever been aware of up until june of two thousand and eleven when the plaintiff reported the incidents that he says happened to him at that time and for the record just to just to clarify the company's policy does not require you go to the raster promotes it also says if there's repeated conduct you should go to to management plan if you cannot even remember when the first two incidents occur certainly didn't follow that but after that was reported he reported only those to those three alleged incidents the company spoke to eight different witnesses none of those witnesses indicated they they h experiencing harassment from mr landor and they also testify that they had and told management they did not see any alleged improper conduct by mr mr lennard toward the plaintiff the evidence of these other incidents only came up later after this case was done so during the investigation with the company was aware of we have one disputed incident and we have two alleged prior incidents it was either whether they took prompt corrective action and those the other incidents of which they were on aware obviously cannot be factored correct and so they brought up and just in terms of making i want to make sure you understand what happened in this investigation one of the managers mr hunter was on vacation which was the only reason that delayed plaintiff was allowed to go home after the incident occurred they receive the statements from him and spoke to him the next monday and it was the next workday because there was a sunday in between so they immediately spoke to him and he ultimately submitted the statements and obviously it's going to take a little bit of time to talk to that number of witnesses it would be critical if they just rush to judgment on that so at that time there's no suggestion that wasn't prompt in effect and again under the manifest and different standard certainly i don't think there's any suggestion that that was inappropriate i think what plaintiff wants and what the law does not require is that unless mr leonard was fired this has to go forward and that's not what the law requires the law is that you you have to take reasonable steps and that exhibit manifest indifference and there's no dispute here that this was contested in law doesn't require that you fire just based on an allegation on a scale and we consider whether they took reasonable steps in light of their truth and here because i'm saying they spoke to every one of these other individuals that worked around plaintiff nobody indicated that they had experienced any improper conduct nor that they'd seen plaintiff experience any conduct what happened during litigation and what people testify to later as to what supposedly happened isn't that relevant