based on the arguments raise in our briefing now unless the court is inclined to go in a different direction i'd like to focus the conversation today on the second duty that in a ploy arose an employee upon being notified of potential sexual harassment in the workplace by a coworker is that because you agree that they view the employer in this case complied with all required first step no your honor we agree that the investigation was prompt we have no issue with the actual investigation process we do take issue with their actions regarding mr lawson we detail that in a briefing that he is he was placed on a version of administrative leave that we believe was inadequate why was it inadequate it was designed to keep him from coming in contact with ms that her and it appeared to be successful because there was no contact it was put through no action of the city  it was due to the action the city wasn't in because they broke the prohibited him from coming to the place employment i know he was allowed to continue to work as long as he called it in the morning i'm sure he wasn't there right but there was nothing to prevent mis ken her from coming into the office to stop by or desk or say hello there was no guarantee that the two would not be able to be in contact one another did she protests anyone other than status mr worley she was taking time not looking to have it i represent employers well i understand the balancing act that employers walk sometimes they feel like they're caught between a sill and courageous of trying to assuage the complain or and protect the rights of the accused and that's why entirely appropriate to have a discreet investigation at the at and have an issue when you're trying to figure out what's going on but once it's understood and known that the harassment has occurred there has to be some step taken affirmative act taken by the employer that is reasonably calculated to not only in the harassment but to deter future harassers that's what we argue did not occur here ok so what what should the city have done and when should it have done it so the city ok investigation began august twentieth so that means if we take the cities state it is true that they call the police that means at that point that is the day that their duty to take some type of a medial action occurred w established they didn't do a thing now when you say they didn't i know you say that in the briefing that really bothers me because they took immediate action and you know you you rely on swinson and fuller and those are completely different cases where they allowed these people to be in the same workplace in fact in some cases arguably compelled that you know we don't this city the city didn't do anything like that in this case the media actually you said you don't do any really that's not right well i apologize for not expressing that correctly my intention is that is that there's a two step duty that the employer has the first is the the immediate steps while the employer ascertains what has right and you want to go to the second step so my question was are you conceding that they did everything in the first that you said no you're not conceding that night and the judged by me just ask what else could they have done and i i'm at a loss to figure out what else they could have done so i interpreted just maybe to question me what else could they have done once they were aware of the sexual harassment the if we will go back to the investigation the of the initial mean once they confirmed it correct once they confirm that that's so so you're saying that they had a duty to terminate him as of about august nineteenth not to terminate it but to take some form or media lack and that and that isn't by calling police and making sure these on administr leave and the administrative leave of course is just a precursor to additional action which he moves when he resigns but as of the date that the city was aware of the sexual harassment or just one nine hundred twenty fourteen at that point the city had an obligation to take some action reason we calculated not only to stop mr lawson but to deter future harassers ok and so what should they have done they should they have there's the law provides any number of options it doesn't require a formal piece of discipline it can be it can be direction of counseling but the calling the police the city is on the record say they kept this entire investigation confidential at no point did they inform their staff did they use mitchell oftens actions as a cautionary tale to let potential harassers know that we're not going to tolerate this type of situation even at they hadn't had an obligation to start sensitivity training or some of the kind of sexual harassment training something something and and if the city had done and if they had done that that that would have precluded you from bringing a suit for for a hostile work environment right i think would have been having a very different conversation right now and that's what we really are arguing is that the city did and  that a failure to immediately call for sexual harassment training violates the law is there anything in the statute that says that i know it's it could fall to that broad of a number of the board reasonable what is a reasonable  step and you want us to create the law here by by saying if you don't if you don't call for sexual harassment training immediately but you have violated title seven no your honor we're not asking for any specific determination of a specific act that required and i don't think that would be  fair to employers who are saying is the city here once they knew about mr walker his behavior did nothing if they would have done something you know calling the police and allowing and then allowing the police to get involved is a pretty serious step this is one that the the police the police don't get to hide i mean if they if their investigation proves something and since he's confessed to the city has every reason to believe that it will and he is ultimately charged and convicted all of that is public that that's not that's not that that's not deterrence no work one day or not to work another day mr laughlin came back to work mr never returning there was never an explanation it's not terribly big town and you do have a number of people who went up the chain of command there that have to be advised of what's going on don't understand the facts it seems to me that in that she goes in she talks to her supervisor on august eleventh that's correct and immediately were really take goes on and relays this to the city administrator they immediately start the investigation and seems to me you're ok to there that's our august fourteenth they put loughlin on administrative leave so that says you're not to come to work anymore if you come you give us a call first make sure that the plaintiff is in here and you can only come to a complete projects that's it and they start their investigation on august fifteenth york went on leave for a thirty day medical leave that's correct you're on august the nineteenth they interviewed loughlin and immediately upon that interview they call the police right that's correct your house and they immediately tell your client to stay away from lawful and and then and then on august the thirty first laughlin breaks his leg and he doesn't come back to work he does the record doesn't appear that he does come into work occasionally during that time well i thought from august thirty first on he'd broken his leg and he never comes back to work if it did he came rare i mean maybe client hasn't been there since the fourteenth of august that's correct here but there's a hostile work a hostile work environment even though they know she's gone because they failed to talk to other people in the office about sexual harassment involving two people who are no longer on site one a very high level of generality very very high level of generality and you're asking us to say they had to do something we're not sure what it was they could've been sensitivity training for other people for other things but where's the hostile work environment she's not in the environment she's out voluntarily and he's and he's being addressed in a very systematic way and a very deliberate way in a way that allows a a known sexual harasser to continue to work this  when you see continued to work it's in the context of having to call and before he comes and picks up or drops off work right that's it that's correct error and would you agree that with regard to the second step that the details of that would would would have to be reasonable based on the circumstances of that case absolutely right or are these are fact intensive how how is this  reasonable i mean you've told the guy can't come to work except to drop off and pick up things and lessons and only then if he calls first there's a police report that's made he's being prosecuted or investigated and then prosecuted and your client's not there how as what what reasonable steps could be taken to make sure that this doesn't happen again sure it could have been made a what mco to the situation environment is when your client is is out this was a horrible thing that happened to our you know mr lawful and was was addressed by the law but where's the where's the hostile work environment if you give me the dates on which there was a hostile work environment that your client was the short though the dates were from august nineteenth when the city and she's not there how can it be a hostile work environment she's not in the environment because the environment also a newer is to the to the employees as well as if there's a hostel where you work of but subjected to what council on the nineteenth she's not in the office because mr worley callers said we're going to bring mr lawson back or keep you on our short least at that point she has no faith in the city's ability to meet her needs or address or situation or take it seriously so there's a hostile work environment existing until the city takes some type of affirmative act you know and all make sure we're not dealing in hyperbole here when you say short leash you're going back to what i mentioned earlier his having to call him to make sure she's not want to short lease and then at that point he said he couldn't recall specifically saying that but it would be something he would have said i mean let me ask you a couple of questions if i look at swenson swensen says the remote reasonable most of the remedy will depend on its ability to stop or rassmann by the person engaged in the erast berbers is remedial it's to avoid and prevent discrimination it's not punitive you're correct if that's it here's what happened on august eleventh she says what she says on august fourteenth he's thrown out so there's no question he stopped he's stopped he can't come in except to get work and he asked to call early and from then after your client has gone not even there and lawful and breaks his leg on august thirty first and he never comes back to work i'm trying to figure out why that is not a reasonable pnas depending on ability to stop the erast and engaged by the person engaged in it because sexual harassment a phone a finding of sexual harassment swenson requires some disciplinary act against the harassing employee well the disciplinary act would never came because he quit before the good up the mr sneed steckler reason says that if he would not have resigned he would have been fired as a result of the mitchell investigation so the point well that's what i just said so the point mr sneed was aware and had the result of the investigation knew that he had harassed her into absolutely no actual let's go on further you there's one part of your whole part here that is bothered me and i don't know why you threw it in why are there anything in here about inappropriate statements made by worley because a unit does that have to do with this death do with the fact that the city had was on notice prior inappropriate statements made by mr supervisor and they did nothing to investigate it all so it shows that there's been a pattern or practice of not following up and reacting appropriately t please the court counsel my name is james baker and i am representing the city of quincy in this action in burlington industries versus l or through the supreme court stated that employer players liability for sexual harassment runs only from the time it knew or should have known about the conduct and failed to stop it this court in swi followed ehlers and stated notice of the sexually harassing conduct triggers employees and employers duty to take prompt corrective action that is recently calculated to end the harassment the city its duty here as the district court ruled after the sexual harassment was reported the city took prompt corrective action that was recently calculated to in the harassment the district court then stated play to fail leave and then they report him to the police department and i was not fired at that point why wasn't he fired i mean the city the city doesn't doesn't have to wait for it the city doesn't have to wait for a criminal conviction in order to be able to terminate somebody they can make that own decision it's a lower lower standard of proof than it is for a criminal case so why after august nineteenth why didn't they just open fire and you know i don't know exactly other than the investigation was described as complete it doesn't come to mind right now your honor well frankly it seems to me that the investigation was not complete by the time the law phone broke his leg and never came back to work that's on august thirty first there's no there's nothing in the records just it was complete by that day because they were still continuing to do interviews and the investigator interviewed even interviewed the actually signed sealed delivered in and he did take a job he did submit his resignation on this twenty second to september correct was the investigation complete then i can  cannot answer that question your own i'm sorry i don't was it complete by the time he took his new job as a plan's examiner in grand county that's in november well i'm i don't i can't but i'm sure it would have been by that totally so mr laughlin was charged with stalking fourth degree assault sexual motivation and with sexual motivation in indecent exposure and that's in november isn't it yeah it was after he was resigned but it was it was reported promptly to the police  so you don't so you don't know if mitchell had come back with a full report and said you know here's here's here's what here's what mr says lawful and doesn't really  resist the terminations what kind of due process would he have been entitled to under the rules  what with what the city of quincy had to do in order to terminate him city of quid seize personal policy under that policy depends if it's a union employee or as if it as a nonunion employee he was considered ploy at will they could fire him with or without cause at any time and he was nonunion but but i'm thinking that he was a union employee th i've interviewed both of them as far as i'm concerned standards completely credible and he's not so i think he did all these things at that point if laughlin is resisting terminations is he entitled to a hearing  before the city can terminate him some kind of a name clearing hearing it would be what was for if he was union it would be what was provided under the union contract you don't you don't know whether he's union no i don't you ever seem to be the issue the facts are totally different in this case and we fully discussed the elson case at page thirty two to thirty three were brave the fuller could put the opinion at thirty three and thirty four were br and the perry vs cosco case at thirty four to thirty six their brief and they are you know worlds apart from what we have here this court recently affirms summary judgment in a sexual harassment hostile work  was never never happened again so you know leave it at that is that but that's like this case where once the sexual harassment was reported it never occurred again she was never sexually harassed again she was never in a hostile work environment again here the city did not know about the harassment while it was occurring upon being a form the city took prompted preprogram corrective action that the defendant had a obligation to take prompt action harassment which did the city promptly arrange for an investigation by an outside agency reported lawful is actually to that police or possible criminal prosecution place administrative leave and advice to the stay away from plaintiff all of those actions demonstrate defendants commitment to taking allegations of sexual harassment seriously adequately indeed office arrest and providing deterrence to city promptly launched invest that geisha after learning of the harassment and has said in swenson the most significant immediate nation or employer can take in response to a sexual harassment complaint is to launch a prompt investigation to determine whether the complaint is justified in chapman versus progress rail service well it is this if this is a district court case and it's  cosco wholesale company which is a washing court of appeals case in saying that the fact that the conduct never occurred again is proof that the response was reasonable and adequate as a matter of law claim pointing out that the the analysis is similar in both cases and then it's specifically in the perry versus cosco case by the washing supreme court of the washing law against discrimination where the court said quote the fact that the harassment never happens again is proof that the player's response was reasonable an adequate as a matter of law that's of the washing case law so we ask that this court affirm the just records in tree of summary judgment because and find that the city took prompt corrective action that was reasonably calculated and did in the reasonable and adequate as a matter of law i think it's important to consider that statement in the context with which it was originally derived that issue of law comes from a previous division three case i'm watching court of appeals for nkombe costco and which was in response to the employer employee use complaint that the sufficiency of the otherwise adequate employer response was not sufficient to the impact to the particular employee and what the francom court said that the subject belief of the employee is the adequacy the remedy is of no moment it's if there's if the harassment stopped then the appropriate and reasonable actions taken by that the employer or reasonable of a matter of law that's the court not expand that that statement to be out of context so that it would create a situation where an employer could simply avoid its avoid negligence under a coworker sexual harassment liability context by simply even firing the complaining employee