for my name is angela gray as you already know and i represent miss cooper in this appeal from the eastern district of north carolina regarding h employment case and it's basically a sexual harassment case and i'm sure the facts have been presented well to the court my purpose today is to generally argue some of the points that i believe that are most of stan show as it pertains to the courts the lower court's ruling in this matter i have a lot it five minutes of my time to the united states equal employment opportunity commission which will be argued by attorneys and star and  have reserved some rebuttal time i'm going to be arguing mostly this morning regarding the primary reasons i believe the district court erred in its dismissal of several of the individual claims under decision stems largely from its discussion of the relationship between miss cooper and the alleged sexual harasser mr tommy lowry and in that context the court initially started off their argument that court started off i'm sorry start up his decision with reaching the conclusion that mr l proposition i think that this case is unique in the sense that you have an individual mr lowry that is who purported to be pursued as are whom miss cooper believed to be his supervisor and home he believed he had supervisory authority over miss cooper according to the employer he didn't but i think for purposes of fifty six it becomes an issue effect  creates an issue effect as to whether he did i'm sorry that isn't the court's high court's opinion and dance to it in the first instance as much as a court can decide it more as a matter of law and leave it as only a matter of last we do not what we do have is an abba leave in the best case scenario an apparent authority argument and that mr lowry did have the opportunity and the responsibility of recommending and making recommendations in hiring and firing recommendations he make any did he have responsibility for more any actual employment decisions as the law define hiring discipline promotion or any such actions against scooper no he did not take any of those types of actions she did talk in her  case about asking for a transfer to another department she mentioned this to she she made this request to lowery at some point during her employment and he did not her request for transfer so  i believe that is in in the facts of this case now that that denial certainly to me if you have the authority to transfer or not transfer would also go to the apparent authority conversation because his his response or her at the time that she made the request was to deny it so that's given some evidence that he at least had the authority to make that type of decision whether it was a termination hiring dismissal demotion type authority there is there are no facts in this case to support that if you look at it from the perspective of the coworker i think you do have facts that are sufficient to establish opening i did not make that argument in my opening brief and well i don't think it's waived because what we did talk about was the other motions in the case which the the case for a minute to three times and certain allegations were stricken from those pleadings and we argued in the opening brief that the spec should not have been stricken from the pleadings and granted this was part of the affidavit that was given in response to summary judgment so it wasn't considered necessarily in the pleading stage so the sham argument that the sham affidavit  in the context of the motion for summary judgment and our position is that in in in raising the issue of whether the court erred in denying the motion for summary judgment that that argument is complete is in compassed in inconsistency so the fact that she was inconsistent doesn't create a disputed material fact or summary judgment purpose well i have to defer also to what was written in the e e o c is brief because it's very similar to my comment to that and it's simply in the context of a deposition the witness as i'm sure you are aware is responding to questions that are being asked at that time she was terminated or she get she gave her a bit resignation in think that in the context of this case when she complained to human resources or how she complained to bridge to human resources may have been different because can give your client or the plaintiff every benefit of the doubt to get in the light most favorable to her so i agree with my colleague that i believe you did plead that april two thousand and eleven meeting through the fourth amendment complaint i found the allegation there the other place i found at least some factual corroboration was in brandon moore's declaration but the defendant raises this point that while the declaration they haven't been authored before the close of discovery like your own client's affidavit it was submitted may provide the corroboration of that claim in the fourth minute your honor in response to that i will say that mr moore was identified as a witness who had knowledge and information about ms cooper allegations of sexual harassment and he was identified in the initial disclosures and in the discovery frequently what happens in response to a motion for summary judgment is obviously you prepared declarations for witnesses who at whatever point in time are able to sign those declarations and then ultimately provide them back to to to me in response to a motion for summary judgment so i think brandon moore's declaration was specifically done for the purpose of responding to a motion for summary judgment and not necessarily you know in any other way so i i cannot recall as i stand here without looking back at the the a pin dicks when that affidavit was submitted to me but i know that in the context of this case it would have been important to me to have his affidavit or his declaration to respond to a motion for summary judgment and i think if smithfield wanted to include any testimony or evidence by him in the course of this case they had access to him as a witness because he was an employee of smithfield so i don't think that there's there was any earache irregularity with regard to all it didn't dismiss it because it was brought up too late it just ignored it so and on that point one thing troubling and i know this whole question the sham affidavit is question and why not but it seemed that  cooper's inconsistent declaration well well she made the in iraq dettori and then she had the there's a declaration and then there's a deposition testimony and then the deposition testimony she was never asked is she was asked a lot about the july and i don't recall this but it was after also after you can take that out as well i'm just looking at what remains when she reported the misconduct  so i the only other evidence that i'm aware of is her deposition testimony and part of that in addition to her not being asked about any other time she talks about how after  commission its main interest in here has to do with the relationship between a charge and a complaint and the the district court's going through a series of orders and knocking out a lot of factual allegations supporting sexual harassment claim minute seems to be based on a misunderstanding of that relationship and also a misunderstanding of facts relevant to a sexual harassment claim as this court said in jones versus calvert group the operative regulation for determining the contents of a charge is sixteen a one point one two b and in that it says that a charge satisfies a mystery pre requisites if it is sufficiently precise to identify the parties and to describe generally the action or practices complained up any of this matter well in terms of there's an argument here of supervisory liability that if the court finds that there is no evidence of the wrecker or a disputed material fact as to the april eleventh meeting that significantly undermines the negligence argument and whether or not the knowledge was imputed to the employer but in terms of the commission bill strongly believes that the way the court went up out this is highly problematic and to start at the beginning the court should still address what is a what's the relationship between a charge and a complaint and that it just has to be a general description of the climb it does not the supreme court  says you don't have to go into detail the this court in jones versus calvert said the describe generally the action or practice is complained up the purpose of the charge is simply a kickoff it's the purpose is to alert the defendant of a claim generally often these people are not represented by counsel and so you're just to begin a discussion and for evil see ultimately to begin to investigate to start to unearth what really took place in the in the case the district or i'm sorry case because it was an unfulfilled threat and the idea that if somebody just complain at some point in time they all the sudden lose their title seven rights i take it is imposing an artificial the yes the court did rule that and there's not an argument from me oh see about that the court said that she waited so long that because it went on for four years and that at some point she basically lost her title seven right yet right yes and certainly that that turns title seven on its head and this court unfair brooke medical's clinic said that w respond to some of the points raised by mr gray and and the c i begin with this though on the surface there are a lot of moving parts to this appeal but at  heart and miss gray herself noted this moments ago this is a sex harrisburg the sum total of misc hoopers allegations in this case are the choose harassed by a male coworker tommy lowery and her employer didn't do enough to stop that's what this case is about nothing else she had her opportunity to prove that allegation and she did now the e e o c has weighed in as advocates primarily to challenge the district court's dismiss of allegations from a scoopers third amended complaint or lack of subject matter jurisdiction i know they raise a few other arguments but when a star so that's the primary thrust of their argument our first response to that is that  you shouldn't let their arguments muddy the clear waters of this case you don't need to address that issue to decide this appeal because its resolution has no impact on judge fox case miss cooper chose not to take his deposition we were not under any obligation under the civil bills to produce that affidavit until we attached it to our summary judgment motion because we had no discovery obligation to produce with mr moore's obligation i think it's just as noted we did serve discovery response requests on misc hooper and we asked her to identify all individuals with knowledge of the case we also served a document request on her and asked her please produce all statements that she obtained from any party the pain of the case mr moore's affidavit undoubtedly fits that description and answer an earlier question from the court it was executed by mr moore on july twenty seventh two thousand  sixteen that was during the discovery period it was submitted to us on august twenty second two thousand and sixteen that is after the discovery period what this cooper does is offer no justification for holding the affidavit until the close of discovery and we we cited to the district decision and cofield for this premise with the district court relied on rule thirty seven to strike affidavit produced after the close of discovery that exceeded the witnesses knowledge as represented by the plaintiff and on that point miss cooper was given and she identified brandon moore yes she did that but she was when she was asked what he knew about the case and her answer was i don't know is not you don't know anything more it's i don't know it's not evidence that that's correct and our position is that the plaintiff has simply not offered an explanation below or here for waiting until the discovery closed to produce brandon moore's affidavit and this court shouldn't consider it for that reason and also for the reason that you already identified this is not a joint appeal this is ms cooper's case it's not the e e o c case this coup for offers no challenge to judge fox's decision to strike the scoopers affidavit and he she makes no argument about whether he should or shouldn't have struck or whether he did or didn't consider mr moore's affidavit and so this court shouldn't thousand and eleven complaint to h r manager jamie hope as it as it reads in here i know there's been some other places in which it was ms dollars that was but this this fact that there had been at least or this allegation that able counsel but it is not smithfield's job to make miss cooper's case for she was asked in discovery very clearly identify all complaints you've made in the course of your employment yes she pled something about april two thousand and eleven and some of her amended pleadings but as the court knows pleadings are not evidence when given the opportunity to develop evidence on it she didn't and what i would add to that is she she supplemented her in  cooper even and you know review did you ever wonder that was the time she complained especially in light of an allegation in the complaint that it may not have been and frankly that the position read as clear as much it i couldn't imagine it must been a very difficult it was a long day yes so it would have been it seems a much clearer record that at least asked that catchall question so that we would have a  she didn't say anything about april two thousand and eleven she didn't say anything about when the the deposition proceeded in a very chronological fashion and you know she was asked to  chronology for us from the beginning to the end what happened to you and what did you do about it and she went through two thousand and seven two thousand and eight two thousand and nine all the way through to the day she walked in the jamie pope's office on july eighteenth and are i honestly don't remember the to answer the last question i feel that the that the transcript is fairly clear that there was no april two thousand and eleven complaint and we also gave her an opportunity at the end of the deposition you clarify or add anything else that you had already talked about and there was no mention and let me make one other point about about window of and the fact that this this whole narrative about how miss cooper mis remembered all of this is just it's frankly just nonsense miss cooper actually did mention linda of in her deposition she mentioned her after by the way failing to identify her in all of these discovery responses but she did mention her name and deposition and she mentioned her as the person to whom she gave her resignation letter in july on july nineteenth or twentieth of two thousand and eleven  it is implausible that miss cooper would have remembered that but she somehow forgot that she made a complaint to the same person three months earlier i find i found that totally implausible and i don't think that argument as persuasive miss cooper there's a few more points that were raised that i'd like to address  cooper took issue with the judge fox's finding on supervisory status as this court well knows his title is not controlling his title of superintendent does not  not decide this question what does is that's and there's no evidence in the record there are evidence in the record is that mr lowry could give her job assignments could make decisions about her schedule and he could not i don't agree with that characterization of the record there is testimony in the record that at some point i don't exactly remember when miss cooper had gone to human resources and requested to be moved out of the department and i think miss cooper herself testified that the reason for her request had nothing to do with harassment it was that they were overworked in the department and miss cooper asked to leave it apart and what mr lowry testified is that when he was contacted by human resources and asked whether he could stand to lose miss cooper at that time he said i can't i'm overworked right now i purported denial of a request for transfer yes your honor there's there's not enough there someone else on the other end you know presumably some other superintendent some other department had to be willing to accept miss cooper maybe there wasn't a vacancy that evidence isn't in the record but i don't think that that saying to human resources i can't stand to lose this person right now equates with that person has the ability to reassign w significantly different responsibilities and then one other point i'd add there is that there's no evidence in the record that i recall as to where miss group or asked to go so there's nothing there for us to even determine whether her landing spot would have had different responsibility and so i think it just fails underpants but the the the point that i would make in addition to that is that even if mr lowry has a statutory supervisor and we think the records fairly clear that he's not positive of the fact or question you know there's no evidence in the record that smithfield prohibits harassment in its policies and that miss cooper was well aware of harassment policy yes ma'am yes and she copies of it she received training on it she admits she was aware of it she and the record even that she had used those policies effectively in the past to report another coworker who was fired based on her report so we clearly  leave which he didn't have to do under the law and he offered to reassign not her but mr lauer to us to a different shift and i just wanna make sure i understand your procedural argument on mr  is that even though it was authored and submitted after that period because i have never propounded single interrupted her as your only priest any obligation this rule twenty six you had no obligation to be that you had no obligation to generate and produce that evidence before the close of discovery for the court that's correct if if if miss cooper had served us with document request that affidavit would have been produced decide it because it's not relevant to any of the the findings that judge fox made on summary judgment but i would just add on the substance even if he sees interpretation of the regulation is first part is their view on the charge filing regulation is directly at odds with this court's decision and choco of a case they barely mention so deferring in our view to their interpretation would require overruling shako and only the on backcourt do that that's number one number two all that aside and none of the parties brief this because the deference question didn't come up  but this is a case of first impression in my opinion this is not a typical our situation our did not involve an agency regulatory interpretation that conflicted with longstanding circuit law ok it's also not a brand x situation that case involved the conflicts between an agency's interpretation of that statute and circuit law here what we have is a conflict between agency interpretation of regulation and circuit law and to our knowledge and again we didn't brief this point the supreme court has not ruled on that question so even though we don't think you need to take the argument up and i have a third point that i'll make  on the substance of it and even though we think the e e o c as interpretation is wrong this is a novel question of deference presented here and we would respectfully suggest that if you feel compelled to address it additional briefing should be granted to the parties on the other thing that i would just say in that respect and i'm sort of cocktail napkin in this right now but you asked the question we well i would just close by saying i think skidmore's a better rule in a situation where an agency interprets its own record so there's a lot more going on than meets the eye here than just standard our i'd make that point but to close i don't think the deference is due at all and i don't think you even get into any of that and the reason is because judge fox his decision was not based on the e e o c as regulations it was based on his application of this court's law the question here is whether he applied is that the allegations in the lawsuit are reasonably related to the allegations in the charge and to make that argument they're looking at three things the charge the pleadings and this court's law and i don't think you need to defer to the right well your honor i don't think i'm saying quite that but i think what i am saying is that this court very plainly recognised in shock that the e e o c is theory here that this is a cause of action relevant to proving a claim of hostile work environment that he did not include in and which the shako court concluded were not reasonably related to the allegations in his charge and the thing about it is the court cited to sixteen zero one point twelve in doing and the other thing that they did is they cited to jones but you know it's clear though that that the court's precedent on this is much broader than this claim by claiming shako our cases make clear that the factual allegations made in formal litigation must correspond to goes and i think we're going to add in allegations set forth in the administrative charge and  since my time is short i will just try to get to as many of these issues that have been raised as possible but i do want to say that with regard to the more the more declaration that was submitted in response summary judgment to the summary judgment motion the more declaration is not specifically discussed that i can see in judge boxes opinion is basically raised in the defendant's argument and on a motion for summary judgment the facts have to be viewed light most favorable to the client but when you read judge fox's opinion all of his facts were taken from the light most favorable to the defendant and there's actually no no reason why the brandon moore declaration was not considered based on what i'm reading from judge boxes according to your opposing counsel it's because you submitted it after the closing cover well i don't know why that fact is i don't know where he gets that from because i didn't see it in the order or you dispute that it was a bit of that i do this is what this is what i say the the declaration of brandon moore was submitted in opposition to the yes because when you look at the facts that were considered by judge fox in terms of why he ruled against the plaintiff it summary judgment stage he doesn't talk about brandon morris decoration he talk discovery which is what makes that it wasn't turned over particularly uncomfortable i would imagine it's actually executed in july and discovery closes in august and hits my confusion because in the opinion we're talking about the date the sham affidavit but there is no mention of brandon moore's declaration in the opinion so that brandon i'm simply saying that brandon morse declaration although it was submitted at the close of discovery it after the close of discovery it was done so because whether i had it or not in a timely fashion it was never an issue of whether i had the affidavit in a timely fashion  a not necessarily a fall out of the pipeline in a case like this as in many cases what decisions you make with regard to how you're going to proceed in discovery is sometime strategically strategical this case was already had already gone through the e e o c we had multiple documents that had already been submitted in the initial disclosures and so whether we got a document from brandon moore at any point in the case if we had gotten it at some point in the case for the purpose of discovery then yes turn it over but we didn't get that dep is that declaration is the same thing on the pope declaration they didn't just produce the pope declaration because we didn't ask for it they produced it at the time are made for strategic reasons if i misunderstood that but i wasn't suggesting to the contrary i was saying as it pertains to discovery in general but also i will say this when a witness signs their declaration that doesn't mean that i get the declaration on that date now going back looking at the facts in this case i can't recall if i received brandon morse declaration on the same day he signed because frequently what happens with witnesses is i will submit or plaintiff's counsel will submit  declaration to the witness the witness signs it and then we have to wait for the witness to get that declaration back to us and so i'm simply saying i can't say in the context of this case that just because brandon moore's declaration is signed on july eighteenth that i was in the position to be able to give it to defense counsel before it was necessary for motion for summary judge i'm just i'm just simply saying that it sounds like we were doing something that was untoward and i just want to to make sure that we're not saying that i see my time's thank you