at his place of employment it's about the important issues about how sexual assault is viewed by society and more importantly by the court below on november th two thousand and thirteen mr white was working his last day as a mechanic at the capital district transportation authority or c t a which is the equivalent of a quibble and of m t a in new york city he was grabbed by hind from his coworker tony clinton tackled to the floor at his arms  behind his back and was dry homed by tony clinton at the same time his supervisor defendant bias joined the saying drop his pants and started rubbing his testicles on the back of his head the same time his coworkers and  defendant frank man senior who was also a supervisor at c d t a circled the incident and started taking pictures and video recording the incident people were laughing at him and later on these are photographs were distributed on the internet and on facebook hu personally so one of the challenges you face of course is the paucity of law with respect to what makes a state actor in an employment situation you have here supervisors and coworkers in a state facility or a municipal facility all acting together and as the plaintiffs there is i understand it as part of a ritual or ritualistic behavior emma right yes your honor and it's your theory that this joinder of supervisors and coworkers in understand the question are you asking about the plaintiff's claims against c t a and how we're holding c d t liable well i think you have to show that the individual defendant in here particularly is acting under color of state law you have them acting on state park on the city's premises they're in uniform on duty and then you have the additional fact that the acts that are being committed are are are part of the that they're being cloaked in state authority this was an act that was done routinely to employees on their last day of work it was also part of a larger pattern of practice that was tolerated by c t a yes just on that last point and then clanton testified that there was a ritual that was engaged in by both himself and his supervisors as well including defendant bias he admitted that in his testimony did he say he had engaged in it or he had seen it engaged in another location studia firsthand knowledge yes your honor and he had indicated both himself and other employees had engaged in this ritual now he maintains that the ritual was only roughhousing or teasing but you have evidence both what happened to my client and there was testimony from several employees about the nature of this ritual that this ritual included sexual harassment type behaviors including tea bagging and dry humping other employees so one of the arguments made by your ad that there is you know firsthand evidence of that practice that he does oh rumor so do you have are you telling us that clanton we can find in the record that he has firsthand knowledge of what you've described your honor one it's my understanding that mr clinton testified that he engaged in this ritual he caught he categorize it as as rough housing but there has been testimony to the contrary there were employees including  employer even take chen who indicated that he personally saw mr baez teabag another employee and beyond direct evidence just because something is as hearsay or rumor that can still be admitted at trial and in it's the plainest visibly not ok so but firsthand knowledge either by seen it or participating in it would be admissible i  agree thank you and i i would respectfully disagree with your honor just because something is hearsay doesn't mean it can't be admitted at trial and i believe that the district court below did not engage in any analysis as to whether the plethora of  incidents that were described various employees including raven who did testify that he heard this him self with that was that employers or supervisors were talking about sexual acts that they had engaged in with their partners they were talking or they were watching pornography but regardless some of the rumors and hearsay just because it's hearsay can be admitted for other purposes and if the district court is going to dismiss the player's claim and take him from the courthouse take  his his ability to seek justice for himself there should have been an analysis about these incidents and whether or not they could have been admitted for other purposes it could have been admitted for purposes of notice which is an element of of a sexual harassment claim and a claim under new york state human rights laws are we going to find in the record here on appeal that you've submitted to us record citations to this st hand evidence that is participation by  witnesses you wanted to call a trial omar you know overhearing conversations just cutscene it by others who participated in it yes your honor you'll see a lot of bias i believe i'm not sure if it was dry humping or tea bagging but it was certainly one of those and it's incidents that he saw firsthand he had testified that this conduct was so pervasive that you either go along with it or you put yourself in a position where it didn't happen to you just to try to escape it and so yes your honor you will hear both direct accounts of things that employees witnessed in addition to testimony from employees who said that they heard things or that there were rumors that things were going on you'll also see that defendant baez has been previously disciplined for conduct that he engaged in in the workplace so there's certainly accounts that are independently verifiable in addition to the various hearsay allegations at the now no i don't want to discount the inappropriateness of watching pornography in the workplace but i just want to know put that aside and understand that my question is not asking about individuals who were discipline for watching pornography in the workplace yes your honor so in addition to that point ravan take did say that he witnessed mr baez i'm not sure if he was driving home or or teabag another employee and that was something that he personally witness d going to what is the most objectionable part of the the opinion below the court held that the conduct to which mr white was subjected to did not alter the terms and conditions of his employment and in reaching that decision there were two points that the court made the st was that because it was his last day of work that this couldn't have altered the terms and conditions of his employment which is it just runs directly contrary to president from  would be v garza reli the court addressed a discrimination and harassment claim from plaintiffs who were working at mcdonald's and in considering some of the conduct the court held that just because there was discrimination occurring on the last day  work they could still consider that that just because you're out you're working your last day of work doesn't mean it's open season for employees to be harassed and discriminated against and i would submit that that part of the of the district court's decision below runs contrary to this court's precedent on that point the nd point that the court made was that he didn't believe that the plaintiff was severely affected enough by what happened and with the court said was you know it took him a week to really consider how angry he was about this incident but there was testimony both from himself and from his coworkers about how upset he was about what happened and mr hoyt it's sought psychological kaun counseling and was on taking anxiety medication for several years the court deciding that genitals rubbed on the back of your head and being dry home too wasn't severe enough to alter his conditions of his employment which is a sexual assault which by and by that fact alters the conditions of its employment is just objectionable on  but i skip to the notice of claim issue and the savings clause has your honor which wasn't a real focus of the opinion below but if the saving claus makes the notice of claim timely why should the eighteen and i'm sorry i'm sorry the assault and battery claim be reinstated i'm not sure i understand your question around yes i'm i'm trying to understand the import of the notice of claim issue for your state law claims of assault and battery and and flexion of emotional  distress your honor if those claims are reinstated meeting the elements of an assault and battery claim is is far easier than meeting the title seven requirements there's a vicarious liability against the capital district can't transfer taishan authority and there would not be have to be the same type of one point that we objected to the district court's decision it's not a year the statute of limitations is not a year when you have to comply with a notice of claim requirements that statue of limitations it is extended to a year and ninety days and that's just that's clear in the in the your question here is i'm not sure that i read judge of the district court's determination with respect to that which has a different statute of limitations or at least i think it has a different st distress yes your honor we argued that the district court below read the statute wrong about the the timing regarding the statute of limitations for the state law claims and if the district court was it was essentially interpretating a state law statute and the the more proper procedure i would submit is that rather than having adopting its own interpretation of it one that i believe runs counter to state law precedent in that area that it should have left that for state court determination rather than asserting the supplemental jurisdiction over that claim and making its own interpretation of what that savings clause meant and we review that assured it and by what standard of discretion your honor that was not a point that i briefed in the court but would be happy to provide supplemental authority on that regard and much of the exact answer on that ok neither my which is why i have said for your views thank you thank contending in this case that c t a knew or should have been aware of a sexually explicit environment that permeated the workplace so turning to the state actor i there is sufficient evidence in the record to show that there was a ritual for the last day of employment and a state office or government office in which supervisors and coworkers sexually or physically assaulted a coworker on their last day of employment in a way that a jury could find was with intent to discriminate against because of their sex is it your contention that cannot be state action well your honor anderson i understood when you were asking the appellant this question that that was directed to  so ingrained garage that it became a force of law and in this particular case looking at the facts your honor asked what is the direct evidence that this had happened before we're not contending that there wasn't is pointing to kind of rough housing constituted ritual the only testimony in this section is that they would rough rough house pull pranks on each other that's about it the  this occurred to mr herman this is her man's give toughs testimony in this matter mr man said he had never experience any issues at the c v t a garage this is the individual that is that they're claiming was teabag by mr that's a disputed issue of fact then but this is why it's so important for for the court to have parse through what was hearsay what was rumor what they heard mr teach and says that this occurred we bring the witness in himself says it did not occur so that would the victim her masters what would have been the victim yeah the person that would have been had it happened they say there's no indication that they testified that that occurred more importantly the circumstances the district court the trial court which is analyzing the state of the evidence to see if they're disputed issues of fact  was deposition testimony yes the court didn't actually analyze that particular issue because i don't think it was ever specifically raised by the appellant but i look through the record and i tried to find because i anticipated that would be the question had this ever occurred before and i can tell you even if we take it take what mr take chance said as he's saying that mr baez had done that before he does not say it was ever part of a ritual that it was ever part of this horror horseplay that had gone on mr baez had had nothing to do with this group of friends that would do this at the end of at the end  inappropriate in fact he was friends with mr clay in he was friendly with mr mann seanie and he had no issues with mr baez i would submit to you that it defies logic that a workplace so permeated with sexual misconduct that it full time employee working there for six years never once observed it himself and i give him credit for knowledge in that but but that's the fact here and to then allege that there was a policy and procedure at c t a that had the force of law is followed by these facts in terms of here's thing whether the court can should have not parse through the testimony here i point out to the court that the district court was correct in parsing through the facts here because many of plaintiff's claims that are made in this case were just not substantiated substantiated by the record the complaint specifically states that clinton and baez had assaulted other employees by tackling them and pretending to rape them that is nowhere in the record that by as and play in had another c d t employee in front of high ranking officials that is nowhere in the record the court was not making credibility determinations they were appropriately considering what was admissible evidence and what would what could be considered  support of the motion in fact i would submit to you that there was no basis for this hearsay evidence to come in plaintive noted to two ways that hearsay evidence could possibly come in in this case the effect on plaintiff's perception and notice here we know that plaintiff never perceived this before so that can't possibly be an avenue to get the hearsay evidence in and finally notice there's no the record is undisputed that every time a sexually inappropriate report of misconduct was reported to see action was taken it was investigated people were terminated that's i want to start off by saying that no one here is trying to defend the inappropriate actions of baez he's not even here to defend himself so we all agree that that act was inappropriate and he was discharged and he was fired for it so the plaintiff uses the word justice and they have been throughout this entire proceeding and his my position and i believe i share this with co counsel is that he a changed justice appropriately from the one individual who was responsible for the heinous act now they are they're also sitting on a judgment against that individual that they have to collect so they it is our position that their attempts to now come after c t a and my clients is separate and apart from that there is no justice to be had here against the individuals tony klann and frank meehan seanie so let me ask the question that i have asked the others who've made argument here today what is your position as to whether or not notorious fashion victimizing the plaintiff are they state actors or not if all of those parameters are met there's absolutely an argument that they would be state actors the problem for the plaintiff is that those have not been none of those elements have been met the only thing the plaintiffs hang their hat on is that they were in uniform on the job site and that's it they were not acting under color of state law man seanie although a supervisor was not a supervisor of the plaintiff or bias well people involved in the act sorry i thought you just admitted that they would be state actors that is acting under color of state law if the evidence were there as i've described it if it was a sexual assault so as may have been a state actor not that's not the issue for today because they have a judgment against bias man seanie and clan in this case are not state actors so let's just take mr clanton clanton one could say i know the disputes but he began the attack on the plaintiff and wrestled him to the ground and dry hump him now i know these are disputed issues of fact but that is one version of the facts that have been presented to would he be a state actor in acting under color of state law your honor i would suggest that they still would not be state actors because it would be a personal pursuit as opposed to a pursuit in the context or inside the scope of employment for c t a which is required it's an element under section one hundred and eighty three dollars in in any event as i mentioned earlier we don't have those elements there was no ritual of a sexual assault there was no intentional conduct  based on the plaintiff's sex which is critical here the plaintiff doesn't address that piece but it is clear think this could have happened to a woman could have happened to anybody do you think that there are individuals photographing it and the i don't and we don't know whether this would have happened to a woman because it's never happened before in the workplace as far as i know and as far as the record reflects mr take chand who has counsel has referenced on several occasions was the st and only person to suddenly come out with testimony that this has happened before and it's a pervasive pattern we didn't hear that from the plaintiff which is ironic the plaintive didn't say that in his deposition the plaintiff as my co counsel alluded to and stated sink is that there there was no pattern and practice there's no evidence of it mr take chan we don't understand his motives your honor i wouldn't perceive i wouldn't try to guess but he's the one who took a picture and we believe he may be the one who shared the picture and it was the plaintiff's stepfather who posted this picture that h caused so much trauma to the plaintive so there are a lot of problems here with the facts and i think the lower court understood this there may be a dispute of some of the issues but even given the facts that are tangentially supported by the record it's not under these facts to prove an assault or a battery they missed the statue limitations on those claims and there's nothing we can do about this i think that the court was absolutely correct in that you mentioned respect to negligent  i don't did they bring a negligent infliction i'm i apologize in my mind i have only an intentional infliction of emotional distress that would be a three year limitations period your honor yes i agree with that but that that was some judge code and i are right in our view of the record was in my i think swept up and the order dismissing those claims with prejudice yes the entire right the entire complaint was dismissed should we re man that single portion of indeed that is there because on the basis that it wasn't covered so it wasn't barred by the statute of limitations applicable to it and let that proceed at least in state court and i would submit that that would be futile so you should not do that negligent infliction motional distress till requires a support in the record and i don't know who would have been negligent in this circumstance when no one knew what baez was going to do i mean if you really look at the facts that are undisputed by is admits himself that nobody knew what he was going to do he acted on his own he never discussed it with anybody and he had never done it before clinton testified i was shocked i was wrestling with him like we do with our friends and clan and what we're very good friends before this very good friends and that's undisputed he was wrestling with his friend joking around with him by his shows up does this ridiculous act which is horrible i agree with that and clay and discovers that listens head up sees it and jumps off that's a very different fact pattern  the one that the plaintiff wants the court to to believe now given that there's no negligence there is soon as tony clinton saw what was going on what was really going on he got up and he walked away he talked to him afterward and said i can't believe by his did that and took it that far the plaintiff never said anything about it didn't get upset with him didn't get angry with him didn't do anything the plaintiff didn't get upset about anything until his own stepfather posted it to facebook and then it started flying around the internet that's what upset the point of and we can't be held responsible for that and the same respect man seen he had nothing to do at all physically with this act he is a supervisor but was not a supervisor of the plaintiff or of clanton and he did not actually participate now whether he was negligent  it up is very difficult that would be a very difficult bar for the plaintiff to meet because he didn't know what was happening until it was over so he walked over to the event by a stands up which when everyone realized he didn't have his pants fully up and then it was over so there's nothing there's no way to stop it because he didn't know it was going to happen either so for that reason i think that even bringing it down would be futile i see that my time is out there i ask one question sorry  i'd like your reaction with respect to the savings clause issue with respect to your two individual defendants your clients yes your if the savings cla e makes the notice of claim timely what is the impact on the claims the plaintiff is bringing to the state law claims that the claimed plaintiff is for you and against your two clients if the savings cla to the individual employees then there would be a problem for my clients your honor but we used to submit that it's not it does not apply to the employee as it may or may not apply to an employer or the government entity here but want that one year ninety day provision does not apply to the employees and we do mention that briefly and in our brief it page thirty three dollars your honor so it would only permit a lawsuit against the employer nothing to employ correct your honor that's our position yes if there's anything else thank you thank you ron he's nice and you two minutes from rebuttal there is one point i'd like to clarify and i would have to do further research to see if the year a ninety day savings provision applies to individual  employees that i'm not sure about but i would assert that it certainly applies to the capital district transportation authority i want to point out that a lot of the arguments that the apple is have made and it was certainly something that the district court engage in is credibility determinations you had not just testimony from mr takes in who and i will point out to you judge coty there were additional there was additional testimony about things that were directly observed including the superintendent of the garage steven wax who mr taken said he observed walking around the garage oftentimes in his underwear talked into his butt and talking in a a feminine homosexuals voice and making fun of employees so there was a certainly a lot more direct observation that is  defense was that this was the environment in the garage i thought that my conduct was not going to be objected to because this is what everybody was doing this is what superintendent waxman was doing that was not the court's role here the court should have allowed a jury to decide whether or not it believed mr take chan whether it believe mr bias and going back to your honor's point about hearsay the admissibility of hearsay there's one case in particular that i would direct the court to if there was a case that addressed the admissibility of a statement that said you know so and so is a dumb and word and the court said you know that is a hearsay out of court statement but it's certainly not being offered for the truth of the matter certain it's being asserted for say that that it's actually a person is i would agree your honor but that is that is is the same thing going to not just is not the plain of state of mind but it's it goes to the state of mind of defendant clinton it goes to the state of mind of a defendant buyers about why or what should be employer when should have known it and one of the ways to show that your honor is to show that this conduct was so pervasive that it was tolerated and condoned within the environment and in the discrimination cases has noted that oftentimes in most of the time the evidence that the plaintiffs is going to present is circumstantial evidence you're not going to have mr waxman come in and say yeah i was doing this you're not going to have mr clinton say come in if you come in and say he was doing this but the court  overextended its role when it decided for example it adopted mr clinton's version of events when he said that mr clinton stood up and said oh it's going on no witness supported his his his testimony on the plane of pointed to various points in the record where mr clinton