dismiss that was granted on all six claims for relief pled by two plaintiffs in the district of nevada the primary claims are retaliation claims and the court had some concern that there wasn't sufficient  nexus between the the objection to unlawful behavior and the of the terminations and they that nexus disconnect took two forms first of all  everything started here in august of two thousand and thirteen let me let me read it retaliation for what you were telling for opposition to sexual harassment in the sense that in the case of leon archer lot of first calling for relief in that a  that for me the interesting difficult issue was it has to be for up opposition to sexual harassment yeah and i was trying to find her opposition was she said it made her uncomfortable let me finish  sorry as far as i can tell he grabbed her hand to look at a ring in public she did not complain about it to anybody somebody saw it on t v it was in public and videotaped i guess and  on confortable and yes something else odd odd and i was thinking i see these politicians on t v all the time and they're shaking hands with somebody and instead of just the right hand shake they put the other hand on the arm or they put the other hand around them i hate when people do that to me makes me uncomfortable and feels odd but i still can't see that she was opposing it in fact what her boss disciplined there for was as far as i could tell for not opposing it she was disciplined for not reporting sexual harassment and so i'm having trouble with the opposition part of the test well we believe the evidence will show that wasn't that the discipline was related to the allegation it was an unrelated issue involving the prison rape prevention act was the discipline one week later and then i'm talking about the taking the handle look at the rocha yeah and i think that is protected opposition to keep in m focus on where is the opposition ok as you say keep in mind we are still out as the high level management position at this facility did not want to make a big deal of this because of fear of what happened and indeed she got fired and she just recently lost her replacement job because of the fact that she filed a lawsuit against that there's a public record and when you look for positions at this level if you've got a record of a lawsuit it's extremely difficult to get work so she did not want to have to assert herself if she could avoid it however she was polled in the investigation it's a prison lots of videotape lots of surveillance video they are seen by the  information management person he'd grab the hand and she made it clear that she did not like what was happening but i don't know when she was subject to in by an investigator who was looking to see if a sexual harassment charge ought to be filed she didn't say that she felt it was sexual in any way and she didn't say it was sexual harassment she did the best he could get out of her was uncomfortable and then her boss disciplined her for not reporting sexual harassment i put those things together looks like she did not oppose hand to look at the ring incident as sexual harassment and i'd like you to focus on that rather than the talk about these other things and tell me why it amounts to opposition because she made it clear that she opposed harlee lap and actions that day she was opposed to it it made her uncomfortable it felt odd she was reluctant it's the same sort of situation like a whistleblower case clearly whistleblower protection protects the person who calls up the government body and says  they're violating banking regulations here or something like that but when the banking regulator show up and they start asking people and the people sort of then kind of cooperate with the investigator and say well you know i don't know that it's the exact opposite of that hypothetical in that hypothetical the person first made a call in this case he did not first make the call instead in this case she gets disciplined for not making the call and not complaining about sexual harassment again the record will not show that she was disciplined for not making the call the discipline was for unrelated notice also disciplined for failing to report sexual harassment as i  recall that's not in the complaint and we're dealing with a motion to dismiss so we're dealing with the four corners of the complaint here that wasn't in the complaint no it was not like you know it was not and i guess at the kind of complete my analogy with the whistleblower case if the invader regulators investigator show up and people who didn't report start saying well i don't know if this is a violation but my employer did x x y and z then that person is also protected from retaliation even if they're not the one who made the initial call so making the initial call is not a requirement to get the protections under retaliation it is making sure that you are opposing and she opposed what the employer themselves labeled as sexual harassment that she was uncomfortable she felt it was odd she didn't want to stick your neck out too far but it still was enough that she got fired lawyer looked into it they investigated it but i don't know if they claimed it was i thought it was you know i guess i was just assuming that the t v shows you the visual but not the words so you see somebody taking somebody's hand but you don't know what origin or exchange is that true you know the investigation was launched by the  person who was monitoring the surveillance video and i believe the evidence will show that he said like possible on potential sexual rights you got my question my question was i assume but i don't know th surveillance video is silent it's a silent movie you don't get to hear what people are saying to each other's true in this case i don't know because i've not seen the surveillance video because we've conducted no discovery i've seen surveillance video  cases where i've gone against casinos and it's silent and casinos can afford state of the art so i presume that the that is but it's presumption that's why i assume to every surveillance video it seems right but the surveillance video th again because we did not get the discovery has not yet been produced in this government to be able to answer that question and that's why this case needs to go to discovery because there are unanswered questions like that that need to be fleshed out and so she made it clear that she opposed harling lap ins actions and she suffered within a week she was disciplined and in the complaint we say that she was disciplined for a false accusation of violating the prison  rape elimination act well but it sounds as though your real complaint is she was disciplined for that but that was an excuse that was retaliation for sell when she's doing yeah yeah that that was pretextual and when we get t mr dickens's calling for retaliation when he said leeann is telling the truth and supporting her and kind of not wanting her to be left out alone on this march incident that happened  his opposition was refusal to participate in a pretextual firing and that's the protected activity that he knew based on the history with this warden that they were after he correctly read it and kind of what showing the linkage here is the fact they were fired on the exact same day simultaneously assuming that we have pretext is what the pretext is for is retaliating against somebody for following a worker's comp claim that's another potential theory and again we plug them in the alternative because we want to see which way the evidence takes us whether it takes us in the direction of because the work of the workers comp injury occurred it's both retaliation for opposing sexual harassment and retaliation for filing a worker's comp claim i wouldn't say it's an and it's an or they're played in the alternative because of the nature of but for causation we can't prevail on both but at the pleading stage again we're not sure which direction we've not seen any of the internal memos and so that's why i mean i my expectation is that the first two retaliation claims of the direction the evidence is going to take us but there's enough there given the timing with the workers comp that that cannot be written off given the history of warden collins with with the white assistant warns we don't think the race discrimination can be written off and now before you sit down i'd like you to address at least briefly the race discrimination issue that was dismissed on the ground you didn't plead really with particularity we played with as much particularity as we could before discovery in saying that her pattern and practice is with the assistant nevada and work as a deputy under collins he says no i don't want to do it because he's got this reputation for having conflicts with him and firing white deputies and then martin comes back and says no i'll protect you i guarantee you'll be fine so he takes then in the end the complaint says he gets canned but also that he was quote subjected to bullying and harris not by columns now with respect to the prior firing of the earlier deputies the names of those not pled because you don't know what the names are i don't know what they are we just it's one of these things where michael dixon sitting in texas working that's all you need to say but as to the bullying and harris meant he does know that because he experienced it but you don't give me a hint as to what it is  and a lot of that ties into the you know your playing with fire when he tries to give equitable discipline in the thing like that kind of making it clear that she was kind of over riding his authority that that's in kind of violation of chains of command is a very very severe issue in prison so that's a lot of the good but i'm trying to figure out what evidence you have of the racial discrimination part that would support the  might have a racial component with it somehow identifiable by the nature of that no no that it's just her pattern of mistreatment of white assistant warden say i didn't even want to have you hired and then firing him within just a little over a year after he got there kind of a the first opportunity so kind of making it clear that he was not long for that job is the kind of this is the bullying and the harassment but i don't believe the evidence is going to show that her bullying harassment took a particularly racial form and your issue with charlie martin also brings up the n r s six one three point zero one zero claim about fraudulent guys representation is here from the other just i'd like to address first your points your honor that you've brought up with opposing counsel the first is whether these individuals engaged in opposition and we're talking about both both of them are alleged to have engaged in opposition of protected activity under title seven neither of them did and isn't pled that way in the cleanup under crawford that  the complaint is played is where the problem lies she specifically says in the complaint that she was asked if it was sexual harassment there's no allegation in the complaint that she held a reasonable belief that she that she was a subject or a victim of sexual harassment that she held a reasonable belief or somehow felt that something was done that could put our company on notice that she was a victim and when she has  no magic words but when she is expressed we asked do you feel you were a victim of sexual harassment under this case or under the circumstances she merely said that she felt odd and uncomfortable and in fact in some of the  briefing or that it was odd that it was odd i promise i don't think she said she felt that you are correct your honor that it was odd and uncomfortable when he grabbed her hand but one of the problems that we're seeing though in the briefing is that all of a sudden this is a groping incident this is a fondling incident but in the first amendment complaint itself which has been amended once pursuant to a roadmap given by the district court saying here's your problems with all six of these claims let's let's fix them get him back to me and i'll take a look at him that if it indeed was groping fondling those hot button words that should have come out in the first minute complaint and not just now in the  sympathetic with someone who is the victim of either sexual harassment or sexually tends to behavior that makes someone a comfortable we all know that the peace person subject to that is rel the company just as a higher up in the company does something weird slightly sexual makes her uncomfortable i think in her position i would have been uncomfortable don't make a big deal out of it she's a twelve year twenty year employee never had any discipline against her before she's clearly figured out how to work in this environment somebody else sees that tries to make a big deal out of and she still tries tries to be truthful about it but doesn't want to make a big deal out of it she says it made me uncomfortable it was odd she doesn't say it was sexual harassment but she describes i assume accurately her response to it it may be for the outsiders in evaluating decide whether it is sexual harris meant she clearly doesn't say i really liked it she clearly makes this race pretty clear she didn't like it why is that not opposition person now she's made it clear she didn't like it understood and i understood that i understand the court's concerns under these circumstances first my first part of that response is the complaint itself makes no allegations that she feared for her career and therefore changed her response as part of the investigation in order to save her career and they had clue in what you mean changed her response i i said nothing here about change response she kept her mouth shut somebody brings them to the attention of the authority in the prison when asked she says x what did she change in the complaint itself she never says her answer was not consistent with she felt because of this fear of this higher up her complaint says this is what i was asked this is how i responded not this is what i was asked and even though i felt sexually harassed i responded a different way out facility with this higher up lap and he behaves in this way she says nothing to the authorities and then shows up on the video somebody spotted one question she describes  accurately her reaction which was say she didn't like it correct and so i don't get to change at all she just that's how she behaves and i understand that i i don't intend to say that she changed her response only that if she was hiding it at that time now is the time in a law suit when you can say i engaged in protected activity maybe i didn't say that i felt sexually harassed or maybe when i was asked a direct question by the investigator if mr lap and had sexually harassed me as she pled in her complaint that she instead downplayed it said it made her feel uncomfortable now is the time this complaint the set and the first amount of complaint is the time to explain i downplayed it because of this fear but she does not say that she doesn't qualify so my response to that concern is that that concern being glaringly devoid from both the complaint and the first amanda complaint was not her concern well but i find the behavior here really difficult to understand we have a twenty year employee of the company who has never had any disciplinary  infraction register against her and the entire time she was asked about this she says i felt uncomfortable it was odd and a week later gets written up for discipline first off the discipline and then the firing ok well that is that would be an issue in this case the first discipline was her failure to report misconduct invite scuse me in violation of the prison rape elimination act and the second hearing her subordinates well i understand that but she's saying that's the those complaints are baloney i am i've been working here for twenty years old the rules i know what i'm supposed to do i've never been written up before and i'm now being written up immediately after i tell you what i thought of what this appear your did to me right and i think it comes back to while there are some issues concerning whether or not there's causation as far as it's played in the complaint the bottom line is that she didn't engage in protected activity and in fact if you go back to clark county protected activity when she is treated in this way that someone from the outside could have called sexual harassment she doesn't say the magic word sexual harassment but she makes it clear she did not welcome it and as soon as she makes it clear she did not welcome and and is there now public she gets what she says are these phony baloney allegations and doesn't one and then she gets canned because when you go clark county school district versus breed it talks about if there is an isolated incident without more you have to look at it from what a reasonable person under those circumstances would feel was discriminatory or harassing conduct and how good looking at a ring on someone's hand which is how it's put in the complaint has to be looked at from that standard well depends i mean if we're talking about what constitutes actionable sexual harris mark i think this is not enough on the other hand if we're talking retaliation you don't have to allege something that in fact is actionable all you have to talk about something that could conceivably or be thought to be sexual harassment so she doesn't have to show for berbers retaliation that what black men did to her was the target was going to give her a successful time the problem is the victim on page fifty three paragraph twenty seven what are you talking about a plaintiff's are two letter was asked by the investigator for mr lap and sexually harassed her go to paragraph c plaintiff's are to let a acknowledge she had not reported the incident as sexual harassment but knowledging i'm not reporting this is sexual harassment i'm listening please please read it she had knowledge she had not reported the ensign a sexual harassment that is to say she didn't report it she is not saying i don't regard it as sexual harassment and rely on that complaint i agree with that that's a motion to the smiths but i'm having trouble with your argument as to why the coming point isn't enough to if i understand your question correctly at this point under the complaint a third party said a sensibly and i t person who were viewed surveillance video said hey i saw him grabber hand that sexual harassment the employer lodges an investigation yeah and the employee is dressed directly told you know hey is this sexual harassment did you feel sexually harassed while the is third party from the video they interview her for sexual harassment she went so four of says say it made her feel uncomfortable and  available on the actual harassment claim correct and with respect to the protected activity in order to oppose it in order to get into the opposition clause you have to oppose behavior that is illegal under title seven no no you know wrong no well and i'm i'm not saying that that actually in fact was but there has to be something that is made a legal five just for you it looking at my brain and let's say every prior fact and every potential prior fact thinks that's ridiculous just isn't sexual  it's just annoying behavior like the hypothetical politician who dominates you with both arms when all you're trying to do is shake hands and it's if she files a it doesn't have to be ultimately found to be sexual harassment or a conduct that was illegal what it comes down to is her belief her reasonable belief that this was conduct that was violated of the title seven even if it's ultimately found not to be so what i was trying to say is that under the circumstances she's presented with this question giving her putting it on a silver platter and she says while mamie felt odd and uncomfortable so when you're looking at the at the totality or it was odd and it made me feel uncomfortable so when you're looking at the totality of the circumstances and you look at the timeline and you look at what what was alleged as what happened on the video that he took her hand and looked at her ring and that you look at that someone said hey were you sexually harassed or there was a sexual harassment investigation and her response according to the first minute complaint is odd and uncomfortable then as you look at all of that did she truly oppose behavior did she have a reasonable belief that she was opposing behavior that is illegal under title seven whether it is or not was that her belief when she went into this investigation when she participated and answered these questions she clearly expressed her opposition to the behavior she didn't say it was ok with me he and i were friends are all kinds of things she could have grabbed that would have sort of cleared lap and said hey this is just fine with me she didn't say that at all i said i was uncomfortable and it was odd and she says that you know in a context where she was just we know this in the world you start making complaints you're you are asking for trouble and  got it so the question is whether or not her relatively mild i understand exactly why it was mild but her relatively mild objections constitute opposition within the meaning of title seven such that the because i'm pretty close to thinking it's enough and she made it clear she didn't like it and she made it clear that this was in the context of exploration as to whether or not this was sexual harassment in the form of making appropriate and sufficient allegations at the time of the complaint she doesn't say anything about having a reasonable belief or being in the moment that she felt of course in the complaint i'm not suggesting an investigation she should say this is violate of a title seven but in the complaint that's when you have at the time i had a reasonable bubble belief that i was being mistreated or mishandled or inappropriately touched and all it says is that it was an odd situation and it made me feel uncomfortable as a stranger grabbed her hand and i understand from the judge's explanation that double handed handshake is uncomfortable for example under those circumstances but now i get that but in a way this is a particularly disturbing case because if it's true that  is cause and effect that is to say we get this investigation she says with respect to what mr lap and did it was odd and it made me uncomfortable if she gets disciplined for that god help us other wines in the complaint that made me wonder whether it's a little more complicated one is on page fifty three paragraph twenty seven day ordinary house later falsely accused plaintiff arch aletta of having an improper relationship with mr lap and based on the video recording and then on page fifty seven paragraphs forty five c as set because of this incident involving inappropriate an unwelcome conduct by mr laban what it sounds like there is that her boss the warden collins  was teasing her or mocking her or ridiculing her about maybe she's too tight with late and too friendly would leap in and putting that together with the fact that warden collins disciplines are six days after the interview with the investigator where she says that she felt uncomfortable  i can't figure out what inferences to draw from the suggestions that the warden thought that far from being made uncomfortable the warden thought that she  was right your honor and i agree that those allegations don't fully make sense in the grand context but at the end of the day the way that we read that is that that would have to do with perhaps they're trying to allege facts that would support the cause ation element here are issues that made us feel that this investigation and her participation in this investigation therefore resulted in her term a nation and here's the intermediary facts  warden collins allegedly made fun of her for things like that but at the end of the day our argument is still that she did not engage in protected activity because she didn't oppose conduct that a reasonable person would believe to be violent a title seven grabbing one's hand and looking at their ring as it's alleged in the f a c i would like to point out your honor quickly you asked about the sexual being disciplined for sexual harassment for not reporting sexual harassment and that would be paragraph thirty seven which is page fifty six and it does say warden collins ordered plaintive dickens to write a plaintive arch aletta white caucasian and investigator non white latino for failing to report the sexual harassment although warden collins ordered plaintive dickens to write up a defendant only charge plaintiff arch a letter with an offense so there is an allegation that herself thought this was sexual harassment otherwise there's no basis for discipline or for failing to report i don't think that's what it means what i see that to mean is that at the beginning she was asked if it was sexual harassment she didn't f to report it as sexual harassment and she's been disciplined because he doesn't report it as sexual harassment would suggest that the warden views it as sexual harassment or that the warden wants to get laid and in trouble collins's her boss and the leap in is higher up and he's warden collins boss that's my understanding that he's more of a regional director that he comes in from the outside he's her boss so he we might day it's a very confusing because even that alleged adverse action and disciplinary actions that are references problematic throughout the first minute complaint don't include a write up for failure to report sexual harassment so i'm not even sure that plaint understanding is that she is actually incredibly good at her job and is moved around to different presence to help us she sounds just wonderful and she said i know it's a beauty of complaints well let me ask you about the question that i asked her at the end of the argument on the other side and that is with respect to dickens dickens who says i don't want to come because she has a reputation of firing white deputies now that was dismissed basically  that it was there's insufficient pleading if we could be shown a pattern i'm now making this up i understand of four white deputies in a row who are fired by her after a fairly short with the race discrimination claim or the n r a six one three zero and the race is going to race discrimination i think what's missing are the allegations i certainly see where you're going with a hypothetical what if he can show that there are these assistant wardens who are also white and they were fired and they can show race discrimination i think what the court's issue was there was a conclusion drawn with no facts that race discrimination had occurred before dickens arrived here at race discrimination occurred before dickens arrived therefore the similarly situated issue is addressed by saying because it already happened clearly it's happening to me now and i think what the court's concern was that there was no factual allegations even well i mean i would think that if you could find out on discovery that she never said a word about race but she fired four white guys in a row and she didn't fire non white guys and it's hard to see any justification for the firing she made whether that might be enough so that a jury would be allowed to draw an inference i don't believe so because what if there were only white men hired into the assistant warden position then i mean i'm not a fact it would offset that possible inference but what if there are plenty of non white guys and she informs them she just w guy comes to work for he's gay and within a short time at the end of the day it should have been fled if mr dickens in fact close enough to if it's twenty six so he probably doesn't know yet and this isn't a securities case right where you need a snitch and the facts simply the facts right from the outset and if he knew enough to say that this was happening then he knew enough to explain where he got that information at least one minor bit and it goes also to the bullying and harassment even if he does even if he could fix that and say or even if this court allowed it to go that there are these all these white guys that's what i'm thinking about is in hiring employment and employment discrimination cases it's not uncommon to draw inferences just from numbers nobody ever says a word but all the people of one or another ethnicity that don't get promoted are right fired right no i understand that but i think this claim would still have to fail at a minimum on the bullying and harassment if he truly was bullied and harassed how is he treated in a discriminatory nature and there's not one fact to say other than i use my real without and i would kind of along the lines of judge kleinfeld questions with respect to the prior guys white guys were fired i'm swimming that there are some based on what i see in the complaint at this point he doesn't know when he's he's heard from martin the reputation is out there with the sort of the word is out in a very clear he says i'm not going there because it's dangerous martin talked him out of it and says i'll protect you and i happened martin turns out to be wrong but it's very clear that he had enough basis on which to say i'm this is dangerous territory not go in there he knew that much but he didn't know who these other guys are now with respect to bowling and harris meant that he has him self experienced he's in a very different situation that happened to him he knows that and he didn't plead sort of racially discriminatory statements or whatever and i gather that's not really part of the racially discriminatory claim at least that's what i heard on the other side and on that one i think we reasonably could expect a little more particularly in the complaint if that's the basis for well he says in his six one three zero one zero of false statement claim that the regional director told him hey we've got some issues going on here these are what we see that they are but we'd still like you to come so that's actually the opposite of what he pleases that he was fraudulent we induced to come by someone who was a fraud it was just a claim i'm just talking about the evidence that we have that would support in the complaint and the allegations that would support a claim for race based discrimination in the terminations but where i was going with that is in that claim he says that this director told him that white assistant warne's were being fired by miss says regional director martin again approached plaintive dickens about taking the position of assistant warden regional director martin advised plaintive dickens that there were serious quote unquote racial problems these racial problems were in addition to warden collins pattern of having great difficulty working with assistant wardens yeah so if if this regional director is telling him this and he wants to use that information to support his race discrimination claim what exactly intentional racial problems were in addition to wharton collins pattern of having great difficulty working with the system wardens and other upper level management employees who were white caucasian so my point being if we have this conversation that allegedly took place where he learned of this information why is where is that information so that we as the employer on notice of what i guess what makes this case kind of harder for some probably why we've gone so far over the time limit and asking you questions is that it will be six right usually you have a whole lot more to work with and for that matter the plaintiff has a lot more to work with in pointing at facts because there's been an opportunity for discovery but here it's twenty six so yeah at the twenty six the guy hears things another guy hears things they don't know what's true they don't know the extent if it really is true then the warden might have figured out how to behave as though she's being tape recorded all the time so she never mentions race but she sure acts on it who knows it's kind of early in the day and it will be six day job i understand your honor and i think at that level underlying district court judge looked at the first complaint laid out a roadmap and said this is what's wrong this is why i don't believe that you can sustain a complaint at this level under twenty six let me tell you how to boss so she can get rid of her boss that the boss is already having concerns about her because she's firing all the white boys and she's getting into racial problems involving inmates and staff that's what the office or that's what this regional director says and who knows how it's going to develop and discovery this may all be total nonsense and it may all have a basis i think that's our position  is but i understand we're at the twelve the six stage we believe that the court did give them the opportunity to fix things that would have been relatively straightforward and simple to fix and they were and it wasn't  and i don't think that i think that they had enough facts to support a claim if there were those facts that existed i don't think the court was saying let me have all your evidence and we have all your issues it was you were making conclusory allegations of these elements and i'm not going to allow that you have to give me something and he does and they didn't and she said that's not enough ok thank you thank you we have taken up quite a bit of your time thank you for your response very briefly on on rebuttal i mean all allegations that you want to conclusion to be drawn from or innocence conclusory allegations and we hear a lot of talk about what inferences to be drawn inferences being drawn is not the point of a twelve b six motion that's the rule of the jury so we can pass the summary judgment of now i've been given a really good roadmap as far as what needs to be produced on an opposition to a motion for summary judgment that always gets filed in applying the cases i've got an excellent road map with that but we need to have some discovery to flesh these issues out because some of them are legitimately confusing to me and i don't know what it means we've not the post warning collins to find out what her thoughts are there's issues we know what she's going to say who me well let's see how she says it that it how credible it is and you know there's things about the sexual harassment allegations we know that that was said to dickens but that wasn't necessarily known to us that's kind of one of the difficulties with with two plaintiffs is that it's kind of unclear which goes to which but we do know for certain c c a was treating this as a sexual harassment issue because they acted like that it was mocked by warden collins she was told she was having it inappropriate relationship it was reported by the i t manager that was sexual harassment michael dickens is saying he was directed to write her up and incidentally never actually got the write up that mr dickens was told to do so c c a was treating this like sexual harassment they were treating leonore challender like she reported sexual harassment and then she lost her job she lost her asks that our children to be written up for failing to report sexual harris to michael dickens but that doesn't get transmitted that the failure to report to leonardo lotto i don't have that actual right up to know what's right so what i'm saying is that wharton collins herself characterize characterizes it as sexual harassment yes and like the race discrimination claims charlie martin is the one that brings up the issue that there's this pattern of racist criminal that's that's clear and they're so thank you thank