the district of hawaii and we're very appreciative unthinkable for the time that she's willing to give to us to help us with our case law so with that we'll turn to the calendar the st case on the c see your honour's and the sexual harassment and retaliation case plaintiff jennifer christian who was with me in the courthouse this morning was the victim of conduct by a customer of defendant i'm quite a bank that was under title seven for several reasons st a reasonable juror could have concluded that the customer's conduct was sufficiently severe and pervasive so as to constitute sexual harassment  nd a reasonable juror could have could have concluded that i'm by not responding to her ports about harassment in a manner that was reasonably calculated to end and it ratified or acquiesced in that conduct and rd point of had a reasonable belief that she was engaging in protected activity when she declined to reopen the customer's account and refused to return to work until i could ensure her safety so counsel how was that protected activity your honor at the time that miss christian declined to reopen the customer's account she had a reasonable belief that she was opposing opposing a hostile work environment th to formalize the notion that the conduct is and will go on what's your strongest case to support the proposition that close the nia can out in refusing to continue to work constitute a protected activity what cases close's to those facts that support your argument why i think you're i think the case is support but give me your strongest case for that proposition made a clear report not only to her manager but also to the managers to the other supervisors at the bank the director of human resources the other area managers that were at the bank and i think that i in the events that occurred in the mid in late september th teen and by that time she had told her manager at the bank that she feared for her safety he had agreed you know by agreeing to to write by telling her that he would keep the customer out of the bank he said he you know i suppose ratified her at least reasonable belief that she was you know she perceived herself to be she reminds him of him of that he ignored her essentially and i think that's i think that's enough for her to make a report at that time to both mr stansbury mr souvenir you know the other the other human resources manager you know person now i'm quiet so counsel assuming what you're saying is that her protected activity was reporting sexual harassment that that subjected her to that was so pervasive and subject to her to hostile work environment just assume that for a moment where's the the temporal relationship for the retaliation claiming that it was based on her exercising a protected right sure sure i think the record shows that well st of all i guess clarify for me what are you saying is the adverse employment action i think that the st adverse employment action to me the most clear adverse employment action was that miss miss christian had to switch locations right she she you know had taken the immediate and appropriate corrective action that it should have taken at the time she made the report miss christian should have been able to do this voluntarily right she decided that she wasn't going to stay she said she had medical support that she should not return to work at that location and so she chose to work at another location so these other locations however had different job duties and much less hours so you're saying that's the adverse employment action i guess i would back up your honor a little bit you know respectfully i've not i think there is a bit of a dispute in the record as to whether miss christian voluntarily took herself over to salmon creek or whether miss wolf and saying you know what you know before they told her st of all that they closed the account before they told her that they would that they would tell them not to come back they said to her why don't you consider switching locations and had they told her i think that that the account would be closed and that they would actually take the immediate and appropriate corrective back to the actions that they should have taken they would have had to say you know the the other alternative for you is a switch locations entirely ok stage looking at the light most favorable to the nonmoving party there's a question of fact whether she voluntarily did it or they sort of forced her into that ok absolute so that's the adverse employment action and then you're also saying her her resignation is also adverse employment action or now you know i think i suppose i'd say that the series of events that occurred after that you know were were part were wrapped up in that so where's the connection between her  assuming that she did exercise her right and protected right where's the connection between her exercising it and what you claim to be the retaliation i think on this record  temp proximity temp orally frankly between her you know engaging in protected activity and her you know as we view it effectively being forced to transfer that's close enough entitle if there's no other record evidence to meet the prime official case and really what i understood you'd be saying your argument to be was well you should go back because we met our prime aphasia case in the district court can consider pretext and all the other absolutely complaint about a a non employee engaging in offensive conduct to the employer and that this court established that there was a reasonable belief that what the plaintiff was opposing was a violation of title seven and therefore it constituted protected i was the reason i asked the question was because opposing counsel talked about the protected activity being the declination of opening the account and he  not working at that branch anymore thought my question was directed specifically toward those discrete events and being protected activity so that's not your best case for that proposition right for that we're not taking the proposition necessarily that the refusal to open the account is what was protected opposition was her complaints to mr sansbury as well as the other managers about what the customer was doing in that she was opposing both the customer's behavior as well as the bank's failure to take effective remedial measures and that constitutes protected opposition i would like to shift gears to talk about the severe pervasive standard as well as the standard for imputing liability to standard is applied the standard for what constitutes actionable harassment as well as the standard for imputing liability is applied correctly the district court here in our view erred in both of those analyses in particular with regards of the whether the behavior was severe pervasive enough to constitute sexual harassment the court just overlooked several instances of harassment that the customer subjected ms christian to that contributed to the hostile work  environment and the courts the district court seemed to be under the impression that unless there was direct personal interaction between the alleged harasser and the plaintiff that somehow the acts could not contribute to a hostile work environment but that is not the law so long as the plaintiff becomes aware of the acts they can certainly be counted towards the severe or pervasive nature of the conduct and here we have a situation where this customer is going into other branches of the bank and in his christian words badger her coworkers about how to get a date with her and her coworkers were repeatedly warning her to be careful because they were worried about her safety and she became aware of that in the district court completely ignored that in its analysis and i think that was a initially showed the st note that the customer left for her to a coworker who said specifically be careful that this doesn't escalate this could you know was that person from the same bank or from i was that was a quarter of the same bank and  then then she received notes and flowers and brought that to the attention of her superior mr stansbury who called the behavior disturbing and at that point at least decided internally to make a decision to bar the customer from the bank but then he took no action to implement that decision other than to encourage ms christian to make a phone call to rebuff the customers advances but we know that was not effective and effective remedial measure because just a day or two later the customer came back into the bank and left another note from his christian so it was a persistent pattern both things that she was observing firsthand as well as information she was getting from her  colleagues and and i think you know the again that just records critical errors were overlooking certain instances that contributed to the hostile work environment and the court also seem to believe that acts that occurred in february of two thousand and fourteen were not stockers your own house customer kind of the facts like this right i think there are a lot of things going on a case it's like this is that right well they happen with enough frequency that it's a recurring issue but i agree it's certainly not the garden variety sexual harassment case a relatively is a coworker or a supervisor e e o c had a case in the th circuit city versus costco which involves a customer harassing an employee  and in that case the th circuit held that the jury was reasonable in finding a sufficiently severe pervasive work environment so i mean this case does have some of the hallmarks of that case and i think that may have something to do with it but typically as amicus we're interested in correct interpretations of the law application of the correct standards and with the very little time i have left i would like to just address the the standard for imputing liability to the bank i think there are really  critical moments in the record here but from which a jury could find that mr stansbury ratified or acquiesced in the conduct and i the st was in february of two thousand and fourteen when as i mentioned he made a decision to bar the customer from the bank but he didn't actually implement that decision he didn't say anything to the customer he just urged his christian to rebuff the customers advances herself and then if that were not enough in september of two thousand and fourteen the customer came back into the bank ms christian brought mr stance area side and said this is the customer i've been telling you about you said you'd bar the store and since harry denied remembering anything about this and then allow the customer to open a new account position on the other two elements of the retaliation claim thank you and if there are no further questions i will sit down thank you your honor sir thank you good morning your honors may please the court my name is steven kapleau i'm here on behalf of bank with your permission i'm going to start with the issue of whether brad's conduct i think it's the most important argument because it's the one argument the resolves but do you think there's just strong this argument i guess it is our strongest argument in the sense that it's positive everything i i think we have good arguments all along the way and if i have time i'll reach those but i think once you hear that you'll see why we're focusing on this so this court's recent decision in campbell vs why to parchman of education which is it eighty nine to h one thousand and five at one thousand and eighteen provides the relevant standards first we evaluate the reasonableness of the employee's corrective measures only from the perspective of what the employee knew or should have known at the time that it acted the employee or the employer  employer what were the employers corrective actions in this case there that's a really important question here and there there's two sets of corrective actions right we've talked about the fact that there are two sets of incidents right in february of two thousand and fourteen miss christiansen was receiving unwelcome notes and flowers and so the question is what was the response to that and then in september twenty six we have two incidents one where brad as he's known opens a bank account and also he trying to coffee right and there were there were corrective actions to both and i think it's really important when we're looking at that to think about the instructions from campbell because not only does it tell us that we look at it from the point of view of what the employee or knew but also tells us that the response team firstly there was a call to the customer who made the call the call was made by miss christians with that reasonable i think it is ten have the the victim of the harassment call the harasser do you think that's reasonable with me if i may read to you the twenty statement of facts it was presented to after my question st and then you can remain anything you want but there you think that was a reasonable response to the circumstances of this case i do think it's reasonable and let me tell you why because i'm relying on the record right that they'll say right to me because my doing that to yes i apologize i'm relying on the joint statement of facts that was presented to the district court and joint statement number ten says after receiving flowers on valentine's day plaintiff had a discussion with her manager chris since terry offer to talk to the customer and tell him that the flowers were inappropriate and the plaintiff was not interested see your argument is because they agreed to that that it's not a disputed fact that she voluntarily agreed to come to your right that's one part of the response ok what how is that it should be did to them ploy or being reasonably responsive and i understand that maybe that was the wrong decision in retrospect with question that was reasonable but there was really i think it was reasonable i could i mean why why couldn't a reasonable for carfax you know that's just an reason with the banks that was the bank responsibility it has to take care of its employees and that's into story i think would two people sit down and work out a plan and if the manager says i'm going to call and the employee says no i won't call so i guess we're not disputing it you're saying this is a this is what happened and what was greed upon i guess our question really is even if they reach that agreement does that really get attributed to the employee is reasonable action for instance  change the facts a little bit and it was actually either cohen ploy or a supervisor who was doing this and employee complained about it would it be then discharging the employer's duty to address in a timely and reasonable way these allegations of sexual harassment by saying i'll talk to the employee or your supervisor and the employee saying no abdulla it can the employer say ok go ahead and that would be a reasonable discharge of the obligation well i i would be hesitant to draw a hard and fast rule that when somebody receives flowers or a note or invitation for a date to say it it's incumbent on the employer to contact the person and tell unwarranted right and you know when that record at this point summary judgment states to say it's unwanted right and scary because people are advising her hey you better watch yourself ok so i guess the issue is by having the agreement as you put it that the employee you talked to the unwanted advance or at these attention is that reasonable and does that discharge their obligation in conjunction with the decision to also mr mr sunseri also said that if he came in the bank and he would tell him not to return so when you look at what was done it was immediate it was proportional and it was effective there were there was a letter that was in transit at that time but after that point there was no further on wanted communications or flowers your twenty six ok and the statements about the fact that mr christian had previously received flowers from other customers and her discussion with mr center is a yard twenty seven ok so give me your reasoning why you separate the february in the september events right because that's what what campbell tells us we do we look at this as an incremental response we had one type of behavior right where we had this unwanted communications in terms of sending notes and flowers that that particular behavior was successfully addressed using a success story just because there was a there was in transit right once if they sat on that course of action that issue was timely and fully resolved well now appeared in september when they were at that amber right we had brad return right and well at that community event that they were doing the charity work that's right so st he he stuck with ray is very committed to helping homeless people there was a vent where they were handy help ice cream and he was present at the of it and she saw him there and apparently he stared at her and then on september twenty six he's a homeless vets you want to go back to school according to the formal complaint he came back in the bank he asked for a different teller to open the account for him a different teller didn't fact open the account for him it took a really long time right because he didn't have a fixed address and he opened a twenty five dollars all the joint account the joint statement of facts that she said says that missis in syria asked the plaintiffs to open the account in september the joint statement of facts says stand right so what i what i said your honor is when brad walked to be clear when brad walked in he didn't ask for miss christian to open the account for him the person he asked was unavailable as we know mr sunseri didn't remember this incident from seven months before and he christian his christian or minded him and kelly reynolds ended up opening the account and mistress john was upset because it took her a very long time because being homeless that he didn't have a lot of information so it took a while and then a couple days later he came in and drank coffee for fifteen minutes according to the formal complaint and use the internet and he left and at that point the bank took very strong had a very strong response without being asked member she's in file her formal complaint until october for it's dated october three but it was a receipt october  prior to receiving the formal complaint the bank hold security a her paid we contacted her every single day at home her the choice of whether to take corrective actions further corrective actions at the bank or to transfer and we know from her brief her in that in the underlying case that she demanded it her words she insisted on being transferred they contacted two different branches in order to make the arrangements for that to happen tell for you leaving out something well wasn't there a point when the plaintiff was told that she could go into the break room whenever her harasser came into the bank apparently she was told that that was something else that was they were that never happened of it was never a reasonable response to tell her to go into the bright break room whenever the customer came into the bank i know it's given a sort of a very pretty or it of sense that that was sort of like the bank was being indifferent and telling her that that was the sole solution but i don't think it was intended that way the way i read it is not only doing all these protective measures but if for some reason they don't work you can leave your station and and response on the part of the employer to tell the victim to hide as if she were doing so i think if standing alone that would be very unreasonable but i think in the context of this suite of actions that were taken all of which were successful not that was reasonable or not ok so so what you're saying is the reason was incremental i would agree it's incremental but i mean it seems like pretty glacial on the beginning and then in the end after they allowed him to reopen the account so you're saying that letting them him reopen the account is a neutral factor it's not indifferent as to their employees complained so it's even in hindsight right if they should have told this homeless disabled veteran that he couldn't be allowed to open an account just where she was not that he couldn't open an account but he couldn't be in the branch where she was because he had a rasta so  maybe that would have been a better well we're not we don't want to judge him by hindsight we're looking at what is their response and their obligations our law and what we look at is within three days before she files a formal formal complaint the bank takes a media and drastic and effective action so really the question is is that why do they want to reopen the account and then he comes in one more time where he ca several times sent to other branches and left messages for her in february and the plaintiff argues and there's a question of fact right did they really do anything and then suddenly in september he comes in one more time and then they launch into all of these these actions so in a summary judgment standard that we're supposed to look at is that reasonable and was that immediate and as required under to that that's a fair question and that's why i think the joint statement of facts is very helpful because you have to look at the severity and paraiso of ness and also the immediacy there was one to both cases the response was immediate and effective the question is the difference is the severity the perception was that the nd round in september was more severe and the response was more severe are you saying that there is not a material issue of fact on whether or not the action taken was immediate there is no question under it so the quote is the standard the quote the just report correctly applied was whether or not a reasonable juror right which is the standard that's used in these cases and if you look at i think it in every case to address this issue is summary judgment would be your tour of your time but i  have one last question for which is so that you see if you just argue that you know the period of time between february and september that the district court didn't seem to place any significance to plaintiff with the late you know that customer had been in that you need to consider that as well in the overall analysis is just because you make a fairly sharp as i work and put a lot of weight on that formal complaint because remember the the the what is imputed the knowledge that imputed to the bank is only what's communicated so the formal complain doesn't contain any reference to those about you know to nine that she told mr sunseri back in february right so you're saying that that's not sufficient for an employee to raise the issue and then trigger an obligation on behalf of the employer my understanding of those communications i just read in the record like you are right is that she communicated that she was receiving notes and flowers and but but of course i was and i was in present either read or write thank you we let you go over your christian discharge the obligation their employers application to keep the customer out of a bank was not reasonable and not only was not reason what was not recently calculated to end the harassment mr kap seven that mr i'm sorry brad came into the bank two days later and dropped off that nd letter himself that he fit that the mists in syria offer to make the call and the pla volunteered to make the call what are we to make a series of your honor i don't think i think there is certainly a dispute of fact as to whether the conduct was reasonable i would say that that character characterization of her having volunteered to make that call is not supported by the record that's in the greek agreed upon statement of facts that you know you've agreed upon statement of facts i think says that she told mr sands area she would make the call that is not that she volunteered to  and i don't think that that st of all doesn't suggest that she volunteered to make the call and frankly i think that and in point of situation where she has been harassed by by the customers presence in her workplace of course she doesn't want to come back in and it wouldn't when mr censorious said you know next time i'll see him i'll tell him not to come in the bank she'd rather you know tell him herself let make us a bit he doesn't have to he never comes in again right  and i think there's also evidence on the record this that suggest that mr spencer thought it would be best if she would do that so she won she didn't volunteer to make the call i don't think that absolves absolved of its liability here when it was it's ultimately its obligation as the employer to make us to make it so that she was working in a safe environment ok thank you thank you thank you can still be your commands matter 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