thank you and good morning your honor sir as director of the appellate litigation clinic the university of virginia school of law i'd like to introduce to the court this morning to third year students who have satisfied the practice repairman's and who have our client's consent to argue the appeal this morning with the first of those three things that must brothers with the folding activity people subjectively and reasonably believed was unlawful under title step because section seven zero four a of title seven forbids employers like the city of laurel from retaliating against their employees based on their opposition to unlawful employment practices under title seven and this court is held in lawful and that that kind of protected activity or opposition don lawful activity can take place in the form of informal grievance procedures or even just voicing one's opposition to unlawful practices mr others engaged in that kind of protected activity on at least two occasions for the purposes of this inquiry first on february twenty six and her memorandum to her employer where she describes in depth at least one instance of harassment that she endured and pleadings below and the first instance that we would read the court's attention to is the one on february twenty first where miscue back physically grabs mr theirs without our consent we think that instance is especially important because of this court's precedent and that all of your justices are honest joined in that case the court found that quote physically threatening or humiliating instances of harassment even if they're isolated and standing alone are enough to create a hostile environment for the purposes of title seven because those kinds honor because there's for a number of reasons but there's independent evidence on the record to suggest that race was the motivating factor behind this kind of differential treatment the mistress was subjected to and that comes from a number of different employers within the city of laurel early on mr there time at the city to separate employees approach her to say the korean kubiak the supervisor was causing these problems from a struthers quote doesn't like black people that's a quote from several different employees in the record mr oliver welfare and this journey i understand that said to mr others from the outset highlighted because the district court dismissed on the idea of sufficient notice not on the reasonableness of her belief and so it didn't dive into whether her belief was reasonable or not this goes to reasonable belief enough to sufficient notice the notice issue is what the court below found upon and so that's why this might that act argued to the district court under this kind of rubric of notice this is why the city was on notice because of this statement is i didn't see that in the summary judgment people i'm a little concerned that sort of hard for district where judges have got a million facts and they've got arguments and you're supposed to bring to their attention which facts you want them to consider under which arguments you know i don't have the exact page number but i know it was argued in the low from mr others i don't believe that he highlighted it in the opinion but you but do think it was argued not just to show your first argument that she reasonably believed this was a matter of racial discrimination but also that you or you to she argue to the district court when it comes to whether or not the city was on notice this is something i want you to consider i do your honor although to be clear i don't know that it was a separated out on the reason or else of the belief and the notice arguments i don't know how clearly they were separated in the initial briefs but i did i do think it was argued in both and especially because peer in your is the person who receives that have a race based issue even stranger than that she comes and says i'm being treated differently this woman doesn't like me what's going on and he says she wanted someone of a different race to have their job we think that kind of evidence is especially strong because it makes it even more objective and it shows that that employer is on notice of the racial dimension of their relationship so when he was merely doing that the complaints on their fees without that statement would have put the city on notice you need that statement your honor i would think that your your honour's don't have to hold that the complaint along would be enough but i think or like race here in the struthers case and that's because courts and employers alike recognize those terms of aren't that are especially associated with title seven including what this court has already found to be the worker rassmann but the word hostile environment was also used in that complaint and it's equally as associated with title seven and the word humiliation was used in this complaint you think the employer would have known what kind of discrimination she was complaining about this like whether it was she and she was in each discrimination complaint or gender or race doesn't matter so you know i don't think that it matters because the question or italian case is whether they fired her based on opposition to title seven or have an activity and so regardless of the actual basis of it i think that if they fired her because she was engaging in protected activity it doesn't matter which basically in terms of whether you can say the city was reasonably on notice it's sort of weird because i'm reading i think when you read the whole thing in context it sort of seems like she's complaining about her really and i don't want to underestimate how awful this is but a really awful boss who's just like nickel and dime in her about every dorm little thing and making her life white unpleasant at work but i feel that if i was just looking at this letter and i were the employer i'd be kind of or depressed to see more than that and she seems  she wants an investigation but not an investigation into discrimination she wants an investigation into a more kinds of pants she was wearing on friday the twenty first and friday the twenty eight and so i mean this sounds like a terrible work situation but i'm not sure that i would get more than that out of this as an employer you know i think that might be true based on the complaint alone although this court has already held that harassment should be enough to trigger an employer but i think the role of both of the cases you're talking about there was something more in the word harassment their  the person getting the complaint was in fact one of the people doing the harassing so are they going to be able to impute to him what's going on and the other one it was at the employer immediately says call ego so we know that they read it that way so it's that's why this case is stronger than just in a koli the four corners of the document where the word harassment a hostile environment even if that might be enough we have more evidence in this case to show that the person who received that memorandum is the person best equipped to know that race was at issue here and that's because tardiness whether it's the monitoring her every movement whether it's even asking to go in the bathroom when she does not do that for any of her own employees by kubes own admission of whether it's this physical altercation between the two of them in february all of these are told keep your n p r who is the same hiring decision makers preference for one candidate who happens to be white over another candidate who happens to be black but so cannot support a reasonable inference of racial bias and he goes on to talk about other evidence in the record suggesting some not undisputed in the record that that's the meaning that the record shows and in summary judgment there has to be no genuine dispute about material fact and this may be the most material fact in the record of whether the employer injected race into this conversation so where that kind of just cute exists in this case should not have been dismissed below for summary judgment because that's exactly why it needs to go to trial the suss out what was said and what was meant by that kind of a statement so that's why we think a particular of the district was wrong in that analysis we also think that the complainant in a as i believe you mentioned earlier that the employer knew about the background situation and coldly but we don't think that exactly squares with the opinion of holy as written well they do mention the upwards of twelve instances of harassment the works actually severe and  that's all in the context of the hostile work environment claim not the analysis of the retaliation claim in a coldly there what the court focuses on is the protected activity at issue which looks a lot like the one here where a koli the plaintiff in that case of mr her employer  of the complains mostly of general notions of fairness but also includes the work of last minute and that's where this court found that the use of the word harassment was enough to place the employer on notice even though the person who received that memorandum did not have the background knowledge that p r and her had in this case there is a throwaway line in the coli after the analysis that said surely stuart who was the harasser in that case would have known that he was harassing somebody but we don't think it wholly can be taken for the proposition that the harasser should have known they were harassing something that's action here the end tire employment of mistresses with the city of law was only twenty two weeks so we're certainly within that causes an action and the actual protective activity is much closer we're not just looking at the twenty two weeks the first instance of protected activity that's contested here case were not satisfied namely that our employee under an objective standard would resume reasonably believe that they were complaining of racially harassment and that the employer was not on adequate notice that really what their struthers was complaining about was based in race and i and so i want to start with what judge harris mentioned in terms of the february twenty six two thousand and fourteen memo it talks about the genes incident and it talks about other things such as not having city employees that are das she can't leave her gas she feels like she's more like a receptionist know that this was based upon a racial component because mistry there's goes through and in great detail about the issues she's having i think this judge harris said with what she viewed to be a difficult boss  but you know that that is i mean it's an interesting issue but she is are we to then just presuppose that because one is of one race and another person's of another race that when they don't really articulate any race based reasons that the employer would naturally leap to the conclusion that it is somehow racially motivated the same as if we were to suggest that you had  specific way whether anyone objected to ms struthers being higher and he indicated that no one that was part of the interview panel indicated that that there was any maybe not so obvious a that she preferred another candidate than to highlight the fact that the candidate having to be of another race at least arguably injects race into the equation why is it for jury to decide exactly what she meant by that or preferred another candidate who happened to be white but that's so weird about this and i spend so much time on this part of the deposition because right you can read the statement all different ways it could be it could be that the saying he told me that struthers wanted to hire someone else and now me plaintiff i'm telling you that person was white but which would be an entirely different and if watch she's saying is he told me my supervisor wanted to hire someone white and that's how she found this other person but what strikes me in the deposition is so she makes this incredibly ambiguous statement and then whoever's questioning her tries to clean it up but really is that what you mean well i would say your honor that i also missed struthers when she was when we were discussing later on where she said she had a meeting in november of two thousand and fourteen and this was a meeting where it was mr parent or mistry there's an back and this is where this was the meeting room instructor says if you don't like me and i don't know why you don't like me so there certainly was no indication you know in november of two thousand and fourteen that she really had indicated any testified yes i did prefer ms blankenship as a candidate i didn't have an objection to misc rather is being hired i just thought ms blankenship was a better candidate and preferred her as a candidate for the reason she was six an existing coup back had supervisory authority over other individuals where she would be doing that mr parent or was deposed she said i had every expectation that this compact with keep track of ms struthers time and her work performance and what and she admitted in her in her deposition your honor as you know she really didn't have much supervisory wrist she never had much supervisory spirits and so she began logging in and when  show up to work based upon the advice of michael green who was the human resources person that said if she's indeed showing up late for work then you need to the head and document in an expanding into serious doubt if they want documented no why she was right she was fired for not showing up for work on time and that was what mr parents said he said the city manager in this and the mayor's expectation was and i think it was if you're not there five minutes early you're late so that's what you're sticking with i don't that sounds like it but so if it's not any workplace problem because the letter of performance from the letter also alludes to performance problems at the city's position it was all is that it was all about that i don't yeah yeah yeah  sure i mean there's i mean that mr parents are clearly stated when he decided to let her go during her probationary occurred it was it was clearly based upon so i was right she wasn't showing up to say you know what we fired her because she complains all the time and she's having this fight with her fact that i believe i'm being treated unfairly on the basis of my race and the march by email which i can see mr parent or couldn't say whether he recalls getting it and obviously he doesn't recall getting it and he doesn't dispute getting it he can't asking whether that factors in at all to how an employer should have taken this letter that when an african american woman says look everybody else gets to wear leggings and i don't get away leggings and that might set off alarm bells you know your hon read my review of the record is is that actually what her complaint was that anna the receptionist who's in a spanish female was permitted to work tight clothes and that her complaint was that ms mills the city manager at indicated that although the clothes she was wearing were appropriate in the sense they were jeans or were too tight i don't you know it's a very difficult thing your honor you know it's for me it would not i mean i wouldn't i wouldn't sit there and view that as a race issue if someone were a pirate getting emails saying you know i think i should be permitted to wear this and you have mr parents are saying ok i'm going to look into that issue and then you get sort of a cryptic e mail that says i want to file a grievance and there's nothing that's sad about what exactly that grievance is going to be i would i would not reach a conclusion i mean and obviously the district court didn't reach that conclusion you're sort of educating me that that has been a historically a an issue i'm going to be very candid with you yeah so you know i i i i don't believe that was you know that entered into the equation because the reality is i don't think you know notwithstanding the was that far complaints that anything really was of that kind of of it indication that it was really racially motivated and you know in the other cases the a koli case i mean those cases are on notice of you know he's the eros or and he was aware of the that complaint had been forwarded to him before the decision and you know the notice had been provided that she was going to be fired in a  honor if that were the case then when mistry there's indicated that she wanted to file a grievance after her three month evaluation then logically that would have been in if they wanted to get rid of her on the basis of her filing wanting to file a grievance that would have been the first opportunity they could have done that the bottom line is is that she was a probationary employee ending the term time of her probation and a decision was needed to be made whether they were going to you know make her a permanent merit employee or whether they were going to go i had and let her go and you know as often is often the case for counties and innocent allergies they use that probationary period term and whether the employees progressing and that's when you know that's why i understand what your honor saying but i and mr parent are and he has he said i like i like mistrust one does not want just like she was performing her work with not about like he's a performance of the work right and so he was and she told me that we use it's a it's a three month a valuation to try and improve your performance during your your six month probationary period so it's not a formal evaluation it's basically a work plan to it to address whatever concerns the immediate supervisor  but i don't dispute your honor that that mr parent or i wrote a letter of reference for ms struthers he certainly testified that he himself like this struthers he's also the person who that made the decision your honor and m needed to be like out so the decision maker here is certainly on record as saying i like mistry there's i don't have any issues with mistry there's but however the city's policy is you need to show up on time she two weeks at the end of two weeks it was extended another dozen a record also show that the employer didn't even honor that two week period and i didn't i respectfully disagree around it actually i think the record shows that the employer extended the two weeks to a mom that's actually was simply honored the extra time that she was allowed for the take care of her child so my statement is that for one month she was permitted to come in late with the understanding that after that one month period she would be at work on time and ready to work at nine o'clock and i guess what i'm asking is during that one month period the employer honored that agreement yes it was ok yes that was not held against miscue back in her deposition admits that she managed four employees in her time at the city of laurel two of which for probationary she also admits that she surveilled the tardiness attendance of no other employee bu on time but might greene and his deposition says that that was a month and to misread their employment and christi mills the city manager says that she's the one who told kareen it's you've become back to go to mike green and she also cooperates that was one month into mr others she had chosen on her own volition to fail miss structures in terms of the points of law that i would like to briefly rebut in turn mistry there is definitely has a reasonable belief here in light in the light most favorable to her based and quote felt that they she didn't like black people joan anderson told struthers that christy mills the city manager knows about her individual history with miscue back all over wilfrid said that he and his wife  treated like scum and no one would ever do anything about it and miss anderson tells mistry there is to go to a council member smalls the only african american member of the city council of laurel with her grievances and the struthers says in her deposition that she smalls as much as he is told p parent ger and that council member spalls told her i'm going to talk to the mayor because this has gotten out of hand and i don't want to have a discrimination suit on our hands and then and smalls deposition when asked about this he says yes it's possible that he said that so it seems like in the light most favorable to mistrust there is that she has a reasonable belief here in terms of notice once p r injury has voluntarily injected race into the conversation when the city brings up mr other statements that are more focused on general identity aspects of her statements that's because those conversations happen after parent or has injected race into the conversation and when mr back is present and so is reasonably assuming that parents are understands the racial dimensions of her complaint when she's making it more identity focus because in posting grievances to the city mistry there's intention at that point is for remediation of the situation not to set up title seven litigation the third thing is the notice that in the february twenty sixth memorandum and if i could just read some extra statements that were in the memorandum she incorporates every complaint by saying there have been several incidents reported to date leading up to this and incident this isn't j five  four she says that it has been a new comfortable hostile environment said stay one which also incorporates many other complaints and then she alleges in between that memorandum and the e mail asking to form life for grievance and a period of e mails between those two dates she's asking parents or to conduct in investigation about the differential treatment given to her based on workplace attire and tardiness so i think all of these allegations tak