morning gentleman thank you very much for agreeing to or to spain in these arguments in this unusual forum as i pointed out to the people in the previous case this panel just conducted two sessions of in person or large one million houston and as far as we can tell those both went off quite well with appropriate safety precautions so if and when you have another opportunity to argue in the th circuit god willing this soon period will be over but if not some panels for you to avail yourself of in person arguments let me just a couple of precautions about this situation we ask you to mute any cell phones or devices that you have we also have the same rule that you may not record visually or i'm an audio standpoint any of these proceeding he just as if we were in new orleans we have read your briefs and record excerpts have a hostile work environment claim or are you trying to allege well it's both your honor she has both a gender discrimination claim and a hostile work environment based on sex harassment or how can you have a hostile work environment claim with only two incidences of yelling it's ok can you help but tell them that please yes your honor because it's beyond just two describes mrs newberry a latest that she was followed by another officer that when he did she brought complaints about that officer what are you saying in what cases would say that these types of incidents would qualify as severe pervasive well just for doing that it's pervasive because of the fact that really from the time that miss new mary started she was subjected to this preachment and that really goes to the standards set out by the because the bad officer or was a male bad officer was involved in the same situation yet despite that she valued only reprimanded that officer and did not move misapplied the law by failing to see infer that this was because of her sex and i didn't offhand speaking as one member of the panel i did not see a misunderstanding of the law he said this female officer yell that her and then there is why did she interpret it is a because she's a woman that anybody who yells at a woman must be practicing sex discrimination i mean how do we draw that and that can yes judge and that's really what the behind the activity and the problem is is that what the district court did was it said this pond looks has to be sexual in nature but what the standard is city produced on the record at two hundred and ninety seven what what the district or it was really looking for were comments of a sexual nature or something that expresses sexual desire her complete defense here given that they did have an investigation into action so they can't be the curious thing liable well judge because there are reasons for termination demonstrate a great deal but the main piece of evidence again they can terminate said that's not we need to go back we have to take each claim separately we're dealing with a hostile work environment if they had pot to prompt remedial measures and had an investigation and found that it wasn't substantiated in this person only supervised her for one actually i think once more time period one day or so you know then  then they can't be liable and we're only dealing st of all with a hostile work environment we'll come back to constructive discharge which requires something to be so outrageous it anyway reasonable person would have to walk off the job which is a really high six and the other her knees and in the record essentially both lieutenant reid and the chief were pointing the finger at each other as far as who was responsible for implementing the report and the corrective actions and the changes recommended in but neither of them did it and so yes they have this policy and they have this report  women differently than men and one male in particular there was evidence that the officers or that she was more likely get out you know him than other officers and so when  have a constructive discharged on these fats where the conditions are not so intolerable that any me and what case would say that these conditions are intolerant usually that's a stream of our  superiors for help things only got worse she goes and makes a complaint about the discrimination they tell him don't do that it's going to be really make everything worse she goes and complains about being followed by officer  as oppression for the purposes of constructive discharge saying that oh this is a really bad situation it's not going to get better doesn't sit and so therefore i'm going to quit is not the same thing is it intolerable or was that was that ongoing at the time that she walked off the job yesterday as it were shortly before she was on so what is your best case that that's and that's satisfactory for if you don't have that what you can guess on rebuttal i'm under regular title seven what if it's that one supervisor who only supervisor for one day at you have to have a tangible employment to have the power to have a tangible employment action to take a tangible employment action and i don't think that supervisor had that power under this record and they searched for your regular title seven case supervised my name was the only one that was used but what tangible employment action took place she was not terminated so what tangible employment action took place that is the basis for the reading them burying resigned she pled that she resigned she testified she resigned she stipulated she resigned she resigned in her resignation letter she says that she resigned because she had careful thought and consideration she talked to her family she talked her lawyer before she submitted her resignation this is not a terminations case the issue for him or those matters was she constructive complaint against time were conditioned so bad that they affected a term or condition of terms point where they severe and pervasive creating an environment essentially of oppression that negatively effected a term or condition of employment she is not listed where a term or condition was negatively affected because of officer jaime and you go through the  chronology there really isn't anything that rises to the level of that the aspects with regard to her title seven and slash labor co chapter twenty one claims are really twofold one she doesn't have an out person when an action that has occurred to her and two there's really nothing but her own subjective conjecture a causal link october she says the officer torres told her she really was following her but by her own admission she has no other information that that was occurring officer torres disputes she ever said that and ha since the beginning but the issue is not that this there's a dispute between the two of them the issue is there's nothing else in the record that shows it was actually happening  when she brought it to the attention of was initially he talked to everybody you talk to girlie talk to or as he talked to newbury and said but it's a misunderstanding that's not actually what happened there's nothing to indicate that that is because of gender or because of the hymie complaint and when you jump to the transfer to being on the scene shift it's undisputed that the city is very small in size it's  got only two to five officers per shift so they're not partners they're just in the sense of not was going to ask you because i grew up in san antonio and when crassus not a big subdivision know your arms not but they don't they out  was based on seniority and being a probation officer newberry was at the bottom and they transferred her kind of based on that he was on the same shift but not in the same car and  kind of when it would would overlap but when asked why she thought they transferred her to the same ship is really she said it's because she reported really well reporting really is not a protected that affects a term or condition of employment but two isn't based on anything that's protected under titles of what reasons the city or city officials provide or why they were planning to terminate this newbery yes your honor the terminations sequence or probationary officer they always review all probationary officers at the end of the and terminations is not a four cause aspect is just ok you could still done everything right not violate policy but if you're not going to fit here because of budgets or transferred or whatever other reason they just they won't renew th and said i don't think we need to renew her and they listed several things one being when they're looking back on it they realize she had kind of abused the the leave policy  they also there was the december home depot incident where both officers involved didn't properly recognize an individual that had a mental  was did you ever consider doing that and he said well yeah i did because when you look at the whole st year you're looking at everything and terminations as one of the options that's available as a not really all the other officer while he her her anxiety or emotional response to the situation so that she testified that to him that was a very big indicator as to why he may be implying to go with the recommendation that she c face prior to litigation being filed he very clearly said i normally will draft different alternatives of things that can happen but i don't make the decision until after i talk with the officer so leave us deposition it is a draft that is a little different than the one that was brought forth in the chief's deposition they listened to various different reasons why  he would be inclined to do that he wanted things prepared his the letter that was attached to the chief's deposition was actually dated january th which is three days after  newbury's resignation and on the top it actually says notice that she resigned so he kind of finished it off after she had resigned but he had made the determination prior to her resignation sets forth some kind of new test for this frankly garden variety sex discrimination claim what's here is and obviously the district court was not aware buzz when he wrote that decision then said there was no indication of sexual desire which kind of comes under the alamo the texas supreme court on the lights case but there are other factors to it even said there's nothing of a sexual nature concern itself with everything that happens because of sex the statute imposes liability employers only when they fail refuse to hire just urge or otherwise discriminate against someone because of  when you read that in conjunction with the on carly chase they basically said title seven doesn't come into play for actual distinctions between male and female  with the big stuff that affects the term or condition of your employment that's the stuff they can't use sex as a factory and that's the stuff sex has no business being a factory and none of that's really here but as just as pull am noted during the parts analysis even if you assume that gender was the motivating factor none of it rises to the level of constituting a hostile work environment affecting the term  condition of employment let alone causing being so intolerable that extra element you got to have for the constructive discharge being so intolerable a reasonable person would feel they got to resign that is not what this cases then to your question i think so why did they insist but well i agree with that no it's fine but if these were only single events of mistreatment why did the city go to the trouble of hiring an expert and having a report produced which i'm sure costs when because tax payers thousands of dollars yes  and they noted because they've been trained in oh look just because someone doesn't go through the formal process and fill out the form that you want them to it doesn't mean you can ignore something that should be set up bells and whistles that there might be a problem and and i say ok we're this is the allegation she alleged that it was discrimination or hostility because of gender so let's bring in someone from the outside and they'll tell us if we need to make corrections will make corrections if we don't then we won't and what the report actually came back and said is it is not gender based it's a personality conflict the only issue that mcbride noted probably didn't need correcting was vet it was confirmed officer jaime was rude to barry over the radio and she needed some little extra discussion or training on her sorry sergeant hernandez there's there to hernandez's so make sure i'm referencing the right one sergeant hernandez who was the one that there was a rumor that there was some sort of relationship between jaime and hernandez but no one ever saw it it was just ever saw them engaging in improper activity among themselves but is opinion his impression was it would probably help officer sergeant hernandez or he would help others including but i don't associate with men but there was no specifics but then he said she ignores me and she will shake my hand what is written mean i mean what was the rudeness over the radio i remember the ignoring and not making eye rolling her eyes and so on but what was rudeness on the radio you know your honor i don't think the record actually says what the rudeness was when i looked through it if it was just know that she was rude when she  made a request of her radio but i don't i don't think the record actually says what she said that was rude and so and i think there's been bright noted that you know several people including officer  of conceded she she was blunt about whatever it was that was said but i don't think the actual words were ever or they aren't in the record at least not that i could point at counsel i'm not sure it matters what was in the  terminations letter but i do have a sense to since it was an issue that i do with i'm curious as to why it was appropriate to discuss a citizen's complaint when it was  unfounded and why and i guess maybe because of the reaction or something that you talked about earlier and on why would six days be discussed if six days are not used in the normal protocol what were they using factors that are not used for others so does that raise some suspicion ok yes your honor the when you're looking at the end of probation period what is he's looking for the right fit it means you can still get you know you can technically comply with everything but if you're going to be one that officers don't trust because if you're assigned to work or isthmus and everyone's going to expect you're not going to you're going to call in sick for christmas every single time even if like individual ones are approved that's not revealed until you look back on it for a whole year and that kind of aspect goes to the i guess the personality right and it's the same with the interactions with the public and citizen complaint well it's not technically it wasn't technically a violation the way she handled it was something that they thought was either concern or that she would need some additional training on to kind  which is really where they set out the standard that a title seven claim exists when the treatment complained about is because of the protected category and that's really what i'm arguing that's the position is that we have we're we're all familiar with that on college we had a whole i'm bonk on that in a bow brothers but the problem here is do you have any substantiation that it was because of sex and or that it was severe or pervasive you know that's the problem with this case is that well the argument is that mr newberry was treated the way that she was because she was a woman how many women are there in this department i believe there weren't very many judge i think there were only two or three at that time from when i came home i may is one of them the plaintiff is a nd one so there might have been one othe thing male officer that's what i recall judge and so what happened next was as we did chief when they got this so following vet that they have this investigation by mcbride and they did not like the fact that newberry brought this complaint that's the foundation of retaliation  complaint she evaluated heineman is that what happened well but she also participated in this investigation under stand that i mean technically speaking she she complained and her only complaint was in an evaluation of pinedale was not at that point eight a title seven she would have admitted i think that at that point it had seven i would disagree with that judge i think that following up on that she provided them with information saying look i'm being treated differently because i'm a woman and that was it she brought that up in the turn around and when i'm asking you chief what he was looking at when he was evaluating rather than going to her he said that he consider this complaint that was brought he testified to that and that was  was what made him look at her as being not a team player and therefore not appropriate for continuing employment with the city and that's why in this in this letter that they drafted up where they're discussing  of the reasons we're going to terminate her they had excused medical absences they had a citizen complaint that was unfounded they had a claim that she had a pattern of not accepting criticism that was based on the one incident when jamie it's complaints about a report that mr newberry had prepared that's right and the grammar right yes your honor ok it was just about the grammar and they argued about the grammar quotation  marks yes your honor and then that there was an incident where they were pulled into the judge's chambers and that's when these new releases look option time he was yelling at me and that's where it went over from holding t judge's chambers for mind me about that that that's that's a room and the women krispy d and it's described aurthur early in the briefing but it's a room where there are no security cameras oh but there's not a judge there no carette oh i see that is there for the use of the judge but it's there's no judge there right ok