this case involves two major legal issues number one did defendants maintain a sexually hostile work environment and number two was the plain of terminated in refused  rehire in retaliation for his have a complaint about that work environment but as a six circuit knows you have to look at all these issues using the totality of circumstances and these two issues are employee for almost twenty years of employment with the seasons nursing home and retirement facility and he had good evaluations as a maintenance worker and then when he was promoted to the director of maintenance and one event which may at first seem trivial and silly in the spring of two thousand and seven was the was the winter shed mark which suddenly put his entire career with the facility that you you characterize that that event as being a creating a hostile work environment but in fact you just told me it was a trivial event now you can't make a hostile work environment claim out of a trivial event so was it trivial or was it so serious and pervasive that there is a hostile work environment here on earth the hostile work environment was triggered more when he complained about well that's retaliation that's not a hostile work environment it can be looked upon there are cases that say that cellier to investigate even trivial sexual harassment can  create a regime were such arrest was tolerated but i understand where you're valued that's your honor but but what you just said didn't happen i'm sorry said there are cases that say you know you can have a problem even when the harassments trivial if you don't investigate or do something but i'm not sure how you can say that happened here well there what there what happened here was when ms just said stop it she stopped he says they didn't have as good a relationship after that ok fine this happens it doesn't sound like he should quattrone not only did you know what were what really worries me is that she's being hostile me and she's complaining about me and bad mouthing me in front of others judge spiegel tried to make this out to be one of the tribulations of the workplace and i get it there are certain cases where shunning by coworkers or being marginalized is not actionable but in this case she used her supervisory authority to go to chicago and say i can't work with this man anymore she poisoned the well in terms of his ability to do its job and as a result of her complaining he suddenly received a personal improvement plan which was literally dictated by chicago his main man and i things really collapse it sounded like it was just kind of a personal thing these two just didn't like each other is not what's going on in track it really really didn't like each other but they didn't like each other right that's part of it but it transcended that because she ended up using that resentment of him to bad mouth in front of other people including corporate representatives in chicago but you you don't contend that he had any control over the official institute that improvement plan do you i believe that hate that using the cat's paw theory the people that she did not write to personal improvement plan but she i had a session with the corporate representatives when they visited from chicago and she complained about him to mr i was going to these corporate representatives and within a court does the cat's paw theory work in that direction that a lower level person mentioned something to a higher level person i thought it worked in the other direction it know it can work either way your honor a cat's paws were a nominally neutral decision maker makes a decision based on input from a biased supervisor and i believe you read it has spoke a says it in the in the normative catspaw cases where a lower level supervisor influences a higher level supervisor to take retaliatory action and know that if there were some there were some some complaints that were investigated and some criticisms of him for things that he didn't do and he didn't deny that he didn't do those things but he did have explanations for them seems to me and read in the record that there were only two of these incidents that you allege where she made some you know sexually inappropriate comments to him and i would go back to judge the truth point first of all how can you say that that was so severe and pervasive if in fact there were only two and with respect to the retaliation complaint where there does appear that for many of these incidents for which he was written up or discipline the whatever there was actually some basis to it even though he had and that sort of defense seems to me those things work against you well the if you read the harrison case harrison case which we cited liberally in our brief you can have a reach unlawful retaliation case when someone complains about harassment even if the harassment itself is not actionable that kids happen to be a race discrimination case so the fact that the genesis of the original discrimination this is the court may find that the original harassment was not actionable the court can still find and win this case we respectfully urge this court to fine that would happen in the aftermath of that was was actionable with regard to the disciplines you're talking about in a in a summary judgment stage one must assume that the the the plaintiff view of the facts is correct and on each one of these disciplines in a and they came right within a month or two after ms just seemed resigned in frustration over his her inability to work with mr eyes and now these disciplines he never had disciplines before but suddenly got a string of three disciplines you know they're going to say that they were justified and in a trier of fact may indeed find that they're justified but we're at the summary judgment stage and and he was disciplined and not only that he was not even given an opportunity before he was disciplined to give his side of the story after the about the hostile work environment claimed you know so i think you agreed earlier that intimate maybe this had you know initially was had a sexual component to it but before long it was just personal they  didn't like each other and what seems strange to me is by the time the relationships really got bad it has nothing to do with gender any more i mean it's just two people that don't like each other well it's just classic workplace thing it happens i would respond to that your honor i understand the question but the record evidence if you construe it most leniently in our favor they did get along until he said to her please michelle stop making these comments  after that the real harassment took place and if the report is nothing she's saying nothing that's happening after that that he's complaining about has anything to do with gender the fact that he's a bad guy is a jerk he's bus on so forth and so on but the genesis of was his rejection just as if it's a boss not exactly a rejection just to say don't make those comments anymore well he said i don't like these comments or unwelcome if in fact and i and i submit my time is running out i submit to you that to the panel that if in fact this case the judge was affirmed i think the message is going to be sent because he everything bad happened thereafter other people seeing what's happening are going to say i'm not going to do what mr eisenberg does next time i get let me out for you get for your chin your chilling argument let me just ask you about another part of your case  and so the employer has a come up with a proffered reason why he was terminated i easy exhausting as a family leave and we have the right to still assert that that reason is is is pretextual and one of the reasons we can show is disparate treatment and we did show disparate treatment in our brief and the same goes for the failure to rehire the masseur cases out there and and  they're still and we still have a chance to show that the reasons are giving our pretextual thank you thank you thank you hopkins densmore in show for senior lifestyle with me is jessica bommel another lawyer with densmore your honor if i can just kick this off addressing this whole issue about all this hostile work environment i think everybody agrees the law is there wasn't sexual harassment but if the court would pay attention to a document number thirty three dash six page id three twelve it's a memo around two months subsequent to this alleged harassment taking place it's within the timeframe of this alleged report to mr quattrone complaining of sexual harassment although in his own deposition he just refers to it is i told him she made some inappropriate comments doesn't even use wording like sexual harassment or anything else but michelle chess team who's this woman who's supposed to be resentful have animist out to get him destroy his career writes a memo to henry eisenberg copying quattrone who's the executive director and mark my hat francis who's the corporate director of sales subject matter huge kudo's thank you henry all caps five exclamation marks the tour you did for us today came back and i met with them for an hour was ninety five percent sure that they are going to take floor plan a and discuss with one more adult children all caps thank you thank you for exclamation marks said twice during the we needing with them how much they enjoyed your tour in the shell this is this woman who's supposed to have had all this resentment for reject him rejecting her sexual requests this is this woman who's supposed to have all this animists that puts into place for two and a half years to try was destroyed or use irony i think the irony of it is she testified she didn't even remember him complaining she denies even making the comment mr quattrone says begley yeah i remember some comment about his shorts or something but i don't remember anything else he wants to say oh they failed to investigate it well even if it's as he's testified oh i made a complaint to my boss my boss asked me well what did you do i'd asked her to stop would she do she stop it is there any other problem no so here we go into this whole scenario and then she leaves this is in april of two thousand and seven she writes this very positive message in july of two thousand self to let me let me ask you since the the central issue in this appeal appears to be season's motivation for terminating mr eisen bob's employment and then failing to rehire him and we are as counsel at the summary judgment stage why is this the whole appellant presented no issue of material fact to the trial court you have to have some material facts that link up with the applicable law there's no support for sexual harassment no support for a sexually hostile work environment under any of the case law morris vs oldham county there's no cat's paw theory whatsoever because for a cat's paw to exist the mischief steam would have had to implement some discipline the testimony from the the case law says under bishop ohio department of rehab it says must be evidence of a causal nexus between the ultimate decision maker that's this lady human resource that writes oh by the way you haven't returned from your lea you know so she's writing him a memo per policy and to other people or document thirty three six pages sixteen and seventeen got exactly the same letters that the appellant received saying you have not returned at the end of your leave your employment is terminated and the also the ultimate decision maker must rely on the supervisors the lower level supervisors discriminatory and of us there's no evidence that she had any animists in fact i would submit based memo that it shows she didn't have an animist no resentment and you can't connect no animus no resentment with a supervisor who ends up terminating ten months after chest pain has left the comment stopped immediately transcript forty one that no other sexual nature after comments by chastity and also testified that there was no evidence of anybody else doing any discipline related to anything that she did so there is no material facts that connect with the law that exist in the circuit or the supreme court that allows for this claim to exist thank you i think we understand your point tha i guess i can't take the rest of his time going on but that would be unconventional i know i have five minutes but what is your evidence of intent when it comes to retaliation claim do you have any intent yeah well basically you talk high as all timing is what what's your well the one thing that the that he hasn't mentioned the other side is to public policy part the lawyers what the letters that i wrote would would basically compress these timing issue of the intent issue from from two thousand and seven when the harassment took place to two thousand and nine when i was retained by mr eyes and now i wrote a series of three letters this is all been briefed and and i was very very sorry to tell me before you get into that what's your best evidence of just straight up in ten intent well there are two ways of proving discrimination one is the direct evidence you're right there is no smoking gun what circumstantially do you have besides timing so i'll let you get to timing in a second but is there anything else circumstantially first of all the the term a nation again we showed disparate treatment where another member of management was allowed to stay off for a long time and he was not he was not fired for exhausting his of himalaya leave that person comply with the notice he was in even they didn't even bother even being on on a family leave he was even treated even more generously more to the point the letter where he was terminated my client they said you were terminated because you never got back to was as to when you might return to work and s didn't indicate whether you'd be coming back to work in the foreseeable future you were terminated my client told his his supervisor at the time and before he was terminated my client said i just got word from my doctor the surgery was fine i should be coming back to work within a couple of weeks i'll be out after the f m a lever expired however he did acknowledge that he would be turning back to work in the foreseeable future but why didn't  communicate them just to me just so it's kind of odd to me what was the explanation for not just communicating when you were supposed to communicate with the company he did what your plans were he did the first time it's known if in his or affidavit and also in his deposition he did communicate with the company he did communicate with mr roberts a supervisor initially or after he after the time and run no initially before the time ran he said i am looking it's in abbreviated that page sides are in the brief he did say to  it's certainly it's in it's in my brief but here's that letter and the woman who is head of human resources ends up by saying should you be interested in future employment with the organization please refer to our website for a list of current openings we appreciate your service to the coming i certainly wish you well in the future you can reach me and give the number would of any question it doesn't i mean your your posturing as a terminations your to rehire  but it doesn't look like they had just crossed him off the list given that letter well that's correct your honor and that leads to my last argument that he did in fact apply he did everything the what they said to him to do and he got an acknowledgement from the interest sourcing the intermediary that that process is the application just thank you mr eisenberg for your application we will be looking at it we our company will be deciding who to hire and then now with the judge there was no evidence that the company ever knew he had applied and when in fact the very agent the company held out as the gatherer of applications knew about it  and for him for the lower court or opposing counsel to say there's no evidence that they knew about it is is it just flies in the face of agents arguing that he should have gotten some type preference a priority because he was a former employee well one can argue again it's a question are you arguing that i am arguing that as a question of fact who are you going to hire to fill this vacancy are you going to hire the man who was a good employee even amid he was a