this action here honors title sam and our other employment discrimination statue simply cannot work unless employees feel that they are protected and will be protected from a television if they make complaints and reports of racial misconduct within the workplace one question at the outset is does it hurt your case that mismatch call from whom the comments really came from  primarily was a coworker in two thousand and fourteen to ms with mr kanjorski that she wasn't a supervisor at the time she made the rage racially offensive comments and sent the text messages i don't think that that does hurt our case i don't think it affects our case because and i want to make make this very clear from the outset this is not a hostile work environment clay case mr kanjorski does not have any hostile work environment claims in the case the only thing that we're dealing with here is retaliation the only thing we're dealing with is whether or not mr kanjorski should be protected for reporting the kinds of conduct that he reported about ms mccall an argument would be that he absolutely should because what  what he was aware of that mccall was doing gave him a reasonable belief that she was engaged in employment discrimination he knew that she had made blatantly racist comment to him about his his you know young biracial reporting it it's premised on association all discrimination and where even can get ski's letter though did he show concern that his black color workers were being harassed so i think that that fair reasonable implication that this is about his coworkers about the text messages that because they had the names of a couple coworkers attached to the letter yeah i think that his complaint should be rand overriding as a complaint about management and about her behavior in the workplace and it includes both her behavior towards him in terms of the racist comment about his niece and the racist comments that are made in the text messages the fact that they were directed towards him soon after the comment about his niece but also the fact that they implicate her subordinates but political i want to pin down it's clearly about mccall but the district court said could not have been harassed because he was white where does the opening brief respond to that argument or does it say no this is really about me because of a interracial family i did not see your brief preserve this argument at all though we did not in my opening brief i did not address directly the association of discrimination claim but our contention is and has always been where i say i should say susie's no discrimination theory  our our claim has always been our contention has always been that mr kanjorski is letter however you interpret that letter whether you interpret it as a complaint about harassment against him because of the comment about his knees or whether he interpreted as a complaint more generally about mccall's conduct in the workplace or complained of bents about her conduct towards his coworkers it however you interpret that he had a reasonable good faith belief based  on you know the racist comments being made by a very senior jail official that there was a hostile work environment either currently occurring or in progress ok so let's talk about kind of conduct to protect let's let's assume we overlook what may well be a forfeiture here or right and we can talk with the a c about that we have one comment it's not clear if it's january or february th the monkey on the hip comment very offensive but one comma then we've got we could argue about the february th text and the reference to dennis rodman we have a text with three images february th and then we have another text with three images in like april so this is either two or three bursts of text depending on whether we count the february th one which is give us at best what is it that that makes that sufficiently severe you know under castleberry it's not it's not it doesn't  supervisor making threats like castleberry and if or if it's not that severe then what is it that makes it perfect he said if we're talking about three or four instances over a four month period that six plus months before the complaint how is it that that is protected such that then complaining about it is protected activity under title seven i believe that if that is protected because it demonstrates that mr senior official a very high level official at the jail who holds racist at bogan but at the time should be directed towards her sous board and have at the time she makes these statements he's not yet a supervisor and there are three or four over four months what proposition that a single racist comment made in the workplace can be under some circumstances quick would be if it's a if it's a supervisor threat the coupled with i'm going to fire you all right so maybe you can dispute me on severe and say this is like castleberry i've got my real questions about that but if it's not like castleberry then you gotta show pervasive shell how it's reasonably perceived to be either of them mr kanjorski is not a lawyer and he's not required to be a lawyer so he's not required to know things like what the court's holding and castleberry decision was or would be you know a couple of years later the only thing that he's required to know is to do is be reasonable in his belief that there's an unlawful employment practice occurring even the lower court acknowledged that mccalls conduct was racist that it was offensive and that mr kanjorski was correct to have reported it to his supervisors and so to put him or any other employee in a position where they can reasonably perceive racist conduct going on in the workplace and be reasonable in reporting it but then deny them protection for that later it puts  a very difficult position and it undermines the whole purpose of title seven which is to make sure that when this kind of stuff is occurring that employers are aware of it and able to address it which is exactly what the cut did investigate that is up autonomy question why did it take nearly a year for him to complain about i think it was closer to nine months and i think that you know if this is a summary judgment motion and we are entitled to all reasonable inferences that can be drawn from the record and the record c the facts and information from which he could reasonably infer that he is tired you could infer why it is that he made the complaint when he did and that is specifically because in the intervening months mccall who was a but it sounds like a very racially offensive comment went many months before there was even a complaint to the to the warden  harper and so i'm trying to figure out why i mean ok just the fact that a call becomes a supervisor means it's ok it's now the triggers the need for him to make the the complaint would not be hate something was that i find really quite offensive about my family and it was racially offensive was that why not make the complaint the next day why wait nine months i does nothing in the record that explains you know where he testifies was asked to testify why did you not report this mediately but i think what's important is that you know and some of the cases discussed is a person doesn't know when the st comment is made what's going to follow so the racial problem is is over it's done with so i think you've got a problem there were explaining that and the district court did not rest on causation we're not where i can go there but i do wonder how are you going to if we give last text message is sent and when he reports the behavior to the supervisor is i guess it can be explained by the change in mccall's position during that period in time and it is the very fact the county responded to his complaint by immediately investigating in obtaining the calls resignation based on his complaint means that the importance of the significance of what happened to him and what she was doing didn't disappear over those nine months for whatever reason it took him to get up there in the not been or to make the decision that he needed to report mccall at the time that he did it the county at least still believed that it was in an important complaint that was worthy of investigation and that was worthy of terminating a very serious very senior level going over further ms lam whenever you're ready that well your honor we have not taken a position on waiver or forfeiture however i would not say then we raised the question of discrimination premised on mr kanjorski association with his biracial relatives in the st instance that was one of the express grounds on which the district court made its decision and on which the just report made a significant legal error and considering the claim to be practically foreclosed sufficient to support a good  case called magyar versus joseph regional medical center that talks about whether any individual has complained conduct that was falls within the category of conduct for hidden by the statute  of your positions here risk going beyond the statute one of them is this one that any conduct that falls within the category is going to be enough it doesn't have to be within striking distance of severe or pervasive and that that would seem to go well beyond you know changing the terms or conditions of employment it would seem to turn this the statute into a general workplace civility statute which is report says we're not supposed to do the other the other way in which up my concern is you and so there are good policy reasons but i'm not sure how you can say that it comports with the statute to say that something that has not yet risen even to a reasonably believable that it would be severe and pervasive text but then there's a february th text with three offensive images attached to it but not images neither of these is referring to an interracial relationship and then we have another text in april but then we don't have a complaint for nine months after that so i'm having a hard time understanding if we have three or four instances only one of them appears to refer directly to the plaintiffs and then this law gap cooling off period how is it reasonable to say that at the end of this year plus period one can reasonably believe it's severe and pervasive it's almost like it's cooled off and gone away by that point well your honor i think it's important discuss separately whether we want to adopt this harrison progress theory that you are advocating but that's at odds with this i suggested judge nina meyers reading of the text of the statute so talk about the st piece st before we get into the disputed harris the individual comments but that collectively these three comments or for one comment and two or three text followed by a nine month get a mountain one could reasonably that amounted to a sufficiently severe pervasive hostile work environment w taking the position that one or two uses at least by a non supervisory not connected with threats as in casselberry all of magically qualify as a sufficiently severe pervasive one could reasonably believe you know are still tempering it somewhat close to what the underlying standard is is the e e o c position that a complaint about a single comment would satisfy that standard as opposed to let's talk about the realized that her her consideration of black and white association was wrong let me say i know starting out as a woman lawyer in the late one thousand nine hundred and sixty s when there were certain lawyers in wilmington who expressed their position that women shouldn't be in the law that the fact that they didn't say it to me every day did not indicate to me that in any way had they changed their opinion well your honor i would have to defer to plaintiff's counsel about what there is in the record on whether ms mccall ultimately saw the light and certainly it's significant here that mr him particularly as he was elevated to a and even more senior position let me ask you a question just on the law under an association of discrimination theory which has been adopted the core question is not whether the two people involved in the interracial relationship are closely related as friends what have you it's about what type of discrimination one is it  and that the title seven question so no we do not think that there is any level of connection that is true far or so close that it's in the errantly going to trigger the stampedes protection it's just that the government only on that issue and then you filed your answering brief and then the reply brief miss coleman responded to what you noted in your answer in brief and picked up on the associational discrimination issue so in what possible sense were you prejudiced by the by dealing with this issue begin with your honor that the president prejudice is not the standard in terms of when her the standard of discourse has long held is that an appellant cannot raise an issue for the very st time on appeal then they must have the mess only raise issues that they presented at the district court level and they may only present issues in front of this court that they have presented in their opening brief but ill but there are so there are exceptions for significant policy matters and so we have discretion to deal with the issue or not to deal with the issue and it seems that the government is saying to you this is to us this is an important issue regardless of how this case comes out we would like you to join the nd the th the th the eleven i realize that you're going to talk about causation and you can certainly bring that up but in that case well we'll deal with that when we get to it but let's just go right now with split up the association discrimination yes are you prejudiced in any way by dealing with this issue which the government tells us and i agree personally that is a significant issue that it would be right for our courts to at least deal with regardless of the outcome of this particular case because it was never addressed in the district court level it would this was not a part of the clippings this wasn't a part of discovery it wasn't a part of any depositions there was no evidence on this if we'd of known that there was going to be any sort of argument on this we certainly would have framed a motion for summary judgment differently we could have included additional information in rather that actually could exist i don't know where it no problem are you sure this is not part of the district court opinion but i'd agree that the district court mentioned it in its opinion but my point ed but i think that the court did it in an abundance of caution sort of thing it was never raised by mr coerced the district court level and the parties didn't brief the parties didn't we didn't include any factual record that would support this sort of thing and there is real harm because one of the things that would have been that that could have been addressed is the fact that mr kanjorski and discovery in his deposition never can be contended that this letter had anything to do with his biracial gran it simply wasn't on his radar so he did not in reality how have a believe we have this through the rap that we don't have it in the record because this was an issue and this is why this court has long held that you can't raise an listen for the very st time an appeal because there is prejudice because of the fact that the court is approach what's the prejudice to you because you had a full and fair opportunity to answer the government's amicus brief and the district court did deal with that and it will come back to the source and almost you're not a person making a comment about a monkey on your carrying is a very racist comment and you're saying in your brief that it was a harmless zoom orcus i'm a page twenty one of your brief rather than a racist remark it doesn't seem was this is a zoo morphism if this is one that really hits at the heart of a very racist incendiary statement well your honor the the problem is that we have here and i come back to it is the idea that it is only race by any admitted in her argument initial argument here that she didn't raise this theory of liability in our opening brief and it really would be such a stretch to say that based upon a meek i only that this do we have to discretion to to consider i believe you do your honor but the question is is it really sound policy to do so when the president of this court has long established that a meek i only cannot create say i'm not going to deal with it that's a waiver if you just don't bring it up it's a four picture but we have the discretion to deal with substantive matters of policy especially in this case when it's brought up in a very good a i'm not sure if you're asking me to answer that now i'm just i'm just if you got something the waiver of the argument to me it is difficult there are clearly may you can argue waiver of causation or not addressed the issue of causation well into it but it still address it in a manner it didn't base its ruling upon it but it's certainly the district court along with mr kanjorski recognize that mcdonnell that the mcdonnell douglas test controls and in this case there are two pro plenary review and that this court has established that the decision of the district court can and should be affirmed for any reason as long as that reason is supported in the record even if it is a reason not relied upon by the district court so don't see prejudiced the matter seems to have been adequately met by both sides and therefore whether there is a waiver or not we want to reward it you have this and decide we have that discretion th of course your honor you do but in this instance it's even less than what we have in the discussion that could exist in the association the theory because here mr kanjorski did not present the issue at all it least in a cooper just going to allow you not to address one of the two prongs like it let's assume we don't agree with you part of the causation can we talk some about protected activity i mean do you have any basis for it do you concede that association was commissioned violate made one complaint it's found in this april th letter the law and protected activity requires that what he has to stablish that his complaint fits squarely within the four corners of this letter the precedent that court requires that he has to identify an employment practice that has not been made and legal by title seven this letter must pacifically set forth what that illegal employment practices this letter has to specifically complain of an employment practice that is made illegal by title seven and frankly this letter doesn't do that to scott miss coleman hangs a lot of the texts that were attached to the letter is there any basis to say that you can't we can't look at those texts to help understand the letter your own before you get to that  the st thing you have to look at is title seven retaliation requires that you're engaging in conduct that would be protected by title seven and that you're doing it on behalf of a class of persons that would be protected by title seven so we don't have that in this instance because when mr kanjorski complains of harassment hostile environment and retaliation he's only referring to himself in that category and he gives examples of that now when we move to the text message so i will and i'll try to get to the specific answer your question rather quickly by saying that he because he doesn't invoke in his letter a class of persons that would be protected by title seven he doesn't have standing to pursue this case so even but it's so now if he did have standing then you would look at this one time comment and the to messages and with regard to the text messages and also this comment you have to look at the standard the discord as long articulated as well as the united states supreme court and that is that it is required that this is a very high standard it has to be served a year or pervasive the contact has to be so supreme and extreme that it would fundamentally change the working environment both objectively and subjectively and here are neither the one time comment and specifically as you ask these text messages don't do that the court has already spent a lot of time discussing the fact that these text messages claim there's a plate of need to show that the conduct complained of with the benefit of hindsight was actually severe or pervasive or was reasonably perceived as a by a lation supports that that's not the case you can look at curry versus kramer this court found that when someone was they were did a religious school and they made a complaint that they were opposing quote illegal employment practices this court found that that they they were not engaging in anything that was protected by title seven similarly in barbara versus c s s this court found in another presidential decision that it is not enough to base complaining that you're being on treated fairly which is what mr complaining about so and barbara this court found that there is no protected activity the same thing is true with mr kanjorski he did not establish in any way that he's met the anything that reaches to that level because what what what is he what does he talking about i think it was encouraging versus frame if you're just saying you're imposing a legal employment practices you're not you're not invoking anything of title summit it doesn't bring up if it an age discrimination you have to end vote i'm complaining about age i've been discriminated because of my age so this court still requires that you meet these minimum standards of us of putting  person a reasonable good faith belief that the comment about carrying a monkey on your hip is violates title seven not not no your honor for one thing this is a one time comment and this court has long held in the united states to quote supreme court has long held that you if you just have a one time comment associated with nothing else is as we have here that that's not going to be a not so what about the what about the text messages which are pretty i mean some of these things that these pictures that were sent out were pretty demeaning of african americans yes and no doubt your honor and they would they would fit within the category of crude tastelessness and appropriate conduct got a connoisseur rather there are no racial epitaphs that are used with this there is no use of the n word anything that would trigger something that would reach the level of severity that the united states supreme court has long required to establish something that could be pervasive enough and also the timing of these things are relevant because contrary to what mr coleman had said when the court looks at the record these text messages and we're looking at four maybe five a number in total bait the st one began one year and two months before mr kanjorski was discharged pictures with the text i see ten pictures in the in the record and the the majority of them have nothing to do that are racial and i believe that the court already had spoken about there are five total that that in hole workers strike can we add these things up do they make it a hostile work environment for him not to they make it a hostile work environment for the coworkers what's the relationship between the the the racially comment as to him and his granny and then the racially offensive texts as to the color workers i'm trying to figure out how this adds up under title seven well your honor it doesn't add up is not what he actually reported he does not report a hostile work environment towards himself because of these text messages or the comment even reports of hostile work environment to himself because of his association with another white man so that's not going to get in with the title seven if and while someone is able to make a report that would be protected by title seven if they were reporting hostile work or discrimination or a tally sheet toward black people that is possibly mr kanjorski is not making that report he makes no comment about these text messages other than that they are racially and appropriate so that's what his record is now calling something to title seven to begin with is supposed to isn't only protecting against workplace discrimination or retaliation we don't have that here if we the court has long held that title seven is not a civility code and referring to there is no precedent in this court that that referring to a small child as a baby monkey on your hip this is is has ever been protected by title seven it would be a real stretch to  a right to be free of of these kinds of statements on the basis of his relationship with his neat your i'm not arguing i'm arguing the text messages simply don't look at that to me that the one time comment is just protected generally i think that the association theory is a unique and distinct argument so i'm not trying to move into ms lubin guus association theory argument but i does seem like you're taking a very divide and conquer approach towards all these incidents and the other side is taking a lot of the gether and it's there are different but how different are they are they different enough that we can't like consider them collectively i think they did it st of all i think if you consider them collectively it makes no difference because on the one hand we have a comment made over here before we have a beginning of text messages made here in two months before in all the one time text  you can't you can't solely lump them together because they are different events that the one time comment is said one time and it is simply a comment followed by no action whatsoever other than a chuckle and so this this court the united states supreme court has a great deal of precedent that talks about a civility code crude tastelessness inappropriate comments that that's not going to be enough and so when we just have the eleven time comment a  should we go to mr we do your honor i think there are yes mets fine your honor we do have it raised in our brief the issue of causation and the fact that mr kanjorski we've established a legitimate nondiscriminatory reason for his letter didn't amount to hostile work environment this court should should accept the fact that he believes that the word perceived as to be part of hostile work environment and therefore he still has a viable claim and the problem with this argument is that the only the only thing in the record that mr kanjorski can point to that the wharton perceive this to be a report of something illegal of something that's made illegal by title seven is one that the report took a letter seriously and to that the warden referred the letter on to legal counsel when you agree that the conduct you don't have to show reasonable good faith belief that the conduct violates title seven under retaliation claim yes that's correct but if we're talking about it a perception theory of retaliation in that case the employee is admitting that their letter doesn't amount to a protected activity but they're saying that because the employer perceived it to be that way now did not at the time but the question is with the employee  reasonably believed that the employer perceived it to be a violation know that the employee holds an object of lee reasonable one good faith to belief that the complaint of conduct violates title seven yes when you're dealing with a retaliation claim that's her day correct standard but when you're when we have this perception theory argument mixed in with that the focus is on that employers subjective intense when they decided to take the adverse action and in the perception theory basically i see what you said yeah you go back to the employer that is info position is that the perception theory doesn't apply because there is no evidence to prove that the warden perceive this to be a violation of title seven and also because agent is a very crucial element in the perception theory  that depends on the in the decision maker subjective intent when they took the adverse act misery because it's an aside good good let's set aside the perceptions of the employer let's talk about what your your  friends on the other side were talking about which is whether the employee reasonably believed he was engaging in particular activity maybe it doesn't exactly meet the level of severe or pervasive explain to us why you think this doesn't even come close enough for an objectively reasonable belief that he was complaining about you know protected activity so at the end the correct standard is an objective clean reasonable belief that that reasonable subjects that i'm covering in hostile work in progress and in association of theory of liability if it doesn't meet that standard because in one hostile work in progress means that the employee reasonably believed at the time of reporting that there was a hostile work environment in progress that we haven't adopted that theory yet maybe we can get to that separately why doesn't this meet the standard of complaining about something that a reasonable leaves how has already risen to the level of a ho  believe i'm being harassed because of my association with my grand niece or i believe and even i believe that my coworkers are being harassed because of these text messages so that if you just look at the one time comment courts that this prim court's precedent in this court's precedent is that a onetime comment not coupled with any type of threatening behavior or any type of other threat never meets that standard of a hostile work environment so like i said before it has to be tethered in some type of reality here in this one time comment you can't make that jump why can't we why can't we read the other texts together because the other texts sept at least two of the texts have you know clear offensive racial messages and we can talk about what the rd one with dennis rodman does or doesn't write so why can't we read those together with the comment about them that his niece gran said the monkey on the head well they shouldn't be read together because in this or converse of his complaint he's he's if you look at the actual letter he's complaining about harassment towards himself and so the reason why these text messages shouldn't be read in conjunction with the comment is because the text messages are not about mr kanjorski they're about coworkers so that's why we're keeping them separate and that's why i believe they should be read in conjunction because mr kanjorski actually never complained that these that there was anything wrong with these text messages except for them being racially inappropriate but he doesn't then go on to say that he believes his coworkers are being harassed or subjected to discrimination or anything of that sort so that's why i believe we're keeping it in terms of a hostile work in progress when we're when we are looking at the reasonableness of the employees belief that something was in progress timing does matter here because the point is that legally should we recognize that terms and conditions of the end of the employment so i i do believe that that creates an issue with this hostile work in progress theory and it definitely creates an issue with what the e e o c i believe had had argued that even a one time comment if repeated if you believe if a one time comment could be repeated enough to create a hostile work environment that that should constitute a protected activity or that you constitute a hostile work environment i don't believe that that that is consistent with a hostile work environment standards set by title seven and it turns out in the supreme court has said that title seven should not be a civility code and i think that's what it would turn it into but even if this were court were to adopt a hostile work in progress standard i think it's instructive to look at what the court and boy are the bird oh actually the facts of that case where the employee reported the very next day and of course of if an employee reports the very next day their reasonable belief that a hostile work environment was in progress is reasonable at that time because you don't know what's going to happen the next day the next month the next week but in mr converse he's case when he waited an entire year plus to report a one time comment and ten months to report these text messages you had the benefit of looking back through could have believed that he was reporting a hostile work in progress and that's why i believe maybe even if this court were to adopt this standard which is not the standard right now the facts of this case do not fit with  faith belief of an association all theory and liability here and i think that to answer that question it's instructive to look at the case  quote there the court was looking at a situation where two white employees were complaining of an association based hostile work environment and there the court said you don't have a viable claim because of the conduct you're complaining of was not directed towards you it was directed towards the african american coworkers that you're associated with and that's what we have here is a little  comment was not directed at mr kanjorski the text but the question becomes could he as a caucasian perceive that the comment was directed to him because he was associating a coworker said how can you stand to sit next to that person and they smell and that was that person's friend and so they had an association and the court said that's not enough because there it does but bert notes that that claim solely based on his association with his biracial grammys that has not been taken up by this court yet and i do believe that the degree of association matters here because the degree of association correlates to the likelihood that somebody has been subjected to harassment simply because of that association so the more you aided the relationship the last likely it is that that the harassing conduct is because of that relationship question is does the degree of a so case oh here we have a very close relationship because not only was it the grand niece but it was a child who the the point it was considering taking him to his own home and this is stick with what is actually set forth in that letter we can extract extrapolate from that and mr kanjorski can later say this is what the letter means the subject of the intent doesn't matter it's what is objective we set forth in that letter in the fact is we can only be this letter and mr kanjorski never says in the letter that he believes he was being harassed because of an association with his biracial grannie's w reason that mr kanjorski was ultimately terminated which was his role or in connection with a sexual rassmann claim of someone else and how he handled that person's cla we outlined extensively the circumstances that could lead a reasonable jury to conclude that he was terminated because of his engaging in protected activity and i would point the court  least nine months to make a complaint after mccall becomes a supervisor and then mccall is taken care of and then seven months later in november of what it is fifteen or so he has something that relates to him as to how he handles or mishandles a sexual harassment claim and those are appear to be good grounds  they are true the point is that they are that there is those are not true the allegations are not true and we explain why but ultimately this has to be viewed in the context of jail employees who followed mccall who intended but if he was an extraordinarily powerful person it sounds like the system the allegheny county penal system you know the abuse rate of system handled the situation with her very expeditiously as he ends up resigning so if there is a long history of complaints against major mccall and mr kanjorski his complaint is the one that finally pushed them over the edge and caused them to get rid of her and as a result there he was repeatedly come harassed were to happen was warned by details internal investigation that there would be retaliation against mr kanjorski by other employees he never investigated that he refused to respond a his complaints of retaliation and then ultimately based on almost no evidence whatsoever other then the word the contradictory stories of three employees one of whom was macaws chief  seriously that's not accurate in fact there's testimony from deputy morton wainwright that were harper taught all of the chief administrators in a meeting that ms that ms mccall was being investigated for racial intolerance tolerance and inappropriate racial comments so the county perceived mr controls his complaint to be a complaint about racial harassment within the workplace and they treated it as such so all of these are you know whether or not he oh you know how do where tact is them played and understood and set forth properly in the complaint all the elements that would be necessary for a hostile work environment claim even even if he court that is absolutely my contention it was not down briefed to the district court the district court specifically said that it had that he did not need to reach the nation when he was not going to reach that issue and and that's why we did not raise it as an issue on appeal there was