environment calling changed not requiring severe or pervasive conduct any longer but something requiring protect the conduct by the employee materially adverse conduct which is conduct which may have this way to reason the person from making or supporting the lure the no longer requires that you give a full salute struction a hostile environment laying out all of the elements of hostile environment so that in fact the jury doesn't have rejected more on ice precedent for binding precedent to him on the basis of it not being a retaliatory hostile environment case i submit that he's wrong on that i mean if you look at the more opinion specifically it says that on page three forty nine plenty of so so were totally hostile environment clearly you don't need to based on your position you need to drink it all on a hostile environment were you just need to remove severe pervasive or pervasive not understanding you don't i mean the character characterization serves to educate the jury in terms of you know expressing the conduct at it's fun to write which personal actions that any personal action which is which is motivated by age discrimination runs afoul of the statute that is different in itself and water then the private sector discrimination provision which is limited to may please the court my name is richard mensing or i'm an assistant united states attorney and i represent the secretary of labor in this case after a five day trial a jury found in favor of the secretary of labor and found that there had been no retaliatory hostile work environment here the plan appellant raises one issue want to appeal to the judge rice's jury instruction was wrong including severe on purpose of is wrong the federal sector provision two thousand bashed sixteen provides that all personnel actions shall be made free from discrimination it's different than the private sector provisions in title seven two thousand  as the case the supreme court case involving the age discrimination case is very instructive here because the age discrimination case was based on title seven and contains a separate provision for the federal government and different provisions for force for private sector employees and even gomez pres the supreme court found that although there was no retaliate specific retaliation provision in  discrimination act that the prohibition against discrimination in compas it a prohibition against retaliation the federal sector like the age discrimination you must have a personnel action because that's what the statute prohibits it prohibits personal actions must be free from discrimination comis makes the claim of hostile work environment here a hostile work environment is  kin to a personnel action only when it rises to the level of the operation that's if we go back in the history of hostile work environment the meritorious case specifically found that in connection with private sector claims that if you had a severe pervasive environment of section in that case and sexual described discrimination sexual harassment that that could create an abuse of a hostile workplace and that that was a can do something that altered the terms and conditions of employment similarly here a hostile work environment that is severe and pervasive would be a kinda the personnel action but the statute prohibits  prohibits for discrimination purposes appellant talks about growing to earlier it's important to remember a few things about burlington northern burlington northern did not involve the federal right why would tally ation encompasses something more than severe pervasive in the federal sector but some courts have made an attempt to and thousand sixteen the states that certain private sector remedy provisions will be governed civil actions and it's talking about things that were incorporated like jurisdiction and then you equitable relief and appeals an attorney sees it was not changing the substance of the possible claims that could be brought against federal the federal government number two section two thousand a dash sixteen d incorporates those provisions only as applicable they would not be applicable because the statute itself provides the scope of its coverage moreover if you look at two thousand easy dash five g too bad it simply provides that equitable relief is not available in circumstance circumstances and references they retaliate in provision it's certainly not if you read it incorporating any kind of retaliation provision into the federal  the definition of employer but in that it added to the title seven but in the definition of employer it's civically excluded the federal government if congress wanted to apply the same provisions in two thousand the dash two in two thousand he dashed three to the federal government it could have done so simply by modifying the definition for a or where it could have explicitly referenced those provisions it did not do so and finally this supreme court specifically stated and this is a quote and like the eighty ace federal sector provision title seven several sector provision incorporates certain private sector provisions but it does not incorporate the provision prohibiting retaliation the private sector this notion that somehow this reference and it somehow incorporates the private sector provision just makes no sense if you have to twist like a pretzel to try and incorporate this and obviously simple explanations are much better but the other thing that argument has been made in some of the cases is that somehow illogical have a different remedy for private statute we're not legislating as to what might be an appropriate scheme congress already did that and more importantly the context for federal employees is different and just justice reform commission later amended by the civil service reform act executive orders prohibit exerting kinds of discrimination grievance procedure union remedies it was an administrative scheme that was already in it discusses the city or pervasive standard and in fact chances specifically says the severe and pervasive standard is very important retaliation cases and one reason for that is because unlike some other sexual harassment cases for example but what is this statement of mom the standard that we should send down should we decide to write presidentially on this that maybe at the end of it i was going to say i was going to ask you how  there's only one piece of language and it says all personnel action shall be made free from discrimination based on race color etc and so the way that the way that the statute should be interpreted is the yes at least as far as retaliation is personnel action however that may be defined and sacked or secondly you could show it as a in this case if you're alleging a hostile work environment claim you could a legit bike by stat machine that claim namely that action was severe professor in such a case it would rise to the level of a personnel action would be a kin to a personnel action it would be something that would affect the working conditions and that would be something that would be action and so in this case the important point is if you're going to if you're going to try and prove some kind of claim against against the government you either have to show that personnel action or you have to show a hostile work environment this is mother's it isn't like it they can cases out there that have have said different things and what you'll find they hear cases is a perfect example that was it was cited yes that's a case involving the federal government but if you actually look at it you'll see what the the court relied on that case was two thousand so what we have been in many of these cases is we have bits and pieces taken from from different different cases without any unifying theory without looking at in particular statute affecting federal employees and trying to twist other conclusion i mean i think if you look at those cases what you'll see is there's not much real analysis it's a kind of it's building like a house of cards it's this case down retaliatory hostile work environment against the government if there's a case they found it without any kind of analysis and that's what we need here and especially in the a hostile work environment we've where you take something from it namely a rose in the sexual harassment area and you try to bring it into the retaliation is your honor suggested you can have some have some problems from that let me just say one thing because this is the issue that the appellate raised but the other important issue here is harmless here we had a trial here this issue was not the focus of the trial the focus of the trial on whether it was whether there was pretext retaliation or not the case was never about severe pervasive severe but if you look at the kinds of issues that the appellant argued constitute is hostile work environment where things like discipline failure to promote refusal to transfer being placed in a new position removed assignments and in training which it was true that there was retaliation because of those things there's no doubt that was severe and plaint certainly allowed something that was pervasive but the case wasn't about that the focus of the case was on was there a pretext was a retaliation to some extent was there a causal connection indeed the first element of the jury charges whether  the plaintiff was subjected to retaliation the third element was whether it was motivated whether the agency was motivated by the fact that she complained about discrimination or callee that's what this case was about  standard on one review is whether it's highly probable that the result would be the same we spent forty pages trying to go through the evidence if you look at my closing argument you'll feel see even more detail in detail showing how each should in each case it was no evidence of pretext retaliation in some cases there was no evidence of causal connection are you don't need to do some miss regard to what's the vitality of their tour as it relates to that case and the subsequent cases when you're talking about possible working in this type