seventeen thirty four eighty five teresa berry versus james p o'grady arguments not to exceed fifteen minutes per side ms lloyd for the appe approximately sixteen months the specific allegations that she offers concerning her environment in this time fails to suffice to support a fourteenth amendment equal protection claim against because she fails to demonstrate that he engaged in an equal treatment of her based on her gender and fails to demonstrate that she was subjected to serve year or pervasive intentional discrimination based on her gender her allegations fail to defeat defendant o'grady's qualified immunity looking at the material factual allegations the plaintiff has offered it's apparent that her sexually hostile environment claim is not based on any interaction between the plaintiff and o'grady the she was not the object or the target of any alleged harassment the gist of her claim is that she was offended by comments that she overheard or laughter that she overheard much of which as she allege alleges was between judge and grady and two female bailiffs in chambers  she as far as the overall assessment of her environment she testified as to the sixteen months she testified for the approximate first twelve months up until november fourteen her allegation as to a conversation she overheard on november fourteenth two thousand and twelve which according to her involved judge a grady's female bailiff offering in conversation with another female bailiff judge peoples who share chambers judge a grady with judge peoples female by the in judge grady offering an account of a sexual relationship that was going on between a female attorney and two male attorneys frank's comments were graphic more explicit as to some of the sexual activity that the male and female attorney and gage dan and plaintiff says that in in the course of this laughter judge and grady made the comment she must be good at what she does according to we have this particular conversation this place where you're starting  your arms to me i don't know well your honor in her place for you to surprises how you're starting your own your honor i am so i'm starting there because i think it's important to assess in the sixteen months what is she alleging both to demonstrate that it is judge  who individually and intentionally engaged in sex discrimination that is unequal treatment of her and what is she alleging to support her allegation that she is the intentional discriminatory conduct hundred gaijin was severe and pervasive could be pervasive starting at a particular time in other words maybe he was behaving the first twelve months and then all of a sudden there's there starts to be a sexually hostile work environment i would grant that as a logical possibility your honor but that's why i want to say in this case she's alleging for the approximate first twelve months things are fine she alleges a conversation that occurred on this day and then what does she allege occurred after that day according to her judge o'grady's conduct towards her after that day was hostile but she doesn't offer any allegations of any intentional gender discrimination to the contrary she says that after that day and again i i'm sure your honour's have already read the record we know that after the conversation that day she went home and did a facebook post to the attorney that was being talked about and also a face book post that went out more generally saying that criticizing the female bailiffs and using some inappropriate language and in calling them words that she should not have used attributing this whole conversation on the fourteenth to jealousy on the part of the plaintiffs after that day she says judge or grady was aware she had spoken to the female bailiff and from that time forward she says he treated after she got back from an extended leave she says that he was hostile to her and demonstrated the hostility by scrutiny scrutinizing her work more carefully measured or let me interrupt for just a minute you're looking at facts  we're here to review only and i would ask you to formulate this a neat abstract issue of law we can't you in order to maintain and is the ruling you wish to make legal ruling your honor what i seek is that this court follow what i believe is the long standing president of the sixth circuit which has a long standing course of reviewing cases of sexually hostile environment to determine whether or not the the total of the material found factually asians are sufficient to satisfy the standard which is a relatively high bar for sexually hostile environment i'm mentioning the facts as she alleged them because our argument is as a matter of law the totality of her material factual allegations are insufficient to meet that high bar both for a severe and pervasive hostile environment and also the totality of these factual allegations which i would discuss because we we are accepting them we're not disputing them they are insufficient they do not show anti female animists well or gender animus on the part of judge or grady so those are the issues along the trial judge found that there were some material disputes  fact that kept him from that meant case needed to go to the jury what where where the errors there your honor i think there were errors in that i we do not dispute the as i said the facts as alleged by by plaintiff what we dispute is that the trial judge mis applied the law in this case in this case the fact that there was a conversation among the female plaintiffs that involved a discussion of sex or us i sexual act is not evidence to support anti female animists on the part of judge o'grady the moreover the conversation among female bailiffs is not unconstitutional conduct beyond that your honor is a point i do want to make and i think we've also got actually make a suggestion maybe as a way to answer ju doctors question which would also be helpful to me is she's making a point it's a legal question in your response as well the totality of these circumstances does not suffice for a cognize a bull hostile work environment clean the way to prove that a legal point and you really are accepting all the facts as alleged and supported by the plaintiffs is to say well there's this six circuit case or this u s supreme court case which had worse facts and back court ruled as a matter of law it was hostile work environment so that you have a case where you can say yes i've accepted these facts and yes the other case where the dependent one was worse your honor we do have cases and one of the cases that i think and again there are several cases where this court affirmed summary judgment i'm cases with far more severe facts here this as a matter of law and we are this case doesn't involve any but there's nothing in these words that supports and male animists in the face and this is a fourteenth amendment case not a title to the case if we look at it graves will look at it and you'll say that those facts were worse than the defendants no one is a matter of law your honor in our brief we have a litany of cases with facts i know that's why i'm asking the question you really gravesites those cases i do and i can look at your cases and get angrier and angrier each time i realize it's not this case so you're right and give you right now we have other cases your honor we've got you could look at wade versus automation personnel services you could look at daniels versus pike county commissioners you could look at williams versus g m c i mean there are several cases that indicate what you have you have to have this element of intentional gender discrimination as a matter of law with the fourteenth amendment plaintiff has to show that but for her gender she would not have experienced the treatment of which she complains none of the allegations that she makes are evidence in support of that for example what she what does she say about judge or grading others in this isolated conversation  november twelfth after that none of the allegations that she makes about him fit the description of conduct that is motivated by gender she concedes that it is not his conduct towards her after that is that he is hostile towards her because she spoke with the female attorney the types of what she is basing this on if you look through specifically what she says she has required both for qualified immunity and for fourteenth amendment purposes to make her allegation specific what does she say well according to her he used the f word all the time even the district court recognized the use of the f word had no sexual connotation the way that she alleged to use it whatsoever it wouldn't matter how many times you use that word where it didn't even see any anti theme an not material to her claim her fourteenth amendment claim against judge and brady i could which we did in our brief but go i could go through her other factual allegations as well this is all that she has read light is on so if you want to think of your time for maybe i also wanted to just briefly say that judges are i'm sorry the district court also erred in its analysis of the first amendment claim the evidence that was offered by defendants was on contradicted judge o'grady could not possibly have retaliated against the plaintiff on the basis of the first amendment because her first amendment speech didn't occur until may seventh two thousand and thirteen and he had no involvement in her employment decisions after that date i think my time five years and twelve days ago teresa berry was the unwilling witness to an event which both shocked and sickened her that event was her boss her supervisor and two colleagues engaging in the systematic shredding of the character of another woman using such sexually explicit and demeaning terms that none of us would be willing to repeat those in this courtroom my name is michael garth moore it's my privilege to represent teresa barry in defending the order below on the sixty four page opinion by  granting theresa finally the right to bring her claims before a jury of her peers ladies i believe this case has import beyond merely the parties after addressing johnson in the concurrent this court said district courts have more experience sifting through convoluted factual records and do courts of appeals and that is why our qualified immunity jurisdiction is limited and the line that followed is this when the appeal boils down to dueling accounts of what happened and when the defendants insist on acknowledging on appeal only their accounts the underlying basis for the unit interlocutory appeal disappears just to make sure you understand the point of my question you know i think counsel on the other side just got up and didn't insist on that and specifically said i accept the facts as alleged and supported by the evidence so i don't know that that even applies but i'm actually asking a slightly different question in terms of what's best for your client option is a dismissal from active jurisdiction which means we don't do anything on the merits we're not saying word one about whether there's a tribal issue of fact in either of these claims which is good in one sense you didn't lose but you also didn't circuit precedent there's a triable issue of fact which if there is a jury trial means it's almost beyond being challenged so the tactical question i'm asking you is which do you prefer i think your honors you can decide this on the basis of the lack of jurisdiction but you can also take it on the merits and and i'm i think of which do you prefer does not lead to an already answered i'm perfectly happy and we're perfectly happy for you to accept it on the merits and the reason i say that is this because my colleague just stood up and said we accept all the factual allegations that exist we accept the facts as the trial court accepted them we just say the legal there is a legally or below and what's wrong with that because they did not except the facts in her argument now in i'm sorry argument if she accepts if she accepts them now if you look at the decision made by just below he said did through a record of hundreds and thousands of pages and came to the conclusion that there was a tribal issue a fact both as to equal protection sexual harassment and as to first amendment  focused on the sexual harassment and she says as a matter of law there was no anti female and then this and there was no hostile sexually hostile working environment given the cases that exist from the sixth circuit in the supreme court so how do you attack those legal issues that she asserts prevent you from prevailing there are the cases cited for example the grapes case these cases were decided by the court on the basis of a decision on the merits after summary judgment not on the basis of qualified immunity appeal now if anything sets off a qualified immunity appeal versus a decision after the merits on summary judgment it is that this court must accept both the facts and the inferences drawn by the trial court below what's so is that there was a sexually hostile work environment well your honor it's a good point if you look at because again in saying we accept these facts in fact they don't if you look at teresa berry's testimony and her declaration which is  three you will see that she addresses not simply that everything was fine for twelve months up until this incident but in fact that the statement that things were fine was an offhand comment to one question about whether or not judge o'grady retaliated against her but in fact those words tows that there was sexually hostile work environment given our cases that say it has to be pretty egregious extraordinarily detailed give me an example cases give me an example of what happened to her or what happened in the office that you could say would show it was a sexual hostile work environment sexually host work environment your honor as you know does not require that the individual be the direct object equal protection sexual harassment applies to title seven standards so and so applying most all of them one that it did a fact it did affect my client your honor repeatedly the constant use of demeaning terms addressing women the constant use of the f word which my colleague says has no application which the court felt perhaps not but maybe so we're talking about a constellation not in isolation of circumstances and that's where your honour's have to address as the court did that this is a constellation of ongoing acts the comments about women's attire the statement about boy i'd like to have that if i wasn't married and again the cases and judge sarkis address those cases do not require that a point of who subjected to this over a period of time is required to specify each and every allegation again in her declaration at one hundred three teresa ber described the nature and could address specifics and said these were repeatedly representative comments that were made constantly under the case law that falls within a definition of hostile work environment and what case would you rely on your honor nothing comes to mind at the moment again i refer you back to judge sargon recitation of those cases in his opinion my point is is that moreover the cases hold that even one incident can be a severe hostile severe environment to create hostility in and of itself and i submit to you that the event of nov fourteenth two thousand and twelve was such an incident we're talking about conduct which would not be tolerable anywhere let alone in the chambers of an elected judge and from that moment on it was s intolerable so you know if you're not going to give us cases to analogize to maybe we can shift to the retaliation one and you know so we know temper proximity is something one can use the cli and prince is actually a little skeptical of that alone so grant there's tempera proximity for the retaliation claim in terms of causation what would you add to temper proximity to get you over sure the hurdle to show that there's a tribal issue of fact both both circumstantial and direct evidence not just health i'm going to her on the circumstantial evidence is surrounds the moment the days that existed after september twenty fourth and twenty fifth two thousand and thirteen and what i mean by that is this judge agreed he had recommenced in september his harassment of my client she was in contact both by telephone and e mail  shaw requesting that something be done because o'grady was appearing and interacting with her on the magistrate's floor on the twenty fourth so this is about conduct by a grady yes you're on the interaction is the fact he's walking by are these the he's not looks and stuff he's not just walking by your honor he was he knew and he had he testified that he was to have no involvement no involvement with her at all and yet he chose intentionally to show up to have interaction with her requiring her to buzz him in to a door where he could have easily gone around the other way and not even appeared the point is that he was there when he had no business being there and he was there could one could draw a conclusion the jury could that he was there intentionally to intimidate my client now she was intimidated and she did reach out to chaw and the very next day after this last e mail and make sure i'm getting the point sure what i'm saying ron that's you calling that a written written adverse action what i'm suggesting your honour's this that on the twenty fourth shot emailed my client says i don't know what he's doing on the twenty fourth on the twenty fifth she was brought in by shaw and told we're going to give you a new start we're going to get you away from judge o'grady we're sending you down to probation and oh by the way there's no position available for you here  secretarial pool anymore although there was and that's been shown to be untrue there is no position available secretarial pool and you're going down to probation this new job to give you a new start which of course turned out to be a go for job that left her in a position where she ultimately was gone now if we take that evidence of what was happening and we take the personnel action form the judge agreed to himself signed to me i question him judge did you understand that after theresa berry was removed from your supervision that you were to have no further involvement in decisions about her is the answer was yes and you understood that if you were involved in the decisions about her that could look bad right answer yes that's something you would you in the court wanted to avoid correct the appearance of having some kind of involvement in the decisions made about the future of this woman at the court answer yes and then throughout the course of this case up until that moment in the testimony when i ask judge agreed about this personal action form the position taken and the position my colleague has said to you today is the judge agreed he had no involvement whatsoever in any decision after may the seventh that's not true judge or grady testified that i signed off on the personnel form because they needed eight signatures for it to become official he admitted that he was the one made the signature on there to get the eight name to make the transfer official even though he claims untruthfully i think a jury can find that he had no prior knowledge and the reason he was untruthful in this is abbe armitage testified there were two ways that these transfers were proved one was a plenary meeting of the judges who made the decision and afterwards told her take this personal action form around or will sign it now or you can take it around to the judges the second was the personnel committee interesting lee and judge of grady was on the personnel committee they made the decision and then she did that judge o'gra the evidence confirms was involved in that decision before he ever signed the form and he admits he made that official decision and that your honour's sets up the key evidence of retaliation on judge or grady's part because not only did he sign that but the evidence shows that the administration working with judge o'grady a stablish this falsely but there was nothing else that she could do except take this de facto demotion and go downhill as she continued  if there are no further questions i would only say this that it took fifty pages of argument for my opposition to suggest to this court that there is no dispute as to the material facts that their position is correct i submit your honour's that simply standing up here at this time and saying we accept a point of solid asians is not in this record that your preference is to versus john your honor your ending i believe there is no jurisdiction at this point for this court to address the merits of this case because we have dueling sets of facts and judge below did a superb job in making his basis of his opinion i thank you very much for your time  thank you i would like to call the court's attention as far as case law to the recent case of bradley versus our would the affirm inspired this court as to the argument on qualified immunity pointing out regardless of the district court for denying qualified immunity we can exercise jurisdiction over the appeal and all the analysis in that case i would also like to call the court's attention specifically to a recent decision phillips versus u circuit two thousand and seventeen decision setting out the it was a title seven case not a fourteenth amendment case but it is relevant in terms of its holding that the standards the court applies for judging hostility are sufficiently demanding to ensure title seven does not become a general civility code which i mean it is and my particular claim and i know you didn't do much with this in your opening but she gets a work improve plan which you know i can push well that's an adverse employment action for sure and happens pretty soon after this didn't seem to be in doubt of his involvement in it and really a lot to take he doesn't get a working koopman plan i find it pretty outrageous given what he had done and what they now knew had happened after the complaint and the answer is the non judge gets the work improvement plan the judges and told boy these are serious allegations this is a court and you know we're not going to make any accusations here but we're going to make sure we don't do this again i'm going to try to cover everything you said  improvement plan before that no no no well what she had before that was her performance review your honor which as we explained just very quickly the court takes action upon her complaint and pursuant to what they believe is the appropriate procedure they refer it to the ohio disciplinary council it they don't make a determination that what she is saying is true or not true it is referred to the disciplinary council now as far as a judge will grade because this case is really all about judge grady you can't imp what the court administration did or didn't do to judge or grady when he had no role in that what they did was and we explain all this plaintiff was working for both judge peoples and judge of grady in april of two thousand and thirteen they issued her a performance review it was the combined effort of both judges as judge peoples testified to plait have disagreed with the review her disagreement itself certainly doesn't constitute evidence that it was unfair or let alone discriminatory nevertheless sometime after that she calls and make the complaint to the court administrator as of that time co  ministration doesn't consult with judge or grady corded ministration decides they're going to separate her from judge or grady while the investigation is pending the evidence of court of ministration is not refuted he was not involved in decisions as to her just from a timing and this is is really significant she makes the complaint but then they put her on paid administrative leave while they're trying to figure out where to sign her she's on an extended unrelated medical leave then because she has surgery  doesn't get the perform or the i'm sorry the work improvement plan until she returns from that leave the work improvement plan pursuant to the court's policies not to grady's with the court's policies work improvement plan is a natural follow up to a review that contains some not meets our designations in the various categories in april judge people from judge agreed and gave her not all but they gave her some categories of not meets she hadn't made any complaint by that time no fritz no first amendment protected speech the result of the employment eva erm sorry the performance review was that she was to go to work improvement plan that was set in motion in april prior to any first amendment speech on her part judge or brady and judge people's don't follow up on it because she's removed from their chambers you buy separate decision and there's testimony to this human resources director and judge played in the admin personnel head of the personnel committee decide they're going to sway they it to you said that made some sense you're telling me the work improvement plan was started before may seventh i'm saying what triggered the work improvement argument and the case will be submitted with the court call the next case please