well i think that quid pro quo sexual harassment is of course sex discrimination said she checked the box for sex discrimination it would fall within that and i don't know that there is a separate requirement that she as a t but i mean  one line of inquiry might be that as to the quid pro quo claim why notifying about the the dating no by about the photo the single incident pho be very similar well i think that as a life force and you know and i don't think she's required to understand that it's quite pro quo let's say she is let's say the law isn't hospitable it obviously isn't something that's been wasn't raised by the district court and hasn't been raised in this context by posing counsel would that exhaustion or carnot be jurisdictional so it exists or doesn't we have to take notice in which case they would have forfeited that if they didn't bring it up understanding of the current state of laws that exhaustion is not jurisdictional so if they didn't bring it up as to quid pro quo as they did as to constructive discharge it's  viewed as a as a really good prospect as a customer so that he could have him as an investor has and have him as an investment customer and make a lot of money she testified that he asked her five times over a thirty day period to date this man and that he at least one time told her that she would get a big bonus if she dated him on october twenty seventh twenty fifteen when this man was in the office with his brother who was a current client mike fisher was a current client run the cohen said meaning that we could break at the nudie pictures of tyan and she also made a comment to him about moving her account about moving the account now bonus is a payment is in employment action but if it's a joking bonus is that just an issue of summary judgment on think that's a question of fact about whether whether it's a joke or not a joke mr cohen was the one who gave her the other bonuses correct and is honest as were available is he the one that awarded her the bonuses i don't know that rated or i don't think that's clear from the record what's clear from the record is that it was based on his it appears to me that was based on his recommendation that was based on the evaluations and that's how the bonuses were awarded i mean the plaintiff testified that she didn't know where the bonus was going to come from but he said that but the only record evidence we have he also said the fellow as an airplane right he does have an airplane well i'm sure that's true but i mean the bonus doesn't you know how can you infer that that had anything to do with remuneration for work as opposed to just a joke you know you might get a diamond ring from him if you're going steady or you might get a ride in his plane or you well i think she said well she said she wouldn't didn't expect to get lose your job if she didn't date but she did hope for the bumps but well she said that he well she said she was never going to date this guy but he told her that she would get a big bonus if she did win and then when her deposition was taken they asked where did it come from what did he mean by that and she says i don't know right should never the but the the only place the bonus could come from is edward jones mean that she she honestly testified that he didn't say where the bonus was going to come from but i mean it's her supervisor at every john saying this to her where she is the same bonuses in the past based on his recommendation and i have some bonus cases there's a d c circuit case from two thousand and one russell be principly and there are two district court cases outside of from the northern district of illinois and the district court in north carolina that all recognize i don't think i have a problem with the idea that if it if somebody were being threatened or could just hold on the you know prospect of getting a bonus that might be an adverse employment action but i just don't see the facts here i don't see jury question about whether it was a joke or not a joke about it is that the court's concern that it was a joke about the bonus i think that's a jury question about whether it was a joke or not a jag i think he was pretty serious about her going out with him i mean he mentioned it to her over and over again and then brought the god into the office and then when she didn't take the bait and go out with him he was pretty angry and was ugly to her the next day and told her that he should have given her a positive evaluation recitation of what the record is is the following day it's october twentieth i understand that but that had to do with she had tried to document something and hadn't been able to do it and he blew up at her and then he said don't burn the place damn right so how can you say that he still seething from what had happened the day before because it was the day before so i mean i mean one day he's saying he's telling her she's going to get a bonus and vote according to her she he's extremely but i think that there is a definite shift in attitudes from one day that if she said he's telling her one day that she will get a bonus and we're going to break out near the pictures he apologizes to her for that out and then the following day he's telling her she deserved a negative performance evaluation he never said that before undisputed that he's the one that gave ratings that led to her bonus the read the four hundred dollars bonus op elisei i mean he's the one who made the evaluations he's the decision maker so he has given her bonuses in the past i think the bonuses come from edward jones but i think they're based on his evaluation i think we made the elements of a false light invasion of privacy calling me that's it's he has no legitimate reason for saying that and i think it's a jury question about whether it was a joke or whether it was something that he should not have suggested  correspondents and we have we have those records where she's about to fall ok all right i mean reputational damage well but i don't see the reputational damage because when you file a lawsuit in the public record that spreads it all over but as it was he was saying it in the you know to one guy and obviously male banter where everybody knows it's not true environment and in fact the supreme court unfair and alaric has said those terms are just sort of a shorthand way of saying whether there's a tangible employment action or not and they're both ways of getting at whether the terms and conditions of employment have been violated case you have any case from our court that says hostile work environment is enough notice for  i didn't read that so i'm not sure but again your question about whether it's way was i don't  still where does that get us seeming that it's not assuming there's a disconnect and therefore there's an exhaustion problem or exhaustion problem that's assuming there were and would that be a jurisdictional consequence or not it's not october she's right so she gets her your evaluation and she gets a four percent raise her she does not receive a bonus and this coincides with the same timing that he is asking her to bonuses if you date fisher and the fact that he mentioned he had an airplane and that he was rich a jury could just as easily find he was motivated by his own financial gain and as it is you can see from the facts that we put in our statement of facts he had very low disregard for this employee he called her out an f up he called her incompetent he yelled at her once a week he had there was no it would be very hard for a jury to find on this record that he was just kidding around or that he was had any kind of even if yes will for her a question it's a jury question your honor and we strongly urge a score of how do you i mean you know just because it's a six foot seven inch guy saying that to a woman you can't just say that the borage conduct is sexual discrimination you know that sexual discrimination comes into play when a benefit like a bonus big bonuses which is a significant change in employment status is conditioned on her dating this person i'm telling you i could see circumstances where that might be the case but if you don't have something that says normally they're extraordinary discretionary most work places well they have an official work sheet here that separate from their salary increase she like it like a tangible employment action it's an official action it can only be done by a supervisor as the company has to cut the check but what i'm saying is that the the fact that a person could theoretically give a bonus and then in this particular context is telling her oh well of you when she knows she has a boyfriend i mean i just  hard for me to take it seriously well a jury could take it seriously given that he gave her a bonus in april of two thousand and fifteen and she did promise her that she would receive big bonuses if she dated fischer asked her repeatedly to go out with fisher and then when she has her year of you know not october first right around all this is the time that he's asking her to date fisher there is no no she did not get about a four percent rx not the same they use different forms it's not a bonus and even if she did get the raise it doesn't take away from the fact that she didn't receive the big bonuses that he promised so a jury for him face time that right after that so there was you know i get all she said over thirty day period he asked her for less than five more than three times to date fisher and her last day in the office was october twenty eighth and the day before was when he mentioned the new pictures that she'll break out the new pictures so if you go back thirty days that's the end of september that's right around when she was having her one year anniversary and her review on october first she also if you look at her medical records says the onset of her stress related medical problems minutes your honor i'd like to address three points in response to a balance argument the first is with respect to the invasion of privacy false light claim the second is with respect to the title seven quid pro quo claim and the third is with respect to the constructive dished and the exhaustion of the constructive discharge claim now with respect to the invasion of privacy or the preliminary questions we've been asking opposing clearly you have to check the box that says sex which which the appellant did but you also have to raise facts in the e e o c charge that would allow the that would raise at least for the e e o c to investigate  so that the e e o c would be able or anyone else this court would conclude that the facts surrounding the quid pro quo claim could be expected reasonably expected to come from the allegations in the particulars portion of the you know why didn't white so you thought they sufficiently did that she no i i do not i i think she raised a title sather sex discrimination and sexual harassment claim and the issue came up before the district judge in terms of whether or not this was a quid pro quo and a sexual a hostile work environment plain now in the charge she just she does say that that her former supervisor mentioned the nude the new the pictures the purported new pitchers and did so in order to try and get some business now in the e e o c charge there is no mention of the bonus so it's a tough one but she didn't lower here we did not we did not would we what we pressed was was what we thought was a sure bet which is the constructive discharge but it is important for the facts to be spread out to the you see so that it can investigate and the point of investigating is to conciliate and if the plaintiff hasn't referred the e e o c to what now seems to be such a focal point then the whole point of administrative exhaustion is failing but i agree i agree do i absolutely agree and but i will submit to the court that it that's a tough question and it's in i you get on the material parts of your argument of course of course you know you know it of course so with respect to the invasion of privacy claim a would with the appellant alleged was that her her former supervisor made a comment in front of a client about her showing nude pictures of herself she said that that invaded her privacy now opposing counsel just just said died the issue of whether or not that comment about the nude pictures which is was a joke should go before a jury i submit to you that should not go to the jury and i and our if i may i will reference the the court all reference the record because in the record what the appellant said was in my opinion he was trying to be funny but he wasn't funny you look like a fool so that's her sworn testimony so so it is certainly and we we took that testimony own words and that's what we advanced in our motion for summary judgment your honor so this is not and this is not an issue to go before the jury we assumed that what she said on page one twelve of her deposition was true that her former adamantly said there are no nude pictures of me i would never take a nude picture so there is there is she she says she suggests by the way and she suggested several times during her deposition testimony no one believed for a second that there were any nude pictures of me our eight hundred dignity she quit not severe enough that since you say there were no new photos it was a statement that was a joking statement she quits she's maintained her dignity it isn't an invasion of her privacy yes and in fact it isn't and assuming everything she said was true the district court found that this was an invasion of privacy that there was no no objective possibility here that  definition interpretation of title seven quid pro quo when looking at the appellant's claim and that definition was that quid pro quo sexual harassment is when there is a tangible employment action resulting from employee either accepting or rejecting sexual advances either the rejection or the acceptance of sexual advances from a supervisor when that results in a tangible employment action that is when you have quid pro quo under title seven you intonate with emphasis from a supervisor are you embracing the district board's logic that it you can't have a pay for sex when it's to a customer instead of to the supervisor i am embracing the district court's language because verb a dumb judge feldman cited to what a lot of us and all the other courts in this circuit say when they define quid pro quo harassment which is it refers to sexual advances by a supervisor in the language by a supervisor is important your honor because it did quid pro quo harass quid pro quo sexual harassment results in employer liability in vicarious liability by the employer so the reason why that language is there the by a supervisor is because it is the harassment has to be by someone who has the authority to to impose a tangible employment action on the employee now the cases cited to in the appellant's brief in the e e o c briefing where where they they basically there or their arguments that that  quid pro quo harassment should cover sexual advances by a client those cases are markedly different when the actual advances by the employer to get a prospective client well i made overt sexual advances against the employee invited her to a hotel room what happened was then that the the supervisor ratified those sexual advances by telling the employee that she needed to do it and then firing her when she did it was that distinguishable distinguishable from this case a supervisor on his own initiative says i want that client data how is that at all different than the client initiating it and then the super fired ratifying it well it's distinguishable completely from this case because in this case her supervisor did not say i want that client dated what we have is a supervisor who said to her you should date that guy he's got a whole lot of money in an airplane and again we're talking about quid pro quo harassment the important so let's let's stop there because judge feldman noted that in this case there were no sexual advances there were no sexual advances by by the supervisor there were no sexual advances by the client so that's that's the first no no the second issue is one no no the first no no into out with them and then we have new photos of her also you're saying that's just friendly baton of go out with that's not implying sex no not in this case the nudie photos again referencing because i think these these record cites are incredibly important to put this into the proper context the nudie pitcher it made with the  dating at the very least indicates what she thought was most likely to be a signal agreed agreed but going back to to what you were asking  going back to it taking a full circle and going back to your question where you said how is a situation where you have an employer who says i want that client go date that client is that quid pro quo harassment while it isn't if it stops there because if there's no tangible employment action if there is a says big bonus if they send in your brief that's a page twenty two and you say that's not actually that's impression and you drop a footnote which doesn't have a case cite it says it but the prior one is a record what's the case that does that distinction the different employer says big bonus if you do the following that that wouldn't be a jury question as to whether that's how actual big bonuses or we should all know as a matter of fact no reasonable juror could conclude that it was an impression of a bonus that's the distinction you're asking us to draw that's one of the distinctions among what's the law that supports that if your records i didn't exist i can i don't have in front of me the records i judge you can sin and i can certainly supplement and make sure that you do at that remember the statement in your brief view i do and it's difficult when used drop a footnote to a case but the record side is to the record so what's the case that stands for an impression of a bonus as a matter of law cannot be potential employment action but an actual bonus is and i do not remember that case in terms of an impression of a bonus off the top of my head but i will i will point if i may or your honor just just because i do want to talk about about this bonus because it goes into what you're asking about in terms of an impression a real versus theoretical bonus yes so to speak and again let's go to the record because if you look at the record on page two on page two thirty one because i i pressed the appellant about this at her deposition and i said what is this bonus that you're talking about what is the source of the bonus who is the bonus going to come from and her response to that was i don't know i don't know i don't know what my supervisor was thinking it didn't matter to me so in terms of me trying to get some some clarity and some specifics in terms of this big bonus that she was talking about especially in light of the fact that edward jones does not offer any bonuses based on client satisfaction or making a client happy there is no evidence in the record in terms of those types of bonuses even existing when she got a four hundred exceeds expectation i assume that's she's polite to people that come in the door just your overall conduct the four hundred dollars bonus that she received in april of two thousand and fifteen that was a bonus that she received you're right in context with performance and receiving a high performance rating and also getting over as a trainee the milestones that were set for her in writing in terms of her being a branch a b only a trainee it was a below a trainee bonus she got over the milestones in terms of meeting those bonuses and correct it was absolutely a park or meant based bonus however to the extent that she's referring to a big bonus in order to go out with with a client there is no such bonus that exists at edward jones there's no evidence in the record that speaks to a client satisfaction bonus and so when i asked her what are we talking about here in terms of specifics as to aid the source of this bonus is the bonus come from your supervisor does it come from he was the person judge davis who was responsible for giving a bonus i also want because we're talking about the bonus now what i want to take the bonus into context under fifth circuit law because that's important as well because what that circuit law says is that an offer of a bonus or a denial of a bonus as the law stands right now is not a tangible employment action so what we're talking about here in debating is something that doesn't even rise to the level of a tangible employment action under fifth circuit law what fit circuit law says is that in order to have a tangible employment action and advance your quid pro quo claim you have to have some action that represents a significant change in your employment status or a decision that results in a significant change in your employment benefits about both those cases or in the brief those cared for me to understand how  cases from this circuit where the court says not not specifically discussing a bonus but discussing several other components i'm expecting a specific case about a bonus if you say are like only three cases case on bonuses because there are none that's different than what you just told me well then let me let me correct that because what i what i meant to say your honor is that there are it's circuit cases that speak to the actual standard which is in order to have a tangible employment action that it has to be a decision that results in a change in employment benefits or instance a letter unlike in the employee's file is not a tangible employment act mind realistically could you answer could you ask could you discuss the second circuit gen decision goes back to our earlier discussion about is it really the fact that it couldn't be a tangible employment action if the bonus for sex isn't written to do a policy you member that case the second circuit said that can't be it that we can't say these aren't real employment actions because they aren't in policy what company would ever write into their policy you can get a bonus if you have sex with now is that in order to have a tangible employment action there has to be a decision that results in a significant change in employee in employment benefits that suggest in the case law that a that adopts that reasoning suggests that in order to have a tangible employment action there needs to be a change in what you already have you don't already have a bonus and so right now in accordance with that circuit law a change in your work schedule  in such as in the williams case if someone is assigned to a different part of a restaurant which then results in them getting lower tips a situation where you have ask for a change in your dot job duties or or in the sanders vs cost of you case which is in one thousand nine hundred k's from here where the where liam says a great example was the walls get the less good tables those are exactly what the waitresses were already doing that's right it's not you'll get less the less desirable section of the of of the restaurant you're putting us somewhere where the tips are going to be worse and we're going to get less money that's not money that's already it was in their pocket it was money that was theoretical i don't like the theoretical bonus that ms davenport is point your honor was with respect to the constructive discharge claim because we talked about that that briefly before and the fact that the appellant has not exhausted her constructive discharge claimed this district court correctly noted that it did not have subject matter jurisdiction  based on that the the e e o c charge was filed in november of two thousand and fifteen the appellant resigned from edward jones in january she did not a mentor charge she did not file and all the lawn in order to properly that's a page two eighty six of the record i also wanted to know that i had a copy of the game a nap in footnote seven they say there is disagreement in the circuit on whether a title seven prerequisite such as exhaustion is of credit for having for thing that it's a close question but the whole point of the e e o c conciliation process is is so that they can come to the employer and they can work something out short of the court house the charge is not it's not like a complaint in federal court where you can even and posed by you can get away with a lot of vagueness it's got to tell them what what the complaint  the entire investigation with susan miller and so that as i don't know that it's in the record but as a matter of fact the e e o c did investigate all of her complaints because she forwarded those to susan miller and they were investigated by the court i don't know that today along that about whether or not that's still the state of the law or whether it shall be up to date it may be a matter of going back to find out which controls we go on you're a very long time and the other thing about the administrative charge is that the focus is on the e e o c investigation which can reasonably be expected to grew out of the charge of discrimination i know that in her complaint she says that this customer came in and she he talked about having nudie pictures of t and it was tied to the can't and that she says that she was retaliated against for being sexually harassed and quid pro quo claims are not a lot different than being retaliated against for not exceeding the sexual demands because you were tallied against not receiving benefits or bob being told you're incompetent in your valuations were poor and you shouldn't burn the place dale but about are strong statements that our law says it's got to be by the supervisor i think does saying that the sexual a bit the sexual favors have to be requested by the supervisor fails to appreciate that the supervisor can require that  meant by a bonus for day mr fischer whether it would be from point jones or from mr fish my impression from her deposition testimony was whether or not he had told her where it would come from i could be wrong about that and that she was just trying to testify honestly that she didn't know where the bonus would come from but that he told her she would get a big bonus but the only other evidence of bonuses in this case are bonuses from edward jones and i think that otherwise you just talk about money from the rich guy with the airplane and you know i don't know why you would characterize that as a bonus if it's going to be from her boyfriend you know usually called bonuses something that you get from your boyfriend you get bonuses at work and you get bonuses from your employer this language is colloquial obviously doesn't mean you know the use of  think you will be in recess