when the evidence shows that in fact ms harman followed home depot's sexual harassment complaint policy to the letter she went through each of the steps in precisely the order that the policy mandated assistant manager build a pack and try to report what had been happening the last several weeks she started to tell him and he cut her off saying i know we're trying to replace mr abbott hang in there joe there's a new department  she did exactly what she was told she hung in there to the new department head team and mr kilmer on his very first night on the john she went to him and again complained about the harassment went into considerable detail as to what had been two offending employees not about the allegations your honor no that did not happen until after ms farman resigned the record it's quite clear that all that mr kilmer did with me after the film said did you see the film did you understand apparently figured out later on but at the time they didn't even know that that's what they were being called in for anything that happened with respect to ms harman but they had a private car is the only point i think it is what your thoughts by what bothers me about the question is do we have to look at this claim by claiming so for example it seems to me your client did follow did take advantage of procedures as to the initial allegation of sexual harassment however at least as i understood the situation it seems your client did not take advantage of the procedures with regard to the so i don't see what they could do about that let me respond because of my legal question is do we look at al or square issue by issue that's one point i want you to respond to it could there be a difference between th mcginnis says that in terms of looking at the con that and whether there was adequate remedy to look to the conduct as a whole in this case i think there is a difference between how you look at it because at the time that the harassment was undergoing we contend and up for it in the performance review we know they knew he knew that that she had filed a complaint and then he writes up her performance review that is walls between her and her colleagues and that she needs to break them down so i don't think it's  was happening it's not all that was happy and we can see that under the circuit precedent that ostracism along is not an adverse action but there were other things going on as part of the retaliation case and this is separate from the issues of the initial case first thing was there was her a pass i mean that there were only two options she was an excellent employee a time and about what a great client relations person or customer relations person she was that she would be great at this or that or that was earlier your honor that was not part of th circuit the opposite place so and so that's an issue that may come come into play here based at least on some use of the let me see if i can deal with that if you could give us your view evil issue i think it's different whether we're dealing with farage eligard supervisor versus coworker negligent in fact the eighth circuit says specifically that if it's the supervisor involved that it doesn't matter whether or case of cases that you were both on the panel your honor they said that if the that many is not adequate the employer is liable for the past harassment in the little case the rate that occurred all the offending conduct that occurred prior to the time the employer knew so i think in those two opinions actually the nicer kid has answered the question even as regards to cases under the negligence standard i'm not aware of there being the split in cases where farragher eller applies i believe in that case that they are strictly liable unless they can prove that the defense is which is they said as a matter of law they certainly can't prove that she didn't use the poly and that's enough to overcome the sexual harassment defense they have to prove both of them here again i think very that certainly find that these people's response starting with mr i hate tax cuts failure to me cutting her off and not letting her finish and finding out what she was talking about when investigation occurred until after she filed the second complaint in mid june and even then they didn't begin for a week because the h r person said it was all nude so again the jury could easily find here that principle that in many of the cases of this court when the employer does she was not told they had done anything in her mind the employer's lack of action there was no follow up they never talked to her after she submitted her statement showed th harassment they put light on it they make jokes about it and this court has precedent that mocking and you're right you're writing sexual harassment sexual harassment claim complaint procedure is itself what you want this harassment a retaliation i don't think it really matters but there is that partner mike dryly and we are here to talk about this case and the undisputed fact that supported judge who now is granted a summary judgment if i could please point out one portion of the record which i think is critical to the questions that you own request for what she viewed to be a reasonably calculated remedy to stop the harassment in this matter home depot to the number of prompt corrective actions as the law does require on may ninth ms harman complained to her new department head mr kilmer within the same time that she was still on the shift she then talked to these systems store managers for research running around within twenty four hours of that conversation but a twenty five minute conversation with mr kilmer at that rate in an office conversation with ms renninger and writing a statement out within twenty four hours on may ten undisputed fact is that mr kilmer hauled over the intercom and asked everyone to come into a training meeting because an issue had been raised mr harman's records if you look at them her time records on page twelve of the records s that she works four point five hours that day we don't know why she didn't work a full shift and neither does plaintiff and there is no evidence in the records showing that in any way home depot tries to prevent her from attend attending this very critical retraining that she herself requested it home depot's took a strong view that it's respects policy and its harassment policies needed to be complied with by every member of the night crew it then separately as you point out talked with mr  audience is what i would say i specifically said i give an example he gave an example if you're talking about a girl and she walks around the corner you're talking about what happened it happened the other night it might offend someone he specifically  asked are you ok and what did you say i said i was ok and fourteen she also admits to at least a half a dozen conversations with her department head brian palmer about brian stopping by she says at least once a week we know that she worked for her she was actually in the store for at least six more weeks she stopped by he stopped by a least six times to say how are you doing and she said every time i'm ok hack who also followed up with her after her initial conversation with him about on the garbage run she says that all of those times when she says she was ok she was lying well taking the undisputed  gives but even if other than vernon are not supervisors the standard is the negligence one and the standard is defunct take adequate corrective actions reasonably calculated to end the harassment and i'm the i'm just be to we were to determine their own people took reasonable corrective actions after the complaint does she have a remedy for the harassment before the complaint have to take do i have to take direction from someone and they say well they've been here longer than you so we're i'd appreciate if you'd listen to them we certainly don't contend that that was a sufficient notice to put home depot i noticed under either  is required to take reasonable steps even if home depot's reasonable stats were wrong which in this case they weren't because home depot repeatedly asked her are are things ok and she kept saying they are ok now only now far after the initial complaint just to say well actually the comments didn't stop actually even money maker comment continued so i think it's i don't as i understand a question that's cool you're asking whether the fact that she now tumour which she have a remedy for supervisor harassment if she prevailed on that for the period of two when they took the corrective action she doesn't have a remedy tell they've been put on notice so long as the employer has taken prompt actions and usually i e having a policy disseminating that policy to individuals so that they know that there is a procedure asked have a policy in place disseminate that policy in this case department had two days worth of orientation she clearly had training on the policy and once the employer has noticed it has done those preventative st and then has corrected promptly sexually harassing behavior at least in this circuit once the employer has correctly correct and practice that behavior promptly then there is not then there is an affirmative defense for employers and the employer is not liable from that point on so long as so long as the employer can prove both elements of it's a climate of defense one that it exercised reasonable care by either having a policy upfront and the harassment and correctly prompt promptly correct the harassment upon notice and to the plain unreasonably fail to take advantage of those preventative measures in this case because harmon we certainly all individuals doing is directing specific tasks they are not a supervisor and more importantly i would also point out to the court that in an mcginest case which plaintiff cites repeatedly in that case there is a footnote where the and coworkers is not dependent on job titles or former struct formal structures within the workplace but rather upon whether a supervisor has the authority to demand obedience from the employee and this case mr abbott mr burns simply did not meet that standard standard is negligence and the plaintiff has the burden of proving that the employer knew or should have known and that after notices the employer failed to take adequate remedial measures to reasonably have that were measures that were reasonably calculated doesn't have to work necessarily it has to be reasonably calculated and that harassment and we submit that millions of parliament requested a remedy home depot not only followed her remedy but did much more than follow her remedy home depot's certainly tried to endeavor to find out whether or not the conduct had actually stopped in this case ms harman now says she lied at least six or seven farms at least a half a dozen times to mr kilmer at least once in a closed door meeting with miss running or it's not just as a policy matter responsible to hold an employer liable when an employee has is admittedly lying to the employer and telling them they're fine the employer is perfectly suited from promptly correcting the behavior or from taking further actions which would correct that behavior a couple of other matters i wanted to just briefly touch on that came up with respect to this whole do we go by the issue by issue certainly in this once  corporate slogan all of this discussion about whether it was subjectively objectively reasonable is actually unnecessary because if you look at the record ms harman received her evaluation on june fifth it did not that evaluation that common did not reasonably deter either in from an objective or a subjective standard a person from complaining about title seven related behavior and how do we know that because six days later on june eleventh she submitted a three and a half page single spaced tights some slight complaining about the same type of title seven conduct that she had complain my evaluation that related to breaking down the walls it was not a negative corporate use of a corporate slogan and it was a legitimate opportunity for an employer to counsel an employee to improve her performance the trucks and then everyone else would take the different portions of the things they were unloading and stock the shelves and when and mr harmon in her deposition testimony specifically says what i do is i would finish my area and then i would go to someone else's area or vice versa if her manager legitimately noticed that she was not doing so there there is simply number one there's no adverse action such that she can even make a private patient case but more importantly even slogan and that is exactly what the comment on the evaluation says and moreover mr harmon has the burden of proof text has herman has no evidence that mr hilmer statement to her about breaking down the walls was retired tory acknowledging any type of harassment in terms of its rights that comments council has said that mr abbott and mr burnham both engaged in that conduct that's not the case let me get back to the original harassment which really is the major part of the case let's focus first of all on this issue of this don't want you know whether this complaint she went to mr gore's again on june fourth and said that the workplace was still intolerable she then writes it's a written complaint on june eleventh that says i'm afraid of working at this place i'm not comfortable i don't feel safe it is hard for me to work around people that hurt me in so many ways and disrespect me and asking to be tra a matter of law i know this court said for example in the field of case failure to transfer someone per their it is an example of inadequate measures a jury could decide he and his twin purposes not only to examples were given just generalities that were on the video they didn't tell or this to anything they talked about what was in the tape they didn't mention anything about ms harman's allegations to anyone and didn't investigate and did nothing about them until this farming resigned weeks after up telling mr atack that about what was happening six weeks after killing mr kilmore to three weeks after going to mr gor following the written harassment complaint a jury could easily find that whether you view it coworker or supervisor that when you get cut off and the break a set of illinois is the closest to this she was cut off she was going to tell that mr hague back about everything that happened he cut her off and says i know we're trying to replace him just hang in there we get cut off by your supervisor that is negligence they knew or should have known having done what he was supposed to do which was listen to the employee who was trying to file the complaint let me get to this issue because i have to say it is complicated but i think opposing counsel has confused the two standards here the i do agree  defense tails is a matter of the law and the law is a strict liability in the nichols case your honor you addressed this very question you wrote that in citing the fourth case which has been established in the circuit for a while when the employer undertakes no remedy or whe she denies that the question of whether she was told that anything was being done whether or not that mr burnham and mr abbott were told anything about the specific mr abbott mr burnham said they were again you are the issue here is could given the precedence of this case the nichols case for example they took the entire remedial burden on the plaintiffs here she did what she should do she reported the harassment it didn't stop and  again that still has nothing to do with what happened before and then the harassment all the major part of the harassment occurs before may ninth and as to whether or not it's negligence or strict liability they're still liable liability that answers the question on supervisor harassment and again given what the mr with she was told that he was in charge of the position was bakin he was acting is de facto night department head he was giving her assignments he removed her from the electrical corral there's also the matter of competence here your honor people weren't trained mr gore's had these people had had apparently no training on how to deal with it and they admitted their follow up with asking how's it going that's what they did to everybody