good morning summary judgment says the no will the stander review for motions to strike its abuse of discretion but we cited two cases in order to that we could sue their apply in this case the first one is succeed do you have to convince us the the district court did abuse its discretion in striking almost all of your opposition to the purser going to think i think there's the question slightly different than if i get the question the question is not should you win on the abuse of discretion claim the question is do you need to win on that claim to ultimately prevail i need to win and that based on the exceptions side and that because if we strike everything safe from what was a you can't win on just what was allowed that's true  environment are bred out from ongoing series of higher assman you honor and we stayed at specific reference to the record that complied with civil law or rule week are than facts that establish that on going series and record citations for everything you assert your response may not have been sure or concise some of your numbered paragraphs were very long reply they they are facts that there are well at rest are specific reference in the record that establish the cause of action a retaliation and also the cause of action and all the whole style only retaliatory act that you are no law in upon it well and to record your statements that they transfer her view he was the most transfer employee but we meant that if i got the last the one that were given our biggest place that he was advised that it was in the works and that's relevant because having been advised it was in the works took took place prior to the following of any internal complaint so there is a if your focus is on the in his hands and two days after you honor he was transferred and he was trying to reveal what in the record by the sexual harasser and also we address the issue of the business wire transfer him we have within the record his statement from another supervisor that states that the right commendation was not to transfer him that he was going to stay in the same position that's in the record that established an opportunity commission the e e o c is here today because the district court committed to significant legal errors regardless of what this court does on the merits we ask you to please correct those legal errors the first one involves the timeliness analysis under morgan as the supreme court explained in mortgage and a hostile work environment is typically created over time it constitutes a series of separate outs the collectively constitute a single violation all incidents are relevant to liability as and as long as any incident that is part of that hostile work environment occurs within the charge filing period incidents within the charge filing period do not have to be independently actionable to consider the entire course of conduct this court has followed the more it can rule as it must beginning with crowley and like in two thousand required by title seven and therefore they could not be part of a hostile work environment based on sex pairs also reached the right result there and held that a request for a coworker to bring cornbread was not  sexual harassment page sixteen of the order we know that the court was requiring that these constitute sexual harassment in and of themselves because of what it did next it discuss allegation within the charge filing period of anything because of sex however the plaintiff did a ledge that there was sexual touching within the charge of filing period and then this for the charge filing period he also alleged sexual touching not only did he say that it happened it is illian times which is what the act how he focuses on but he also alleged specific instances of sexual touching and also had witnesses that they and they reasonable inferences in favor of the plaintiff so given the fact that he testified that it was sexual and then that other witnesses said they did see touch and it's in reasonable and friends that there was sexual touching that critical for the i mean one possible way of reading what the district court did would be to be disputing your conclusion on that point because hear morgan was entrapped and we're asking this court just to clarify what it has already said that under marchand what you look out with in the charge filing perry and does not itself have to constitute a hostile work environment that's why we're here sexual harassment correct but what it has to constitute the kind of conduct that could be relevant to the conclusion that there was sexual harassment it thinks  uses or suggests that we use for determining that second inquiry it would have to be related in some way on as described in more again so it could be the same conduct by the same harasser and in this case he is alleging the everything in context council just focusing on the facts here it isn't it so that the the event that you focus on within the three hundred period is rather precisely mirrored by touching that we're talking about in the two periods though is distinctive it's not absolutely the same because as you said in the period outside the touching that he alleges was sexual harassment is touching that other people witness that's see you see i mean that's the with the difficult about applying morgan to actual facts is what are we supposed to it's true he's alleged all of it is the say under alleging the same person did it he's then got detailed kelts of what it looked like in the later period we've got some evidence of what it looked like in the former period but it's uncertain do we treat that all as related or do we say no it's distinctive i mean how am i supposed to actually apply the standard you want us to apply when there's facts like this because this is actually a pretty good test case of how you might think about applying the  something for timeliness and then the jury could look at all of it but here on summary judgment where you have touching and you have a history of somebody with sexual touching of a reasonable jury couldn't find out what happened later by the same harasser was connected i'm under mourning and you just need some incident no matter how tiny within that the charge filing parent and even if this is a tiny say one of the incidents outside the period just happened to be necessary to the conclusion that the incidents that occurred inside the period would amount to pervasive th ok ok so the only way you can get over the pervasiveness help was to include one of the incidents outside the period when though if we looked at that incident from outside the period would a jury be able to reasonably conclude that the touching alleged outside the period was because of sects and sexual in nature such that we could aggregate it with the others to now conclude it was pervasive if we couldn't and it seems odd to me that words you don't have to prove that something that occurred outside the theory itself shows pervasiveness correct but i would have thought you have to show it's the kind of thing that could at least contribute could contribute to preva that you have focused on within the time period those mere perhaps in every detail does mirror the kind of conduct that occurred during the thirteen or fourteen year period in that it  what do you want to do next i mean it's not hard to see in that allegation of the sexual connotation and i assume that's the kind of allegation that you were  makes it related that one piece later within the charge filing perry and even if not crystal clear looked at in context in the context of the kind of allegation that you just mentioned could be viewed as sexual and certainly could and in that regard find his counsel concede that he would have to be he would have to prevail on that point in order to prevail in summary judgment and we just very briefly would like to note that the degree of deference due to  decision after making that in the summary judgment context a very important procedural ruling about what what what it would not be part of the summary judgment record of the court then seems to undertake the legal analysis that seems to disregard the the ruling that he's made about the state of the record i mean he seems to look at the hostile environment claim for example as if everything that's been alleged been disputed the support is there and then makes the legal judgments that he makes it is that is that is incorrect reading of how the district court proceeded yes your honor because the allegations that the district court included were addressed as part of defense motion for summary judgment so the court disregarded the additional facts and incidents that were alleged by the plaintiffs in their opposition the court did was as must undertake an independent review of the record in order to determine whether summary judgment was appropriate as a matter of law with that record took into consideration what he had who should not properly be part of the record is that i disagree your honor as i mentioned previously the exhibits that were taken into consideration were those that were made part of defendant's motion for summary judgment and as the court will note the judge did make a small section for certain yes here so you're not challenging the even with that various incidents which all make reference to the defendant's statement of facts so the record is not broader than what was in our moving papers except as to the limited facts which i think i may be just confusing things i thought the district court ruled your because of the nature of the filings by the plaintiff it was going to treat only this was it are for example it in deciding that the conduct alleged would not was not severe in pursuit and pervasive within the meaning of our case law my sense was that the district court actually did  look allegations that were covered by procedural rulings and that's why i have the the feeling of a disconnect between what he said was properly part of the summary judgment record and then what he proceeded to look at when he and argue that even if all the facts are brought to bear the can the conduct was not sufficiently severe nor sufficiently objectively sexual so as to uphold a ruling under i'm not quite sure if that was something that we directly addressed i think we did bring it up because there is a discrepancy between how he described the incident the first time around when he complained to the hotel and then when he brought it  the charge me you see the initial incident doesn't mention the key at all and it doesn't mention come to my room the first time he described the incident he just said i'm paying for lunch what you want to do next but maybe just understand the stakes of this dispute better at so i'm a little choked up by the concession maybe on the other side given what you're no saying what is seemingly in the record  your perspective what is excluded from the record by the strike order that was of any relevance to the merits i mean i know it's an odd question to ask you but  since you're also trying to tell us it's important that we uphold the strike order just on what's of any significance factually that paragraphs that remain after the strike order and that seems like it was one exception they don't really involve any allegations about inappropriate conduct by mr alvarez they all seem to relate to the kind of procedural procedural matters who worked at the human resources department  allegations of quickly playing to characterize a sexual misconduct so this is a in light of the judge's ruling this is an extremely favorable record for you which we believe is constrained to our moving papers so it's a look let me try this am i correct in my understanding which i think maybe a little different than others that a number of those incidents were that being said we have a disagreement with the e e o c his position as to the application of morgan because while the e e o c properly argued that morgan allows for the aggregation of timely and on time claims there is you know in the e e o c guidance itself it has to be because of a characteristic protected by title seven if the conduct falls outside the purview of title seven it doesn't matter if untimely you can't aggregate it to create a timely claim and here the acts within the charging period are not remotely sexual there's two invitations to socialise where the record clearly reflect that these invitations were extended to other managers male and female at that mr out about his customarily invited people to parties at his house and it wasn't something specifically directed to the plaintiff and in fact the e e o c essentially concedes in its brief that those two proposed anchoring acts are insufficient so they instead focus on the touching but with regards to the touching we have to pay attention to social context and we have to operate from up to a point of common sense and when we look at the incident in the record really it comes down to a handshake at eight thirty in the morning after morning lineup and nothing else the simple expedient of calling it a sexual act you know what but what if if we if you looked at all of the incidents leading up that are outside the period that would cast a remarkably different pitino on what might appear to be innocent acts what do you make of that argument i would respectfully disagree here on her elbow what it did but hypothetically what if it did that if it casts a different patina i still think that a handshake in a professional setting in public does not rise to the sort of conduct that would probably support an actionable work environment because of sex the plaintiff here has not presented any evidence that other males were subjected to similar conduct he has not subject he has not presented evidence that members of the opposite sex were treated differently and he has not presented any evidence that this act that he's alleging would be objectively offensive to another person in his same position to did anyone  besides the plaintiff describe the touching of the hands as as potentially sexual i mean you call it a handshake but he seemed to you calls it something else your honor none of the witnesses were able to characterize any of the interactions between mr imus and the plaintiff as sexual or inappropriate in nature the record on that is quite clear spoke so why would we disregard his characterization at this stage of the perceived plaintiff's characterization is subjective the person who saw this conduct from the outside objective we didn't see anything sexual about it so well there has to be an objective that objectively be sexual in nature your honor we're saying that it's because he is the one representing it it can't be credible we can't do that and separate judgment your honor what happened in this case is that in a subtle manner but how were you touched where were you touched where did the contact take place what's in the record is that somebody saw mr abbott is touching on the arm somebody say you saw him pile on the back as a greeting somebody saw him shake his hand none of these things are based on gender none of these things on their own could raise an inference that mr landis was being targeted because of se and this court has clearly held you know that summary judgment is the appropriate baseline you know the mechanism to police the baseline for these hostile work environment claims also some code you seem to be saying and since this is  here's this is another one of his allegations alvarez would insinuate with his body movements that he would like to have sex with me it was sports of snow that's that's not just a conclusory only geisha and there was a reference to the way in which  moving his body if if were an allegation involving mr alvarez and a female employee would you say that one could not infer from the left that that is sexual in nature your honor i believe that there is an insufficient description there and furthermore plaintiff was asked if he was ever propositioned by mr augustus if he was ever told invited for sex if there was ever anything overtly sexual and record is clear and uncontested that there was not he did what he says is he subjectively perceive things like i'm watching you i hope you're doing your job well as being a sexual come on another instance is i hope my mother gets well taken care of when she visits i don't know he also interpreted that as mr about is trying to dominate him or seduce him and these are just not reasonable characterizations of what a hostile work environment is none of this conduct is sexual your honor and i believe that applying morgan and applying the case of paid us versus horizon lines this case simply falls short of what this court has previously held is actionable title seven is supposed to create a rigorous standard and exacting demanding standard to prevent case lights and things that are not egregious from becoming the stuff of title seven planes precisely because title seven is not supposed to be a general code of civility and we respectfully submit this is that this very issue here is not present the timeliness is not present because the one act within the charging period is not sufficiently related to those outside and it is not the sort of conduct that can support  given this motion just to the ruling on the strike what does the record show as to that particular incident what the record shows in that particular incident is only what the e e o c charge set which is on that morning mr and that is touch my hands in a sexual manner the simple expedient of adding sexual to the manner of a hand touching which you know i would say our hands are the most exposed to make contact with other people naturally and handshakes are very much normal in a workplace environment all of this other qualification that came later about the lotion and the alleged  part of the record before this court and what's so you're saying that that's conclusory i indeed your honor i think the simple expedient of adding the word sexual to a head touching does not raise it to the level gazed at his body pop and invited him to have drinks after work at the gym this this allegation within the three hundred day period is similar to similar kind of falls short it's a relatively insignificant incident all things considered and the invitations to socialize were currently held by the district court to be a general occurrence at the hotel not something just directed at the plaintiff so the invitation to socialize would serve as an anchor after because it's not targeted at plaintiff because of his sex so the the touching of his hands again we are in a public area at the hotel right after a meeting it's not unusual or uncommon for this sort of hand to hand contact to take place that's why that's why one incident isn't  aggregating the incidents outside the time period they mirror the incident inside the time period and having that extra dimension based on the allegation in the i don't quite see what the problem with and gender based or sexual based animus because we feel that even as informed by the prior acts this claim still fails the record before this court just before you go too far just one of the understand something about the concession that you earlier made and i'm trying to december that you really made it yet considering th fact that i'm going to address you on are just was this fact alone we take it totally totally that all the facts together in the case it shows that he was sexually harassed win as i understand from your opponents even if we do not overturn the motion to strike we still can look at the statement of fact as put forward by the opponent record arguably he should not go with that in light of the ruling on the motion to strike you seem to be saying that really what he did is correct what i believe you honor that the facts that there are in the record he shooter use him also and considering the facts at their well we may specific reference to the record properly because it was those facts it's more explain what took place in this record we address the issue of exhibit two attached to this document plaintiff exhibit one at attached to the deposition exhibit two was a deposition were making reference to accept it and pages we haven't breach the civil local rule thank you