aware that the lower court dismissed all three of those claims the st hostile work environment she concluded that there was insufficient evidence for discriminatory conduct against  curt he concluded that that had been way because there wasn't enough in the brief to support the claim and so and thirdly that the retaliation charge was i was not brought up in the minutes as part of the ministry and let me take up st the hostile work environment claim if i may the hostile work environment claim your very we're well aware of the elements to such a claim is whether or not the conduct is severe and persists pervasive and it has to have frequency subverting it has to be humiliating conduct and have to interfere with her job performance i submit to the court that there are findings that support all of those matters and in the williams being here in case the court this court concluded that that is  a jury question as to the severity and pervasiveness let me ask you a preliminary question i know that it's not extensively briefed here but the because of sex part of it which is that the supervisor here seem to mr braun seem to be an equal opportunity abuser or at least that's that's an inference we can draw from the record the abuse virtually every sales person that was under him and so it's does is gives there a genuine material fact that somehow she was treated your client was treated differently than others yes i think there was i think she was targeted by mr burns and unit have you can look  shoulders he said he could have her i mean he wasn't doing this to the other employees he was targeting her he made her life so miserable that she had to leave the workplace go home because she was so upset and it wasn't a to create a hostile workplace so i think that that issue i feel very bad in fact the district court almost went to the point and if you be quite limited in their in their own words ok so it is quite limited but doesn't saying jury have a right to pass on whether or not your evidence is sufficient to establish a workplace a hostile workplace is that the function of the court is the bar so high that we can never bring these actions i mean to me i look at these facts and this is appalling what a supervisor can get away with what are employer can get away with and we say oh ok you didn't meet your bar is a bar so high that if no one reaches that what good is that cause of action i think that that is is really important this is an important case to which is the issue we just talked about in the harris case the supreme court has said that it is a necessary essential element of a hostile workplace so that is of the record we also have are you talking now about the disparate treatment claim that the district court said you had waived by not arguing so i am well i mean i guess i mean you're right out of three of our both of our because of saks but the problem i'm having is there are different theories that can prove that so you could have a disparate impact crime you could have a disparate treatment claim you could have you know a hostile work environment by him and i think the district court was saying that you didn't differentiate between them so out you argue the hostile work environment claim you're really an argue the disparate treatment claim why is that wrong is wrong because if the court looks at the facts that are represented in this case the underlying record it itself concluded that the pla received sales training in manual that her core employee was prevented from helping her shadow to learn how to sell cars she did not have the opportunity to sell she was well i don't necessarily disagree with you but did you did you press that point the all those facts are talking about now in the context of a of a desperate treatment climb in my resistance i said that she's hostile workplace and discrimination ok and the factual statements that i presented to the court i presented facts to substantiate that the court criticize affected the emphasis in the brief run other issues and not on that and that's basically the court said well if you if you don't emphasize that in your brief then you're done well let me ask you i just want to i think there's another problem with the disparate treatment claim which is smart presented another number of legitimate nondiscriminatory reasons for what you trying to be discrimination or disparate treatment and my sense says is that one of the problems is even if you didn't forfeit it you didn't necessarily answer all of those legitimate nondiscriminatory reasons and so you kind of left some standing isn't that an independent reason to affirm on the on the disparate treatment claim no because we have direct evidence of discrimination and there's no mcdonald douglas burden shifting under that scenario if it's interactive it is yes but if direct evidence of discriminatory treatment they can rebut that and show some that that wasn't the case   really hard to determine whether something is direct evidence i'm i'm curious as to what you characterize as direct evidence let me turn to the memorandum decision of the lower court judge and he found that she was never given proper training she was called into the office saying answer phones she was told not you know she was encouraged to show but never was given the opportunity that's all evidence that she was treated differently than the male employee that's not direct eviden still requires an inference whereas if for example you know that supervisor were to say cad you know she's a woman i don't want her doing this because she can't do it as well as others or something like that out i think would be direct evidence  have anything like that here i think the evidence that i've presented by way of my factual statement is what i say i think it is direct evidence furthermore the court stated lower court work environment was certainly hostile and that there was evidence that provides some support for the claim of discriminatory treatment based upon sex with a lower court found that there was evidence of discriminatory disparate treatment as this court phrased it so i think that the evidence sustains that the last thing i want to talk about just briefly and that's a retaliation charge currently i think retaliation was brought up in a narrative to the complaint the narrative was solicited by the i was civil rights commission and her answer in that narrative establishes that she was treated differently because she was complaint  they that the narrative was not part of the complaint and that is not truth the narrative is if in fact civil rights commissions job is to try to understand the nature of the complaint which is far as i'm concerned telling the court today is that this narrative was in fact a part of her complaint procedure to the i c r c and therefore retaliation was established i would like to reserve my the balance of my time thank you thank you clients are asking this court to affirm judge strand's grant of summary judgment on three of the claims mrs pascoe asserted in this lawsuit with respect to retaliation  legal things that they can that they're doing may have this kind of precludes who fact later there's no doubt you are this course precedent construes that administrative complaint like this chirpily given the fact that sometimes these individuals are represented by counsel they may not understand the legal terms but being said they still have an obligation to present even if they don't understand the legal terminology some facts and the i was civil rights complaint form in fact gives them that opportunity at the appendix in this record it's appendix page two hundred and fifty one where it asks the complainant to set forth a narrative form the facts that it believes support its claims that it's making so it's got a list of questions checkbox if you will a list of questions and then thirdly and narrative and the narrative mrs askerton provided didn't provide any facts that would allow either the commission or my clients responding to the complaint to discern that retaliation is being alleged is the court knows to have retaliation you have to have some kind of legally protected activity she goes to h r and complains about discrimination or harassment she files the charge and as a consequence there's even though they should be looked at church ability to complain is you can't find something or make something up something that simply isn't in the complaint and that's what the case is here i want to respond as well pages there are several important aspects of the questionnaire that are relevant number one is the questionnaire is not a part of the original administrative complaint that's a document that the commission sends to the complainant and sends another question here to the respondent to provide additional information and you can tell from the record that the questionnaire responses from from a fax line on the top are submitted by pastors lawyers about a month a little over a month after she presented her initial quite and this is information that goes only to the commission and is supposed to help them investigate the claims the responding employer doesn't get the questionnaire responses and part of the reason for the requirement of exhaustion of remedies is to give the commission notice of course but also to give the responding employer notice of what is being claimed here so even if mrs password had presented facts in the questionnaire that were germane to retaliation and we don't think she did there aren't any facts in there my clients never got that information so they would never have had an opportunity to respond to a claim of retaliation so based on the record here the courts in the i was civil rights commission form there simply isn't enough information to put the commission on notice to put my clients on notice that  retaliation is being alleged she didn't exhaust her administrative remedies and that's why the court was correct granting summary judgment on that claim on the on the sexual or thinks he's me the the hostile work environment rassmann claim one of the things that concerns me when i read that the district court's order and you can tell me what you know that i should be concerned is the district court seems to really look for things that are in the tension interest some sort of sexual when innuendo or something of that nature but we have you know there are going to hostile work environment claims simply if a supervisor repeatedly treats somebody differently because of sex and makes their life miserable even aside from sexual innuendo and other other types of advances and so i'm wondering if if the district court was a little misguided and what the district court was looking at in this case we don't think we don't think he st even though judge strange opinion focuses on the severe and pervasive aspect of it your question to mr dec about the because of the sex part of it is an important one and we presented that to the judge in our briefing in the summary judgment he didn't rely upon it as opinion but it does give independent grounds for this court to firm and that is mr burns the supervisor there was certainly a fair amount of evidence of him having a bad temper some we characterize him as abusive he yelled at the employees but there's quite a bit of evidence that he treated everybody that way mr deck referred to the record being replete with evidence of sexual harassment but the kind of conduct that was there every day was something that affected male and female employees alike and we're not trying to excuse his behavior obviously but that's really what the evidence shows and yet he did say he wished he had hired a woman right and he did say that he wished he had not hired a woman there is correct he denied there is evidence in the record that mr burns said that he wished he had not hired a woman because she was too emotional there so i believe one or two instances where he's alleged to have voted those things there's no doubt about that but if you look at the totality of the conduct he's doing these things to male and female employees alike when their male and female employees are salesman put up with and that another previous male salesman also quit because of mr burns abusive conduct so good not excusing it by any means but this is something that male and female employees for the most part were subject to if we were to if you know we have to write an opinion so if if we were going to affirm on one ground which which do you think is stronger on this record because of or the pervasiveness of the of the conduct and we cited in our briefs well there's certainly not a bright line test to determine what crosses that threshold it's been less a high threshold that a plaintiff has to cross in terms of the nature of the conduct whether it's just verbal conduct  how long it occurs and how many times it occurs and whether it may involve some kind of touching or not and the record in this case shows maybe five or six different aspects of conduct that could  be or no doubt maybe are based on sex the the comments that judge cries identified about he was she had hired a female employee don't like many of these cases though isn't there now if you should hear back to physical contact there's the was asking for an apology something like that the record says and he he tester shoulders and asked for a hug and there's no evidence that she gave him a hug so that the touching is one incident where mr burns touched mrs basket on her shoulders and the cases that are described in our briefs are cited in our briefs and that judge trend relied upon the touching that some of them involve much more extensive touching than just one time and the nature of the touching as far as where the on the body the alleged harasser touched is more sensitive here we have one touching and based on the precedence of this this court is established it simply hasn't risen to the level of the severe and hostile environment necessary to to go to the jury on section on a sexual harassment claim that being said and i think i've argued already we think the alternative ground would be most of the bad conduct my mr burns the abusive conduct was not based on sex but was applied to male and female employees a lot finally i want to address the  analyzed differently and in order for the plaintiff to defeat a motion for summary judgment is required to identify evidence of disport treatment in present arguments about why these facts would generate a genuine dispute for trial on that the fact that she was treated differently because of her sex as far as employment decisions like the training that she claimed she didn't get having the answer the phones that she claimed happened are there are advances that may have occurred if assuming that's true but that doesn't identify what the motive mr berndt motive was that he do those things or was mrs past projects a motivating factor for the reason he did those things there isn't any argument virtually on any of those points there are some as we look through the summary judgment briefs and responding to mr burns separate motion for summary judgment there's a couple of headings that mention discrimination but it combines those with retaliation and with harassment so it's kind of hard to understand what the heading is talking about and then in the body of the brief itself there's simply one paragraph where he says she didn't get the sales training that she wanted she didn't get the time on the sales floor and that's sex discrimination and treatment doesn't have to determine trying to get out what the what the argument sure there's no argument in the plaintiff's brief that there was direct evidence of discrimination or or there certainly wasn't a pointing out of what the plaintiffs claim the direct evidence was there wasn't a discussion whether she satisfied the private facia case discrimination there was no argument that the defendant stated reasons for her demotion and her terminations were somehow pretext for sex discrimination what about the comment that the judge grass referenced about i wish i would have hired a woman is that it's that direct evidence of discrimination well i suppose in theory you could be on her but the plaintiff didn't point to that evidence says evidence of disparate  t so unless he makes an argument says here's the direct evidence and what other evidence is director or circumstantial consent times you kind of gray it's certainly not always clear but if he's going to contend that there's direct evidence and therefore he doesn't have to rely on the mcdonnell douglas douglas burden shifting state that in his brief and say we say this is a direct evidence case here's the direct evidence mrs pastor didn't do that nor did she go on and say not hostile allegation or findings made by the district court but obviously all of the hostile allegation or findings that were made their court also would show direct evidence which would include his statement that i should never have hired woman that i want to make you cry every day and have you leave that he could have her i mean those things to mean or direct evidence i don't know are we supposed to infer something else other than because of her complaints she was true demoted and her male employee was not so that i think is our argument on that if one looks at the total record in this case  i think the court should be should leave with the impression that this conduct by this abusive supervisor is concluded by the district court was an effort to get her to quit voluntarily so he didn't have to fire her and i think that that kind of behavior should never be allowed or condoned by any court she should have her day in court and that's why we're here today i ask for you to reverse the