May I please the court and King on behalf of the Palant Lawy Freeman. His Freeman asked this court to reverse the district court's dismissal of her hostile work environment, constructive discharge, and state law obstruction of justice claims against her former employer, Dal Tile. I'll begin with the hostile work environment claims. Over three years, Ms. Freeman and African American woman experienced ongoing racial and sexual harassment from Timothy Coaster. Coaster work for both donors. Part of me? ongoing racial. ongoing racial and sexual harassment. Yes, your honor. On the racial issue, we had the one incident in 2006, and then we had the two incidents in 2009, right? Three years later. That's correct. There were three particularly serious incidents that Ms. Freeman recalls. Well, I was just to an issue with the fact that that was ongoing. Really, we're looking at a 2006 incident, which where an instruction was issued against this customer not to use those words, and he didn't use them for two years or three years. And then in 2009, we had the two incidents about six weeks apart, or seven weeks apart. Actually, your honor. So Ms. Freeman recalls those in particular and highlights those. There was ongoing, both sexual and racial harassment by Coaster, who worked for a company that regularly did business with Dal Tile. What's the evidence that if you look at the specific ones, Ms. Freeman talks about, they're in a compacted period of time. What's the evidence in the record that there was years worth of conduct by him, and how does that make both sexual and racial actions or comments? What's the evidence? Now, not an argument, but the evidence. And how does that create the case for Ms. Freeman? There's significant evidence of pervasive harassment. You may have told that, but I've found a little bit closer. I'm having trouble here, and you might have to call that. My phone, you can call it. Okay
. How's that? So Ms. Freeman described an atmosphere where Coaster, who came into the office almost every day, made log comments as often as two to three times a week, Sarah ran the manager of the Raleigh branch. Is that clear? Is that clear? No, I'll talk about that. Wait, wait, wait, wait, wait, wait. Let me ask, let me ask. Is that clear, that's for the three-year period? Do you have a statement that she made that says that? She describes in her testimony where she makes that statement around a J.A. 78.79, that it began when she started as a temp back in 2006, and then she describes an atmosphere where he was frequently making nude comments a few times a week. And in terms of other evidence, there's much corroborating. Let me ask. It's not alone enough that she knew it. Doesn't the management have to be aware of it? Yes, of course, your honor. There's the evidence that management either was or should have been aware of that precedence that precedes these very specific incidents that we're talking about. Where's that evidence by testimony in the record? Here, we think that a jury could conclude that Daltao had both actual and constructive knowledge. All right, the full date of knowledge. Go with actual knowledge. Where's the evidence in the record of that? For actual knowledge, there are specific complaints that Miss Freeman made in 2006 when Coaster first used the word black bitch in her present sheet, complained to her supervisor Sarah Ren at that time. Later when Coaster made a quite serious comment, used what might be viewed as the most serious racial slur, the N word and the phrase N word with the checkbook, Miss Freeman, and this was in June 2009. Why isn't that an isolated incident in 2006 when he used a term black bitches and Ren then says don't do it. And then the next thing that I see that she talked, that she refers to, was in maybe 2008, maybe this was the incident with passing the gas on the telephone, we'll talk about that. But the N word comment wasn't until 2009. That's right, that was in 2009, but in the meantime, Ren testified that she observed frequent conduct by Coaster. A couple examples that he bragged about his sexual escapades more than once a month she said. And that's at J268 that he shared sexually explicit photos on his cell phone in front of quote everybody. She also said that she assumed he joked about racial topics. As for the other specific dates, the question of explicit photos on the cell phone, Coaster recalls that around, I believe it was the summer of 2008 that he showed Miss Freeman in particular a photograph of a naked woman's buttocks on his cell phone. She testifies that he basically shoved it in her face and said something like this is what I left my bed to come here today
. So in fact, although we highlight. As she complained the second time in July of 2009. First in 2006. That was in 2009. And instructed the tester not to say it. And according to her, Black bitches wouldn't use it again for three years. Then it was used again in the summer of 2009. That's right that in 2006, Ren, the supervisor told Coaster, don't say that again, but it wasn't effective at all. As I just described, Ren, Ren witness that he used a specific racial term during the three years. And there's no evidence that she complained about it for three years. She complained in July 2009, right? June and then July 2009. That's correct. And that led to intervention by the employer. The July 2009 complaint did, but not the June 2009 complaint. But to refer back to a question that you just asked Judge Neemire, there is evidence of other racial comments between 2006 and 2009. Joking and so forth. My question is this is an employer liability complaint. And the employer was told about a problem in 2006 and took care of it and thought it was taken care of and apparently it was. Then the employer was told about this in 2009 and responded. And concluded that, Caster, it isn't going to come in this place until we sort this out. And after they fard him from that place, they reached an arrangement where he can't talk to her in certain limitations. And there's no evidence of anything further with respect to her after that. So my question is really is you have two, these two periods. The June and July is when they really addressed it and they isolated one in 2006. The rest is all, this is not even an employee. The employees had a pretty good camaraderie and they sort of said, oh, there he goes again. Now he had this terrible habit of referring to all women in all context as bitches. Even in front of his daughter
. And every time you see a woman black or white or anything, he called her bitch. Go out night and talk about his bitches. It was just totally offensive and inappropriate. And all the women in the war knew that and they sort of teamed together. So they got along pretty well together and he came in and he was an offensive customer. So in 2006, they tell him don't use black bitches. He didn't. And after then he did use two phrases in 2009 that were totally inappropriate and violated that earlier instruction. And at that point, after those two phrases, he was barred, right? There are a few things that I'd like to address in your comments, your honor. So that's the final question that when he was barred, he was initially banned after the July 2009 black bitch comment, which is when Miss Freeman complained to human resources. And that's very telling because the employer in a case of third party harassment is required to pay. One part of a question that he asked you. Yes, your honor. Judge Neymar said when in 2006, when he said black bitches, he was told don't do that again. Are they correct to that? Does the evidence indicate that he stopped doing it at that point? I don't think it does, you're on that he stopped. You don't think that it does? What does the evidence? A jury could certainly find based on this record that he didn't stop engaging in highly offensive conduct. Did you ever use black bitches again until 2009? He not indicated in the record. However, the fact that this admonition in particular didn't stop him from engaging in other offensive conduct means that it was not an effective measure by Deltile. In fact, he admittedly made comments about his own sexual relationships with African American women in particular. There was a racial character to his sexual banter, to his sexual commentary. Another co-worker testified that he used language that was racial and character. Miss Freeman is an African American woman. The Supreme Court has emphasized that the objective standard in determining what's offensive when analyzing how to work environment is viewed from the perspective of a reasonable person in the plant's position. Here, the harassment by coasters should be viewed from the perspective of a reasonable African American woman. A jury could certainly determine that his pattern of harassment would be offensive to an African American woman, regardless of how the other co-workers viewed them. I'd like to just focus on a point about Deltile's response with which Judge Niemire brought up. You had mentioned that Deltile banned coasters originally after the July 2009 claim. That's very early
. You could get it sorted out of the language. Well, we would put forth that a jury could see Deltile's response quite differently. This is a situation where Deltile itself, internally, initially concluded that banning coasters was the appropriate corrective action. Kathy Dixas in human resources testified that she and the regional vice president had agreed that a ban was appropriate. I'm impacted. Your whole argument here, I know where you're going. Your whole argument is that your client assumed that he was banned permanently and turned out that he wasn't. He did still did business with a company under a limited basis. But during that period, that readjustment to let him come there and he picked up product on the front steps and this type of thing. The fact that they did that, it never engaged your client in there after. I mean, there was no further racial or sexual comments made by him to her. Were there after the July 2009 comment in that case, coaster and Freeman did coaster did not make any more offensive comments. However, as I emphasized before, the harassment had persisted for three years before that action was taken and the failure to prevent contact itself caused real harm to Ms. Freeman. This was harassment that I've explained happened two to three times a week. Your argument is that ending the comments was not ending the interaction between her and the customer. And therefore ending the comments was not a sufficient response by the employer. Not in this case, Your Honor. And it's certainly would make sense for a business that has an abusive customer who that comes in regularly, abuses an employee like has happened here to ban that person. Ms. Freeman, because the harassment was ongoing, she knew that she could encounter him at any time and also just, well, his presence is very important. Your argument is there not that the reasonable response would be to ban him permanently. You're arguing that that's the only response. No, Your Honor. I do think that there would have been other possibilities. Do you really think that's a strong suit of your argument about the response? I don't think it boils down to that being the only response, but I think it is helpful to acknowledge that it's too..
. It is effectively keeping him from doing business or contacting her. Didn't they do that? They did initially and then backtracked after the company where the customer even intervened. What, he called her on the telephone one time by accident and quickly hung up? He also had emailed her as well and came to the... He was sort of incorrigible. He even went told to keep away and not contact her. It didn't work. He emailed her. He didn't know what he said. He called her. That's way too strong a word, isn't it? He called her. The telephone contact was, he called there and she answered the phone. He realized it was her and then then she said he didn't hung up. I believe that. I believe that he asked her a question about a specific customer that she worked with. So, Jerry could conclude that he had called in order to reach her because she had worked with this customer. Your honor, is if there are any more questions about the House to Work Environment claims, I'm happy to answer them, but I also... Let me tell you, here's a problem you have, I think, in this case. Because the specific incidents that Ms. Freeman talks about are grouped together and they're over a three-year period. I mean, there's a year's worth of gap between her specific incidents. You have to establish that, if you wanted to succeed, I think, you have to establish that the workplace was hostile and the conduct was pervasive. Oh, you're honor. I think the record goes out with that. I don't know
. You say in that, but what's the best evidence you have of that? How many people say it? What do they say about this conduct? What does he say about this conduct? He admits to acting in an outrageous way. And these three incidents that are specifically talked about? More than that, he admittedly made regular racial remarks and jokes. He admittedly made comments about women he had had sexual relationships with, including African American women. The branch manager said that he bragged about his sexual escapades more than once a month. He called women bitches every time that he came in. He didn't say that. But, uh, Jody Scott, it's at J.A. 381. 82. Well, don't you think those comments and that testimony is critical to your establishment of what the work environment was? I think that is critical. And I think that a jury could view this as an ongoing environment rather than just a series of isolated events. To recall certain events with particularity is actually quite reasonable, given the severity of those events. Did Miss Rynn say that he was a pig describing his conduct? Didn't she say that? I believe she did, Your Honor. What do you mean you believe she did? You don't know the record? I don't have a reference here right here, but I do recall something that... Well, didn't Miss Dixas say... Part of me, Your Honor. Didn't Miss Dixas say that Miss Rynn had called him a showmanist a pig? Yes, Your Honor. And Dixas also testified that Rynn had explained to her that she knew this was an ongoing problem... And that his conduct wasn't new? That his conduct was not something new, I believe, is the correct. It was the exact quote. Your Honor, I am out of time for the moment
. I'd like to reserve my remaining time for a bottle. Thank you. All right, let's hear from argument on half the corporation. Thank you, Your Honor. May it please the court. My name is Christine Sims. You're on half of Dow Tile. You're going to need to pull that back in the classroom. Thank you, Your Honor. Right. I'd like to address the severe and pervasive, specifically in regards to a hostile work environment claim, in regards to the racial context, and then in regards to the sexual context. I believe that the question coming from the panel today absolutely hits the nail on the head in regards to whether or not Tim Kester, who was a not-in-fact an employee of Dow Tile. Let me ask you on that. We've never had a case involving a customer creating a hostile work environment. And I gather the theory of the case has to be that this was an internal external causation of the hostile work environment that the employer did not address. That's the theory of the case. I believe that would have created by some external person. I believe that would have to be even though the workplace itself was congenial. I believe, Your Honor, that would have to be the theory of the case that the workplace was congenial. What's the standard imposed on the employer in that type of a theory? I would argue it's a negligent standard. Do you think there can be a scenario in which a company does ongoing business with the sexual harasser racist? I'm not saying this person is on sale. So much so that the employer is charged with stopping that conduct in the workplace. I think that... That would be a yes or no. I think, yes, Your Honor, that if it is severe and pervasive, if it hits all of the other factors.
.. Even if it's not... if it's a customer or a subcontractor who does a business with the employer, you think the employer has some obligation to take steps to end that conduct in his workplace. I do believe that an employer has the obligation to protect its employees regardless of where the abuse may come from. Now, how reasonable their actions are or when they need to step in may differ. It is a different question. But I do think an employer is required. The employer steps in if the employer's standard for stepping in is a negligent standard. If they knew or should have known the conduct and didn't protect the employees, then there's liability. I think if they knew or should have known of the harassment and they did not take prompt and remedial action, reasonable to stop the harassment. I don't think there is a case under Title VII that says the employer must come out first time and absolutely stop the harassment. But what this case is due to say is that an employer must take action prompt and remedial action. Is these cases from other circuits? Well, I think the case is within... No case in our circuit on this. You do not. No Supreme Court case. There is no Supreme Court case. There is no for circuit case. We're arguing. I guess Kermur Foods was the first time where you've the for circuit where this court even came close to analyzing the matter. And that was where an employee who was filling vending machines was being allegedly harassed and stalked according to the allegations in the complaint by two employees of the hospital. And I think that's probably as close as this court has. But I would argue that the key issue here is, is the conduct severe and pervasive and can it be imputed to the defendant as the two main issues before this court? I submit the fact that one no.
.. It seems to me that if you're going to focus on title seven, we would have to conclude that the employer allowed a sufficient amount of external conduct to come in that was severe and pervasive and altered the terms of employment based on race or sex. In this instance, Your Honor? No, I'm talking about statutorily. I mean, in other words, the statute prohibits an employer from discriminating against an employee by reason of race or sex. And the question is now the employer and the employee are not the protagonists here. We have a customer who comes in regularly and infuses the workplace with ugly, racial and sexual comments such that the employees find the workplace being hostile when he's in the store. Now when he's gone, apparently, it's not. But whenever he comes in the store, the workplace becomes a hostile place. The question is, under what circumstances is the employer charged with that in protecting the employees under title seven? I think once the external force rises to the level of a hostile work environment and to where the employer knew or should have known that the employees are offended. Or heavily on the fact that the employer tolerated a condition that changed the employer employee relationship. In other words, the whole focus of title seven is the relationship between the employer and the employee. So the circumstances would have to be that there was enough evidence to show that the employer tolerated a condition that changed the workplace in violation of title seven. I'd have to agree with you, Your Honor. I would have to agree with you that the employer in fact tolerated such behavior that the employer's employees, terms and conditions are affected. Whether negligence is the appropriate standard there, or whether you would have to show that the employer had actual knowledge sufficient to and didn't act on it sufficient to change the workplace. I mean, that they really we're still focusing ultimately on the relationship between the employer and the four years. And in this in that context, it's it's not really any different almost when you're looking at a coworker who's engaging in the harassment, even though that gets it closer. Where an employer is only on the hook for harassment if in of a co of a co employee or a year. The employer has a lot more control of employees. He has terms and conditions. He has handbooks. He instructs them and so forth. When you have customers coming in and we're now policing customer conduct, it seems to me. Maybe the same result could happen. But the question to me would then be is what level and what knowledge and what standard are we going to impose the employer? I think the employer must have knowledge that the terms and conditions of the employee employment relationship has changed for that employee. An absent is showing by the employee that his or her terms and conditions of employment have in fact been affected have in fact been infected by this outside. But the conduct with the conduct could be so outrageous that it did it could affect that it could alter the employment correct. There could be conduct that is that rises to that level from an outside force that could could alter those terms and conditions
. And the company they're not they can't be free in that kind of scenario because yes, the customer. But that customer is coming there and by the way, I would suggest that they only allow that customer to keep coming back and doing that if that customer is making them money. If there was a customer who never did any business with them did all the business with the competitor, you don't think they would allow him to come in and do stuff and say stuff to you. Don't you think there's more tolerance for somebody that's making the company money as this guy. He must have been because why also he'd be tolerated. Well, he was in in in this case, Mr. Kuster was an independent contractor of Vostone and Vostone was a very large customer. That's right of of Dow Tile. He was an agent of the customer. He was an agent of the customer. I don't know how Vostone does the business because when did why did I get his name, Kuster Kuster. I refer to him as Mr. Kuster. Me too. Mr. Kuster. When he talked about the in check book, what did he say that came from? From James Vost. Yeah, it came from my balls. I can't say that I didn't use the N word. I can't deny that. In fact, it is. I could have made that very comment because I've heard my balls say it. He could neither admit that he said it nor could he deny it. Well, he loses on that or some red judgment then because she said he said it and he doesn't deny he'd lose anyway, but he didn't even deny it. So, so let's go back to this. Why isn't this a pervasive problem at this company? Because in in this context, looking at the social context, looking at the totality of the circumstances in regards to race specifically, you have, as discussed previously, the 2006 Black Bitches comment, which was addressed and Black Bitches did not. No, you have evidence. You have evidence that over the entire period, he came in, he used racial comments. He says he said stuff that was not appropriate and he used sexual comments the entire time. There is evidence. I know that Lori Freeman, the plaintiff in this case said that, but Jody Scott in looking at the totality of what she said when she said that he used racial comments when she was given an opportunity to explain in fact what she meant what she said was it isn't that he used the end word. He was using what she considered racial slang such as yo or yo, yo. Why is he entitled to the benefit of that of how that's interpreted? When somebody goes, he used racial language every time he came in, he used sexual language every day. Why is he then entitled when somebody discounts that and goes, but I thought it was kind of funny. How does he get the benefit of some rejudgment of somebody declaring that his use of what he says is inappropriate language? That's what he calls. How does, how does he get the benefit of that? That's some rejudgment. If he gets the benefit of it, but I do think that Dow Tile should get the benefit of it because only what they're aware of. No, no, no. How does Dow Tile get the benefit of that testimony as not being offensive or sexist or racist or racial? Let me say racial not racist. How do they get that benefit? The reasonable inference is supposed to go to the other party, not to your company. That is correct. If your company takes the position that using the word bitches, sometimes is a good thing. I don't think that it's a good thing, but I don't think that it is necessarily rising to the level of severe and pervasive performance. If somebody uses bitches in that context, in a bad way, in a bad way, then is he entitled to get some belief that the other 999 times he or 50 out of the next 100 times he said bitches, he didn't mean thing by it. It was just fun. How does he get that inference off that? When a man comes in shouting how my bitches and here's a bitch I slept with last night, how does he get the inference that that is not? How does he avoid a negative inference in a hostile work case? How do you, how does he do that? Because I think in the social context of this stonoyard and I'm not, I'm certainly not making the argument that stonoyard should be treated differently than other employees. I think you're about to give me a way it could be taken. Does it have to be taken that way as a matter of law that it was just conversational and the way and just fun? How does he get that inference? I mean by him, I mean him, I'm putting him into place of the corporation. How does the corporation get that inference off language like that? You might can get it, you might convince the jury of that, but how do you get that as a matter of law that when he sometimes says bitches that's offensive, but the other 99 times he said bitches that wasn't offensive. How does he get that inference? Well, in this instance, there are only two reports by Miss Freeman and she's the only, the record is very clear that Miss Freeman is the only person to ever have raised a complaint about Mr. Kester. And she, that's not the only testimony on the record that Mr. Kester said racial comments and used bitches a lot almost every day. That's what the record is, isn't it? According to Miss Freeman, she's made a general, she made a generalization. What about Jody Scott? What about Sarah Renn? What about Kathy Zixza? Well, Sarah Renn, well, Kathy Dixza has no personal knowledge because she wouldn't have been working at the stage. But she testified that Miss Renn told her he was a pig
. He says he said stuff that was not appropriate and he used sexual comments the entire time. There is evidence. I know that Lori Freeman, the plaintiff in this case said that, but Jody Scott in looking at the totality of what she said when she said that he used racial comments when she was given an opportunity to explain in fact what she meant what she said was it isn't that he used the end word. He was using what she considered racial slang such as yo or yo, yo. Why is he entitled to the benefit of that of how that's interpreted? When somebody goes, he used racial language every time he came in, he used sexual language every day. Why is he then entitled when somebody discounts that and goes, but I thought it was kind of funny. How does he get the benefit of some rejudgment of somebody declaring that his use of what he says is inappropriate language? That's what he calls. How does, how does he get the benefit of that? That's some rejudgment. If he gets the benefit of it, but I do think that Dow Tile should get the benefit of it because only what they're aware of. No, no, no. How does Dow Tile get the benefit of that testimony as not being offensive or sexist or racist or racial? Let me say racial not racist. How do they get that benefit? The reasonable inference is supposed to go to the other party, not to your company. That is correct. If your company takes the position that using the word bitches, sometimes is a good thing. I don't think that it's a good thing, but I don't think that it is necessarily rising to the level of severe and pervasive performance. If somebody uses bitches in that context, in a bad way, in a bad way, then is he entitled to get some belief that the other 999 times he or 50 out of the next 100 times he said bitches, he didn't mean thing by it. It was just fun. How does he get that inference off that? When a man comes in shouting how my bitches and here's a bitch I slept with last night, how does he get the inference that that is not? How does he avoid a negative inference in a hostile work case? How do you, how does he do that? Because I think in the social context of this stonoyard and I'm not, I'm certainly not making the argument that stonoyard should be treated differently than other employees. I think you're about to give me a way it could be taken. Does it have to be taken that way as a matter of law that it was just conversational and the way and just fun? How does he get that inference? I mean by him, I mean him, I'm putting him into place of the corporation. How does the corporation get that inference off language like that? You might can get it, you might convince the jury of that, but how do you get that as a matter of law that when he sometimes says bitches that's offensive, but the other 99 times he said bitches that wasn't offensive. How does he get that inference? Well, in this instance, there are only two reports by Miss Freeman and she's the only, the record is very clear that Miss Freeman is the only person to ever have raised a complaint about Mr. Kester. And she, that's not the only testimony on the record that Mr. Kester said racial comments and used bitches a lot almost every day. That's what the record is, isn't it? According to Miss Freeman, she's made a general, she made a generalization. What about Jody Scott? What about Sarah Renn? What about Kathy Zixza? Well, Sarah Renn, well, Kathy Dixza has no personal knowledge because she wouldn't have been working at the stage. But she testified that Miss Renn told her he was a pig. But he was a pig and that he was a show venest. And so that has something to do with sexual comments. Isn't that an inference that I had to do with sexual comments? He made it in the workplace? Why else would you call somebody a show venest pig based on what? And in this context, they didn't fear reading this because he used those sexual comments to employees from a mask. Where's that? Where else is that? What? What do you think in this context for Miss Dixza to say, yes, Renn told me he was a show venest. He was a pig. What are the inference are you entitled to as a matter of law that he like pork products? I mean, what do you entitled to? No, I think you can take it as he was a show venest pig just as one would assume it to be taken. That's based on stuff she saw in the workplace. Based on things that she saw in the workplace. But based on her own testimony, she was not, she took him at face value. I know that, but why is the company entitled to the management discounting the comments he made that let her to call him a pig? Because in this context, they were all friends, which included Tim Kester in that. I know this, but that is one reading of the facts, but apparently Miss Freeman was offended by stuff he said. She was offended, but she didn't report it to put the employer on notice. She reported in 2006. She reported the one incident in 2006. Isn't the record clear? Isn't there inference from the record that he continued to use racial language, inappropriate language, and I'm calling it bitches sexual language. That's what I'm calling it. Why isn't she entitled to the inference from the record when other employees say he did that every day, every time he came in, he says I did it repeatedly. Probably every time I went in there, I used inappropriate language. Now I know he wants to discount it and go, yeah, I know for some of that, I was just trying to be cool and call girls bitches. But that's fine for him to say it. But why is he entitled to that inference? When somebody else says it was offensive to me. You might be right, and you might win this case in front of a jury. And the jury may go, there's evidence she thought that, but that's not what he really meant. At this stage, how do you get that inference? I don't believe that her actions indicate that she was offended. She made the report in 2006. It was addressed. It stopped. She didn't make it
. But he was a pig and that he was a show venest. And so that has something to do with sexual comments. Isn't that an inference that I had to do with sexual comments? He made it in the workplace? Why else would you call somebody a show venest pig based on what? And in this context, they didn't fear reading this because he used those sexual comments to employees from a mask. Where's that? Where else is that? What? What do you think in this context for Miss Dixza to say, yes, Renn told me he was a show venest. He was a pig. What are the inference are you entitled to as a matter of law that he like pork products? I mean, what do you entitled to? No, I think you can take it as he was a show venest pig just as one would assume it to be taken. That's based on stuff she saw in the workplace. Based on things that she saw in the workplace. But based on her own testimony, she was not, she took him at face value. I know that, but why is the company entitled to the management discounting the comments he made that let her to call him a pig? Because in this context, they were all friends, which included Tim Kester in that. I know this, but that is one reading of the facts, but apparently Miss Freeman was offended by stuff he said. She was offended, but she didn't report it to put the employer on notice. She reported in 2006. She reported the one incident in 2006. Isn't the record clear? Isn't there inference from the record that he continued to use racial language, inappropriate language, and I'm calling it bitches sexual language. That's what I'm calling it. Why isn't she entitled to the inference from the record when other employees say he did that every day, every time he came in, he says I did it repeatedly. Probably every time I went in there, I used inappropriate language. Now I know he wants to discount it and go, yeah, I know for some of that, I was just trying to be cool and call girls bitches. But that's fine for him to say it. But why is he entitled to that inference? When somebody else says it was offensive to me. You might be right, and you might win this case in front of a jury. And the jury may go, there's evidence she thought that, but that's not what he really meant. At this stage, how do you get that inference? I don't believe that her actions indicate that she was offended. She made the report in 2006. It was addressed. It stopped. She didn't make it. But if the company knew, I think a fair reading of this record is, Ren knew that. Because remember, Dixas said, Ren told me this was nothing new. And Dixas said, I took that domain, she's company too, that he's been doing this for a while. Why isn't it then? They have a complaint about him. They know what continues and they don't do anything about it. But the record also indicates that when Ren learned of the Black bitches, the July 2009 Black bitches comment, and Ren was made aware that Ms. Freeman was in fact upset or offended by the comment, Ms. Ren's response to Ms. Freeman was in fact, I did not know that you were offended. I did not realize that you were offended. What about 2006 forward? She knew then she was offended by that language and a fair reading of this record indicates that he continued to use that language from 2006 on through 2009. Why isn't the company charged to Ms. Ren to know that he's still doing it? I know you don't want to read the record that way, but why isn't that a reason? I'm just asking. This is some re-judgment correct? That is correct, Your Honor. Why isn't the company entitled to that influence? Because a fair reading of the record also indicates that Ms. Freeman engaged in behavior with Mr. Kester as well, and that they were in Ms. Freeman herself and that they were friendly. That might be a good defense to you. That might be a good defense to you. I just want to understand how you get the, it's just a question to me of influences here. Your Honor entitled to any influence. She's entitled to all reasonable influences. Why? Is she getting them in this case? I think she absolutely has gotten them in this case. Let me ask you what the district court said. You know that one point, the district court says, and this is a page 616, Ren's testimony regarding Kester's comments is as indicative of non-actionable conduct in the footnotes. You know this footnote I'm talking about. And he goes, for example, this is the judge saying, Ren's testimony could be construed to mean, to me, that Kester made comments about a particular woman being funny, intelligent, or kind
. But if the company knew, I think a fair reading of this record is, Ren knew that. Because remember, Dixas said, Ren told me this was nothing new. And Dixas said, I took that domain, she's company too, that he's been doing this for a while. Why isn't it then? They have a complaint about him. They know what continues and they don't do anything about it. But the record also indicates that when Ren learned of the Black bitches, the July 2009 Black bitches comment, and Ren was made aware that Ms. Freeman was in fact upset or offended by the comment, Ms. Ren's response to Ms. Freeman was in fact, I did not know that you were offended. I did not realize that you were offended. What about 2006 forward? She knew then she was offended by that language and a fair reading of this record indicates that he continued to use that language from 2006 on through 2009. Why isn't the company charged to Ms. Ren to know that he's still doing it? I know you don't want to read the record that way, but why isn't that a reason? I'm just asking. This is some re-judgment correct? That is correct, Your Honor. Why isn't the company entitled to that influence? Because a fair reading of the record also indicates that Ms. Freeman engaged in behavior with Mr. Kester as well, and that they were in Ms. Freeman herself and that they were friendly. That might be a good defense to you. That might be a good defense to you. I just want to understand how you get the, it's just a question to me of influences here. Your Honor entitled to any influence. She's entitled to all reasonable influences. Why? Is she getting them in this case? I think she absolutely has gotten them in this case. Let me ask you what the district court said. You know that one point, the district court says, and this is a page 616, Ren's testimony regarding Kester's comments is as indicative of non-actionable conduct in the footnotes. You know this footnote I'm talking about. And he goes, for example, this is the judge saying, Ren's testimony could be construed to mean, to me, that Kester made comments about a particular woman being funny, intelligent, or kind. That that's the inference the judge picks up in the record, but this is what the actual record said. This is what the record said. Did Kester make a comment about that picture on one occasion? Yes. What was that comment? Who are those black chicks? I would do both of them. Okay. Did he say things like that on other occasions? He always made comments about women. Now, by the way, it's pretty fair to me that the context of he always made comments about women there, at least a reasonable emphasis, he made sexual comments. The judge picks that up and goes, he could have just been saying they were funny, intelligent, or kind. Do you think she's not entitled to a reading from that as an example from that testimony? What do you, I don't want to be crashed, but what do you think that is? Who are those black chicks? I would do both of them. Do means I think they're kind. I think they're intelligent. You don't think, don't you think that's at least a reasonable inference that that is a sexual comment he's making? I'm asking you. I think that's at least one. It could potentially be one inference. So they would be entitled to that, wouldn't they? If it's a reasonable inference. Let me ask you. Let me ask you. It's specifically just to that sentence. You know, entitled to have an inference that that creates a hostile work environment. In other words, this is a customer. These aren't the employees doing day in and day out. And the employees took them with a grain of salt. They all bantered with them. And if they didn't feel it was hostile and didn't report it as hostile, except for that 2006, and that was taken care of, it's very hard for me to think that the questions judge Shed are pointing to you are imputable to the employer that there's a hostile work environment when none of the employees are complaining. If the employer is unaware that the employees are offended. So you have a customer, an employee going around and calling on the road to 15 customers. And one customer every time she goes into that customer's place of business, he's offensive. And she can go back to the employer and say, I don't want to deal with that man anymore
. That that's the inference the judge picks up in the record, but this is what the actual record said. This is what the record said. Did Kester make a comment about that picture on one occasion? Yes. What was that comment? Who are those black chicks? I would do both of them. Okay. Did he say things like that on other occasions? He always made comments about women. Now, by the way, it's pretty fair to me that the context of he always made comments about women there, at least a reasonable emphasis, he made sexual comments. The judge picks that up and goes, he could have just been saying they were funny, intelligent, or kind. Do you think she's not entitled to a reading from that as an example from that testimony? What do you, I don't want to be crashed, but what do you think that is? Who are those black chicks? I would do both of them. Do means I think they're kind. I think they're intelligent. You don't think, don't you think that's at least a reasonable inference that that is a sexual comment he's making? I'm asking you. I think that's at least one. It could potentially be one inference. So they would be entitled to that, wouldn't they? If it's a reasonable inference. Let me ask you. Let me ask you. It's specifically just to that sentence. You know, entitled to have an inference that that creates a hostile work environment. In other words, this is a customer. These aren't the employees doing day in and day out. And the employees took them with a grain of salt. They all bantered with them. And if they didn't feel it was hostile and didn't report it as hostile, except for that 2006, and that was taken care of, it's very hard for me to think that the questions judge Shed are pointing to you are imputable to the employer that there's a hostile work environment when none of the employees are complaining. If the employer is unaware that the employees are offended. So you have a customer, an employee going around and calling on the road to 15 customers. And one customer every time she goes into that customer's place of business, he's offensive. And she can go back to the employer and say, I don't want to deal with that man anymore. He's offensive. But that hardly there's nothing to suggest the employer made her go there. And as a matter of fact, as soon as they found out she was offended each time they addressed her problem. But the pervasiveness in the workplace seems to me you're going to have to have more than just find offensive conduct. And this is an individual customer, one of numerous I assume. And he's offensive, he's course, he's inappropriate. And if the workplace was adversely affected and changed and the employer knew about it, that's one thing. But I don't think just saying these are all sexual comments. They all took them as sexual. And I don't think in this case as you as you. Let me suggest you. Did you think my question to you about a reasonable inference had anything to do with the relationship between the. The company's liability for an employee for a customer. You didn't think that did you? Well, I believe I asked you did you think that? When I asked you was that comment could that comment be taken reasonably as a sexual comment? I didn't think that had anything to do with the relationship between the customer and the company. Did you? I think it. I didn't ask you. I said what you thought my question had to do with. I thought you were asking specifically about Tim Kester's comment. Whether that comment could be taken as a sexual comment. And I think that there could be an inference that I could, but I don't think. Well, that ultimately it's imputed to the employer in this case. Well, that's fine. You can answer his question about that. I asked you my question. And by the way, imputing to the company. Who made that statement about he always makes comments. If that statement, he always makes comments in that context can be taken as a sexual comment. And I thought you just said, by the way, I don't think this is any leap faith on your part
. He's offensive. But that hardly there's nothing to suggest the employer made her go there. And as a matter of fact, as soon as they found out she was offended each time they addressed her problem. But the pervasiveness in the workplace seems to me you're going to have to have more than just find offensive conduct. And this is an individual customer, one of numerous I assume. And he's offensive, he's course, he's inappropriate. And if the workplace was adversely affected and changed and the employer knew about it, that's one thing. But I don't think just saying these are all sexual comments. They all took them as sexual. And I don't think in this case as you as you. Let me suggest you. Did you think my question to you about a reasonable inference had anything to do with the relationship between the. The company's liability for an employee for a customer. You didn't think that did you? Well, I believe I asked you did you think that? When I asked you was that comment could that comment be taken reasonably as a sexual comment? I didn't think that had anything to do with the relationship between the customer and the company. Did you? I think it. I didn't ask you. I said what you thought my question had to do with. I thought you were asking specifically about Tim Kester's comment. Whether that comment could be taken as a sexual comment. And I think that there could be an inference that I could, but I don't think. Well, that ultimately it's imputed to the employer in this case. Well, that's fine. You can answer his question about that. I asked you my question. And by the way, imputing to the company. Who made that statement about he always makes comments. If that statement, he always makes comments in that context can be taken as a sexual comment. And I thought you just said, by the way, I don't think this is any leap faith on your part. Can't they be taken as a sexual comment? That single comment could be. Right. And one isolated comment. And Rind is the one who said he made those comments. So that's certainly that comment and knowledge of that comment is imputable to the company, isn't it? Because she knew it. Is she in she management? She was a supervisor at the location. You don't deny that she's management, do you? She was your, your character on her. She was a manager. So at least then, and I didn't cite that for the legal theory on whether or not an customer can, can cause liability on the part of the company. You, you have said that a customer can. Now whether or not it does in this case is something different, but you haven't you said. I know the answer to my issue again. You've said that if a customer conduct was bad enough, you think yes the company has to do something about it. That's what you say. That is correct. If a customer's conduct is bad enough to change the terms and conditions of the employment relationship, the employer should step in. But I was pointing out to you, I still have the question about reasonable inferences and who's entitled to them. And I suggest that perhaps on occasion, if not more than one occasion, the district court gave the inference to the company and not to the non-moving party. Let me ask you another question about the judges order. Is your company policy that if somebody feels like they're harassed, they are to speak to a manager? That is one way that they may address the harass. Do you think that Ms. Freeman on the occasion she reported the conduct of Miss Rian was following company policy? She complained to Miss Rian. Is there any question about that's appropriate, isn't it? The, the first time she asked simply, who is that guy and what does he do? Because she talked to Rian, didn't she? She did talk to, she did talk to Ren on all three occasions, the O6 and the 209. And that is whether you call it a complain or not. If you have a concern or question, your company policy is you ought to talk to your supervisor or somebody in management, right? That is one avenue, yes. And you think, and what Ms. Freeman did was appropriate, correct? Did she follow your company policy in talking to Miss Rian? I believe in the third instance where she made an actual complaint. If you have trouble answering that, you can have a lot of trouble answering the rest of my questions
. Can't they be taken as a sexual comment? That single comment could be. Right. And one isolated comment. And Rind is the one who said he made those comments. So that's certainly that comment and knowledge of that comment is imputable to the company, isn't it? Because she knew it. Is she in she management? She was a supervisor at the location. You don't deny that she's management, do you? She was your, your character on her. She was a manager. So at least then, and I didn't cite that for the legal theory on whether or not an customer can, can cause liability on the part of the company. You, you have said that a customer can. Now whether or not it does in this case is something different, but you haven't you said. I know the answer to my issue again. You've said that if a customer conduct was bad enough, you think yes the company has to do something about it. That's what you say. That is correct. If a customer's conduct is bad enough to change the terms and conditions of the employment relationship, the employer should step in. But I was pointing out to you, I still have the question about reasonable inferences and who's entitled to them. And I suggest that perhaps on occasion, if not more than one occasion, the district court gave the inference to the company and not to the non-moving party. Let me ask you another question about the judges order. Is your company policy that if somebody feels like they're harassed, they are to speak to a manager? That is one way that they may address the harass. Do you think that Ms. Freeman on the occasion she reported the conduct of Miss Rian was following company policy? She complained to Miss Rian. Is there any question about that's appropriate, isn't it? The, the first time she asked simply, who is that guy and what does he do? Because she talked to Rian, didn't she? She did talk to, she did talk to Ren on all three occasions, the O6 and the 209. And that is whether you call it a complain or not. If you have a concern or question, your company policy is you ought to talk to your supervisor or somebody in management, right? That is one avenue, yes. And you think, and what Ms. Freeman did was appropriate, correct? Did she follow your company policy in talking to Miss Rian? I believe in the third instance where she made an actual complaint. If you have trouble answering that, you can have a lot of trouble answering the rest of my questions. Didn't she do right? Was it Ren, her supervisor? Yes, Ren, was her supervisor? I don't know why I was taking so long to get to the answer to this. Listen. The policy is, if you feel you've been discriminated against, immediately bring them out of the attention of management. We didn't miss Ren management. Yes, Ms. Ren is management. Right. Once Miss Rian did that under your company policy, does she have any obligation to report it to anybody else under your company's policy? Under your company's policy? Not under the company policy, but there have been cases that have established if the employee does not believe that he or she has gotten an adequate response, then it is unreasonable to not avail themselves of the other options under the policy. And in this case, Ms. Freeman did that. And she did it, didn't she? In the July 2000, 9-6, that is correct. Why do you make of the court? And these specific facts, when the court says, this is page 623, further, even if the court were to assume, argue window that the above reference remarks that the plaintiff made to Ren, because somehow, be construed as complaints, it is undisputed that plaintiff knew there were additional avenues that she could pursue if she was unsatisfied. But, did your company take any solace in that? Didn't Miss Freeman do what she was supposed to do? She had a complaint, all concerned. I'm not resting on that word. She was concerned about something happening in the workplace, some language, some treatment, and she went to Ren, right? And in 2006, Ren addressed the issue and Black bitches was not mentioned again, until 09. You're not answering the question, you're talking about something else. But so, what do you make of the fact that the court discounts her conduct by suggesting she should have done something else? Because there have been cases, albeit not out of the foreshort, not out of this court, that have said, if an employee is not satisfied with the response or in this case, Miss Freeman said she didn't feel like she was being heard by her. That's the issue this much. Did Miss Freeman follow company policy when she had these concerns? In 2006, in 2008 too, but we were talking about the passing gas on the telephone, that's some different. In 2009, twice, she didn't do what the company policy said to do, she went and talked to Ren about it. Well, she asked a question, 06, she repeated the checkbook comment in 09 and made a complaint. Did she talk to Ren about it in 2006? Who she talked to when she said? She asked the conversation that she had was with Ren, who is that guy and what's his deal? That was to Ren. Ren? That was to Ren. You were the one arguing with yourself about that, but she followed company policy. When it got to the point, she felt she had to do something. She followed company policy, didn't she? She followed company policy. Thank you very much. Thank you
. Didn't she do right? Was it Ren, her supervisor? Yes, Ren, was her supervisor? I don't know why I was taking so long to get to the answer to this. Listen. The policy is, if you feel you've been discriminated against, immediately bring them out of the attention of management. We didn't miss Ren management. Yes, Ms. Ren is management. Right. Once Miss Rian did that under your company policy, does she have any obligation to report it to anybody else under your company's policy? Under your company's policy? Not under the company policy, but there have been cases that have established if the employee does not believe that he or she has gotten an adequate response, then it is unreasonable to not avail themselves of the other options under the policy. And in this case, Ms. Freeman did that. And she did it, didn't she? In the July 2000, 9-6, that is correct. Why do you make of the court? And these specific facts, when the court says, this is page 623, further, even if the court were to assume, argue window that the above reference remarks that the plaintiff made to Ren, because somehow, be construed as complaints, it is undisputed that plaintiff knew there were additional avenues that she could pursue if she was unsatisfied. But, did your company take any solace in that? Didn't Miss Freeman do what she was supposed to do? She had a complaint, all concerned. I'm not resting on that word. She was concerned about something happening in the workplace, some language, some treatment, and she went to Ren, right? And in 2006, Ren addressed the issue and Black bitches was not mentioned again, until 09. You're not answering the question, you're talking about something else. But so, what do you make of the fact that the court discounts her conduct by suggesting she should have done something else? Because there have been cases, albeit not out of the foreshort, not out of this court, that have said, if an employee is not satisfied with the response or in this case, Miss Freeman said she didn't feel like she was being heard by her. That's the issue this much. Did Miss Freeman follow company policy when she had these concerns? In 2006, in 2008 too, but we were talking about the passing gas on the telephone, that's some different. In 2009, twice, she didn't do what the company policy said to do, she went and talked to Ren about it. Well, she asked a question, 06, she repeated the checkbook comment in 09 and made a complaint. Did she talk to Ren about it in 2006? Who she talked to when she said? She asked the conversation that she had was with Ren, who is that guy and what's his deal? That was to Ren. Ren? That was to Ren. You were the one arguing with yourself about that, but she followed company policy. When it got to the point, she felt she had to do something. She followed company policy, didn't she? She followed company policy. Thank you very much. Thank you. Miss King. I'd like to first touch on a point that Judge Niemeier brought about the standard here. We agree with a pelly that a negligent standard applies. This court did apply one in chromer foods and cited a number of other circuits that adopted that standard as well as EEOC guidance. There's also a second and a first circuit case. Case is more recently. So, versus Hofstra, 708 F315. What would be the negligence here? How would that be applied to the corporation? The standard here is whether the negligence standard is whether the employer, the employer, knew or should have known of the harassment and whether it failed to take appropriate correct back. I know what the standard is. How does it apply here? Here, touching on something mentioned earlier, the idea that Dalt Hyle tolerated, that the cost of harassment is very squarely supported by the record. We believe a jury could find that. Support about the record. They knew about how you build that case based on the record. The testimony of Ren in particular is very much points in that direction. For example, the conduct that she witnessed herself was in many cases, so objectively harassing, such as sharing of pornographic photographs, bikecoaster in the workplace, something that directly violated Dalt Hyle's harassment policy. Another example is the N word and checkbook comment. It could very easily be believed that they did something about that. The company did something about it. They didn't do something about it immediately, Your Honor. They mistreemen had reported that to Miss Ren directly after it occurred that June 2009, the company didn't begin an investigation until another report in the end of July 2009. I just wanted to make one other comment about the nature of the sort of clear offensiveness of the conduct. That it's something that a jury could believe that a company wouldn't tolerate from a customer. This court is pointed out in the occultry decision that a employer can't avoid Title VII liability using a Hear No Evil, C-No Evil approach. A jury could conclude that that is what occurred here. Dalt Hyle. You have to base it on facts in the record, though. You have to base it on facts in the record. By the way, the comment about the checkbook and all that
. Miss King. I'd like to first touch on a point that Judge Niemeier brought about the standard here. We agree with a pelly that a negligent standard applies. This court did apply one in chromer foods and cited a number of other circuits that adopted that standard as well as EEOC guidance. There's also a second and a first circuit case. Case is more recently. So, versus Hofstra, 708 F315. What would be the negligence here? How would that be applied to the corporation? The standard here is whether the negligence standard is whether the employer, the employer, knew or should have known of the harassment and whether it failed to take appropriate correct back. I know what the standard is. How does it apply here? Here, touching on something mentioned earlier, the idea that Dalt Hyle tolerated, that the cost of harassment is very squarely supported by the record. We believe a jury could find that. Support about the record. They knew about how you build that case based on the record. The testimony of Ren in particular is very much points in that direction. For example, the conduct that she witnessed herself was in many cases, so objectively harassing, such as sharing of pornographic photographs, bikecoaster in the workplace, something that directly violated Dalt Hyle's harassment policy. Another example is the N word and checkbook comment. It could very easily be believed that they did something about that. The company did something about it. They didn't do something about it immediately, Your Honor. They mistreemen had reported that to Miss Ren directly after it occurred that June 2009, the company didn't begin an investigation until another report in the end of July 2009. I just wanted to make one other comment about the nature of the sort of clear offensiveness of the conduct. That it's something that a jury could believe that a company wouldn't tolerate from a customer. This court is pointed out in the occultry decision that a employer can't avoid Title VII liability using a Hear No Evil, C-No Evil approach. A jury could conclude that that is what occurred here. Dalt Hyle. You have to base it on facts in the record, though. You have to base it on facts in the record. By the way, the comment about the checkbook and all that. That was in June and July 2009. You know, careful, you get caught on. Just as a matter of theory, I mean, you get careful, you get caught. That's just a couple specific instances. And you may fall into stray actions or stray comments. You have to establish that it was pervasive and ongoing for a long period of time. Well, the checkbook comment itself could be viewed by a jury as sufficiently severe on its own to constitute a hostile work environment. But that wouldn't be a necessary conclusion to find that there was a severe or pervasive environment based on the other examples of testimony about coasters, racial and sexual comments. What's the strongest two pieces of evidence from the record you have that the Kesters conduct was for which you get the reasonable inference that it was offensive and that it was ongoing from say to the court. So, you know, you know, it's like 2000 and six forward. What evidence do you point to specifically? I think sort of a combination of both Ren and coaster. A acknowledging that he regularly made comments about his sexual escapades. I think Ren called them his evening excursions. And also the that dated. Do we have a date for that when that occur? Well, it happened throughout the throughout the period. But you just can't say it happened to appear to they get put a date on that. I don't know that there's a specific specific date because it was many occasions, your honor. And in terms of a second piece of evidence, I think the fact that a co worker, Jody Scott said that Kester used the word bitches every every day every time he came in is also very compelling because that's a that's quite an offensive term. And it was it was on such a regular basis. She said that he did say house my bitches every time that he came in. Yeah. Why it and house my bitches? Why didn't that just an acceptable greeting in the world of commerce these days? Well, I think that a jury could could very easily view that as far from acceptable, your honor. You know, bitches, how my house my bitches as a greeting in a business place. Because you think that why that puts moment in a theory position to the man walking in calling the bitches. Yes, I think that's correct, your honor. I think that's at least a reasonable inference. Yes, I do I do agree with that, your honor. Yes
. There are no further questions. Thank you. Okay. Thank you