Legal Case Summary

of the team judges of the panel. I'm James Bell, and behalf of plaintiff Appellant, Noah Nathan, in this matter. This matter comes here on appeal as a result of a total grant of summary judgment on a one count title seven complaint from the district court. Based upon three, primarily three theories, one of title seven discrimination, one of title seven, hostile work environment harassment, and one of retaliation for complaints about violations of title seven. If it please the court, I would begin with the retaliation claim about which I believe there is the most factual evidence and the legal arguments that perhaps need the most explanation. The district court below held that with respect of protected activity in this matter, that the only protected activity identified was the filing of an EEOC charge in approximately July of 2009. Ostensibly that was under the participation clause as opposed to the opposition clause of title seven. Prior to the filing of that particular EEOC charge, Mr. Nathan had engaged in multiple and repeated complaints to his employer, his employer as a charge department and the management of Takeda regarding the discrimination harassment and retaliation that he believed that he was suffering. Of course initially the complaint was about discrimination and harassment, but as it proceeded, he began to say, and in addition, I believe that I'm being retaliated. When you say discrimination, the harassment you refer to Takeda's child to school, or I'm referring to the actions that were, with respect to the discrimination, I'm referring to the actions that flowed from his having been rebued for taking the child to school under the shadow of being asked why it wasn't more proper for his wife to do that job. Don't you have to, haven't we held it, you have to have some objectively reasonable belief that discrimination is a foot in order for that to be protected activity? Absolutely judge, Wilkinson deep. The test of courses that the employee have when they make the complaint a good faith belief, meaning in that sense. It's not a good faith belief, it has to be an objective be reasonable. The second part of the test, yes, Your Honor, is that the good faith belief also be objectively reasonable in light of the facts. The interesting thing about the case law and what sort of puts it in tension and difficult to comprehend exactly what is meant by objectively reasonable under the facts is that... What's objective, I mean, what is discriminatory about policies that are mutually applied and applied across the board? The, what's so discriminatory that somebody started 8 a.m. in the morning, saying not just female sales reps or not just male sales reps, but every sales rep started 8 a.m. in the morning and familiarized themselves with the products that they're gonna sell

. What's so discriminatory about that? I mean, those are... They seem to me that... They were repolicies that any company with a sales force would want to adopt. The only thing that we know with respect to the reasoning by Mr. Fouche as to why he singled Mr. Nathan out for this is that he was aware of his start time, but the only clue that he gave about what it was in particular that bothered him about Mr. Nathan and his start time and occasionally, or at least sometimes during the week, dropping his children off in his territory was that he had said on a number of occasions that it would have been, or at least had words that made it believable that he thought that it was more appropriate task for the wife. He didn't say that, he put in words into his mouth. But what's wrong with a supervisor when trying to imply her about whether the company policies are being followed or whether there's some way in which the company policies would be followed? I mean, you don't want to work place where every little inquiry about compliance with company policy becomes a tripwire for some sort of discrimination suit. And you're gonna get to the point where people can't even communicate if they're just afraid to open their mouths. Judge Wilkinson, if a series of complaints were made that contained language directed to the AHR department, not to the decision makers, that causes them because of those accusations to get angry. And that employer recognizes that what it's been accused of is a violation of the law. When that employee is punished for having made that complaint. I mean, you have to have a reasonable belief that discrimination is a foot in the order to bring a retaliation plan. And I was just wondering, what is the basis for the reasonable belief when you have number one policies that are perfectly reasonable? Number two, there's no comparator that I could find. That seems to me that males and females were being treated similarly. As far as I could ascertain, didn't seem to me, that there was a preference by gender that everybody who was a member of the Salesforce of whatever gender was required to start at eight and get a certification when new products were introduced. It seems your clients a little whiny and want special treatment

. But the company's not obliged to do that. This truth is that the company would not necessarily be obliged to give him special treatment. But the complaints that he was making about the treatment that he was receiving were not that he'd be treated especially, but that he'd be treated as everyone else was. From the moment that he made his... I thought everybody was required to go to work at eight o'clock in the morning. That is correct, Your Honor. He didn't want to go to work at eight o'clock in the morning. He wanted to go at eight thirty. It was Takeda's practice as described by Mr. Foucher's supervisor that the actual Takeda... What entitlement does he have to special treat? You know, he had a wrong company that got work. But I apologize, Your Honor. I'm sorry. I apologize, Your Honor. At the time of the... I'm sorry

. I may hear your question again, Your Honor. Excuse me? I have lost your question, Your Honor. I was following up on my colleague, Christian, Judge King's question about... He wanted... Everybody was required to start at eight. He wanted to start at eight thirty. And my question was, why is the company obliged to give one person special treatment? That just demoralizes everybody. And it just seems to me, it just has somebody who's very quiet. Your Honor, the testimony in the case is that other individuals were also beginning their work day at a later time during the... Then eight o'clock, that the only one that Mr. Fushay was aware of was Mr. Nathan. In addition, Mr. Fushay, the direct supervisor, testified that it wasn't his expectation or Takeda's expectation that people be in the field at eight o'clock, but rather it was the expectation of Takeda that they show up at the right number of doctors offices in their territory and that they make the right number of call details and that they make sales. And Mr. Nathan at this time was one of the top sales people in the country

. Mr. Fushay was Mr. Basin's fault. That is correct, Your Honor. And he said eight o'clock, that everybody's going to be in doctors offices by eight o'clock. And your client said, your client didn't want to do it. He wanted... That's what way I read the record. You're taking the view most favorable to him. And he did it. And he did... Oh, upon the heels of this right after February, when this began to heat up, he did make other arrangements in deference to his supervisor, Mr. Fushay. And notified Mr. Fushay that he was doing that, but the treatment continued. And the only thing that he had in his lecture, was I'm on, it's kind of an innocuous question about arrangements to take the older child to school, who was the older child. Can your wife take the child to school? That you're relying on here, right? Well, that is the only statement, Your Honor. There is all that a fair recitation of what the state

... That is a fair recitation of one of the statements. It has been... How can you build a reasonable belief in discrimination on the basis of something that's not innocuous? Because wife carries with it a suggestion of sex, Your Honor. And the other fourth circuit case on this issue, the statement involves the words, someone else, as opposed to, in this case, your wife. Well, Mr. Fushay was aware that... Excuse me, John, sorry, Your Honor. I'm just going to say when he... You know, Mr. Fushay summarized an email on December 12th. He said, I want to follow up on our conversation on November 20th, about you having to start work at 8.30 a.m. every day, because you have to drop off your child in school at 8

.30 a.m. since they started in a new school. I fully support work-like balance and expect you to strive to achieve it. In my opinion, consistently starting at 8.30 a.m. is not reasonable, and fair to Kate or me. I mean, it seems to me to be a... About as innocuous and about as reasonable demand. If it were true, Your Honor. And the testimony reflects that that description of the conversation that they had was not accurate. Mr. Nathan had informed Mr. Fushay that there were only some days that he was not out in his territory at 8.30, but that on any days when he needed to be at a far point in his territory early in the morning because of a doctor's office, or when he needed to get to somewhere in his territory, because of a breakfast that he had managed to schedule that was early in the morning, then he always made arrangements that someone else would handle those duties. And ironically, in criticizing Mr. Nathan, Mr. Fushay, when he tried to arrange these organizations, took them to a doctor's office at 8.30 in the morning, and of course, the record evidence reflects that what happened there was they were turned away because doctors don't meet with pharmaceutical reps at 8

.30 in the morning. It's not us to tell people how to run their company. Maybe they want you to get a little bit of a head start, get yourself organized before you begin to visit the office. I don't disagree with you, Your Honor, but it's just... It's not a start work, the minute the doctors open you. You've got to get your route together, and you've got to get your supplies together, and there's a little preparation. I don't know on the part of every salesman before the salesperson actually starts making the calls. Anybody who's familiar with sales knows that you go to the office before you start making the calls. I don't disagree with any part of that, Your Honor, except for the use of the word day, because the policy was not a Takeda policy. It was a policy of one rogue supervisor whose own evaluation of what Takeda's policy was, was not approved by his supervisor. It was what his boss did, and that was what he required, the people of the work for him, a number of them. And they all had the uniform, sorry, domed, they thought, it makes good impression, perhaps, on the doctor, Mr. Husha, you may have thought, to be out there early, to show up early, from a lot of people like that. I mean, it is clear, bouncing where the sex part comes in here, that's dumbfounded to me. I mean, there's a innocuous statement, what about your wife? I mean, they got some husband and wife, they're married, they both got good jobs, two children, they're working together on it, he asked a question whether it could be worked out, sounds like to me. The EEOC guidelines, which are referenced in the brief and included as part of the joint appendix, quote, the Supreme Court on this issue of gender stereotyping, and expectations being different about males versus females. It's not ironic that the comparator that they offer, the one that they claim is a comparator to the JC person, whose affidavit is part of the joint appendix. What did they ask about the grandparents? I mean, maybe they were around or somewhere. I take my grandchildren's school some time, I've got a pigeon, I mean, a lot of people do that. Friends and neighbors, I mean, it's a fake, he made an inquiry on the face of it as innocuous as Judge Wilkinson said in neutral

. Me. There was other information suggesting that he was hostile to these kinds of child care issues, including that he had a doctorate to cater for him to include having the individual reps say, when they were off, whether it was for child care or for another reason. Thank you, Council. Yes, you're right. Thank you. You have some time for a bottle. Thank you. Thank you for me. Great. Yeah, good morning and may it please the Court. My name is Dana Rust with McGuire Woods and I'm here on behalf of Takeda Pharmaceuticals. The first thing I'd like to do for the court is clarify some things in the factual record that the district court relied on. The evidence, the undisputed evidence is that Mr. Fouche was 100% consistent in requiring all his subordinates to start at 8 o'clock. Mr. Nathan admitted this himself in his deposition and I don't normally get into this at an appropriate argument, but this is very succinct. Quote, I'd like to read to the court from his deposition. He said, yes, we all got the email saying start at 8 a.m. So everybody was told to start at 8 a.m. He then went on to say that everybody was irritated with it

. There were five comparators, Your Honor, that we submitted declarations for. Four of them were women, one of them was a man. Four of them had small school aged children, one of them did not. You were the one that submitted the comparators. Correct. Did the opposing council submit the court? They did not. They did not identify a single person who treated differently. So all of the evidence is consistent. I wonder if Mr. Judge King and I went on the patent line to the lying decision, that's not very helpful if the opposing party doesn't submit a single comparator. Right, they need a comparator in this kind of a case to prove their claim. And all of the comparators go the other way and support our position and show that. You've got all the comparators. We have them all and they're all good to go. And they take the position that they're not comparators because there's no evidence that child care givers. And I don't know what that means because their parents, they have small children who are school aged. And I guess their position is just because they dealt with the requirement and made other arrangements. They're not comparators, but of course they are. They're the perfect comparators. One of them, in fact, a woman had her husband was a lawyer and they had small children. It doesn't get any better than that. Mr

. Nathan's wife was a lawyer and they had small children. She was expected to show up at eight. Absolutely. All five of them were. Now there's this one comment that they make a great deal out of. In fact, I think they their whole case hinges on whether this is somehow discriminatory. It's this comment that Mr. Fouche made a Mr. Nathan why can't your wife take the kids to school? And they argue that's gender stereotyping. They argue it's. You're reciting that as a quote. That is a quote. That's the light most favorable to you. Yeah, that's his version of the events. It's in the joint appendix of page 93 94. Why can't your wife take the kids to school? And I think it's the court recognizes there's nothing discriminatory at all about that comment. Mr. Fouche was just looking to the other natural candidate to take the kid to school, which in this case happened to be a wife, but in the case of a female sales rep, it would be the husband. And again, we have the four affidavits from the female sales rep saying they were held to the exact same standard. So you can't infer anything discriminatory at all about that comment. The other sort of storyline in the case, which the court is alluded to, is the training requirements for the new drugs that Takeda was rolling out. They had one they were manufacturing called Udloric. And as you would expect, Takeda wants its reps to be very familiar with those drugs before they call on doctors and pharmacies to sell. And Mr. Nathan struggled with his knowledge regarding this drug, Udloric. And that's covered in several contemporaneous emails and warnings that he received. That's actually the familiarity with pharmaceutical products is rather important because in the whole chain of distribution of prescriptions and drugs and everything, the health system relies on knowledge ability all along the line. In other words, to give patients the best end care, the links in the chain from manufacturer to wholesaler to distributed sales persons to doctors. The system relies for its safety and efficacy on knowledge at all these different links. And the more people know about what they're doing, the less this helps the likely to occur. So it's actually, it's not some draconian policy from a health standpoint. It's very beneficial to have people understanding what the side effects might be and what physicians rely on us. Over time, they come to have confidence in some sales representatives and they come to treat with a grain of salt, all the puffing and half-big statements of others. The knowledge will sales. When it's going to gain the trust for the physicians and that would be a good working relationship. And somebody who's not knowledgeable and just puffs it through, not going to be very successful, not going to serve the health system very well. Don't understand why. Somebody should be holding the core with the discriminations for doing what this person was doing. That's right. And Mr. Nathan was given multiple chances to prove he had knowledge of the stroke, you're on, and he ultimately passed the tests that were given to him. He was ultimately certified. And he kind of got desertified because he was certified by, and then he was retrained. And then he was exertified again

. And as you would expect, Takeda wants its reps to be very familiar with those drugs before they call on doctors and pharmacies to sell. And Mr. Nathan struggled with his knowledge regarding this drug, Udloric. And that's covered in several contemporaneous emails and warnings that he received. That's actually the familiarity with pharmaceutical products is rather important because in the whole chain of distribution of prescriptions and drugs and everything, the health system relies on knowledge ability all along the line. In other words, to give patients the best end care, the links in the chain from manufacturer to wholesaler to distributed sales persons to doctors. The system relies for its safety and efficacy on knowledge at all these different links. And the more people know about what they're doing, the less this helps the likely to occur. So it's actually, it's not some draconian policy from a health standpoint. It's very beneficial to have people understanding what the side effects might be and what physicians rely on us. Over time, they come to have confidence in some sales representatives and they come to treat with a grain of salt, all the puffing and half-big statements of others. The knowledge will sales. When it's going to gain the trust for the physicians and that would be a good working relationship. And somebody who's not knowledgeable and just puffs it through, not going to be very successful, not going to serve the health system very well. Don't understand why. Somebody should be holding the core with the discriminations for doing what this person was doing. That's right. And Mr. Nathan was given multiple chances to prove he had knowledge of the stroke, you're on, and he ultimately passed the tests that were given to him. He was ultimately certified. And he kind of got desertified because he was certified by, and then he was retrained. And then he was exertified again. And we all talk about certification in his record. You're told about certification by the company. That's right. Right. It's not an FDA certification or something like that. It's a satisfaction company. That's correct. But they have a very rigorous training program. They have professional trainers that they had in both Chicago and New Jersey. They sent him to both of them. And again, if this was some retaliatory scheme and had involved four or five people, yes, it seems to be that there. Something else is playing out behind the scenes here. And there, nobody's mentioned it yet, but there was a key damn action. Yes, there was. It was any file. And, and that was litigated in the district court. And there was a, there's a decision about it. And it was litigated in the four circuit and decision out of the four circuit. That is correct, right? I was not involved in that, but you are correct. But the point is, there's some time overlap with some of these various events. But it seems to me that what may be happening here is he's trying to fit. There's something that didn't fit before into a discrimination issue at Title Seven

. And we all talk about certification in his record. You're told about certification by the company. That's right. Right. It's not an FDA certification or something like that. It's a satisfaction company. That's correct. But they have a very rigorous training program. They have professional trainers that they had in both Chicago and New Jersey. They sent him to both of them. And again, if this was some retaliatory scheme and had involved four or five people, yes, it seems to be that there. Something else is playing out behind the scenes here. And there, nobody's mentioned it yet, but there was a key damn action. Yes, there was. It was any file. And, and that was litigated in the district court. And there was a, there's a decision about it. And it was litigated in the four circuit and decision out of the four circuit. That is correct, right? I was not involved in that, but you are correct. But the point is, there's some time overlap with some of these various events. But it seems to me that what may be happening here is he's trying to fit. There's something that didn't fit before into a discrimination issue at Title Seven. I think that's exactly maybe what we're going on here. Sir, they'll have it claimed that's pertinent. It has not come up in this litigation. The only reason I mention it is because there were these two decisions out there. You are one very same, very same heart. It's been a great deal of litigation. Two other factual points I want to make about the training is Mr. Nathan admitted, well, he got an email where it said that, you know, confirming a conversation that he had with Savant, his boss of boss. And in that email, he said that Mr. Nathan didn't remember that he didn't do certain things well in the training that was required of him. And then that email was given to him in his deposition and he didn't quibble with it there. So it's really undersfuted that he had problems with his training, but again got multiple chances. I'd like to turn out a retaliation because that's where Mr. Bell started. And I think it is the most complicated. Anything we overlooked in our discussion of that particular claim? On retaliation, one thing, Your Honor, that I think is important to draw the court's attention. It's this that after briefing was concluded in this case in June of this year, the Supreme Court handed down the University of Texas versus NASA decision. And in that case, Justice Kennedy writing for the court concluded that you must have the stringent but force standard to prove causation in a Title VII retaliation case, which is what we have here. So that is the burden that they have to establish retaliation now under Title VII, the but force standard. That's an essential question though, even as you have to possess some sort of reasonable belief. Yes. And on that point, Your Honor, I'd like to call your attention to the court's decision in Jordan versus alternative resources corporation

. I think that's exactly maybe what we're going on here. Sir, they'll have it claimed that's pertinent. It has not come up in this litigation. The only reason I mention it is because there were these two decisions out there. You are one very same, very same heart. It's been a great deal of litigation. Two other factual points I want to make about the training is Mr. Nathan admitted, well, he got an email where it said that, you know, confirming a conversation that he had with Savant, his boss of boss. And in that email, he said that Mr. Nathan didn't remember that he didn't do certain things well in the training that was required of him. And then that email was given to him in his deposition and he didn't quibble with it there. So it's really undersfuted that he had problems with his training, but again got multiple chances. I'd like to turn out a retaliation because that's where Mr. Bell started. And I think it is the most complicated. Anything we overlooked in our discussion of that particular claim? On retaliation, one thing, Your Honor, that I think is important to draw the court's attention. It's this that after briefing was concluded in this case in June of this year, the Supreme Court handed down the University of Texas versus NASA decision. And in that case, Justice Kennedy writing for the court concluded that you must have the stringent but force standard to prove causation in a Title VII retaliation case, which is what we have here. So that is the burden that they have to establish retaliation now under Title VII, the but force standard. That's an essential question though, even as you have to possess some sort of reasonable belief. Yes. And on that point, Your Honor, I'd like to call your attention to the court's decision in Jordan versus alternative resources corporation. In Jordan, an African American employee was at work one day watching TV at a break room when a news report announced that the DC snipers had just been captured. There was a white employee in the room with him at the same time who uttered a very vile racial slur. And I don't normally like to get into these sort of things, but I will because I think it's important to compare it to Mr. Fouche's comment, which is very benign in comparison. It's different as night and day, aren't they? Well, in Jordan, the white employee said in the presence of the black employee, they should put those two black monkeys in a cage with a bunch of black apes and let the apes have sex with them. But he used worse words than that. Now, this court held that he had no reasonable belief when he went to HR and complained about it. Not everybody on the panel agreed with that. I helped it. But this is the holding. I don't understand. But that's completely different from what I'm trying to draw. And in my point of view, what are you getting into that for? Well, the point is, what are you getting into it for? They're so different. They are different. So why are you trying to do? Shoot yourself in the flesh? No, no, no, no, no, your honor. My point is this, that epithet, which was vile, didn't rise to the level to give him a reasonable belief that he was suffering discrimination. And this certainly is not because the comment is so benign here. The comment, you know, can you take your wife, can your wife take the kids to school? I mean, not in a million years. Is that going to be considered under a reasonable standard, a hostile workplace when you compare that to the Jordan case where it was? So that's not only point on retaliation. On the gender discrimination claim, your honor. The battleground here is whether they need a comparator or not. The district court said they need one

. In Jordan, an African American employee was at work one day watching TV at a break room when a news report announced that the DC snipers had just been captured. There was a white employee in the room with him at the same time who uttered a very vile racial slur. And I don't normally like to get into these sort of things, but I will because I think it's important to compare it to Mr. Fouche's comment, which is very benign in comparison. It's different as night and day, aren't they? Well, in Jordan, the white employee said in the presence of the black employee, they should put those two black monkeys in a cage with a bunch of black apes and let the apes have sex with them. But he used worse words than that. Now, this court held that he had no reasonable belief when he went to HR and complained about it. Not everybody on the panel agreed with that. I helped it. But this is the holding. I don't understand. But that's completely different from what I'm trying to draw. And in my point of view, what are you getting into that for? Well, the point is, what are you getting into it for? They're so different. They are different. So why are you trying to do? Shoot yourself in the flesh? No, no, no, no, no, your honor. My point is this, that epithet, which was vile, didn't rise to the level to give him a reasonable belief that he was suffering discrimination. And this certainly is not because the comment is so benign here. The comment, you know, can you take your wife, can your wife take the kids to school? I mean, not in a million years. Is that going to be considered under a reasonable standard, a hostile workplace when you compare that to the Jordan case where it was? So that's not only point on retaliation. On the gender discrimination claim, your honor. The battleground here is whether they need a comparator or not. The district court said they need one. They don't have one. All the comparators are in favor of Takeda. And they certainly are. But it is an element of a premium-facie case and a gender discrimination case. And what we have here is a little bit different. We call it gender plus case. Mr. Nathan doesn't say I was picked on just because I'm a man. Rather, I was picked on because I'm a man who wants to take his kids to school. So that's gender plus some other characteristic. And the fourth circuit hasn't weighed in yet on whether you need a comparator in that kind of case. Judge Wilson did actually, though, in a district court opinion that he issued called Robin Hess Watts, and versus Potter. And he got it right. You absolutely need to have a comparator in a sex plus case. Other circuits that have looked at this have all concluded you need a comparator. The most thoughtful opinion. I've got a four circuit, though, so we don't know what they're going to do. Well, I think you got to write your honor. And I'm confident that your brethren will agree with you on that one. But in Coleman, the 10th circuit looked at it long and hard and said that you absolutely need a comparator in a gender plus case. And the second circuit did the same in Fisher versus Vassar. And the third circuit did the same in Bryant versus International Schools

. They don't have one. All the comparators are in favor of Takeda. And they certainly are. But it is an element of a premium-facie case and a gender discrimination case. And what we have here is a little bit different. We call it gender plus case. Mr. Nathan doesn't say I was picked on just because I'm a man. Rather, I was picked on because I'm a man who wants to take his kids to school. So that's gender plus some other characteristic. And the fourth circuit hasn't weighed in yet on whether you need a comparator in that kind of case. Judge Wilson did actually, though, in a district court opinion that he issued called Robin Hess Watts, and versus Potter. And he got it right. You absolutely need to have a comparator in a sex plus case. Other circuits that have looked at this have all concluded you need a comparator. The most thoughtful opinion. I've got a four circuit, though, so we don't know what they're going to do. Well, I think you got to write your honor. And I'm confident that your brethren will agree with you on that one. But in Coleman, the 10th circuit looked at it long and hard and said that you absolutely need a comparator in a gender plus case. And the second circuit did the same in Fisher versus Vassar. And the third circuit did the same in Bryant versus International Schools. And there's no principled reason not to require a comparator in a gender plus case when you do require a comparator in a gender case. In fact, the need for comparators is even greater in a gender plus case because gender alone is no longer the determinative factor. You've got some other thing, some other fact that is sort of mudding the waters here. And when you have that other factor to sort through it and figure out if discrimination really is at play, you need a comparator. And that's what the courts have all concluded. That's what the trial court ruled. It's with Judge Wilson ruled in his case. And we think the fourth circuit should follow suit. On the hustle work environment claim, which is the remaining claim. The only point I'd like to make here is they're trying to fit a square peg in a round hole here. And what I mean by that is Mr. Nathan is using the same evidence in his hostile work environment claim for his retaliation claim. And the District Court Judge Trinca noted that in his opinion, he said they conflated the two at oral argument on summary judgment. And what I mean by that is that when you have a hostile workplace claim, you've got to prove it with things like insults, slurs, tasteless jokes, offensive length. I think we know where that's going. You know, a company pursuing perfectly reasonable policies as a creator, hostile environment, trying to enforce its policies. Is there anything further, sir? No, you're on. Let's see if any questions from me. I'm done. Thank you. Mr. Bill

. And there's no principled reason not to require a comparator in a gender plus case when you do require a comparator in a gender case. In fact, the need for comparators is even greater in a gender plus case because gender alone is no longer the determinative factor. You've got some other thing, some other fact that is sort of mudding the waters here. And when you have that other factor to sort through it and figure out if discrimination really is at play, you need a comparator. And that's what the courts have all concluded. That's what the trial court ruled. It's with Judge Wilson ruled in his case. And we think the fourth circuit should follow suit. On the hustle work environment claim, which is the remaining claim. The only point I'd like to make here is they're trying to fit a square peg in a round hole here. And what I mean by that is Mr. Nathan is using the same evidence in his hostile work environment claim for his retaliation claim. And the District Court Judge Trinca noted that in his opinion, he said they conflated the two at oral argument on summary judgment. And what I mean by that is that when you have a hostile workplace claim, you've got to prove it with things like insults, slurs, tasteless jokes, offensive length. I think we know where that's going. You know, a company pursuing perfectly reasonable policies as a creator, hostile environment, trying to enforce its policies. Is there anything further, sir? No, you're on. Let's see if any questions from me. I'm done. Thank you. Mr. Bill. Thank you, Your Honor. How about you address, Judge Wilson's one question about the overlap between the key tam and this action as to how it might have impacted what was going on at the company at the time. It was just kind of taking judicial notice of opinions around there. Oh, yes, you didn't mean to stray into any other facts. The only fact, Your Honor, is that there was no overlap between the battle over certifications and what the other side is called the rigorous training program and what the district court judge below called a rigorous training program. One of the drugs though, he was complaining about a key tam is the one that he was supposed to be marketing. That is correct, Your Honor. That's involved here. That wasn't very involved. Yes, Your Honor. They are the they do involve the same drugs. Your Honor, Judge Wilson with respect to this rigorous training program and and and to what it would be fair to expect of the knowledge of of a sales representative prior to prior to the initial battle over his start time and his complaints to HR. There was never a time when Mr. Nathan was knowledge about any drug was ever questioned. No record with the company of his ever having you know failed to certify on on a first track. In fact, in Anaheim here, what begins this at the very beginning of February, there is no record that he failed to certify there. In fact, Mr. Fouche testified that he certified and messed both drugs in Anaheim then immediately upon the return of the day or two after the return. He called and asked him about the continued issues with the child care and and so now you need to be certified. Aren't you really just describing some what we see all the time in the workplace, which is a personality conflict between an employee and a supervisor that doesn't have much. Just to do with any kind of discrimination, it would just has to do with the fact that the chemistry isn't particularly good and they disagree over company policies and all the rest of that's basically what you're talking about. I don't believe so, Your Honor, and here's why when when Mr

. Thank you, Your Honor. How about you address, Judge Wilson's one question about the overlap between the key tam and this action as to how it might have impacted what was going on at the company at the time. It was just kind of taking judicial notice of opinions around there. Oh, yes, you didn't mean to stray into any other facts. The only fact, Your Honor, is that there was no overlap between the battle over certifications and what the other side is called the rigorous training program and what the district court judge below called a rigorous training program. One of the drugs though, he was complaining about a key tam is the one that he was supposed to be marketing. That is correct, Your Honor. That's involved here. That wasn't very involved. Yes, Your Honor. They are the they do involve the same drugs. Your Honor, Judge Wilson with respect to this rigorous training program and and and to what it would be fair to expect of the knowledge of of a sales representative prior to prior to the initial battle over his start time and his complaints to HR. There was never a time when Mr. Nathan was knowledge about any drug was ever questioned. No record with the company of his ever having you know failed to certify on on a first track. In fact, in Anaheim here, what begins this at the very beginning of February, there is no record that he failed to certify there. In fact, Mr. Fouche testified that he certified and messed both drugs in Anaheim then immediately upon the return of the day or two after the return. He called and asked him about the continued issues with the child care and and so now you need to be certified. Aren't you really just describing some what we see all the time in the workplace, which is a personality conflict between an employee and a supervisor that doesn't have much. Just to do with any kind of discrimination, it would just has to do with the fact that the chemistry isn't particularly good and they disagree over company policies and all the rest of that's basically what you're talking about. I don't believe so, Your Honor, and here's why when when Mr. Fouche says, okay, you're still doing that, calls him up an hour later, you need to be recertified. He goes out, he recertifies him, he doesn't know that Mr. Nathan has complained, he recertifies him on the only drug that he considers recertifying him for and he writes a field coaching log that's in the exact same style format and level of sort of acceptable content that he had always given to Mr. Nathan on the 10th pre-execating that he does it for him. He finds out that Mr. Nathan has complained about him and he one immediately tries to submit an amendment to make that field coaching log bad. Two, between he and Mr. Savant agree that he needs to be recertified now on both drugs that Mr. Fouche has previously certified him on one drug two times, one drug one time. And now that he knows that Mr. Nathan has complained about him, he fails to certify him on both drugs and it's factures he never again certifies him until... Isn't that just a disagreement about one thing or another around the workplace? I just don't see how you shoehorn it into a title seven, a hostile environment. I mean people have disagreements with their supervisors all the time. I mean, it's unfortunate, but no human chemistry is not always perfect. This is a disagreement where as a result of known that there was a pending complaint about discrimination. That the company was investigating because it took it seriously that they failed him on these drug recertifications that the same individuals had passed him on until they learned that they were the subject of the investigation. That's the most classic example of retaliation and from that moment forward they never again did anything other than work behind the scenes to mar his reputation. Mr. Savant would on every performance evaluation that Mr. Nathan ever got from there forward until he was barred or until he left the company

. Fouche says, okay, you're still doing that, calls him up an hour later, you need to be recertified. He goes out, he recertifies him, he doesn't know that Mr. Nathan has complained, he recertifies him on the only drug that he considers recertifying him for and he writes a field coaching log that's in the exact same style format and level of sort of acceptable content that he had always given to Mr. Nathan on the 10th pre-execating that he does it for him. He finds out that Mr. Nathan has complained about him and he one immediately tries to submit an amendment to make that field coaching log bad. Two, between he and Mr. Savant agree that he needs to be recertified now on both drugs that Mr. Fouche has previously certified him on one drug two times, one drug one time. And now that he knows that Mr. Nathan has complained about him, he fails to certify him on both drugs and it's factures he never again certifies him until... Isn't that just a disagreement about one thing or another around the workplace? I just don't see how you shoehorn it into a title seven, a hostile environment. I mean people have disagreements with their supervisors all the time. I mean, it's unfortunate, but no human chemistry is not always perfect. This is a disagreement where as a result of known that there was a pending complaint about discrimination. That the company was investigating because it took it seriously that they failed him on these drug recertifications that the same individuals had passed him on until they learned that they were the subject of the investigation. That's the most classic example of retaliation and from that moment forward they never again did anything other than work behind the scenes to mar his reputation. Mr. Savant would on every performance evaluation that Mr. Nathan ever got from there forward until he was barred or until he left the company. Aren't you skipping over several steps? Yes, there's a reasonable belief that discrimination is a foot. And I think having the panel's questions evidence some skepticism on that. Yes, Your Honor. Although it's certainly in tension with the idea that the fourth circuit and the Supreme Court of the United States have recognized on several occasions, which is even though that person must have a subjective reasonable belief and even though they must be objective facts that would support it, they don't have to be right. And here with respect to this comparative issue, we've got circuits that haven't reached the issue. We've got EEOC guidelines that say you absolutely don't need a comparer and to expect that Mr. Nathan would have known those things in determining that that statement made by or that series of statements made by... I think it would have helped your case to have had a comparator. It would have helped the case have a comparator. But you didn't have one. In the same way you're honor that it had to immediately file a charge with the EEOC on the 9th of February rather than making the complaints internally because it was participation as opposed to opposition. That test wouldn't be there and every one of the things I'm describing as retaliation would have been considered without a policy. All right, thank you, sir. Thank you, Your Honor. We appreciate it. We'll come down, read counsel and now we'll take a brief recess.

of the team judges of the panel. I'm James Bell, and behalf of plaintiff Appellant, Noah Nathan, in this matter. This matter comes here on appeal as a result of a total grant of summary judgment on a one count title seven complaint from the district court. Based upon three, primarily three theories, one of title seven discrimination, one of title seven, hostile work environment harassment, and one of retaliation for complaints about violations of title seven. If it please the court, I would begin with the retaliation claim about which I believe there is the most factual evidence and the legal arguments that perhaps need the most explanation. The district court below held that with respect of protected activity in this matter, that the only protected activity identified was the filing of an EEOC charge in approximately July of 2009. Ostensibly that was under the participation clause as opposed to the opposition clause of title seven. Prior to the filing of that particular EEOC charge, Mr. Nathan had engaged in multiple and repeated complaints to his employer, his employer as a charge department and the management of Takeda regarding the discrimination harassment and retaliation that he believed that he was suffering. Of course initially the complaint was about discrimination and harassment, but as it proceeded, he began to say, and in addition, I believe that I'm being retaliated. When you say discrimination, the harassment you refer to Takeda's child to school, or I'm referring to the actions that were, with respect to the discrimination, I'm referring to the actions that flowed from his having been rebued for taking the child to school under the shadow of being asked why it wasn't more proper for his wife to do that job. Don't you have to, haven't we held it, you have to have some objectively reasonable belief that discrimination is a foot in order for that to be protected activity? Absolutely judge, Wilkinson deep. The test of courses that the employee have when they make the complaint a good faith belief, meaning in that sense. It's not a good faith belief, it has to be an objective be reasonable. The second part of the test, yes, Your Honor, is that the good faith belief also be objectively reasonable in light of the facts. The interesting thing about the case law and what sort of puts it in tension and difficult to comprehend exactly what is meant by objectively reasonable under the facts is that... What's objective, I mean, what is discriminatory about policies that are mutually applied and applied across the board? The, what's so discriminatory that somebody started 8 a.m. in the morning, saying not just female sales reps or not just male sales reps, but every sales rep started 8 a.m. in the morning and familiarized themselves with the products that they're gonna sell. What's so discriminatory about that? I mean, those are... They seem to me that... They were repolicies that any company with a sales force would want to adopt. The only thing that we know with respect to the reasoning by Mr. Fouche as to why he singled Mr. Nathan out for this is that he was aware of his start time, but the only clue that he gave about what it was in particular that bothered him about Mr. Nathan and his start time and occasionally, or at least sometimes during the week, dropping his children off in his territory was that he had said on a number of occasions that it would have been, or at least had words that made it believable that he thought that it was more appropriate task for the wife. He didn't say that, he put in words into his mouth. But what's wrong with a supervisor when trying to imply her about whether the company policies are being followed or whether there's some way in which the company policies would be followed? I mean, you don't want to work place where every little inquiry about compliance with company policy becomes a tripwire for some sort of discrimination suit. And you're gonna get to the point where people can't even communicate if they're just afraid to open their mouths. Judge Wilkinson, if a series of complaints were made that contained language directed to the AHR department, not to the decision makers, that causes them because of those accusations to get angry. And that employer recognizes that what it's been accused of is a violation of the law. When that employee is punished for having made that complaint. I mean, you have to have a reasonable belief that discrimination is a foot in the order to bring a retaliation plan. And I was just wondering, what is the basis for the reasonable belief when you have number one policies that are perfectly reasonable? Number two, there's no comparator that I could find. That seems to me that males and females were being treated similarly. As far as I could ascertain, didn't seem to me, that there was a preference by gender that everybody who was a member of the Salesforce of whatever gender was required to start at eight and get a certification when new products were introduced. It seems your clients a little whiny and want special treatment. But the company's not obliged to do that. This truth is that the company would not necessarily be obliged to give him special treatment. But the complaints that he was making about the treatment that he was receiving were not that he'd be treated especially, but that he'd be treated as everyone else was. From the moment that he made his... I thought everybody was required to go to work at eight o'clock in the morning. That is correct, Your Honor. He didn't want to go to work at eight o'clock in the morning. He wanted to go at eight thirty. It was Takeda's practice as described by Mr. Foucher's supervisor that the actual Takeda... What entitlement does he have to special treat? You know, he had a wrong company that got work. But I apologize, Your Honor. I'm sorry. I apologize, Your Honor. At the time of the... I'm sorry. I may hear your question again, Your Honor. Excuse me? I have lost your question, Your Honor. I was following up on my colleague, Christian, Judge King's question about... He wanted... Everybody was required to start at eight. He wanted to start at eight thirty. And my question was, why is the company obliged to give one person special treatment? That just demoralizes everybody. And it just seems to me, it just has somebody who's very quiet. Your Honor, the testimony in the case is that other individuals were also beginning their work day at a later time during the... Then eight o'clock, that the only one that Mr. Fushay was aware of was Mr. Nathan. In addition, Mr. Fushay, the direct supervisor, testified that it wasn't his expectation or Takeda's expectation that people be in the field at eight o'clock, but rather it was the expectation of Takeda that they show up at the right number of doctors offices in their territory and that they make the right number of call details and that they make sales. And Mr. Nathan at this time was one of the top sales people in the country. Mr. Fushay was Mr. Basin's fault. That is correct, Your Honor. And he said eight o'clock, that everybody's going to be in doctors offices by eight o'clock. And your client said, your client didn't want to do it. He wanted... That's what way I read the record. You're taking the view most favorable to him. And he did it. And he did... Oh, upon the heels of this right after February, when this began to heat up, he did make other arrangements in deference to his supervisor, Mr. Fushay. And notified Mr. Fushay that he was doing that, but the treatment continued. And the only thing that he had in his lecture, was I'm on, it's kind of an innocuous question about arrangements to take the older child to school, who was the older child. Can your wife take the child to school? That you're relying on here, right? Well, that is the only statement, Your Honor. There is all that a fair recitation of what the state... That is a fair recitation of one of the statements. It has been... How can you build a reasonable belief in discrimination on the basis of something that's not innocuous? Because wife carries with it a suggestion of sex, Your Honor. And the other fourth circuit case on this issue, the statement involves the words, someone else, as opposed to, in this case, your wife. Well, Mr. Fushay was aware that... Excuse me, John, sorry, Your Honor. I'm just going to say when he... You know, Mr. Fushay summarized an email on December 12th. He said, I want to follow up on our conversation on November 20th, about you having to start work at 8.30 a.m. every day, because you have to drop off your child in school at 8.30 a.m. since they started in a new school. I fully support work-like balance and expect you to strive to achieve it. In my opinion, consistently starting at 8.30 a.m. is not reasonable, and fair to Kate or me. I mean, it seems to me to be a... About as innocuous and about as reasonable demand. If it were true, Your Honor. And the testimony reflects that that description of the conversation that they had was not accurate. Mr. Nathan had informed Mr. Fushay that there were only some days that he was not out in his territory at 8.30, but that on any days when he needed to be at a far point in his territory early in the morning because of a doctor's office, or when he needed to get to somewhere in his territory, because of a breakfast that he had managed to schedule that was early in the morning, then he always made arrangements that someone else would handle those duties. And ironically, in criticizing Mr. Nathan, Mr. Fushay, when he tried to arrange these organizations, took them to a doctor's office at 8.30 in the morning, and of course, the record evidence reflects that what happened there was they were turned away because doctors don't meet with pharmaceutical reps at 8.30 in the morning. It's not us to tell people how to run their company. Maybe they want you to get a little bit of a head start, get yourself organized before you begin to visit the office. I don't disagree with you, Your Honor, but it's just... It's not a start work, the minute the doctors open you. You've got to get your route together, and you've got to get your supplies together, and there's a little preparation. I don't know on the part of every salesman before the salesperson actually starts making the calls. Anybody who's familiar with sales knows that you go to the office before you start making the calls. I don't disagree with any part of that, Your Honor, except for the use of the word day, because the policy was not a Takeda policy. It was a policy of one rogue supervisor whose own evaluation of what Takeda's policy was, was not approved by his supervisor. It was what his boss did, and that was what he required, the people of the work for him, a number of them. And they all had the uniform, sorry, domed, they thought, it makes good impression, perhaps, on the doctor, Mr. Husha, you may have thought, to be out there early, to show up early, from a lot of people like that. I mean, it is clear, bouncing where the sex part comes in here, that's dumbfounded to me. I mean, there's a innocuous statement, what about your wife? I mean, they got some husband and wife, they're married, they both got good jobs, two children, they're working together on it, he asked a question whether it could be worked out, sounds like to me. The EEOC guidelines, which are referenced in the brief and included as part of the joint appendix, quote, the Supreme Court on this issue of gender stereotyping, and expectations being different about males versus females. It's not ironic that the comparator that they offer, the one that they claim is a comparator to the JC person, whose affidavit is part of the joint appendix. What did they ask about the grandparents? I mean, maybe they were around or somewhere. I take my grandchildren's school some time, I've got a pigeon, I mean, a lot of people do that. Friends and neighbors, I mean, it's a fake, he made an inquiry on the face of it as innocuous as Judge Wilkinson said in neutral. Me. There was other information suggesting that he was hostile to these kinds of child care issues, including that he had a doctorate to cater for him to include having the individual reps say, when they were off, whether it was for child care or for another reason. Thank you, Council. Yes, you're right. Thank you. You have some time for a bottle. Thank you. Thank you for me. Great. Yeah, good morning and may it please the Court. My name is Dana Rust with McGuire Woods and I'm here on behalf of Takeda Pharmaceuticals. The first thing I'd like to do for the court is clarify some things in the factual record that the district court relied on. The evidence, the undisputed evidence is that Mr. Fouche was 100% consistent in requiring all his subordinates to start at 8 o'clock. Mr. Nathan admitted this himself in his deposition and I don't normally get into this at an appropriate argument, but this is very succinct. Quote, I'd like to read to the court from his deposition. He said, yes, we all got the email saying start at 8 a.m. So everybody was told to start at 8 a.m. He then went on to say that everybody was irritated with it. There were five comparators, Your Honor, that we submitted declarations for. Four of them were women, one of them was a man. Four of them had small school aged children, one of them did not. You were the one that submitted the comparators. Correct. Did the opposing council submit the court? They did not. They did not identify a single person who treated differently. So all of the evidence is consistent. I wonder if Mr. Judge King and I went on the patent line to the lying decision, that's not very helpful if the opposing party doesn't submit a single comparator. Right, they need a comparator in this kind of a case to prove their claim. And all of the comparators go the other way and support our position and show that. You've got all the comparators. We have them all and they're all good to go. And they take the position that they're not comparators because there's no evidence that child care givers. And I don't know what that means because their parents, they have small children who are school aged. And I guess their position is just because they dealt with the requirement and made other arrangements. They're not comparators, but of course they are. They're the perfect comparators. One of them, in fact, a woman had her husband was a lawyer and they had small children. It doesn't get any better than that. Mr. Nathan's wife was a lawyer and they had small children. She was expected to show up at eight. Absolutely. All five of them were. Now there's this one comment that they make a great deal out of. In fact, I think they their whole case hinges on whether this is somehow discriminatory. It's this comment that Mr. Fouche made a Mr. Nathan why can't your wife take the kids to school? And they argue that's gender stereotyping. They argue it's. You're reciting that as a quote. That is a quote. That's the light most favorable to you. Yeah, that's his version of the events. It's in the joint appendix of page 93 94. Why can't your wife take the kids to school? And I think it's the court recognizes there's nothing discriminatory at all about that comment. Mr. Fouche was just looking to the other natural candidate to take the kid to school, which in this case happened to be a wife, but in the case of a female sales rep, it would be the husband. And again, we have the four affidavits from the female sales rep saying they were held to the exact same standard. So you can't infer anything discriminatory at all about that comment. The other sort of storyline in the case, which the court is alluded to, is the training requirements for the new drugs that Takeda was rolling out. They had one they were manufacturing called Udloric. And as you would expect, Takeda wants its reps to be very familiar with those drugs before they call on doctors and pharmacies to sell. And Mr. Nathan struggled with his knowledge regarding this drug, Udloric. And that's covered in several contemporaneous emails and warnings that he received. That's actually the familiarity with pharmaceutical products is rather important because in the whole chain of distribution of prescriptions and drugs and everything, the health system relies on knowledge ability all along the line. In other words, to give patients the best end care, the links in the chain from manufacturer to wholesaler to distributed sales persons to doctors. The system relies for its safety and efficacy on knowledge at all these different links. And the more people know about what they're doing, the less this helps the likely to occur. So it's actually, it's not some draconian policy from a health standpoint. It's very beneficial to have people understanding what the side effects might be and what physicians rely on us. Over time, they come to have confidence in some sales representatives and they come to treat with a grain of salt, all the puffing and half-big statements of others. The knowledge will sales. When it's going to gain the trust for the physicians and that would be a good working relationship. And somebody who's not knowledgeable and just puffs it through, not going to be very successful, not going to serve the health system very well. Don't understand why. Somebody should be holding the core with the discriminations for doing what this person was doing. That's right. And Mr. Nathan was given multiple chances to prove he had knowledge of the stroke, you're on, and he ultimately passed the tests that were given to him. He was ultimately certified. And he kind of got desertified because he was certified by, and then he was retrained. And then he was exertified again. And we all talk about certification in his record. You're told about certification by the company. That's right. Right. It's not an FDA certification or something like that. It's a satisfaction company. That's correct. But they have a very rigorous training program. They have professional trainers that they had in both Chicago and New Jersey. They sent him to both of them. And again, if this was some retaliatory scheme and had involved four or five people, yes, it seems to be that there. Something else is playing out behind the scenes here. And there, nobody's mentioned it yet, but there was a key damn action. Yes, there was. It was any file. And, and that was litigated in the district court. And there was a, there's a decision about it. And it was litigated in the four circuit and decision out of the four circuit. That is correct, right? I was not involved in that, but you are correct. But the point is, there's some time overlap with some of these various events. But it seems to me that what may be happening here is he's trying to fit. There's something that didn't fit before into a discrimination issue at Title Seven. I think that's exactly maybe what we're going on here. Sir, they'll have it claimed that's pertinent. It has not come up in this litigation. The only reason I mention it is because there were these two decisions out there. You are one very same, very same heart. It's been a great deal of litigation. Two other factual points I want to make about the training is Mr. Nathan admitted, well, he got an email where it said that, you know, confirming a conversation that he had with Savant, his boss of boss. And in that email, he said that Mr. Nathan didn't remember that he didn't do certain things well in the training that was required of him. And then that email was given to him in his deposition and he didn't quibble with it there. So it's really undersfuted that he had problems with his training, but again got multiple chances. I'd like to turn out a retaliation because that's where Mr. Bell started. And I think it is the most complicated. Anything we overlooked in our discussion of that particular claim? On retaliation, one thing, Your Honor, that I think is important to draw the court's attention. It's this that after briefing was concluded in this case in June of this year, the Supreme Court handed down the University of Texas versus NASA decision. And in that case, Justice Kennedy writing for the court concluded that you must have the stringent but force standard to prove causation in a Title VII retaliation case, which is what we have here. So that is the burden that they have to establish retaliation now under Title VII, the but force standard. That's an essential question though, even as you have to possess some sort of reasonable belief. Yes. And on that point, Your Honor, I'd like to call your attention to the court's decision in Jordan versus alternative resources corporation. In Jordan, an African American employee was at work one day watching TV at a break room when a news report announced that the DC snipers had just been captured. There was a white employee in the room with him at the same time who uttered a very vile racial slur. And I don't normally like to get into these sort of things, but I will because I think it's important to compare it to Mr. Fouche's comment, which is very benign in comparison. It's different as night and day, aren't they? Well, in Jordan, the white employee said in the presence of the black employee, they should put those two black monkeys in a cage with a bunch of black apes and let the apes have sex with them. But he used worse words than that. Now, this court held that he had no reasonable belief when he went to HR and complained about it. Not everybody on the panel agreed with that. I helped it. But this is the holding. I don't understand. But that's completely different from what I'm trying to draw. And in my point of view, what are you getting into that for? Well, the point is, what are you getting into it for? They're so different. They are different. So why are you trying to do? Shoot yourself in the flesh? No, no, no, no, no, your honor. My point is this, that epithet, which was vile, didn't rise to the level to give him a reasonable belief that he was suffering discrimination. And this certainly is not because the comment is so benign here. The comment, you know, can you take your wife, can your wife take the kids to school? I mean, not in a million years. Is that going to be considered under a reasonable standard, a hostile workplace when you compare that to the Jordan case where it was? So that's not only point on retaliation. On the gender discrimination claim, your honor. The battleground here is whether they need a comparator or not. The district court said they need one. They don't have one. All the comparators are in favor of Takeda. And they certainly are. But it is an element of a premium-facie case and a gender discrimination case. And what we have here is a little bit different. We call it gender plus case. Mr. Nathan doesn't say I was picked on just because I'm a man. Rather, I was picked on because I'm a man who wants to take his kids to school. So that's gender plus some other characteristic. And the fourth circuit hasn't weighed in yet on whether you need a comparator in that kind of case. Judge Wilson did actually, though, in a district court opinion that he issued called Robin Hess Watts, and versus Potter. And he got it right. You absolutely need to have a comparator in a sex plus case. Other circuits that have looked at this have all concluded you need a comparator. The most thoughtful opinion. I've got a four circuit, though, so we don't know what they're going to do. Well, I think you got to write your honor. And I'm confident that your brethren will agree with you on that one. But in Coleman, the 10th circuit looked at it long and hard and said that you absolutely need a comparator in a gender plus case. And the second circuit did the same in Fisher versus Vassar. And the third circuit did the same in Bryant versus International Schools. And there's no principled reason not to require a comparator in a gender plus case when you do require a comparator in a gender case. In fact, the need for comparators is even greater in a gender plus case because gender alone is no longer the determinative factor. You've got some other thing, some other fact that is sort of mudding the waters here. And when you have that other factor to sort through it and figure out if discrimination really is at play, you need a comparator. And that's what the courts have all concluded. That's what the trial court ruled. It's with Judge Wilson ruled in his case. And we think the fourth circuit should follow suit. On the hustle work environment claim, which is the remaining claim. The only point I'd like to make here is they're trying to fit a square peg in a round hole here. And what I mean by that is Mr. Nathan is using the same evidence in his hostile work environment claim for his retaliation claim. And the District Court Judge Trinca noted that in his opinion, he said they conflated the two at oral argument on summary judgment. And what I mean by that is that when you have a hostile workplace claim, you've got to prove it with things like insults, slurs, tasteless jokes, offensive length. I think we know where that's going. You know, a company pursuing perfectly reasonable policies as a creator, hostile environment, trying to enforce its policies. Is there anything further, sir? No, you're on. Let's see if any questions from me. I'm done. Thank you. Mr. Bill. Thank you, Your Honor. How about you address, Judge Wilson's one question about the overlap between the key tam and this action as to how it might have impacted what was going on at the company at the time. It was just kind of taking judicial notice of opinions around there. Oh, yes, you didn't mean to stray into any other facts. The only fact, Your Honor, is that there was no overlap between the battle over certifications and what the other side is called the rigorous training program and what the district court judge below called a rigorous training program. One of the drugs though, he was complaining about a key tam is the one that he was supposed to be marketing. That is correct, Your Honor. That's involved here. That wasn't very involved. Yes, Your Honor. They are the they do involve the same drugs. Your Honor, Judge Wilson with respect to this rigorous training program and and and to what it would be fair to expect of the knowledge of of a sales representative prior to prior to the initial battle over his start time and his complaints to HR. There was never a time when Mr. Nathan was knowledge about any drug was ever questioned. No record with the company of his ever having you know failed to certify on on a first track. In fact, in Anaheim here, what begins this at the very beginning of February, there is no record that he failed to certify there. In fact, Mr. Fouche testified that he certified and messed both drugs in Anaheim then immediately upon the return of the day or two after the return. He called and asked him about the continued issues with the child care and and so now you need to be certified. Aren't you really just describing some what we see all the time in the workplace, which is a personality conflict between an employee and a supervisor that doesn't have much. Just to do with any kind of discrimination, it would just has to do with the fact that the chemistry isn't particularly good and they disagree over company policies and all the rest of that's basically what you're talking about. I don't believe so, Your Honor, and here's why when when Mr. Fouche says, okay, you're still doing that, calls him up an hour later, you need to be recertified. He goes out, he recertifies him, he doesn't know that Mr. Nathan has complained, he recertifies him on the only drug that he considers recertifying him for and he writes a field coaching log that's in the exact same style format and level of sort of acceptable content that he had always given to Mr. Nathan on the 10th pre-execating that he does it for him. He finds out that Mr. Nathan has complained about him and he one immediately tries to submit an amendment to make that field coaching log bad. Two, between he and Mr. Savant agree that he needs to be recertified now on both drugs that Mr. Fouche has previously certified him on one drug two times, one drug one time. And now that he knows that Mr. Nathan has complained about him, he fails to certify him on both drugs and it's factures he never again certifies him until... Isn't that just a disagreement about one thing or another around the workplace? I just don't see how you shoehorn it into a title seven, a hostile environment. I mean people have disagreements with their supervisors all the time. I mean, it's unfortunate, but no human chemistry is not always perfect. This is a disagreement where as a result of known that there was a pending complaint about discrimination. That the company was investigating because it took it seriously that they failed him on these drug recertifications that the same individuals had passed him on until they learned that they were the subject of the investigation. That's the most classic example of retaliation and from that moment forward they never again did anything other than work behind the scenes to mar his reputation. Mr. Savant would on every performance evaluation that Mr. Nathan ever got from there forward until he was barred or until he left the company. Aren't you skipping over several steps? Yes, there's a reasonable belief that discrimination is a foot. And I think having the panel's questions evidence some skepticism on that. Yes, Your Honor. Although it's certainly in tension with the idea that the fourth circuit and the Supreme Court of the United States have recognized on several occasions, which is even though that person must have a subjective reasonable belief and even though they must be objective facts that would support it, they don't have to be right. And here with respect to this comparative issue, we've got circuits that haven't reached the issue. We've got EEOC guidelines that say you absolutely don't need a comparer and to expect that Mr. Nathan would have known those things in determining that that statement made by or that series of statements made by... I think it would have helped your case to have had a comparator. It would have helped the case have a comparator. But you didn't have one. In the same way you're honor that it had to immediately file a charge with the EEOC on the 9th of February rather than making the complaints internally because it was participation as opposed to opposition. That test wouldn't be there and every one of the things I'm describing as retaliation would have been considered without a policy. All right, thank you, sir. Thank you, Your Honor. We appreciate it. We'll come down, read counsel and now we'll take a brief recess