[00:00:07] Speaker 04:
Good morning, Your Honors.

[00:00:08] Speaker 04:
Andrew Pletcher on behalf of Appellant Lindsay Okonofsky.

[00:00:13] Speaker 04:
Good morning, and if it may please the Court.

[00:00:16] Speaker 04:
Lindsay Okonofsky maintains that tribal issues of fact exist to show that she was subjected to a hostile work environment under Title VII when a high-ranking coworker at the federal prison where she worked posted numerous discriminatory and lewd posts in an Instagram page that was followed, liked, and commented on by her other coworkers.

[00:00:37] Speaker 04:
This left Ms.

[00:00:38] Speaker 04:
Okonofsky feeling ostracized and isolated as these posts became the water cooler conversation within FCC Lompoc and resulted in a change to the terms and conditions and privileges of employment.

[00:00:50] Speaker 02:
Could I ask you a question about the district court's order?

[00:00:54] Speaker 02:
It's page 19 of the order, 1ER20.

[00:01:00] Speaker 02:
I think looking there well sorry and on the previous page the district court decided five I think first decided there were nine posts that were the subject and I'm not sure how the district court narrowed

[00:01:16] Speaker 02:
the number of memes to nine and then I'm going to have a different question about from there went to five but did you understand the rationale for that first separation that the idea that the claim arises from nine well our position would be that the

[00:01:37] Speaker 04:
Obviously the district court missed the other posts that we feel are discriminatory and do fall under the Title VII analysis.

[00:01:44] Speaker 02:
Right.

[00:01:44] Speaker 04:
But they're nine to get, sorry, I apologize.

[00:01:47] Speaker 02:
That's okay.

[00:01:47] Speaker 02:
So I didn't, I couldn't see it in the complaint that it was limited to nine.

[00:01:50] Speaker 02:
Was there motions practice or can you help me out?

[00:01:52] Speaker 02:
Where did that come from?

[00:01:54] Speaker 04:
I think the court narrowed its focus just through reading the motions and the work I apologize I was brought in for the appellate level I didn't work on the exact motions but the from my reading the motions work guided the court to make its decision and choose nine and I think

[00:02:11] Speaker 04:
to refer to the court's order again, it really comes back to the fact that the court openly disregarded the other post that it felt.

[00:02:18] Speaker 03:
And just to be clear, correct me if I'm wrong, there's nothing in the record indicating that the reason the court limited it to nine was somehow because the others weren't admissible.

[00:02:30] Speaker 03:
There's nothing like that.

[00:02:31] Speaker 03:
Is that right?

[00:02:32] Speaker 04:
They were correct that they weren't necessarily admissible.

[00:02:36] Speaker 04:
The court just felt in its analysis they were not applicable.

[00:02:39] Speaker 03:
The court didn't say this doesn't comply with Rule 56 because I have nothing before me that would indicate this could ever get admitted into evidence.

[00:02:49] Speaker 03:
Correct.

[00:02:50] Speaker 02:
I just want to push back on that a little bit.

[00:02:52] Speaker 02:
I agree with Judge Bennett.

[00:02:54] Speaker 02:
I couldn't find an evidentiary ruling.

[00:02:55] Speaker 02:
But on page 18, the order says, plaintiff points to nine total posts.

[00:03:01] Speaker 02:
And I can't find where plaintiff posts pointed to a universe limited to nine posts.

[00:03:07] Speaker 02:
And if you don't know the answer, that's fine.

[00:03:08] Speaker 02:
But that's what I was looking for.

[00:03:09] Speaker 02:
Do you know where that came from, that impression?

[00:03:12] Speaker 04:
It's the court's reading of the plaintiff's opposition at summary judgment.

[00:03:16] Speaker 04:
I apologize.

[00:03:16] Speaker 04:
I don't have the exact.

[00:03:18] Speaker 02:
You don't have to apologize, but you think it came from there.

[00:03:19] Speaker 02:
Maybe nine were discussed.

[00:03:20] Speaker 02:
OK, I'll check there.

[00:03:22] Speaker 02:
And then from there, I think the judge decided, I think, that from nine, she went to five on page 19 of her order.

[00:03:33] Speaker 04:
Correct.

[00:03:34] Speaker 02:
Because it says, the other posts, while addressing matters in the workforce, have no perceivable sex-based motive and are most offensive.

[00:03:45] Speaker 04:
Yes.

[00:03:46] Speaker 04:
From the court's reading, the court notes in the footnote what the ones it considered were the five.

[00:03:54] Speaker 04:
The other four that it left out felt that they were outside of a sex-based motive or

[00:04:04] Speaker 02:
title seven motive to uh... rights on the question if if i have a hostile work environment claim and it's specifically a sex-based claim

[00:04:14] Speaker 02:
I have not understood the law to require that each element in the workforce that contributes to that has to both refer to me and to, in this case, the sex-based motive.

[00:04:27] Speaker 02:
So the hypothetical that I've been kicking around is if I'm bringing this kind of claim and I went into the lunchroom at my workplace and there were playboys centerfold on the ball,

[00:04:37] Speaker 02:
But that could be considered.

[00:04:39] Speaker 02:
It wouldn't have to have my name on it or do anything, you know, have my face on it, like someone cut out the face and put my face on it or do anything to specifically refer to me.

[00:04:50] Speaker 02:
But I can't tell whether the district court read this the same way.

[00:04:54] Speaker 02:
So let me ask you first.

[00:04:55] Speaker 02:
On page 18, she discusses this a bit.

[00:04:58] Speaker 02:
She says that it has to be of a sexual nature.

[00:05:00] Speaker 02:
I think that's right.

[00:05:02] Speaker 02:
I think that's what the case says.

[00:05:03] Speaker 02:
But does each meme to be considered also have to refer to the plaintiff?

[00:05:08] Speaker 04:
Well, it's our position, no, because under this court's precedent, the Christensen case and its other precedent, that the court, looking at summary judgment, should consider the totality of the circumstances.

[00:05:20] Speaker 04:
And here, we believe that totality analysis should be applied to

[00:05:24] Speaker 04:
really all of the post and that's why in our our blue brief we discuss thoroughly uh... the other posts uh... that were posted by helman that were not considered by the court.

[00:05:34] Speaker 02:
Some of them were sex-based and those are the kinds of examples that I've mentioned to you that I think maybe should have been considered.

[00:05:39] Speaker 02:
We want to talk about that a bit but that there's others that the district court mentioned that might refer more directly to the plaintiff but weren't sex-based.

[00:05:46] Speaker 02:
You think those should be included too?

[00:05:48] Speaker 04:
We do.

[00:05:49] Speaker 04:
We think in the analysis at, again, the totality of the circumstances analysis at summary judgment, this court should consider all of the posts, and they may have only maybe a minimal effect when you get to the trial court level, but they should be considered because, you know, this court, excuse me, the Supreme Court case meritor mentions that Title VII affords employees the right to work in an environment free from discrimination, intimidation, ridicule, and insult.

[00:06:16] Speaker 02:
Right, some of them strike me as sort of bullying and picking on her and belittling her, and I don't mean to make light of that, but I read the complaint to be about a sex-based claim.

[00:06:26] Speaker 02:
Am I reading it too narrowly?

[00:06:29] Speaker 02:
Sex or gender based claim?

[00:06:30] Speaker 04:
Well, sex or gender based.

[00:06:31] Speaker 04:
And we do agree with the position that some of the posts were in response to the fact of when my client made a complaint.

[00:06:42] Speaker 04:
Some of the posts were more bullying.

[00:06:44] Speaker 04:
But we do think that that should be considered in the totality analysis, at least for purposes of summary judgment.

[00:06:50] Speaker 01:
So are you aware of any other case that arose in the social media context where

[00:06:57] Speaker 01:
I mean, I think this district court probably erred in making a distinction in the social media context of outside work and inside work, because social media is all pervasive.

[00:07:10] Speaker 01:
And you can be reading a post that was posted anywhere, anywhere, anytime.

[00:07:18] Speaker 01:
And there were followers within the workforce, at least 100, according to this record.

[00:07:24] Speaker 01:
that could have been posting the followers, the like comments or whatever they were doing.

[00:07:32] Speaker 01:
Are you aware of any other case that has facts like these kinds of facts where it's Instagram posts or what else they do?

[00:07:44] Speaker 04:
Oh, I apologize.

[00:07:46] Speaker 04:
In what our research for the Ninth Circuit, we are unaware of any cases that really discuss the social media context, at least with these particular facts.

[00:07:57] Speaker 04:
We do cite in our brief, the Fisher versus FDNY case, talks about one Instagram post and the effect that it had on the workplace.

[00:08:05] Speaker 04:
And we think from that, it's a district court case, we do realize, but that case and the analysis provided by the district court

[00:08:12] Speaker 04:
showed that they looked at the Instagram post, they recognized it was done outside of the workplace.

[00:08:18] Speaker 04:
But we would hold that Instagram, like the court, like your honor said, can be accessed from anywhere at any time inside the workplace just as much as out.

[00:08:26] Speaker 02:
So what is that you mentioned earlier?

[00:08:28] Speaker 02:
I want to follow up on Judd Ford last question.

[00:08:31] Speaker 02:
You mentioned earlier this became part of the water cooler kind of conversation at work.

[00:08:36] Speaker 02:
Correct.

[00:08:36] Speaker 02:
It starts to sound a lot like a hostile work environment.

[00:08:38] Speaker 02:
What's the evidence that shows, that supports that characterization?

[00:08:44] Speaker 04:
Yes.

[00:08:46] Speaker 04:
My client submitted a declaration in support of our opposition for summary judgment.

[00:08:51] Speaker 04:
It's volume three in the record, starting, I believe, at 251.

[00:08:56] Speaker 04:
Specifically, paragraph seven, she talks about the Jeffrey Epstein meme, employees talking about joking, laughing.

[00:09:04] Speaker 04:
Paragraph 20 at 253 in the record, my fears were realized when I witnessed coworkers discussing the content of the page during working hours.

[00:09:12] Speaker 04:
I was confident that employees who viewed the page knew that I was the subject of these offensive means memes and then at 255 paragraph 29 she talks about the several employees like the post.

[00:09:25] Speaker 04:
where the plaintiff was called, the post involving the C word, I won't mention it here, but it's obvious in the record.

[00:09:32] Speaker 04:
And then we would also direct the court to the memos written by her at 257, the March 11th, 2020 memo, I think thoroughly kind of analyzes her thoughts and feelings at least around the time in February of 2020 when these posts were going on.

[00:09:49] Speaker 02:
Her thoughts and feelings.

[00:09:50] Speaker 02:
And so the evidence that would support that this was part of the workplace

[00:09:53] Speaker 02:
I don't want to gossip or water cooler.

[00:09:55] Speaker 02:
Talking chat is certainly includes her declaration.

[00:10:00] Speaker 02:
I've read that.

[00:10:01] Speaker 02:
Does she say?

[00:10:03] Speaker 02:
Does she say that maybe it's her complaint that she people were sort of snickering about it?

[00:10:10] Speaker 02:
Do I remember that from the from the complaint or are you referring to the declaration?

[00:10:15] Speaker 04:
You can look at the declaration, but also I'd point to the fact of it is raised in her memo, specifically when she brought it to the safety manager, Grice, who was really the first person to hear about this Instagram page.

[00:10:26] Speaker 04:
The immediate response from the employer was, sorry, not sorry.

[00:10:30] Speaker 04:
And they said it was funny.

[00:10:32] Speaker 02:
and they said they agree that the post was funny and they don't really stand as i recall so she wrote several memos and she describes that and in those memos she describes you know what was going on should we consider those as well with those before the district court

[00:10:45] Speaker 04:
Yes, those were before the district court, and it's our position that they were really overlooked by the district court because we feel like it's certainly a thorough amount of evidence to establish not only the offensive memes that were being posted, but then what's important here is the employer's reaction to those memes when my client brought them to her employer's attention.

[00:11:09] Speaker 04:
As this court noted in the Wynn case, that's also a liability when an employer is brought up, or excuse me, when the employee brings up the hostile work environment to the employer and the employer doesn't in turn begin an immediate investigation or immediate reaction to it.

[00:11:27] Speaker 02:
uh... opposing counsel argues there was a very immediate reaction when a new warden started what i can and and and after your client complained the first time she was it reassigned to blow i guess it's low medium and hi yes but what i can't tell even though the assignment happened right away when she when what when she's move physically and and start working at low do you know how that took it was a it was a short time i believe is uh...

[00:11:57] Speaker 02:
Over the course of the weekend, I think she took a Monday off, but I can't tell, did she start on Tuesday?

[00:12:01] Speaker 04:
It looks like she was transferred to Lowe on February 18, 2020.

[00:12:06] Speaker 04:
And that's where, in her declaration at paragraph 24, and then in her deposition transcript at 341 and 42, she talks about how that first day of being transferred to the Lowe, she ends up running into Hellman.

[00:12:21] Speaker 04:
The worst case scenario possible is she runs- Did we work there?

[00:12:25] Speaker 04:
I'm sorry?

[00:12:25] Speaker 02:
Did he work there?

[00:12:26] Speaker 02:
I thought he was at meeting.

[00:12:27] Speaker 02:
Did he just happen to be there at Lowe?

[00:12:29] Speaker 02:
I couldn't figure that out.

[00:12:30] Speaker 04:
And I think the record's very unclear about how he ended up there.

[00:12:34] Speaker 04:
And I'd leave it to my friend on the other side to maybe enlighten us.

[00:12:38] Speaker 04:
But I've never been able to figure out how he got there.

[00:12:40] Speaker 04:
But nonetheless, she voluntarily transfers to Lowe shortly after bringing the complaint, and then turns around and runs into him.

[00:12:47] Speaker 02:
What is your best guess?

[00:12:48] Speaker 02:
I think the MEC record is very mixed about when the employer has to know who this is.

[00:12:53] Speaker 02:
So if anything, the inference

[00:12:54] Speaker 02:
would be that they did not know, early on in those first days after they moved her to Lowe, that they didn't know to tell the author of the post to stay away.

[00:13:05] Speaker 02:
So I'm trying to figure out when they first knew.

[00:13:09] Speaker 02:
There's indications that she thought that he knew about her complaints and was maybe retaliating or making more fun of her again in his Instagram account.

[00:13:21] Speaker 02:
But when do we know that

[00:13:24] Speaker 02:
I think there's a March 9 entry where her supervisor says she thinks it's.

[00:13:28] Speaker 02:
Is his name Hellman?

[00:13:29] Speaker 04:
And I would agree with that point.

[00:13:31] Speaker 04:
The initial complaint comes in mid-February, and probably by, I would say, in the record, by early March is when it's identified as Hellman.

[00:13:39] Speaker 02:
I would argue that- I don't mean to be difficult.

[00:13:41] Speaker 02:
When the management knew?

[00:13:43] Speaker 04:
When management knew affirmatively that it was Hellman.

[00:13:47] Speaker 04:
OK.

[00:13:48] Speaker 02:
However- So then it seems to me that April 15th is the first day they confront Hellman.

[00:13:52] Speaker 02:
And he says, that's me.

[00:13:53] Speaker 02:
And nobody else is posting.

[00:13:55] Speaker 01:
I have a note here, maybe that's consistent, but that, um, that Okanowsky reported Hellman's conduct, uh, February 18th, 20 to Warden Engelman, who, who took no action, but referred it to Gonzalez, Hellman's supervisor, who actually condone Hellman's conduct.

[00:14:22] Speaker 01:
He said he saw no problem with that.

[00:14:25] Speaker 01:
And then after that, he slow walked the investigation.

[00:14:30] Speaker 01:
But it seemed like he knew it was Hellman.

[00:14:33] Speaker 04:
Well, and that's an important point that I wanted to make as I wrap up my time.

[00:14:36] Speaker 04:
I realize I'm short.

[00:14:37] Speaker 04:
But it's different to think that maybe my client did not know who was doing the postings.

[00:14:44] Speaker 04:
But I think the employers knew.

[00:14:46] Speaker 02:
And you think they knew as of?

[00:14:48] Speaker 04:
I think they knew as of the moment that my client brought it to their attention.

[00:14:52] Speaker 04:
Safety manager Grice's response of sorry, not sorry, and then SIA Victor Gonzalez's.

[00:14:58] Speaker 03:
They were familiar with what the title, I have that right, of the page meant.

[00:15:03] Speaker 03:
Yeah, they were certainly familiar.

[00:15:04] Speaker 03:
And that this is a phrase that's in use, aid and hit the gate.

[00:15:08] Speaker 04:
I would certainly agree that they were familiar with the page they were familiar with the post they it was bringing it to their attention as being problematic to which they openly said you know they openly seem to disagree with on the on some point between

[00:15:22] Speaker 02:
And mid-February and early March, they knew, so we can nail that down.

[00:15:27] Speaker 02:
The first time that management went to Hellman was April 15th, is that right?

[00:15:31] Speaker 04:
Correct.

[00:15:32] Speaker 04:
When the threat team assessment assembled on April 13th, they talk about they spent two days roughly doing their investigation.

[00:15:42] Speaker 04:
I mean, we would argue that's problematic considering the nature of this.

[00:15:47] Speaker 04:
It appears April 15th is the first time they actually sat with Hellman and Hellman admitted to running the page.

[00:15:54] Speaker 02:
But the page went on for another month, is that right, before it was taken down?

[00:15:56] Speaker 04:
Correct, after the threat assessment team.

[00:15:58] Speaker 04:
And this is where the district, we disagree with the district court's analysis that the district court, you know, essentially said the threat assessment team was conducted and the harassment stopped because the Post did not directly target Okonofsky.

[00:16:14] Speaker 04:
However, the Post, you know,

[00:16:16] Speaker 04:
You know, as noted in the record, were continue to be sexual in nature after the threat assessment team analysis was done.

[00:16:24] Speaker 04:
So clearly, can I stop you there?

[00:16:27] Speaker 02:
Sorry, I don't know how to figure out.

[00:16:29] Speaker 02:
It sounds like you know the date on which these memes appeared.

[00:16:32] Speaker 02:
How do I get that out of the record?

[00:16:34] Speaker 02:
I think you're referring right now to posts that appeared after they confronted Hellman and between that time and when that site was taken down.

[00:16:43] Speaker 02:
So where do I look to find out which those were?

[00:16:46] Speaker 04:
Yes.

[00:16:46] Speaker 04:
The sites regarding Hellman continue to post.

[00:16:49] Speaker 04:
It was a late memo.

[00:16:50] Speaker 04:
It was April 20th, or excuse me, April 27th, 2020 memo that starts volume three in the record, 315 through 332.

[00:16:58] Speaker 01:
Okay.

[00:16:59] Speaker 01:
Thank you.

[00:17:00] Speaker 01:
All right.

[00:17:00] Speaker 01:
Thank you, counsel.

[00:17:01] Speaker 01:
You're up your time.

[00:17:02] Speaker 04:
Thank you.

[00:17:19] Speaker 00:
Good morning, Your Honors.

[00:17:20] Speaker 00:
May it please the Court.

[00:17:21] Speaker 00:
Zach Varshovy on behalf of the Attorney General.

[00:17:25] Speaker 03:
This is a very unique case, and it's a unique- Could you try to speak up a little or move the mic closer to you?

[00:17:31] Speaker 03:
Of course.

[00:17:31] Speaker 00:
Is this better?

[00:17:33] Speaker 00:
Thank you.

[00:17:33] Speaker 00:
This is a very unique case, Your Honors, and it's unique because the allegedly discriminatory and harassing conduct was on a co-worker's personal social media account, and it was discovered by Dr. Okunowski on her

[00:17:48] Speaker 00:
personal social media account and to respond to one of Judge Kristen's questions as to the evidence of it permeating and entering the workplace, according to Dr. Okunowski's admissions,

[00:18:00] Speaker 00:
none of the memes were actually displayed at Lompoc.

[00:18:04] Speaker 02:
None of the memes were- Well, at least some were printed out for her, for one of her meetings with the supervisor.

[00:18:11] Speaker 02:
She talked about that in her declaration, right?

[00:18:14] Speaker 00:
Well, yes.

[00:18:15] Speaker 00:
So in connection with the investigation that Acting Worden Engelman initiated and deputized Agent Gonzalez, he printed out memes to discuss with her her complaints.

[00:18:25] Speaker 00:
But with respect to her otherwise seeing the memes posted by co-workers, that was not, she admitted in the workplace, she was never sent any of the memes in or outside of the workplace.

[00:18:39] Speaker 02:
Okay, but I'm not sure this is that helpful for your client because that, is it Gonzalez who was meeting with her was tasked by the assistant acting warden to investigate, he printed them and I think he's one of the people who tried to encourage her that these were funny.

[00:18:54] Speaker 00:
Do I have that wrong?

[00:18:58] Speaker 00:
Acting Warden, I'm sorry, Special Agent Gonzales said something to the effect of, I don't see what the problem is, which we certainly admit was, you know.

[00:19:06] Speaker 02:
Was that comment made while they were looking at what he'd printed out?

[00:19:09] Speaker 00:
Yes.

[00:19:10] Speaker 03:
OK.

[00:19:11] Speaker 00:
But that was during the course of the investigation.

[00:19:14] Speaker 00:
Yes, Your Honor.

[00:19:15] Speaker 00:
And ultimately, Special Agent Gonzales did make the referral to the Office of Internal Affairs on March 9 after he met with Dr. Okunowski on, I believe, February 26.

[00:19:27] Speaker 01:
I thought that was the threat assessment team that had to come in and found that this Hellman's conduct violated the workplace violence prevention policy and the Bureau of Prisons anti-harassment policy.

[00:19:50] Speaker 01:
And the team said a referral to the Office of Internal Affairs for

[00:19:57] Speaker 01:
investigation has been made and they also ordered Hellman to immediately cease and desist.

[00:20:05] Speaker 01:
This seems to be very strong evidence that in fact Hellman was creating a hostile work environment for Okunowski and that people, his superiors and her superiors knew about it and

[00:20:25] Speaker 01:
and allowed it to happen for a period of several months.

[00:20:29] Speaker 00:
So to respond, Your Honor, certainly BOP took her complaint seriously, which is why... The threat assessment team didn't come in for a couple months.

[00:20:38] Speaker 01:
I mean, it was going on and the immediate people were doing nothing.

[00:20:43] Speaker 00:
Well, there was the initial referral to the Office of Internal Affairs, and when Dr. Okunowski brought to Acting Word and Engelman's attention that additional content was being posted on April 13th following the arrival of Bill.

[00:20:58] Speaker 03:
So, Counsel, there was the initial complaint by Dr. Okunowski, and the people she complained to had access to the posts.

[00:21:13] Speaker 03:
They had the ability to look at them, yes?

[00:21:17] Speaker 00:
They could access them, yes, your honor.

[00:21:19] Speaker 03:
So would they have had, in the government's view, would they have had the authority with regard to the social media posts that they were able to access to order Lieutenant Hellman cease and desist?

[00:21:36] Speaker 03:
Would they have had the ability to do that as supervisory employees at the prison?

[00:21:44] Speaker 00:
Under the cease and desist, they did eventually do.

[00:21:48] Speaker 00:
Oh, I understand.

[00:21:49] Speaker 03:
But would they have had the ability to do it immediately upon their review following Dr. Okunovsky's initial complaint?

[00:21:58] Speaker 03:
Would they have had the ability to do it then?

[00:22:01] Speaker 00:
They wouldn't have because at that point, they would not have because at the time of the initial complaint, Dr. Okunoski did not identify Lieutenant Hellman as the author.

[00:22:13] Speaker 03:
That's a good point.

[00:22:15] Speaker 03:
Would they have had the ability to do it as soon as they learned, had good evidence that it was Lieutenant Hellman?

[00:22:24] Speaker 03:
They could have.

[00:22:25] Speaker 03:
So if they could have, that is if the employers at Lompoc could have, as soon as they knew these posts were Lieutenant Hellman's, they could have ordered him an employee to cease and desist from these social media posts.

[00:22:44] Speaker 03:
Why isn't that in itself sufficient evidence that these had a large enough effect on the workplace to at least create a triable issue of fact if they would have had the ability to, as soon as they found out it was him, tell him, you have to stop, you can't continue working here if you do this?

[00:23:07] Speaker 00:
There were intermediate measures taken as well, Your Honor.

[00:23:10] Speaker 00:
So if I could, there was the moment that Dr. Okunowski complained on February 18th, she was transferred to the low.

[00:23:18] Speaker 00:
And on March 11th, when she made the check.

[00:23:20] Speaker 03:
But my question is, the government's position is these things are outside, for the most part, were outside the workplace, right?

[00:23:27] Speaker 00:
Correct.

[00:23:28] Speaker 03:
So I'm having trouble connecting that with your answer to my question was,

[00:23:35] Speaker 03:
They could have immediately told him to cease and desist.

[00:23:40] Speaker 03:
Why isn't that evidence that this did involve the workplace?

[00:23:45] Speaker 03:
Because if it didn't, how could they have told him to cease and desist?

[00:23:49] Speaker 03:
Sure, Your Honor.

[00:23:50] Speaker 00:
And so to address that question,

[00:23:52] Speaker 00:
Our position has been the policies that were referenced and enforced in issuing the cease and desist to direct him to eventually cease from posting the offending conduct.

[00:24:04] Speaker 00:
Those are not a sufficient basis to create a Title VII hostile work environment claim.

[00:24:09] Speaker 02:
Can I interrupt and ask, are you now speaking of the social media policies?

[00:24:12] Speaker 02:
Is that your answer to Judge Bennett's question?

[00:24:15] Speaker 00:
Well, the policies that were referenced in the cease and desist order.

[00:24:19] Speaker 02:
I thought those were social media policies.

[00:24:21] Speaker 02:
What were they if they were not social media policies?

[00:24:23] Speaker 00:
They were anti-harassment, workplace bullying policies that were in place by the Bureau, which very much functioned like civility guides.

[00:24:34] Speaker 02:
They tried to achieve— So you think those were sufficient, those policies were sufficient to generate the cease—warrant, the cease and desist in response to Judge Bennett's question, but they weren't enough to establish a tribal issue of fact about a hostile work environment?

[00:24:47] Speaker 02:
Is that what you're saying?

[00:24:48] Speaker 00:
Correct, Your Honor.

[00:24:49] Speaker 00:
And the reason for that has been our position that the actual evidence as to whether this permeated the workplace enough to have standing under Title VII is that there is no such evidence.

[00:25:02] Speaker 00:
According to Dr. Okunowski, the only specific meme she identified as being discussed

[00:25:07] Speaker 00:
in the workplace was the abstain mean which doesn't implicate her only alleged protected characteristic which was her her gender well then can we circle back to what judge board law had to say about what we do with social media that seems to be ubiquitous people check it all the time and I think the record

[00:25:24] Speaker 02:
Judge Ward I'll refer to is at 100 or maybe judge Bennett did a hundred at least it's alleged a hundred different employees had liked these posts Right.

[00:25:35] Speaker 02:
So if this has become part of the water cooler sort of discussion, why isn't that enough?

[00:25:40] Speaker 00:
Because the evidence in the record, a few points if I may, so Dr. Okunowski in her declaration makes reference that this page was followed by hundreds of employees.

[00:25:51] Speaker 00:
She only identifies four, but more importantly... Including a supervisor, but go ahead.

[00:25:56] Speaker 00:
But with respect to what was actually discussed, she only generally refers to the content of the page being discussed.

[00:26:02] Speaker 00:
But not all the content on the page actually implicates her alleged protected characteristics.

[00:26:07] Speaker 02:
There's another way to look at that evidence.

[00:26:09] Speaker 02:
The one meme that you're referring to, the Epstein meme, is it seems to me an extraordinary violation of the social media policy and one that directly contradicts and makes very vulnerable the agency's mission.

[00:26:21] Speaker 02:
DOC's mission, right?

[00:26:22] Speaker 02:
Very concerning.

[00:26:24] Speaker 02:
So one way to look at this is that a reasonable trier of fact could say, after that came to their attention, they didn't respond immediately.

[00:26:32] Speaker 02:
And that empowers this person to continue.

[00:26:35] Speaker 02:
He was sort of impervious to all of it.

[00:26:38] Speaker 02:
What about that?

[00:26:39] Speaker 00:
I think there were difficulties with treading the line between conduct outside the workplace on a personal social media page that, based on what the investigators were learning, did not- I'm not sure that is even the legal standard, because I'm pretty sure that's not the legal standard.

[00:26:59] Speaker 01:
I think it's that Title VII protects against conduct, regardless where it's located,

[00:27:08] Speaker 01:
that has an effect on the workplace.

[00:27:12] Speaker 01:
I think that's the legal standard.

[00:27:14] Speaker 01:
So this distinction to me that the district court judge made, it's a false distinction.

[00:27:22] Speaker 01:
It just has to have an impact on the working environment, regardless of where the actual conduct occurred.

[00:27:31] Speaker 00:
And to briefly respond, Your Honor, with respect to this court's decision in Fuller in 2017, which made clear that a terrible outside the workplace sexual assault, that was not enough because that conduct was outside the workplace to move forward with a hostile work environment claim.

[00:27:50] Speaker 02:
So that's really the- It's a strong case for your position, but what about Freed and what about Little?

[00:27:56] Speaker 02:
Those cases had to do with

[00:27:57] Speaker 02:
Once the conduct is called to the management's attention, they not only didn't stop it, but they said, no.

[00:28:05] Speaker 02:
In those cases, they said, go back and continue to serve those customers.

[00:28:09] Speaker 02:
In this case, I think what plaintiff's position is that she was directed to get a thicker skin and that this was funny.

[00:28:16] Speaker 02:
So why doesn't that reinforce this notion that this would be sufficient?

[00:28:22] Speaker 00:
Sure.

[00:28:22] Speaker 00:
And I'm happy you brought that up, Judge Christen, because I did want

[00:28:25] Speaker 00:
respond to my colleague's point as to Mr. Grice with ER 259.

[00:28:32] Speaker 00:
The plaintiff describes, Dr. Okunowski describes in her memo, her conversation with Mr. Grice, which occurred on Instagram.

[00:28:39] Speaker 00:
And this was on the same weekend that she initially complained and had this, what she described as an existing friendly relationship with Mr. Grice, where they disagreed as to the appropriateness of the page.

[00:28:52] Speaker 00:
And then later testified, and her testimony is at ER 128, where she described no other subsequent interactions with Mr. Grice.

[00:29:01] Speaker 02:
Our point is, certainly, Mr. Grice was not understanding of her position, but that was not as we'd never... Just to go back, if you would, to engage with Judge Wardlaw's question, because she's asking about this, isn't it enough that it affects the workplace environment?

[00:29:18] Speaker 02:
And what you're describing is another way where these coworkers were communicating

[00:29:23] Speaker 02:
right?

[00:29:24] Speaker 02:
Through online or however they're communicating, through an Instagram account or over email.

[00:29:28] Speaker 02:
So why isn't that all fair game for the trifecta to consider?

[00:29:32] Speaker 00:
Sure.

[00:29:33] Speaker 00:
So our position has always been that

[00:29:36] Speaker 00:
It's not that simply that if it occurs only outside the workplace or outside the workplace conduct can never be considered.

[00:29:44] Speaker 00:
Our position has been there must be some actual workplace conduct and in this case the evidence that's in the record shows that there really was no actual workplace discussions as to the offending content.

[00:29:58] Speaker 03:
So counsel let me ask you what perhaps is a silly question hearkening back to an era before

[00:30:06] Speaker 03:
We had the internet and social media, maybe a ridiculous kind of question.

[00:30:10] Speaker 03:
Let's say that Lieutenant Hellman on a public street, 75 yards from Lompoc, but a public street not on federal government property was parading, walking up and down where cars went by to enter with holding signs with these memes on them.

[00:30:30] Speaker 03:
Would the government's argument in that hypothetical be the same?

[00:30:34] Speaker 03:
It's like, well, people who are entering could see them.

[00:30:37] Speaker 03:
People who work there could see them.

[00:30:39] Speaker 03:
But he wasn't really on the property.

[00:30:41] Speaker 03:
So even if these memes were offensive and people could know they were directed to Dr. Okunowski, this doesn't create a hostile work environment because it's off the premises.

[00:30:54] Speaker 03:
And the fact that people can see them isn't enough as long as they're not talking about them at work.

[00:31:00] Speaker 00:
Yes, Your Honor, and it would be that because if there's no evidence that the offending conduct there was actually discussed in the workplace, the plaintiff was exposed to it, or her working conditions were altered, then at that point, then no, there wouldn't be an actionable hostile work environment claim under Title VII.

[00:31:24] Speaker 00:
I see I'm low on time.

[00:31:26] Speaker 00:
If there's no further questions from Your Honors,

[00:31:30] Speaker 02:
I think I just answered my last one.

[00:31:32] Speaker 02:
Thank you.

[00:31:33] Speaker 00:
Thank you very much, Ernest.

[00:31:36] Speaker 01:
I'm going to submit this case.

[00:31:39] Speaker 01:
Oh, Knauske versus Garland is submitted.

[00:31:43] Speaker 01:
We've previously submitted Lemon versus United States.

[00:31:48] Speaker 01:
And this session of the court is adjourned for today.

[00:31:52] Speaker 01:
All rise.

[00:32:05] Speaker 02:
This court for this session stands adjourned.