[00:00:00] Speaker 03: We will now hear argument in the case of Reynold La Puebla versus Mayorkas. [00:00:49] Speaker 03: Good morning, Ms. [00:00:49] Speaker 03: Williams, please. [00:00:50] Speaker 01: Good morning, Your Honors. [00:00:52] Speaker 01: May it please the Court? [00:00:53] Speaker 01: I, Vanessa Williams, represent Reyna La Puebla. [00:00:56] Speaker 01: He is the appellant in this matter, and he is the plaintiff in this Title VII hostile environment sexual harassment case. [00:01:03] Speaker 01: If I may, I'd like to reserve up to five minutes for rebuttal, if I'm permitting. [00:01:07] Speaker 01: The district court's decision for the employer on summary judgment below turned on its conclusion that no reasonable person could find that the work environment was hostile or offensive. [00:01:22] Speaker 01: And I think that it would be helpful to clarify two points in determining whether the district court erred. [00:01:29] Speaker 01: And that first is that in coworker harassment cases, the employer's response is just one of the circumstances under the totality of the circumstances in determining whether the cumulative effect of the conduct led to an offensive work environment. [00:01:47] Speaker 01: The second point is in evaluating that employer's response under the totality of the circumstances, the employer's response must be both prompt and effective, and effective not just to stop the harassment, but to deter future misconduct. [00:02:01] Speaker 03: Now, so let me ask you this. [00:02:03] Speaker 03: We, of course, get these kinds of cases on a fairly regular basis. [00:02:08] Speaker 03: This is probably the first time that I've seen a case like this where there was a single instance that occurred. [00:02:15] Speaker 03: Now, it was broadcast. [00:02:17] Speaker 03: The district court concluded there were maybe three iterations of the same thing, but it seems like what you're saying is if there had been 10,000 or 11,000 people seeing this at the same time that there were 11,000 incidences of sexual harassment. [00:02:37] Speaker 03: Is that your position? [00:02:39] Speaker 01: Not exactly, Your Honor. [00:02:40] Speaker 01: So our position is that this wasn't just a single incident, yes, but it was the thousands of views, comments, and shares on this Facebook page with up to 11,000 of the plaintiff's colleagues was pervasive enough under the totality of the circumstances to constitute an offensive environment. [00:03:01] Speaker 01: Go ahead. [00:03:02] Speaker 02: How is each view tied to sexual harassment? [00:03:04] Speaker 02: Even your own client seems to be more interested about his privacy. [00:03:08] Speaker 02: about violation of his agency's protocols, codes of conduct. [00:03:12] Speaker 02: What's the tide of the sexual harassment with all those views? [00:03:16] Speaker 01: What is the title of sexual harassment? [00:03:18] Speaker 02: The tide of sexual harassment. [00:03:19] Speaker 02: How do we know what anyone who viewed that posting thought? [00:03:24] Speaker 01: Well, in the excerpts of the record, they refer to insinuate that he is sodomizing his colleague. [00:03:32] Speaker 02: Not all 2,000, right. [00:03:34] Speaker 02: Not all 2,000 views. [00:03:35] Speaker 01: No, not all 2,000. [00:03:37] Speaker 01: But the post shows a picture in the back. [00:03:40] Speaker 01: The coworker who uploaded the picture to the site is the one who's engaging with comments. [00:03:46] Speaker 01: They're making jokes, like maybe he needs a cigar afterwards. [00:03:50] Speaker 01: who taught him those moves. [00:03:52] Speaker 01: So the coworker who actually made the post was driving the sexual commentary forward, then tagged the watch commander who is in charge of managing that Facebook group and said, is this worthy of the banner on the page? [00:04:07] Speaker 01: And the banner on a Facebook page is equivalent to like a digital billboard. [00:04:11] Speaker 02: So it's- But how do we know that each of the 2,000 views reaches the high level of extremely severe standard that's required? [00:04:20] Speaker 01: Well, the standard is severe or pervasive. [00:04:23] Speaker 01: And it's looked under the totality of the circumstances. [00:04:25] Speaker 01: So I would say, Your Honor, that I can't answer on the record that there's any one comment that would rise to the amount of extremely severe. [00:04:34] Speaker 01: However, when viewing the context that was shared in thousands of employees, it wasn't just over the course of a week. [00:04:43] Speaker 01: Mr. La Puebla reported it to his employer. [00:04:46] Speaker 01: They told him, oh, just breathe. [00:04:48] Speaker 01: Calm down. [00:04:48] Speaker 01: Don't worry. [00:04:49] Speaker 01: His coworkers tell him that there's been thousands of views, that it's gone viral. [00:04:54] Speaker 01: And the employer's response did not include any prompt or effective action. [00:05:01] Speaker 01: The employer told Mr. Kinga, who had posted the picture, they actually commended him for doing such a good job in the training in which that picture was taken. [00:05:12] Speaker 03: I, you know, we seem to be looking at a different record. [00:05:17] Speaker 03: What I'm seeing is comments, actual comments that could arguably be sexual, what shall I say, critical. [00:05:27] Speaker 03: uh... in nature but to me you got a big problem most most of these cases involve just ongoing adverse sexual content everywhere this is a one-time deal it got posted it got circulated to some degree some people made comments but it seems to me you're opening up a whole new world of sexual harassment where you can have a single instance [00:05:54] Speaker 03: And if it keeps getting published, then maybe the employer couldn't do anything about it. [00:05:58] Speaker 03: In this case, the employer seemed to have acted fairly quickly. [00:06:00] Speaker 03: Take it down. [00:06:01] Speaker 03: And they did. [00:06:02] Speaker 03: So I'm struggling with how this meets the qualification to basically be an actionable sexual harassment in a perverse environment that you seem to be suggesting. [00:06:16] Speaker 03: Help me with that. [00:06:17] Speaker 03: What am I missing? [00:06:19] Speaker 01: Yes, I would agree that there are some certain egregious cases cases like Brooks in which the district court relied on, but there are also plenty of circuit cases. [00:06:27] Speaker 01: Ninth Circuit cases which deal with this type of name calling and actionable conduct. [00:06:33] Speaker 03: What's your best case that you think is the most? [00:06:38] Speaker 03: In sync with this one, what's your very best case? [00:06:44] Speaker 01: I believe it would be freed the win Las Vegas. [00:06:46] Speaker 01: It was decided by this circuit in 2021. [00:06:49] Speaker 01: In that case, a man who worked at a nail shop was doing pedicures. [00:06:55] Speaker 01: He was teased, called homosexual. [00:06:58] Speaker 01: He reported to his employer. [00:06:59] Speaker 01: The employer brushed it off. [00:07:00] Speaker 01: Then there was a customer who was propositioning him for sex, and the employer said, just do your job. [00:07:05] Speaker 01: Do your job. [00:07:07] Speaker 01: And there, the circuit found that any one of those incidents alone was not severe enough to constitute offensive conduct. [00:07:14] Speaker 01: However, in this circuit, we look at the employer's response, and that should have looked in combination with the offensive conduct to determine the cumulative effect to see if it had pervaded the work environment so enough that a reasonable person would find it hostile. [00:07:30] Speaker 03: What should the employer have done in this case? [00:07:33] Speaker 03: We're making you the employer right now. [00:07:35] Speaker 03: You hear that this has gone up online. [00:07:37] Speaker 03: What do you do? [00:07:39] Speaker 01: The employer should have taken prompt and effective action. [00:07:44] Speaker 03: What specifically? [00:07:46] Speaker 03: What should the employer have done? [00:07:48] Speaker 01: It should, well, I think the question is not only what it should have done, but what it should not have done. [00:07:54] Speaker 01: It should not have commended the offender, the harasser. [00:08:00] Speaker 01: It should not have sent out mass emails. [00:08:03] Speaker 03: Commended him in what way? [00:08:04] Speaker 01: They told him he did a good job in the training in the same discussion in context of posting the picture. [00:08:13] Speaker 01: They said, we're sure you didn't mean anything bad by it. [00:08:15] Speaker 01: It's okay. [00:08:16] Speaker 01: Here's a reminder, a subtle reminder about social media standards. [00:08:19] Speaker 01: But by the way, you did such a terrific job. [00:08:22] Speaker 01: And I'm paraphrasing here. [00:08:23] Speaker 01: But this is on the record where they send emails. [00:08:26] Speaker 01: They don't do this just privately to the offender either. [00:08:29] Speaker 01: Months later, when La Puebla is still asking, please, are you going to follow your procedures and policies? [00:08:36] Speaker 01: Is there going to be any disciplinary action or training on our standards on harassment? [00:08:40] Speaker 01: one of his supervisors sends out a mass email to all of his colleagues in the port commending the offender before he's about to be transferred. [00:08:49] Speaker 01: And that type of action has been found to be humiliating. [00:08:54] Speaker 03: Did they commended him for what happened with the connection with the posting? [00:08:59] Speaker 01: No, they just commended him for doing a good job. [00:09:02] Speaker 03: But did they specify on what basis he'd done a good job? [00:09:07] Speaker 03: That's disconnected from what happened here, was it not? [00:09:10] Speaker 01: Well, on its face, it can be disconnected, but the circuit has also found that a hostile environment is ambient. [00:09:18] Speaker 01: It's not just from one incident to another. [00:09:22] Speaker 01: It's about how a conduct can permeate the work environment to make it hostile. [00:09:25] Speaker 03: Can you give me any illustrations from the record in this case of a hostile work environment on the record, not speculation, other than the posting of this particular video? [00:09:41] Speaker 03: Give me any illustration at all of a hostile work environment in this case. [00:09:45] Speaker 01: Any other indicia? [00:09:46] Speaker 03: What? [00:09:47] Speaker 01: I'm sorry, Your Honor. [00:09:48] Speaker 03: In other words, you made the allegation with respect to the posting of the video. [00:09:52] Speaker 03: Got that. [00:09:53] Speaker 03: You look at it in a particular way. [00:09:55] Speaker 03: But I'm just saying, in most cases, there are all kinds of incidents over periods, weeks, months, whatever. [00:10:01] Speaker 03: What else occurred in this hostile work environment that you believe indicated that this was a hostile work environment? [00:10:10] Speaker 01: Immediately after reporting, Mr. LaPueba called his supervisor, Mr. Leon Guerrero, to request a transfer and to complain about the harassment. [00:10:18] Speaker 01: And his supervisor immediately started screaming at him, do your job, just do your job, do your job. [00:10:24] Speaker 03: But you say that's sexual harassment? [00:10:26] Speaker 01: No, it's a hostile environment. [00:10:28] Speaker 01: So to combine the employer's response with the sexual conduct, and those are very much related, have a cumulative effect of pervading the work environment so that a reasonable person could find that offensive. [00:10:39] Speaker 02: Can I ask you, do you agree that the photo was taken down or was at least deleted? [00:10:44] Speaker 01: The record is unclear, so there is a dispute in fact there about whether it was actually taken down. [00:10:51] Speaker 04: It was on Facebook, right? [00:10:54] Speaker 04: Correct. [00:10:55] Speaker 04: Some sort of group? [00:10:58] Speaker 01: Yes, so the record shows that this was a Facebook page and it was a group created by a watch commander about a month before the post went up. [00:11:05] Speaker 02: You're saying it's still on that Facebook page, that photo? [00:11:07] Speaker 01: No, in fact, the agency did take corrective action and reprimanded the offending the watchman. [00:11:14] Speaker 02: I am asking that it be taken down, correct? [00:11:15] Speaker 01: Yes. [00:11:16] Speaker 02: Okay, so then where's the dispute of fact? [00:11:19] Speaker 02: If it was taken down, it was taken down, correct? [00:11:21] Speaker 01: That is correct, Your Honor. [00:11:22] Speaker 01: I apologize. [00:11:23] Speaker 01: So four years later, the Facebook site was taken down. [00:11:26] Speaker 01: The question, and what the record is unclear on, is when that actual picture of the plaintiff in this case was taken down. [00:11:33] Speaker 02: What in the record indicates that there's ever going to be an ongoing or future act of sexual harassment? [00:11:41] Speaker 01: Well, I believe that the record shows because they commended Mr. Kinga, the offender, and because they didn't do immediate discipline, take prompt and effective action, that this was an insufficient employer response, and a reasonable person would think that sexual harassment was going to be tolerated in the workplace. [00:12:04] Speaker 04: Isn't this all tied to that group, the Facebook group? [00:12:11] Speaker 01: I'm sorry, Your Honor. [00:12:12] Speaker 04: So this whole incident occurs on the Facebook group, correct? [00:12:19] Speaker 01: The initial post and the comments. [00:12:21] Speaker 04: Yes, yes. [00:12:22] Speaker 04: And that program or that group of officers, there was quite a large group. [00:12:28] Speaker 04: When did that thing come down? [00:12:31] Speaker 01: Not until four years after the incident. [00:12:35] Speaker 04: Let me ask you this. [00:12:36] Speaker 04: So why don't you tell me what are the material tribal issues of fact that relate to the elements of your claim? [00:12:48] Speaker 01: The only issue that was decided by the district court that wasn't disputed by the government was whether the conduct was objectively offensive. [00:13:02] Speaker 01: And the tribal issues of fact there, where there were reasonable people could view the cumulative effect as offensive. [00:13:13] Speaker 04: But what's the fact, what is the underlying factual? [00:13:17] Speaker 04: What facts does the jury have to resolve? [00:13:25] Speaker 01: Your Honor, I'm not sure there were any other facts aside from- Well, your whole argument in your brief was that there are material tribal issues of fact. [00:13:34] Speaker 01: Well, there was a genuine dispute about whether a reasonable person would find this objectionable. [00:13:39] Speaker 01: And that's the question that should have gone to the jury. [00:13:42] Speaker 04: And what would the jury be balancing in making that determination? [00:13:45] Speaker 01: They would be balancing all the circumstances, whether a post in this age shared digitally with thousands of their colleagues was humiliating, whether the employer commending the person who posted it was humiliating, whether the failure to do immediate discipline or training. [00:14:02] Speaker 01: The discipline didn't occur until four months. [00:14:05] Speaker 01: The training didn't occur until seven months later on sexual harassment, whether that would [00:14:11] Speaker 01: would cause a reasonable person to believe that they could be subject to future harassment or that they were now in a hostile environment. [00:14:18] Speaker 04: And what about severity? [00:14:20] Speaker 04: What would the jury have to consider there? [00:14:22] Speaker 01: Severity is just one factor that they can consider. [00:14:27] Speaker 01: The court will consider on whether they're material. [00:14:29] Speaker 04: But in determining whether or not this was severe, what facts go to that? [00:14:36] Speaker 01: We're not arguing that it's severe. [00:14:38] Speaker 01: We're arguing that it's pervasive. [00:14:39] Speaker 01: Okay. [00:14:39] Speaker 04: Well, what facts go to pervasiveness? [00:14:42] Speaker 01: Pervasiveness and that it permeated the work environment by because of its volume just how Pervasive it was throughout the agency. [00:14:51] Speaker 01: We're talking about an agency with maybe or a Facebook group with maybe 11,000 members within all ranks of the agency and that there are we know how many comments were posted after it went up and [00:15:08] Speaker 04: All the comments would have been posted after the poster. [00:15:10] Speaker 04: But how many? [00:15:10] Speaker 04: Do we know how many? [00:15:12] Speaker 01: I believe the record indicate, well, I think there's a question of back there. [00:15:16] Speaker 01: So the record indicates that colleagues had said that it was hundreds. [00:15:22] Speaker 01: I'm not sure that the actual excerpts of the record show the posts have hundreds of comments, or if it's just a portion of what was posted on the page, and that was all that was submitted. [00:15:33] Speaker 03: You wanted to say some time. [00:15:34] Speaker 03: Your time is almost entirely gone. [00:15:36] Speaker 03: But do you want to say anything at all here, or do you want to just finish? [00:15:41] Speaker 01: I would just close with your honors to look at the more recent circuit cases, aside from Prospect, Christian v. Umpqua, Fuller v. Idaho, and Zetwick to look at the proper standard for totality of the circumstances. [00:15:56] Speaker 01: Thank you. [00:15:56] Speaker 03: Very well. [00:15:57] Speaker 03: Thank you very much. [00:15:58] Speaker 03: All right. [00:15:59] Speaker 03: Mr. Schwab for the agency. [00:16:05] Speaker 00: May it please the Court, Your Honor. [00:16:07] Speaker 00: Michael Schwab on behalf of the United States and the Customs and Border Protection, Port of Guam. [00:16:17] Speaker 00: Your Honor, in this case, we're asking the Court to please affirm the District Court's decision when it concluded that there was not adequate evidence, not sufficient evidence, that there was a [00:16:36] Speaker 00: that there was enough evidence to say that there was the creation of a hostile atmosphere. [00:16:43] Speaker 00: There was never a creation of the hostile atmosphere. [00:16:45] Speaker 03: As you're on... Let me ask you this, counsel. [00:16:47] Speaker 03: Certainly. [00:16:48] Speaker 03: We know, of course, of the allegations made by the plaintiff in connection with the posting on Facebook of this one particular video. [00:16:56] Speaker 03: Does the record indicate whether this particular part of the agency has had any other claims made against it for similar kinds of offenses? [00:17:07] Speaker 00: I'm not sure what your honor is asking. [00:17:09] Speaker 03: In other words, the posting of Facebook kinds of things that could arguably be treated as sexually harassment. [00:17:18] Speaker 03: Anything like that ever been alleged that shows up in the record? [00:17:22] Speaker 00: No, not in the Port of Guam, your honor. [00:17:25] Speaker 00: And in fact, this was a new frontier for the Port of Guam. [00:17:29] Speaker 00: But they had prepared for it. [00:17:30] Speaker 00: There had been training about how to be responsible on social media. [00:17:35] Speaker 00: And one of the reasons that they disciplined this particular employee that posted this photo [00:17:41] Speaker 00: and then participated in the comments after the photo was that they could show exactly where he had gotten training and had failed to follow that training and be responsible. [00:17:52] Speaker 04: Well, you know, the Facebook group was well known to the agency, wasn't it? [00:17:56] Speaker 00: Not at that time. [00:17:57] Speaker 00: It had only been created a month before. [00:17:58] Speaker 00: For purposes of summary judgment, we're going on the 2020 letter that said by that time they had 11,000 members. [00:18:06] Speaker 00: It was popular. [00:18:08] Speaker 00: It had been in existence for, I believe, a month. [00:18:11] Speaker 00: So we don't know how many people. [00:18:12] Speaker 04: And that little group caused some problems for the agency, correct? [00:18:16] Speaker 00: I think subsequently they did. [00:18:18] Speaker 00: And of course, if you look at the case of Swinson in the Ninth Circuit, you see that the employer always faces that problem of having to balance that their employees have a right to communicate, to be social with each other. [00:18:32] Speaker 00: At the same time, when it starts to affect the workplace, the employer can step in and put a stop to it. [00:18:38] Speaker 00: And in 2020, the larger employer, the agency itself, stepped in when there was a problem [00:18:46] Speaker 00: and actually had the person pull down his side. [00:18:48] Speaker 04: So how do you care? [00:18:48] Speaker 04: How does the agency characterize what happened here? [00:18:50] Speaker 00: The agency characterized it as a employee, a co-employee of the appellate, who conducted a training and took pictures. [00:19:01] Speaker 00: And he posted those pictures out of pride, saying, look at us. [00:19:04] Speaker 00: We're doing our job. [00:19:05] Speaker 00: This is great. [00:19:06] Speaker 00: We're doing this training. [00:19:07] Speaker 00: This training is less than lethal instruction, which is very critical. [00:19:12] Speaker 04: And to show that, it was important to him to show this particular [00:19:17] Speaker 04: picture of these two officers. [00:19:20] Speaker 00: Yes, and let me tell you that. [00:19:23] Speaker 04: With a little comment. [00:19:24] Speaker 00: Well, this picture was three groups of people, two each. [00:19:28] Speaker 00: And in the very back, you can see these two officers in a tangle. [00:19:32] Speaker 00: And this is what they're required to do for their training. [00:19:35] Speaker 00: Now, the picture itself is not objectionable. [00:19:38] Speaker 00: The problem is one of them is smiling, and someone immediately starts in on the comment of, oh, does he need a cigar? [00:19:46] Speaker 04: They also singled out when it was posted, they singled out that particular photo. [00:19:52] Speaker 00: And that particular photo was singled out in the comments. [00:20:00] Speaker 00: When he posted, when the co-employee posted, he posted it out of pride. [00:20:04] Speaker 00: That was his testimony. [00:20:06] Speaker 00: And he said, I wanted everybody to see this. [00:20:08] Speaker 00: Then when someone kicked in and said, oh, it looks like he needs a cigar, instead of shutting it down, instead of following the directions of being responsible on social media, he [00:20:19] Speaker 00: piped in. [00:20:19] Speaker 00: He had emojis. [00:20:21] Speaker 00: He was almost prompting people to enjoy this inappropriate humor. [00:20:27] Speaker 00: And that's what he got disciplined for. [00:20:29] Speaker 04: And some of those officers who made those comments perceived this as a homosexual encounter. [00:20:34] Speaker 00: Well, for purposes of summary judgment, you have to say that. [00:20:39] Speaker 00: But this is humor. [00:20:40] Speaker 00: It's inappropriate humor. [00:20:42] Speaker 00: It's juvenile. [00:20:43] Speaker 00: And it's wrong. [00:20:44] Speaker 00: And of course, it has no place in the workplace. [00:20:46] Speaker 00: And when you have people on social media, they don't think they're in the workplace. [00:20:50] Speaker 00: but ultimately they are, at least when it affects the workplace. [00:20:55] Speaker 00: And the employers in this case, as soon as they got wind of it, shut it down. [00:21:00] Speaker 00: And the reason they shut it down so quickly is because ultimately this would have affected the workplace. [00:21:05] Speaker 00: It's only a matter of time till more people pipe in and then somebody says something to him at work and he starts being teased. [00:21:11] Speaker 04: How do you characterize this just as a single incident as Judge Smith suggested to your opposing counsel? [00:21:18] Speaker 04: I do, absolutely. [00:21:19] Speaker 04: Just a single incident and nothing else. [00:21:21] Speaker 00: Absolutely. [00:21:22] Speaker 00: It's a single incident. [00:21:23] Speaker 00: Unfortunately, it's like a single incident in a picture window when there's a crowd outside. [00:21:28] Speaker 00: Other people see it. [00:21:30] Speaker 02: You don't think any of the 2,000 views count as an incident? [00:21:34] Speaker 02: What is the highest number of incidents you think there could be here? [00:21:39] Speaker 02: I know you're asserting there's only one, but... I think there's only one. [00:21:41] Speaker 00: It's as though you're at the... In the old days, we used to go to a bar after work. [00:21:45] Speaker 00: Everybody'd be there, and somebody would say something humiliating to another employee, and people would be present, and some people would pay attention, and some people wouldn't. [00:21:55] Speaker 04: Some people would be... Do you think that might have some impact on the victim of the... [00:22:01] Speaker 00: Absolutely. [00:22:02] Speaker 00: Here we have a person who purports to be heterosexual, and someone has made an implication that he had just done something that was sexually homosexual. [00:22:12] Speaker 00: And that severely bothered him. [00:22:15] Speaker 00: The fact that it was unwelcome, the fact that it harmed him was unequivocal. [00:22:20] Speaker 00: And his employers took note of that right away. [00:22:23] Speaker 04: And do you think that it makes a difference that many, many people saw that? [00:22:29] Speaker 00: I don't. [00:22:29] Speaker 00: I think we live in that age where people take photos, people transmit things. [00:22:36] Speaker 00: In this particular case, there weren't that many comments. [00:22:39] Speaker 00: And the people that comment, of course, are the ones that really care and focus on that particular picture and then bother to go in and make a comment on it. [00:22:47] Speaker 00: I don't think that it's any different than being in a bar. [00:22:50] Speaker 04: You think this arises in the workplace? [00:22:53] Speaker 00: It did not arise in the workplace, but it affected the workplace because the picture was taken in the workplace. [00:22:59] Speaker 00: This was taken during an instruction that all employees have to do. [00:23:03] Speaker 00: And it's a tense moment when you have to climb on top of a colleague and learn how to shift your body weight to get out from underneath them. [00:23:11] Speaker 00: And it's taken very seriously. [00:23:13] Speaker 00: And that's why people took note when one person was smiling. [00:23:16] Speaker 00: That is an anomaly. [00:23:19] Speaker 00: Anomalies occur in pictures. [00:23:21] Speaker 00: People can take pictures of you while you're eating or moving, and it looks like something that it's not. [00:23:26] Speaker 00: And that's exactly what happened here. [00:23:28] Speaker 00: Someone looked at that and said, oh, you could interpret this as they're enjoying themselves. [00:23:33] Speaker 02: What do you think about the district court saying there's an inverse relationship, the greater the number of incidents, the proportionally reduced severity of each one? [00:23:42] Speaker 02: Do you think that was correct or that was error? [00:23:44] Speaker 00: I was moderately confused by that, but I understand what the court's trying to say. [00:23:48] Speaker 00: They're trying to say that this was modest. [00:23:50] Speaker 00: This was not a being teased, especially in today's day and age as a heterosexual male saying, oh, did you do something homosexual? [00:23:58] Speaker 00: That's not degrading in the sense that it is for some of these cases where someone is raped or someone is fondled. [00:24:07] Speaker 00: Nobody approached him physically. [00:24:09] Speaker 00: Nobody bothered him face to face. [00:24:11] Speaker 00: This happened online and he heard about it. [00:24:14] Speaker 00: And that's modest. [00:24:16] Speaker 00: And the fact that people may have seen it and he may have greater anxiety because more than one person saw this and maybe people saw it that he cares about and cares about his opinion, but it's still modest. [00:24:31] Speaker 00: Does that answer your question, Your Honor? [00:24:36] Speaker 02: Not really. [00:24:37] Speaker 02: It doesn't really address the inverse relationship. [00:24:40] Speaker 00: Well, I think what the court is saying is if there's a big impact, for instance, we have cases where a co-worker raped a co-worker. [00:24:49] Speaker 00: That's a one incident, but it is so severe that it reverberates and creates a hostile atmosphere. [00:24:57] Speaker 00: In this case, it's a minor incident that somebody said, oh, you looked like you were enjoying yourself with another man during our training. [00:25:05] Speaker 00: And remember that this training is something everyone does. [00:25:08] Speaker 00: Everyone knows what this is. [00:25:09] Speaker 00: Everyone has to do it. [00:25:11] Speaker 00: Everyone has tension about it. [00:25:13] Speaker 00: I mentioned in the brief that it's almost a Rorschach test when you look at that picture and you say, oh, [00:25:19] Speaker 00: someone inappropriately smiling or that's someone trying to get through this with some humor. [00:25:27] Speaker 04: So the agency would just say this was just an inappropriate exercise of humor, a poor incident. [00:25:36] Speaker 04: But it was meant to be humorous. [00:25:37] Speaker 00: Well, I would only take offense with your word of just. [00:25:40] Speaker 00: This was poor. [00:25:42] Speaker 00: And it was a poor judgment. [00:25:43] Speaker 00: It was inappropriate. [00:25:45] Speaker 00: And it should not have occurred. [00:25:46] Speaker 00: And I think the agency was well within their rights to discipline the person that posted this. [00:25:51] Speaker 00: And I think it was proportionate. [00:25:52] Speaker 00: And I think it was appropriate. [00:25:54] Speaker 00: And I think it stopped. [00:25:55] Speaker 04: You don't think a reasonable jury could ever conclude that this was a hostile work environment as our case law recognizes? [00:26:04] Speaker 04: The elements of it. [00:26:06] Speaker 00: I don't, Your Honor, and I look to the case of Swinson where you'd have to be reversed if a court was confused and said, oh, yes, this is a hostile work atmosphere. [00:26:16] Speaker 00: I don't think it has sufficient evidence to say that it altered the terms and conditions of his employment, which only the employer can do. [00:26:24] Speaker 04: You think an incident like this could rise to the level of a hostile work environment? [00:26:28] Speaker 04: I mean, so it bothers me that in today's world and these [00:26:34] Speaker 04: these internet groups and whatnot, you know, just post a picture of your colleague and, you know, so what? [00:26:42] Speaker 04: It's not going to, you know, it's not a hostile work environment. [00:26:47] Speaker 00: Well, Your Honor raises an issue that is very, very contemporary. [00:26:54] Speaker 00: Could there be a case? [00:26:55] Speaker 00: Yes, Your Honor. [00:26:56] Speaker 00: The totality of the circumstances is how you analyze these cases. [00:27:00] Speaker 00: And I can imagine a case that somehow was much more serious. [00:27:04] Speaker 00: And it would probably involve something rather than innuendo or inappropriate humor, but something an actual harm to a person, a physical harm. [00:27:13] Speaker 00: Or somebody who, I don't know if you can imagine something that would be so crucial to someone that it would crush them the way, say, a rape would by a coworker. [00:27:24] Speaker 02: your position seems to be the fact that this photo was online doesn't matter that we should just treat it as absolutely not your honor this this does matter it matters enough for the employer to take the appropriate action to stop it and shut it doesn't increase the number of incidents it doesn't increase the severity you're saying it it's the legally has no impact the fact that it's online and it's being shared with many many more people than who would be in your bar example [00:27:54] Speaker 00: I think it has a great impact. [00:27:55] Speaker 00: Imagine if this had taken place just with two people in a room. [00:27:59] Speaker 00: There probably wouldn't have been a discipline if somebody had made an offhand comment about, oh, you look in that picture like you're having fun with a man. [00:28:07] Speaker 00: It would have been nothing. [00:28:07] Speaker 00: The fact that it was online, that made it a disciplinary measure, that they had to take discipline against the coworker. [00:28:14] Speaker 02: You know, the coworker- Did it increase the severity or what was the legal impact? [00:28:19] Speaker 00: I think that you as a person who posts online have an increased responsibility to understand that this is on display. [00:28:27] Speaker 00: This is not you making a comment to your friend. [00:28:30] Speaker 00: It's not even you at a cocktail party making comments to a small group of people. [00:28:35] Speaker 00: Anybody can see something on the internet. [00:28:37] Speaker 00: In this particular case, it's a private site. [00:28:39] Speaker 00: You had to be accepted and brought in. [00:28:42] Speaker 00: But that doesn't change the fact that it could be anywhere. [00:28:45] Speaker 00: Someone could take that picture, copy it, post it places. [00:28:50] Speaker 00: The internet is one of those things that I think everybody has to be trained on and understand how different it is than just everyday mistakes you can make. [00:29:02] Speaker 03: The opposing counsel suggests that the employer in this case was, at the very least, dilatory, certainly not prompt. [00:29:11] Speaker 03: in responding to this. [00:29:14] Speaker 03: What's your response to that? [00:29:15] Speaker 00: I don't see how they could have been any more prompt. [00:29:17] Speaker 00: The appellant himself said that he got an immediate phone call from the port director, not from his direct supervisor, but the person at the very, very top. [00:29:27] Speaker 00: And he said, I want to meet with you right now. [00:29:30] Speaker 00: And he said, oh, my mother is in the hospital. [00:29:34] Speaker 00: He said, 6 AM then. [00:29:35] Speaker 00: at your earliest convenience. [00:29:37] Speaker 00: He wanted to meet right away. [00:29:39] Speaker 00: And then the co-worker who posted this on social media says that he was called into one of the director's offices immediately admonished and told to take it down. [00:29:51] Speaker 00: He describes two times that he was verbally admonished. [00:29:54] Speaker 00: Subsequently, within five days, a letter of instruction went out. [00:29:58] Speaker 00: That letter of instruction says, you are being investigated and you're going to be disciplined. [00:30:04] Speaker 00: If this investigation turns out to be correct, you're in deep trouble. [00:30:10] Speaker 00: That happened within five days. [00:30:11] Speaker 03: The counsel's suggestion that this employee was commended is incorrect in connection with anything related to this. [00:30:18] Speaker 03: Is that correct? [00:30:19] Speaker 00: He was commended, that's correct, but not for this, not for this incident of posting. [00:30:24] Speaker 00: What he was commended for was his good work in doing these instructions. [00:30:29] Speaker 00: This was something that was needed in the agency, it was needed at the Port of Guam, and nobody for three years had volunteered to do this. [00:30:38] Speaker 00: This is not an easy instruction, it's not an easy thing for the employees to go through. [00:30:42] Speaker 00: to have to climb on top of someone else and imagine that you're in a life and death situation and you're trying to learn how to get out of it without using lethal force. [00:30:50] Speaker 03: The commendation had absolutely nothing to do with what had happened in connection with the posting, right? [00:30:55] Speaker 00: Absolutely. [00:30:56] Speaker 00: If he had posted this photo and been responsible and had not allowed for negative commentary, I don't think we'd be here today. [00:31:05] Speaker 00: It's possible the employee could say, oh, my picture's on there, take it down, take it down. [00:31:10] Speaker 00: But the commentary, the insult to the person and the trauma that you cause someone when you associate them with something sexual is something that we cannot tolerate inside the employer's abode. [00:31:24] Speaker 03: Can I ask my colleague whether either has additional questions? [00:31:26] Speaker 03: I think not. [00:31:27] Speaker 00: Your Honor, let me thank you and ask that you affirm the lower court's case. [00:31:32] Speaker 00: Thank you so much. [00:31:33] Speaker 03: Now, you've used up all your time, but we're going to give you a minute for rebuttal, okay? [00:31:39] Speaker 03: If you want it, you'll have to take it. [00:31:42] Speaker 01: I'm sorry, Your Honor. [00:31:43] Speaker 03: I said you've used up all your time, but we're going to give you a minute for rebuttal if you would like that. [00:31:47] Speaker 01: I would love it. [00:31:48] Speaker 03: Thank you. [00:31:49] Speaker 03: Please proceed. [00:31:51] Speaker 01: Thank you. [00:31:53] Speaker 01: The employer's response, or the employer's comments commending the harasser don't have to be tied to that specific conduct. [00:32:02] Speaker 01: It could still be humiliating, and this is where [00:32:06] Speaker 03: We point the court to the free decision and the Fuller v. Idaho decision in 2017 where the— You're saying that the commendation that the offending employee got for having produced the overall videos and so on—not this particular thing, but this thing—that that somehow ties to the posting of this particular photo? [00:32:31] Speaker 01: It wasn't a commendation to the watch commander. [00:32:33] Speaker 01: It was a commendation within the port of Guam to the actual person, Quenga, who uploaded the photo. [00:32:40] Speaker 01: And there was two commendations, at least. [00:32:44] Speaker 01: One where there is, in the context of the training, hey, you did a good job in that training. [00:32:48] Speaker 01: Don't worry about that social media stuff, essentially. [00:32:51] Speaker 03: Did they say that? [00:32:52] Speaker 03: I'm sorry? [00:32:52] Speaker 03: Don't worry about the social media stuff? [00:32:55] Speaker 03: The employee didn't say that. [00:32:56] Speaker 03: The record shows that- That don't worry about the social media stuff? [00:33:01] Speaker 01: It doesn't say don't worry about the social media stuff. [00:33:04] Speaker 03: Yeah, exactly. [00:33:04] Speaker 03: What did they say related to the social media? [00:33:06] Speaker 01: They said, we're sure you have no ill intent about that. [00:33:09] Speaker 01: And there was nothing intentional or malice about that. [00:33:13] Speaker 01: And you did a great job in the training. [00:33:15] Speaker 01: So it seems very disingenuous of the employer to say that he's being investigated. [00:33:20] Speaker 01: They've already come to a conclusion that it's innocuous. [00:33:24] Speaker 03: Other questions by my colleague? [00:33:26] Speaker 03: All right, thanks to both counsel for your argument. [00:33:28] Speaker 01: Thank you so much. [00:33:29] Speaker 03: The court's going to take a 10 minute recess. [00:33:31] Speaker 03: We will be back in 10 minutes.