[00:00:00] Speaker 00:
Police of the Court, Rachel Lee on behalf of Dr. Henrickson and Dr. Siguroa.

[00:00:05] Speaker 00:
I'd like to reserve five minutes of my time for rebuttal.

[00:00:09] Speaker 00:
Your honors, this is a case in which these doctors were confronted with numerous complaints from those subjected to plaintiffs' bullying, demeaning, and abusive conduct.

[00:00:21] Speaker 00:
The complaints were facially race and sex neutral.

[00:00:26] Speaker 00:
even though on this appeal we have to accept that a jury could find the complaints were driven by gender stereotypes.

[00:00:33] Speaker 00:
So in a qualified immunity appeal, the question is, would every reasonable official in their shoes understand that what he's doing by acting on those complaints violates her rights?

[00:00:47] Speaker 00:
And the answer here is no.

[00:00:50] Speaker 00:
In these particular circumstances of facially race and sex neutral complaints from victims of bullying, demeaning, and abusive mistreatment, the existing cases would not compel every reasonable official to conclude that acting on the complaints would violate her rights.

[00:01:09] Speaker 02:
But what if those were pretextual?

[00:01:12] Speaker 00:
So the district court's pretext analysis here was all premised on these complaints being stereotypical.

[00:01:20] Speaker 00:
And the district court found that a jury could find that these complaints were driven by gender stereotypes.

[00:01:31] Speaker 00:
But the existing case law

[00:01:34] Speaker 00:
precedent involving sex stereotype complaints would not compel every reasonable official to treat these facially race and sex neutral complaints as stereotyped.

[00:01:46] Speaker 00:
You can see that most of the cases, or maybe all of the cases involving

[00:01:51] Speaker 00:
stereotyped complaints, involve complaints that are expressly sex-based.

[00:01:58] Speaker 00:
You can see that from the Price Waterhouse case, where the complaints are, or the descriptions of the plaintiff were that she was macho, that she needed to walk more femininely, talk more femininely, dress more femininely, wear makeup.

[00:02:13] Speaker 00:
These are expressly sex-based complaints.

[00:02:17] Speaker 00:
Or Judge Gould's opinion in Nichols v. Azteca restaurant.

[00:02:20] Speaker 00:
Now that's a retaliation case, not a disparate treatment case, but same thing.

[00:02:26] Speaker 00:
What you have there are expressly sex-based descriptions of the plaintiff in that case as a female prostitute.

[00:02:39] Speaker 00:
Those cases involve expressly sex-based, sex-phrased complaints.

[00:02:46] Speaker 00:
What we have here are facially sex and race-neutral complaints of behavior that is bullying, it's demeaning, it's abusive.

[00:02:55] Speaker 00:
Existing case law did not compel every reasonable official to treat those the same way as the complaints in Pricewaterhouse.

[00:03:05] Speaker 02:
Even in this... I guess the question though is when there's a determination that there's a factual question as to whether those legitimate reasons are pretextual, how does the qualified immunity analysis then lock in?

[00:03:23] Speaker 00:
So the pretext analysis here started with the premise that these, or the court's first reason in supporting the pretext finding was that these complaints were stereotypical.

[00:03:38] Speaker 00:
And as I've just discussed, the qualified immunity analysis would be, does the court's existing case law compel the plaintiffs, pardon me, compel the doctors

[00:03:50] Speaker 00:
to view these the same way as the sex-based complaints in Pricewaterhouse.

[00:03:57] Speaker 00:
Not so.

[00:03:59] Speaker 00:
Another part of the court's pretext reasoning was that the same kinds of complaints, there's no evidence that these complaints were being submitted from those who were being mistreated by male doctors.

[00:04:10] Speaker 00:
So again, that's just the flip side of, excuse me.

[00:04:15] Speaker 00:
The flip side of them being stereotyped complaints is that they're coming in, we have to assume, coming in about the plaintiff, but there's no evidence that complaints were being submitted about male doctors.

[00:04:26] Speaker 00:
So again, we're just seeing, again, this is not a finding that the complaints themselves were not the reason for disciplining her and non-renewing her contract.

[00:04:39] Speaker 00:
This is, again, analysis about the stereotypical nature of the complaints.

[00:04:44] Speaker 03:
But aren't you effectively asking us to review the district courts finding that there was a factual dispute as to pretext?

[00:04:54] Speaker 03:
And I'm just not certain under the collateral order doctrine that we can view that, or in light of prior Ninth Circuit precedent, Balo versus McElveen, that, you know, where a district court finds a factual dispute as to pretext, how can we review it?

[00:05:13] Speaker 00:
So we accept that the district court found pretext, and we're not asking you to review the finding that there's sufficient evidence of pretext.

[00:05:23] Speaker 00:
But that evidence of pretext is all premised on these complaints being stereotyped, stereotypical, submitted about a female doctor and not about a male doctor.

[00:05:33] Speaker 00:
And so the qualified immunity question is, would

[00:05:38] Speaker 00:
every reasonable official under these circumstances understand that what he's doing by acting on the complaints violates her rights.

[00:05:48] Speaker 00:
And the existing precedent did not place that question beyond debate.

[00:05:51] Speaker 00:
It did not put every reasonable official on notice that they had to treat these as dirty.

[00:05:56] Speaker 03:
I guess the question is, you're asking us to find that they are sex neutral, facially race neutral, and isn't that the factual dispute?

[00:06:08] Speaker 00:
I don't think there's any dispute, Your Honor, that they are facially race and sex neutral.

[00:06:12] Speaker 00:
There's nothing in the record to show that any of these complaints is phrased in terms of her being a woman, of her being too macho, of her needing to act more femininely, walk more femininely, take, wear makeup.

[00:06:26] Speaker 02:
Maybe so, maybe so.

[00:06:26] Speaker 02:
But I mean, what about the finding that there were 11 male physicians who had similar personalities or did similar things and didn't receive the same kind of discipline?

[00:06:38] Speaker 00:
Yes.

[00:06:39] Speaker 00:
Again, that's the flip side of these being what we have to accept as stereotyped complaints.

[00:06:45] Speaker 00:
They were submitted about her.

[00:06:47] Speaker 00:
There is no evidence in the record that Dr. Hendrickson or Dr. Siguroa received any complaints from those who were subjected to bullying, demeaning, or abuse of conduct by male doctors.

[00:07:05] Speaker 00:
It just all goes back to were they compelled to treat these facially neutral complaints as stereotyped when there was no existing case law that would have told them they had to treat these as stereotyped and there's no case law saying that they had to ignore the complaints that were in front of them just because they were not getting complaints from those who were being victimized by male doctors.

[00:07:27] Speaker 00:
And so that's the second reason that the existing case law would not have compelled every reasonable official to understand that acting on these complaints would violate her rights.

[00:07:41] Speaker 03:
So are you asking for any ruling on, it seems that you agree that the, or you believe the district court granted summary judgment on the failure to stop harassment claim, and if that's the case,

[00:07:56] Speaker 03:
this court wouldn't have any, wouldn't have jurisdiction to review it.

[00:08:00] Speaker 03:
So I'm a little bit unclear what you're asking as to that claim.

[00:08:05] Speaker 00:
As to the failure to stop harassment allegation, we do believe that the district court granted summary judgment against it.

[00:08:13] Speaker 00:
But if this court on reviewing the record, the procedural history believes otherwise, believes that the district court did not grant summary judgment against it,

[00:08:22] Speaker 00:
Then the district court denied summary judgment, denied qualified immunity, and we are asking then for a review of that denial.

[00:08:29] Speaker 02:
I'm a little confused here.

[00:08:30] Speaker 02:
What is your position on what the district court did with the hostile work environment claim?

[00:08:35] Speaker 00:
Our position is that the district court granted summary judgment against the hostile work environment claim.

[00:08:40] Speaker 00:
That's at ER 4-Footnote 1.

[00:08:44] Speaker 02:
Is there any dispute about that, though?

[00:08:47] Speaker 00:
and that the district court's analysis of the hostile work environment claim included within it the failure to stop reasonable harassment, pardon me, the failure to stop harassment allegation.

[00:08:58] Speaker 00:
And that therefore the footnote where the district court says we're granting summary judgment against that included the failure to stop harassment allegation.

[00:09:08] Speaker 00:
So our position is that this report has granted summary judgment against it.

[00:09:13] Speaker 00:
Plaintiff takes a different position,

[00:09:16] Speaker 00:
If plaintiff is correct, then this court does, in fact, have jurisdiction to reach it.

[00:09:20] Speaker 00:
And the qualified immunity analysis is very, very simple.

[00:09:24] Speaker 00:
This court's precedents we've cited in the Bator and Rodriguez cases, the right that she's claiming there is predicated on there being a hostile work environment.

[00:09:37] Speaker 00:
And Judge Gould's decision in Nichols v. Aztec, a restaurant, to the same point.

[00:09:42] Speaker 00:
The right is predicated on there being a hostile work environment.

[00:09:45] Speaker 00:
the district court found, correctly found, there was no hostile work environment.

[00:09:49] Speaker 00:
Therefore, there was no right to be violated.

[00:09:52] Speaker 00:
And at a minimum, the right would not have been clearly established at the time.

[00:09:57] Speaker 03:
Did the parties ask the district court for clarification?

[00:09:59] Speaker 03:
It seems a little unusual to ask us to speculate as to what the district court did.

[00:10:06] Speaker 00:
No, Your Honor, the parties did not ask the district court to clarify it.

[00:10:10] Speaker 00:
Defendants moved for summary judgment against this allegation.

[00:10:14] Speaker 00:
And the district court, we believe, granted that.

[00:10:18] Speaker 00:
If there are no further questions, I'll reserve the remainder.

[00:10:21] Speaker 04:
I have a question, Judge Gould, if I may.

[00:10:25] Speaker 04:
What is the significance, if any, of the procedural context here?

[00:10:34] Speaker 00:
Judge Gould, the significance of the procedural context is that we are not permitted to challenge the district court's factual findings.

[00:10:45] Speaker 04:
Okay, thank you.

[00:10:46] Speaker 00:
Thank you, Your Honor.

[00:11:05] Speaker 01:
May it please the court, Steve Braschetto, appearing for the plaintiff, Dr. Aruba Bala.

[00:11:14] Speaker 01:
Your Honor, I'd like to begin by saying that we presently have a trial date in the district court, commencing April 14th, extending through the 29th.

[00:11:26] Speaker 01:
We also have a motion from the defense to set over that trial date.

[00:11:32] Speaker 01:
We think that this appeal can be resolved expeditiously to allow this case to go to trial.

[00:11:40] Speaker 01:
The case is currently

[00:11:41] Speaker 01:
Six years old, Dr. Bala separated from her employment seven years ago.

[00:11:48] Speaker 02:
Why has the case taken this long?

[00:11:50] Speaker 01:
The case has taken this long because of this appeal and COVID-19.

[00:11:56] Speaker 01:
And we'd like to get it resolved.

[00:12:01] Speaker 01:
Defendant in their briefs have raised a variety of arguments about why we raise so many jurisdictional and procedural arguments.

[00:12:09] Speaker 01:
And the answer is very simple.

[00:12:16] Speaker 01:
I'm sorry, was there a question coming or?

[00:12:19] Speaker 01:
The answer is very simple.

[00:12:21] Speaker 01:
We raise these jurisdictional and procedural arguments because we believe the case should be disposed of quickly in the Ninth Circuit.

[00:12:29] Speaker 01:
We think the case is ready for trial.

[00:12:31] Speaker 01:
We think the defenses, their motions have been heard and responded to, and it's time to get on with the case.

[00:12:38] Speaker 01:
With respect to the first issue they raise, and that is regarding the issue of qualified immunity on sex discrimination,

[00:12:47] Speaker 01:
No matter how they have phrased the question for qualified immunity, it addresses a question of fact.

[00:12:54] Speaker 01:
We've given you four cases, all of which say that essentially the employer's motive in making a termination

[00:13:05] Speaker 01:
is a question of fact that cannot be resolved on qualified immunity.

[00:13:09] Speaker 01:
Those start with Lee versus Amaro, a 2001 case where the court, in a race discrimination case, said whether firing plaintiff was objectively reasonable because plaintiff performed his job so poorly is a factual argument, can't be reviewed.

[00:13:27] Speaker 01:
It continued in Thompson versus Small, a First Amendment case where the Ninth Circuit said,

[00:13:34] Speaker 01:
Defendants claim they demoted Mr. Thompson not for a Facebook post but for other offensive statements Question of fact not reviewable it continued in Eng versus Cooley where the Ninth Circuit said the causation element of a first First Amendment claim is a all a factual issue and we can please go to your section 1981 claim do you

[00:13:59] Speaker 03:
agree that after this court's en banc decision in Yoshikawa that there is no implied private right of action under section 1981?

[00:14:09] Speaker 01:
You know, Yoshikawa says what it says, Judge.

[00:14:12] Speaker 01:
I'm not going to dispute that.

[00:14:15] Speaker 01:
I do think that that is an issue that needs to be dealt with in the lower court.

[00:14:20] Speaker 01:
I don't see that as an issue for the Ninth Circuit on this appeal.

[00:14:25] Speaker 01:
The district court has ruled that there is an independent basis, independent evidence of race discrimination to support a 1981 claim.

[00:14:38] Speaker 01:
And it should be Judge Hernandez in the first instance to say whether or not plaintiff is entitled to assert her 1981 claim through section 1983 or not.

[00:14:51] Speaker 01:
I mean, it's really as simple as that.

[00:14:53] Speaker 02:
That could only be a race-based claim, though.

[00:14:56] Speaker 02:
It couldn't be a combination of race and sex.

[00:14:59] Speaker 01:
Your Honor, I believe that there are three kinds of 1981 cases, and they depend upon what the evidence and the facts are.

[00:15:09] Speaker 01:
I believe there can be 1981 cases where the underlying conduct is both sex and race-based.

[00:15:19] Speaker 01:
And there can be 1981 cases where you have independent evidence of race, and there can be 1981 cases where sex is asserted, where there's sexual acts involving a person of color.

[00:15:37] Speaker 01:
But the bottom line here is the defense raised the issue of whether or not there is sufficient evidence of race independent of sex.

[00:15:50] Speaker 01:
They got a ruling from the judge.

[00:15:52] Speaker 01:
rejecting the claim that this is a combination case, and agreeing with them that the case needs to be evaluated based upon race only.

[00:16:06] Speaker 01:
And ultimately, the Article III judge, Judge Hernandez, found sufficient evidence of race alone.

[00:16:15] Speaker 01:
So the status of the case right now in the district court is the judge has found that this is a race discrimination case involving a female of color.

[00:16:29] Speaker 03:
I'm unclear on your position.

[00:16:31] Speaker 03:
Are you saying that Judge Hernandez should decide both whether you can even make a 1981 claim

[00:16:39] Speaker 03:
Um, or whether Judge Hernandez should just decide whether you have the opportunity to amend and replede your 1981 claim as a 1983 claim.

[00:16:50] Speaker 03:
Could you just clarify your position?

[00:16:52] Speaker 01:
Sure.

[00:16:53] Speaker 01:
My position is that that's a decision that Judge Hernandez will make on remand.

[00:17:00] Speaker 01:
And I think that

[00:17:01] Speaker 01:
I agree that the Ninth Circuit's decision will require plaintiff in this case to rely upon section 1983.

[00:17:13] Speaker 02:
I mean, the magistrate judge dismissed the section 1981 claim or granted summary judgment on it, but then it doesn't seem that the district court explicitly discussed it, although it did say that it found no other error in the magistrate's recommendation.

[00:17:28] Speaker 02:
So is your position that the 1981 claim is actually still in the case now or that it's currently out and you want to bring it back in?

[00:17:35] Speaker 01:
Yes, it is in the case.

[00:17:36] Speaker 01:
The magistrate judge dismissed the 1981 claim, and that was appealed to Judge Hernandez.

[00:17:47] Speaker 01:
Judge Hernandez reinstated the race discrimination aspect of the 1981 claim in his opinion.

[00:17:56] Speaker 02:
That's how you interpret it?

[00:17:57] Speaker 01:
That's how I interpret it.

[00:18:01] Speaker 02:
What does the 1981 claim add

[00:18:03] Speaker 02:
to this case beyond the 1983 claim?

[00:18:06] Speaker 02:
Is there some additional damages component?

[00:18:09] Speaker 02:
What it would add to the case really is different... It's all going through 1983 now anyway under Yoshikawa, so I'm just trying to understand what the import of this... It used to be an independent claim, now it's really not.

[00:18:27] Speaker 01:
Now it's really not, but it does affect different kinds of rights in that it affects interference with contract rights as distinguished from just general discrimination.

[00:18:43] Speaker 01:
So there would be a different set of kinds of underlying adverse actions that could conceivably be raised under a Section 1981 claim than under a 1983 claim.

[00:18:56] Speaker 02:
Do you think you now need to replede this, though, in light of Yoshikawa?

[00:19:00] Speaker 01:
Yes.

[00:19:02] Speaker 02:
Have you asked the district court or that's pending this?

[00:19:05] Speaker 01:
I'm sorry.

[00:19:06] Speaker 02:
Have you asked the district court for leave to do that, or is that all on hold pending this appeal?

[00:19:10] Speaker 01:
It's all on hold pending this appeal.

[00:19:12] Speaker 01:
We have not, as of yet, asked the district court to do that.

[00:19:18] Speaker 02:
On the qualified immunity, your friend on the other side is arguing that there's a difference between this case and other ones because there were no sex-based complaints that were made.

[00:19:30] Speaker 02:
How do you respond to that?

[00:19:32] Speaker 01:
I didn't hear the first part of the question, Judge.

[00:19:34] Speaker 02:
Sure.

[00:19:35] Speaker 02:
Your friend on the other side, I think her argument is this case, we should get qualified immunity because when people were complaining about your client, they were not doing so in sex-based terms.

[00:19:48] Speaker 02:
And her argument is that's different than other cases.

[00:19:51] Speaker 01:
Yeah, I think the response to that is that those are all questions of fact for it to be resolved by the jury.

[00:20:00] Speaker 01:
Our view is that the complaints made about Dr. Baller were not sex neutral.

[00:20:05] Speaker 01:
They were sex biased.

[00:20:08] Speaker 01:
And ultimately, a jury is going to have to take that, make that determination.

[00:20:13] Speaker 01:
Much of Defand Ed's argument interprets the facts as they see them and not the facts and evidence as we see it.

[00:20:28] Speaker 01:
That is one of the facts where they resolve a factual dispute and say these are sex neutral.

[00:20:34] Speaker 01:
Other facts are whether the defendants honestly believe these complaints were true.

[00:20:42] Speaker 01:
We believe we've presented evidence that that is inaccurate.

[00:20:48] Speaker 01:
They say that this case is about Dr. Bala's behavior as being

[00:20:53] Speaker 01:
demeaning, harassing.

[00:20:56] Speaker 01:
We dispute that.

[00:20:58] Speaker 01:
We have evidence to the contrary.

[00:21:01] Speaker 01:
The evidence we presented was that she hadn't treated anyone in a rude, demeaning, harassing, or bullying fashion.

[00:21:10] Speaker 01:
that what she did was the same kind of conduct as males do to run an operating room.

[00:21:18] Speaker 01:
This woman is a highly specialized electrophysiologist holding people's lives in her hands every day.

[00:21:26] Speaker 01:
And we don't think there is any evidence that she was demeaning or treated people in a bullying fashion.

[00:21:38] Speaker 01:
And the factual disputes go on from there.

[00:21:41] Speaker 01:
They say there is no evidence that

[00:21:46] Speaker 01:
Pretext was used as a ruse here.

[00:21:49] Speaker 01:
We think that there is very specific evidence that pretext was used as a ruse here in the sense of a ruse.

[00:21:56] Speaker 01:
There is evidence in the record that a complaint was made about Dr. Bala from operating room activities where she asked a med tech to keep quiet while she's operating on someone's heart.

[00:22:13] Speaker 01:
The med tech reported that she was being unprofessional.

[00:22:21] Speaker 01:
There were two investigations, one by Dr. Henriksen, who investigated witnesses and said that they all confirmed that Dr. Bala was terrifying the staff, that people were afraid to talk, that it was a safety hazard.

[00:22:38] Speaker 01:
Human Resources interviewed the same people and concluded that staff were telling her that Dr. Bala was perfectly appropriate

[00:22:48] Speaker 01:
that there was a double standard and that she was being treated differently than others.

[00:22:54] Speaker 01:
I mean, that's very clear evidence of using complaints as a ruse and a pretext.

[00:23:02] Speaker 01:
Their argument is in its entirety based upon interpreting facts in their favor, and that's one of the reasons it's not reviewable.

[00:23:11] Speaker 03:
Can I ask you about the qualified immunity?

[00:23:15] Speaker 03:
You appear to argue that you don't think the defendants ever raised that issue.

[00:23:20] Speaker 03:
But if I look at their summary judgment motion, it's replete with qualified immunity assertions, analysis.

[00:23:32] Speaker 03:
How can we find that they didn't raise that issue?

[00:23:36] Speaker 01:
Well, it depends upon what claim you're referring to.

[00:23:39] Speaker 01:
I don't believe that they raised a claim that there is no cause of action under section 1981 based upon the combination of race and sex.

[00:23:54] Speaker 03:
Well, I'm just looking at SCR 22.

[00:23:57] Speaker 03:
The doctors are entitled to qualified immunity from plaintiff's claims under sections 1983 and 1981.

[00:24:05] Speaker 03:
So they certainly have invocations of Section 1981 here, not 1983.

[00:24:17] Speaker 01:
For sure.

[00:24:19] Speaker 01:
They raised the issue under section 1981 of qualified immunity.

[00:24:24] Speaker 01:
They raised the issue under section 1983 of qualified immunity.

[00:24:28] Speaker 01:
But then they made the same argument in support of that for the race-based claims as they did for the sex-based claims, namely that there's all these complaints and that justifies them in taking the actions they did.

[00:24:46] Speaker 01:
And for the race-based claim, just as for the sex-based claim, that argument fails.

[00:24:55] Speaker 01:
It's not reviewable.

[00:24:59] Speaker 01:
I would like to just spend a moment.

[00:25:00] Speaker 01:
I have a minute left on the last issue, and that is the issue of whether the district court granted summary judgment against the failure to stop harassment, unwarranted complaint, and stereotypical complaints.

[00:25:21] Speaker 01:
The defense did not move against this allegation in the complaint.

[00:25:28] Speaker 01:
They cite a provision in their brief, which they say is a motion relating to this allegation.

[00:25:38] Speaker 01:
And when I look at it, it's not.

[00:25:42] Speaker 01:
It is merely a statement saying, here's the allegations in the complaint.

[00:25:47] Speaker 01:
Pay no attention to those allegations.

[00:25:49] Speaker 02:
What is, in your view, the status of the hostile work environment claim?

[00:25:52] Speaker 01:
status of the hostile work environment claim.

[00:25:55] Speaker 01:
Hostile work environment claim, the court granted summary judgment against the hostile work environment claim.

[00:26:03] Speaker 02:
Is there any further clarification that you need on that claim in the district court?

[00:26:09] Speaker 01:
No, there isn't any clarification needed on that claim in the district court.

[00:26:17] Speaker 01:
I don't think you have jurisdiction to clarify it.

[00:26:20] Speaker 01:
I do think that the allegation that they failed to take reasonable action to stop unwarranted stereotypical complaints is not within the scope of the ruling on the harassment claim.

[00:26:36] Speaker 01:
I don't think that the court has addressed that.

[00:26:39] Speaker 01:
I don't think they moved on that.

[00:26:41] Speaker 02:
That's just a question of what evidence may be admissible.

[00:26:43] Speaker 02:
I'm sorry?

[00:26:44] Speaker 02:
That may be just a question of what evidence is admissible with respect to the claims the district court allowed.

[00:26:51] Speaker 01:
Right.

[00:26:53] Speaker 01:
And the district court allowed and considered evidence that they failed to take reasonable action to stop the unwarranted stereotypical complaints.

[00:27:02] Speaker 01:
That's part of the reason I think it's still in the case.

[00:27:07] Speaker 03:
Can I ask you a question?

[00:27:09] Speaker 03:
You started by saying you want to go to trial in two months.

[00:27:13] Speaker 03:
But if you then amend and re-plead your 1981 claim as a 1983 claim, there's no way you're gonna go to trial on April 14th.

[00:27:22] Speaker 03:
You still want to reopen all of the litigation by pleading a new cause of action and all the motion to dismiss, motion for summary judgment, potential appeals that may intervene before a trial?

[00:27:36] Speaker 01:
I don't think that

[00:27:40] Speaker 01:
Adding to the Section 1981 claim that it is based upon a cause of action under a private right of action under Section 1983 would involve any delay.

[00:27:55] Speaker 01:
And I think that if we approach Judge Hernandez about that issue and the case is ready for trial, I think that he would let it go to trial.

[00:28:06] Speaker 01:
I note my time is up.

[00:28:08] Speaker 01:
Thank you much.

[00:28:09] Speaker 02:
Thank you.

[00:28:10] Speaker 02:
We'll hear a rebuttal from Ms.

[00:28:11] Speaker 02:
Lee.

[00:28:19] Speaker 00:
Thank you, Your Honors.

[00:28:22] Speaker 00:
Responding to some of the points that counsel has raised, I will note that with regard to the Section 1981 claim,

[00:28:35] Speaker 00:
The claim that he is seeking leave to amend is a theory that he expressly

[00:28:42] Speaker 00:
disclaimed at the district court.

[00:28:44] Speaker 00:
At the district court level, plaintiff argued expressly in her briefing that her claim was combination race and sex discrimination and not race alone.

[00:28:55] Speaker 00:
And he has informed us today that he believes there are kinds of Section 1981 claims that can be combination race and sex, but neither in the briefing below nor in the briefing in this court nor today did he point to any such authority.

[00:29:08] Speaker 00:
Therefore,

[00:29:09] Speaker 00:
it's clear that plaintiff has qualified immunity against a claim of combination race and sex discrimination because it was not clearly established.

[00:29:21] Speaker 00:
Therefore, it would be futile to grant leave to amend.

[00:29:26] Speaker 00:
In addition,

[00:29:27] Speaker 00:
As to the failure to stop harassment allegation, we expressly moved against that at SER 26.

[00:29:39] Speaker 00:
We sought qualified immunity, said that it could not be clearly established, listed that allegation.

[00:29:44] Speaker 00:
So we did move against that claim, his theory that we didn't move against that

[00:29:49] Speaker 00:
allegation is not borne out by the record.

[00:29:52] Speaker 02:
Is a dispute here whether this theory falls within the hostile work environment claim or some other claim?

[00:29:59] Speaker 02:
Is that what we're arguing over now?

[00:30:02] Speaker 00:
Yes, I think that that is the crux of the dispute, is whether it's within the hostile work environment theory, and thus summary judgment was granted against it, or whether it's something else.

[00:30:13] Speaker 02:
Okay, so why is that, that seems like a question, why is that a question for us as opposed to Judge Hernandez?

[00:30:21] Speaker 00:
We believe the record shows that the court treated it as a hostile work environment theory and granted summary judgment against it.

[00:30:28] Speaker 00:
Plaintiff is arguing that it survives, and therefore if it survives, it is within this court's appellate jurisdiction.

[00:30:38] Speaker 00:
In addition, counsel argued that, so I'll point on the stereotyping claim, he said we're disputing the district court's factual findings, but the district court here specifically found that the plaintiffs gave credence to, which means believed, they gave credence to these complaints.

[00:30:57] Speaker 00:
He argues that there was evidence in the record from which a district court, pardon me, from which a jury could find that that was a ruse.

[00:31:04] Speaker 00:
He argues that on one of the particular investigations, the same people were interviewed by Dr. Henriksen and human resources and generated different findings.

[00:31:20] Speaker 00:
But in fact, the record reveals that Dr. Henriksen and human resources interviewed

[00:31:25] Speaker 00:
a different non-overlapping sets of people.

[00:31:28] Speaker 00:
Dr. Henrickson interviewed the actual complainant to hear what had happened.

[00:31:34] Speaker 00:
Human resources did not.

[00:31:35] Speaker 00:
And so I'll direct the court to SCR 462 and SCR 466 to 467 to show that, in fact, they did not interview the same sets of people.

[00:31:46] Speaker 00:
And therefore, it is understandable that they could have come away with different understandings of what occurred

[00:31:54] Speaker 00:
And there is no evidence from which a jury could find that it was a ruse.

[00:32:02] Speaker 00:
And I will finally conclude by saying we do not, for purposes of this appeal, challenge whether a jury could find the complaints were in fact driven by gender stereotypes.

[00:32:18] Speaker 00:
But what we have said is that they were facially race and sex neutral, and that is borne out by the record.

[00:32:25] Speaker 00:
he has not identified a single thing in any one of the complaints that is facially sex or race-based.

[00:32:34] Speaker 00:
None of these are phrased as facially sexist complaints, which is in contrast

[00:32:43] Speaker 00:
to the entire body of case law about expressly sexist complaints.

[00:32:48] Speaker 00:
And therefore, regardless of what we believe about whether these were or were not driven by gender stereotypes, we'll accept for purposes of appeal, they were driven by gender stereotypes for purposes of qualified immunity, it was not clearly established that Dr. Henriksen and Dr. Siguroa were prohibited from acting on these complaints.

[00:33:12] Speaker 00:
And so unless there are any further questions, we would ask that the district court reverse, pardon me, that this court reverse the district court's denial of qualified immunity and direct entry of summary judgment in their favor on the first and second claims for relief.

[00:33:27] Speaker 02:
Okay, thank you.

[00:33:28] Speaker 02:
Thank you, Ms.

[00:33:28] Speaker 02:
Lee.

[00:33:29] Speaker 02:
Thank you, Mr. Bresciutto.

[00:33:31] Speaker 02:
This matter is submitted.

[00:33:32] Speaker 02:
That concludes our arguments for this morning, and we'll stand in recess until tomorrow.