[00:00:00] Speaker 00:
This morning 24-1022 Culp versus Remington of Montrose Golf Club May it please the court my name is Damon Davis and I represent the plaintiffs miss Culp and miss Peters Plaintiffs raised four issues on appeal, but the two I would like to concentrate on today excuse me

[00:00:21] Speaker 00:
are the conflicting verdicts with respect to Ms.

[00:00:23] Speaker 00:
Colt and the exotic dancer evidence with respect to Ms.

[00:00:27] Speaker 00:
Peters.

[00:00:28] Speaker 00:
Of course, I'm happy to answer questions on any of the issues.

[00:00:31] Speaker 00:
First, with regard to the conflicting verdicts, this court should either order a new trial or enforcement of the punitive damages verdict.

[00:00:39] Speaker 00:
And on this issue, I'd like to address three main points.

[00:00:42] Speaker 00:
One, the application of the Supreme Court's opinion in Deets.

[00:00:45] Speaker 00:
Two, how the answer to verdict question five is a finding of liability

[00:00:50] Speaker 00:
and three, how question five could potentially be reconciled with questions one and three.

[00:00:57] Speaker 00:
First, though Clayton's preferred outcome is obviously enforcement of the punitive damages verdict that already exists, perhaps the most straightforward way to resolve this case is to apply the Supreme Court's Dietz decision and order a new trial.

[00:01:12] Speaker 00:
This court, the 10th Circuit, has previously ruled that a special verdict cannot be returned to the jury for further deliberation.

[00:01:19] Speaker 01:
Can I stop you there?

[00:01:20] Speaker 01:
Yes.

[00:01:21] Speaker 01:
I know that the verdict form was labeled a special verdict form and that the parties both call it that.

[00:01:28] Speaker 01:
But let's say I have a hang up on that.

[00:01:30] Speaker 01:
Help me understand why this is a special and not a general verdict.

[00:01:36] Speaker 00:
Well, I think everybody below has

[00:01:40] Speaker 00:
agreed that it's a special verdict form.

[00:01:42] Speaker 00:
I think in particular with Ms.

[00:01:44] Speaker 00:
Culp, you have specific findings as to each claim, and then you also have the separate finding as to punitive damages, which contains separate findings within it.

[00:01:58] Speaker 00:
And so I think you have to look at the answers to all of those in order to

[00:02:03] Speaker 00:
reach the determination.

[00:02:04] Speaker 01:
But in Johnson, this court has said that a general verdict is one where it's simply the jury declares the winner and they say how much.

[00:02:12] Speaker 01:
Isn't that exactly what this verdict form required the jury to do?

[00:02:15] Speaker 01:
They won, determined liability, and then if they found it, they said, here are the damages.

[00:02:22] Speaker 00:
Perhaps with respect to Ms.

[00:02:24] Speaker 00:
Peters, Ms.

[00:02:25] Speaker 00:
Culp, you did have that extra question with regard to punitive damages, which has

[00:02:32] Speaker 00:
Separate findings, which amount to liability, but it was a separate question from the first two questions.

[00:02:39] Speaker 00:
But I think even if it's a general verdict, you still have the same issue of conflicting verdicts that would need to be reconciled.

[00:02:47] Speaker 00:
And you would still have the issue that should have been sent back to the jury for further consideration to reconcile these findings.

[00:02:56] Speaker 01:
Well, sure.

[00:02:58] Speaker 01:
It seems to me that as a threshold question, it matters whether it's a special or general verdict because, as you know, we're talking about different subparagraphs of a rule.

[00:03:08] Speaker 01:
And one of them requires a contemporaneous objection to say, here's what we're asking the district court to do, and the other does not.

[00:03:14] Speaker 01:
So if it's a general verdict, has Ms.

[00:03:18] Speaker 01:
Culp, in particular, waived her argument about now asking us to order a new trial because

[00:03:27] Speaker 01:
At the trial level, she didn't say to the district court, here's our objection and here's what we're asking you to do.

[00:03:35] Speaker 00:
I have two responses to that, Your Honor.

[00:03:37] Speaker 00:
First, I think, one, since the defense has agreed that this is a special verdict, I think they would have, and has always argued it as such, I think that would have waived that issue, that it is a general verdict and would require an objection.

[00:03:55] Speaker 00:
And two, plaintiffs did object.

[00:03:57] Speaker 00:
And if you look up, both counsels stood up and asked for the court's attention.

[00:04:02] Speaker 00:
Defense counsel asked to approach.

[00:04:04] Speaker 00:
Both attorneys went up.

[00:04:06] Speaker 00:
Defense counsel spoke first.

[00:04:07] Speaker 00:
At that point, the judge said, yes, we're going to resolve this after I dismiss the jury.

[00:04:14] Speaker 00:
Plaintiff's counsel then spoke up and said, hey, I don't think the jury can do this.

[00:04:18] Speaker 00:
The court said,

[00:04:20] Speaker 00:
Before he could finish his statement, the court said, I agree.

[00:04:23] Speaker 00:
I'm going to resolve it after I send it back to the jury.

[00:04:27] Speaker 00:
And the court said later in its order on the jury verdicts that I understood that counsel was objecting to this being an inconsistent verdict.

[00:04:37] Speaker 00:
So the court knew what Planner's counsel was getting at.

[00:04:41] Speaker 00:
and had already made up her mind to resolve this after the jury was sent back.

[00:04:47] Speaker 00:
So I think that is adequate to preserve it because the trial court understood what plaintiff's counsel was getting at at the time.

[00:04:56] Speaker 00:
And so either way, this should have gone back to the jury.

[00:04:59] Speaker 00:
And under the Supreme Court's decision in Deets, it can go back whether it's a general verdict or a special verdict.

[00:05:06] Speaker 00:
Deets confirmed that the trial court not only has inherent authority,

[00:05:10] Speaker 00:
to resubmit the issue back to the jury, but also has authority under Rule 51B3.

[00:05:17] Speaker 00:
Now this Court has previously said it doesn't exist under Rule 49A, but this is a separate Rule 51B3 that this Court has never spoken on, and now the Supreme Court has said a specific verdict can go back under that.

[00:05:29] Speaker 00:
rule, and it should have done that here.

[00:05:33] Speaker 00:
But probably the court's discretion was circumscribed because this court has previously said it can't do that, and it has never confirmed that Dietz overrules those prior decisions on rule 49A.

[00:05:46] Speaker 00:
And so this would be an appropriate decision, a case to clarify that and give guidance to the court on sending it back.

[00:05:53] Speaker 04:
But Dietz doesn't really overrule it.

[00:05:56] Speaker 04:
It doesn't say you misinterpreted the rules.

[00:05:58] Speaker 04:
It just says even if the rules don't allow it, you'd have an inherent power to do it.

[00:06:05] Speaker 00:
contradict this court's interpretation of 49A, but it does say you can do it under Rule 51B.

[00:06:10] Speaker 00:
So the effect is you can send it back, despite what's been said before.

[00:06:14] Speaker 00:
Yeah, so it doesn't directly overrule.

[00:06:16] Speaker 00:
And that's probably one of the things that would hold the district court back from doing precisely that, is it didn't directly overturn or contradict this court's prior rulings.

[00:06:27] Speaker 02:
Well, did you have any other claims other than a hostile work environment based on her sex

[00:06:35] Speaker 02:
or retaliated against her for reporting unlawful sexual harassment.

[00:06:43] Speaker 02:
Do you have any other claims in your complaint?

[00:06:45] Speaker 00:
There was also a claim for negligent hiring and supervision.

[00:06:52] Speaker 00:
There was no punitive damages for that.

[00:06:53] Speaker 00:
So this issue on the inconsistent verdicts does not affect the claim for negligent hiring or supervision.

[00:07:00] Speaker 02:
Well, I guess my question is,

[00:07:04] Speaker 02:
You can't disagree that if they said no to question one and no to question two, that it was just an oversight or a mistake on plugging in $125,000 in cumulative damages.

[00:07:20] Speaker 00:
do it deliberately.

[00:07:21] Speaker 00:
And I think that gets into my second point that the question five that they answered in order to give punitive damages is effectively a finding of liability.

[00:07:32] Speaker 02:
Because the answer yes to question five... But you can't have liability if they answered no to both of those questions.

[00:07:39] Speaker 00:
But that gives you an inconsistent verdict because you can't ignore question five just because they said no.

[00:07:45] Speaker 02:
And that's why the court said that surplusage and

[00:07:48] Speaker 02:
It's a mistake, and I'm just going to excise it.

[00:07:51] Speaker 00:
But under this court's precedent, and I think under the common law, you can't just ignore a finding of fact.

[00:07:58] Speaker 00:
This court said in the Bonin case, if you were to ignore a jury finding that would treat the prior and specific verdict, that would treat the prior two questions as a general verdict.

[00:08:11] Speaker 00:
And here, everybody agreed that this was a specific verdict, and you would be treating those prior questions as

[00:08:17] Speaker 00:
general verdicts, which wasn't the intent when the verdict form was submitted.

[00:08:23] Speaker 00:
And additionally, the traditional remedy, if the jury is not following instructions, is you either re-instruct them and tell them to do it correctly, or you order a new trial or a mistrial.

[00:08:34] Speaker 00:
You don't just throw out part of what they did.

[00:08:37] Speaker 00:
you have to consider it all.

[00:08:38] Speaker 00:
And if you can't correct it through a new instruction, you have to order a new trial.

[00:08:42] Speaker 00:
And that's been the traditional remedy.

[00:08:44] Speaker 00:
That's what the Seventh Circuit said in the Freeman case.

[00:08:48] Speaker 00:
And that's what this court said in the Bonnet case.

[00:08:51] Speaker 00:
You don't just ignore something the jury did.

[00:08:54] Speaker 00:
And so then you have to dig into the language of the findings.

[00:08:59] Speaker 00:
And they found specifically that in order to answer question five, you would have to find that Ms.

[00:09:04] Speaker 00:
Culp was sexually harassed or retaliated against.

[00:09:07] Speaker 00:
that this was intentional discrimination and it was done in violation of her rights, all as defined in verdict form 38.

[00:09:15] Speaker 00:
38 makes clear, and assuming the jury followed the jury instructions, which we do, 38 makes clear that the rights in question are her rights under federal law.

[00:09:27] Speaker 00:
It specifically refers to her rights under federal law.

[00:09:31] Speaker 00:
Instruction one states that that federal law is Title VII.

[00:09:36] Speaker 00:
It specifically says

[00:09:37] Speaker 00:
Court in this case is instructing you on Title VII.

[00:09:40] Speaker 00:
This is a Title VII claim for sexual harassment and retaliation.

[00:09:44] Speaker 00:
And then the court wraps up with Question 42 saying you, the jury, can only consider the law given to you by this court.

[00:09:54] Speaker 00:
So assuming the jury follows the instructions, the only law they can apply to find her rights were violated is Title VII.

[00:10:03] Speaker 01:
Are you arguing in the alternative meaning your first view would be these jury?

[00:10:07] Speaker 01:
The jury verdict is actually you can reconcile it and that we should just order that the punitive damages award being forced That's your starting point your fallback position is well.

[00:10:16] Speaker 01:
They are inconsistent, so we should order a new trial Do I have that right that is that is correct your honor?

[00:10:22] Speaker 00:
I think the reconciliation is separate from whether they conflict the first question is do they conflict and

[00:10:28] Speaker 00:
Our position is clearly they do, that at a minimum requires a new trial.

[00:10:34] Speaker 00:
If this is a finding of liability, which again, when you look at a specific verdict, you look at the jury's individual findings, apply the law to it, and then determine if that establishes liability.

[00:10:49] Speaker 00:
And doing that with question five establishes liability because they had to find that there was sexual harassment, the misculpt was sexually harassed or retaliated against,

[00:10:59] Speaker 00:
intentionally in violation of Title VII and that this was not only intentional but with malice and reckless indifference.

[00:11:06] Speaker 00:
Because Title VII is the only law that the jury was allowed to apply to determine her rights were violated.

[00:11:12] Speaker 00:
And if you apply the law to that, that's a finding of liability.

[00:11:15] Speaker 00:
That's precisely what you do with the special verdict.

[00:11:19] Speaker 00:
Now, the reconciliation raises a question of

[00:11:24] Speaker 00:
How confusing is instruction 44?

[00:11:27] Speaker 00:
Because it really hinges on how do you read instruction 44.

[00:11:29] Speaker 00:
44 was the instruction that told the jury, if you find for plaintiff on multiple claims, you can only award damages once for the same damages.

[00:11:41] Speaker 00:
That is based on a Colorado state form instruction.

[00:11:44] Speaker 00:
The form instruction comments itself warn, this is a confusing instruction.

[00:11:50] Speaker 00:
And without clarification, it confused the jury, and it could potentially confuse the jury to only award damages on one claim.

[00:11:58] Speaker 01:
And the plaintiff subjected to that instruction, as I recall.

[00:12:00] Speaker 00:
We did object to that instruction.

[00:12:02] Speaker 00:
And we said, you can resolve this issue through the verdict form and trying to instruct the jury to only award damages once there.

[00:12:10] Speaker 00:
And so we objected to it.

[00:12:12] Speaker 00:
And the issue is, if the jury believed they could only award damages once, that's going to encourage them to pick one claim.

[00:12:19] Speaker 00:
And we submit that they picked the opinionated images claim because they thought there was malice in willful conduct.

[00:12:25] Speaker 00:
So that one fit the best.

[00:12:27] Speaker 00:
And if that's what the jury did, then these claims can be reconciled on that basis.

[00:12:33] Speaker 04:
Let me ask, with respect to the remedy, if we accept your primary argument, which these are in conflict.

[00:12:42] Speaker 04:
If we accept that argument, there are two verdicts then that aren't affected.

[00:12:47] Speaker 04:
Is that what you're saying?

[00:12:48] Speaker 04:
So your only arguments on those two issues would be your evidentiary arguments?

[00:12:53] Speaker 00:
Yes, that is correct.

[00:12:53] Speaker 04:
And what of the two that would still remain?

[00:12:56] Speaker 00:
The two would, well, actually it would only be the, at that point it would only be the, that was in higher supervision because I think we'd have a resolution of the other two claims of the sexual harassment retaliation.

[00:13:12] Speaker 00:
The damages would be the punitive damages for those claims.

[00:13:16] Speaker 04:
So there'd only be one,

[00:13:18] Speaker 04:
One claim that would not be retried.

[00:13:22] Speaker 00:
Yes.

[00:13:23] Speaker 04:
Assuming that you lose on the evidentiary issue.

[00:13:26] Speaker 00:
Assuming that we lose on the evidentiary issue.

[00:13:28] Speaker 04:
And on your, on the summary judgment, what was that?

[00:13:32] Speaker 00:
What was the... That was, that was for Ms.

[00:13:37] Speaker 00:
Peters and our argument there was that she was retaliated against and the retaliation was in the form of

[00:13:45] Speaker 00:
The defendant did not take her allegations seriously.

[00:13:49] Speaker 00:
In fact, when she complained, they told her, you know, a lot of people like this guy.

[00:13:53] Speaker 00:
You're sure you want to complain about him?

[00:13:55] Speaker 04:
Retaliation was making her work with him.

[00:13:57] Speaker 00:
And make him work with him afterward.

[00:13:59] Speaker 00:
Yes, that was the alleged retaliation for the summary judgment claim.

[00:14:03] Speaker 00:
And we think there's...

[00:14:06] Speaker 00:
There's no circuit authority one way or the other on it.

[00:14:08] Speaker 00:
The district courts go both ways, but we believe the more persuasive cases say it can be when you force the person to work in close contact with the alleged.

[00:14:15] Speaker 01:
Can you help me understand the timing though?

[00:14:17] Speaker 01:
Wasn't Ms.

[00:14:18] Speaker 01:
Culp first made the allegations against the bartender and when they interviewed Ms.

[00:14:23] Speaker 01:
Peters and she did not raise her own allegations at that time.

[00:14:26] Speaker 01:
So was the golf club on notice when they scheduled them to work together that Ms.

[00:14:30] Speaker 01:
Peters had made specific allegations against him?

[00:14:32] Speaker 00:
There's a conflict in the evidence there.

[00:14:34] Speaker 00:
Ms.

[00:14:34] Speaker 00:
Peters testified that she did make allegations against him at that point, but she didn't have time to put them in the written form that she gave to the golf club, because they asked her to fill it out in the middle of her shift, and she had customers waiting on her.

[00:14:49] Speaker 00:
But she testified that she made her own complaints.

[00:14:52] Speaker 00:
So on summary judgment, you have to accept the plaintiff's version.

[00:14:57] Speaker 00:
And so she did.

[00:14:59] Speaker 00:
And with that, I'm out of time.

[00:15:01] Speaker 00:
I thank you for your attention.

[00:15:02] Speaker 04:
Thank you, counsel.

[00:15:09] Speaker 04:
Mr. Gower.

[00:15:18] Speaker 03:
May it please the court, Nicholas Gower, attorney for the Apley defendant, Remington and Montrose Golf Club.

[00:15:26] Speaker 03:
After a five-day trial, the jury returned its verdict in favor of Remington on all of the appellants, Miss Colt and Miss Peters' claims for relief.

[00:15:36] Speaker 03:
Despite rejecting Miss Colt's Title VII claims for hostile work environment and retaliation, the jury nevertheless attempted to award her punitive damages.

[00:15:48] Speaker 03:
Because punitive damages are clearly not available to an unsuccessful Title VII plaintiff like Miss Colt,

[00:15:55] Speaker 03:
The district court ultimately set aside the improper punitive damages award that was entered against Remington.

[00:16:04] Speaker 04:
Do you think these are inconsistent verdicts and suggest that the jury was confused?

[00:16:13] Speaker 03:
Ultimately, I think they can be reconciled.

[00:16:15] Speaker 03:
There's obviously an apparent inconsistency that's created any time juries don't.

[00:16:20] Speaker 04:
An apparent inconsistency.

[00:16:22] Speaker 04:
It's an inconsistency.

[00:16:24] Speaker 03:
Well, when juries don't follow instructions and... I wonder which instruction did they not follow?

[00:16:31] Speaker 04:
Did they not follow the instruction that said award damages, award compensatory damages, or did it misunderstand that if it didn't award compensatory damages, it could still award punitives?

[00:16:47] Speaker 04:
Isn't this a classic example when you'd want to tell the jury, this doesn't look right, go back

[00:16:55] Speaker 04:
reread the instructions, and I'll reread the instructions, and you come back with something that makes sense.

[00:17:03] Speaker 04:
Wouldn't you want that?

[00:17:04] Speaker 03:
Well, I think the appellants could have done that.

[00:17:09] Speaker 03:
Alternatively, we could have.

[00:17:12] Speaker 04:
Well, our precedent, assuming it's a special verdict, our precedent said that that couldn't have happened.

[00:17:19] Speaker 04:
The judge didn't have the authority to do that.

[00:17:25] Speaker 03:
Well, I think that's a question.

[00:17:27] Speaker 03:
Ultimately, Dietz does not get to it.

[00:17:30] Speaker 03:
As you point out, all it held was that the district court had the inherent authority to do that.

[00:17:36] Speaker 04:
Yeah, I think under Dietz now, this situation should not occur again.

[00:17:40] Speaker 04:
The judge will know, I can call the jury back and do that.

[00:17:45] Speaker 04:
So hopefully, if for this case, it won't be an issue.

[00:17:51] Speaker 04:
You can't blame an attorney or a judge from following precedent, I don't think.

[00:17:57] Speaker 03:
Well, I wouldn't blame Judge Rodriguez for how she handled it.

[00:18:02] Speaker 03:
And to get to Judge Federico's question regarding general versus special, I think if this were to be construed, the parties obviously treated it as a special verdict.

[00:18:13] Speaker 03:
The court, in her subsequent order, kind of maybe touched upon the issue with respect to

[00:18:21] Speaker 03:
Well, under case law, if it's a general verdict, our authority says we should reconcile them.

[00:18:27] Speaker 03:
If it's a general verdict with special interrogatories, we should still be reconciling them.

[00:18:33] Speaker 03:
But alternatively, if this is a rule 59E could be employed to address a general verdict because punitive damages are not available.

[00:18:46] Speaker 01:
Let me ask you, do you think, I'm just trying to,

[00:18:49] Speaker 01:
sort of piece together the jury instructions with the verdict form.

[00:18:52] Speaker 01:
Do you see the verdict form as being part of the instructions?

[00:18:58] Speaker 03:
No.

[00:18:58] Speaker 01:
Why not?

[00:19:00] Speaker 01:
Well, I just think they're separate.

[00:19:02] Speaker 01:
Well, sure.

[00:19:03] Speaker 01:
I mean, they're separate documents.

[00:19:04] Speaker 01:
But when the court is saying, here's the law that I want you to apply, and here is a form in which you're going to document your findings that contains within the form substantive directions, why isn't that part of the instructions?

[00:19:16] Speaker 03:
Well, I suppose it depends on how broadly you define the instructions.

[00:19:21] Speaker 03:
That's what I'm trying to get at.

[00:19:24] Speaker 03:
I would treat them differently based on, I mean, they had the separate instructions, all the instructions were read to the jury.

[00:19:34] Speaker 03:
I don't think there's intended to be necessarily all one big

[00:19:41] Speaker 03:
comprehensive document the jury is focused on the verdict form to the extent they have questions they can refer back to the instructions but ultimately it's the verdict form and to get to kind of the overall reconciliation and how this could have happened there's at least two reasons two basis for reconciling this verdict that doesn't necessitate a new trial I think

[00:20:11] Speaker 03:
This court could not do the appellant's request of relief of entering a judgment in favor of Ms.

[00:20:20] Speaker 03:
Cole for $125,000.

[00:20:21] Speaker 03:
That would plainly violate, instruct the express findings of no liability for hostile work environment under Title VII, as well as the retaliation claim under number three.

[00:20:38] Speaker 03:
And I think this court,

[00:20:41] Speaker 03:
reconciling these verdicts is possible.

[00:20:46] Speaker 03:
And I think one thing that's important is, and it's mentioned in the briefs, confusion regarding only answer question number five regarding punitive damages if you answered yes to questions one or three.

[00:21:02] Speaker 03:
That, I think, is clear.

[00:21:06] Speaker 03:
is referenced in the reply brief, I believe, page six, that the jury followed the verdict form in all other regards.

[00:21:13] Speaker 03:
That's not correct because with respect to Ms.

[00:21:16] Speaker 03:
Culp's verdict form, the jury answered no on her hostile work environment claim.

[00:21:24] Speaker 03:
And immediately following that instruction or that verdict, the instruction said, do not answer questions two or three

[00:21:36] Speaker 03:
three being the punitive damages question, if you answered no.

[00:21:40] Speaker 01:
Do you view this as a case of jury confusion or jury disobedience?

[00:21:45] Speaker 03:
We would view this as a case of jury disobedience on the basis of Remington was not perfect in this case.

[00:21:55] Speaker 03:
There was a lot of evidence of all the things Remington could have done better.

[00:22:01] Speaker 03:
And we would view that the jury was trying to send

[00:22:05] Speaker 01:
Remington a message to do better.

[00:22:07] Speaker 01:
So you think the jury went back in the deliberation room, read the instructions, read the verdict form, and was not confused at all when it looked at the directions the verdict form gave, when it looked at instruction 38 that did not tie the punitive damages at all to any prior claims directly, when it looked at instruction I believe 44 that said you can only award damages once,

[00:22:30] Speaker 01:
They looked at all that, understood it properly, and said, you know what, even though the judge told us this is what we're supposed to do and this is the law, we're going to just disregard it because we want to punish Remington.

[00:22:40] Speaker 01:
That's your position?

[00:22:42] Speaker 03:
Well, that's essentially what the verdict forum asked was, how much do you want to punish Remington?

[00:22:48] Speaker 03:
And they answered the question.

[00:22:51] Speaker 01:
Yeah, but I guess I'm getting at it.

[00:22:53] Speaker 01:
As we're looking at reconciliation and trying to determine, at the first instance, whether the jury was even properly instructed,

[00:23:01] Speaker 01:
or they were led down a path of confusion that then gets to this verdict form that's difficult to reconcile.

[00:23:07] Speaker 01:
And I'm just trying to figure out how to think about those instructions as they relate to the verdict form.

[00:23:13] Speaker 03:
Well, I would note that the verdict forms were prepared by appellants.

[00:23:18] Speaker 03:
So they're the ones who submitted them.

[00:23:20] Speaker 03:
There might have been minor revisions, but substantively, it's what the plaintiffs... But the court owns the verdict form, the same way the court owns the instructions.

[00:23:30] Speaker 01:
I mean, the parties submit draft instructions, but ultimately it's the court's duty to instruct the jury upon the proper law that they apply.

[00:23:38] Speaker 01:
And this is why I was asking you about, is the verdict form part of that?

[00:23:41] Speaker 01:
Because again, it's common practice that parties submit verdict forms, instructions, but ultimately it's the court's duty to instruct the jury on the law.

[00:23:49] Speaker 01:
I mean, you agree with that, right?

[00:23:51] Speaker 01:
Yes.

[00:23:51] Speaker 01:
OK.

[00:23:53] Speaker 04:
Can we go to some of the other issues?

[00:23:56] Speaker 04:
Do you have anything?

[00:23:57] Speaker 04:
I don't, no.

[00:23:58] Speaker 04:
Let me ask you about the summary judgment.

[00:24:01] Speaker 04:
Sure.

[00:24:01] Speaker 04:
Against Ms.

[00:24:02] Speaker 04:
Peters.

[00:24:04] Speaker 04:
She engaged in protected activity.

[00:24:06] Speaker 04:
You don't dispute that.

[00:24:08] Speaker 03:
We did not dispute that for purposes of summary judgment.

[00:24:13] Speaker 03:
Okay.

[00:24:14] Speaker 04:
So the issue is whether the response to her protected activity rate was sufficient to, was sufficiently harsh

[00:24:32] Speaker 04:
to constitute retaliation.

[00:24:34] Speaker 04:
Is that correct?

[00:24:34] Speaker 04:
Was there anything else involved in the granting of summary judgment?

[00:24:40] Speaker 03:
You're correct, Your Honor.

[00:24:43] Speaker 03:
Remington understood the argument as this whine dispute that happened based on the allegations, that that was the basis for the retaliation claim with respect to Ms.

[00:24:57] Speaker 03:
Peters.

[00:25:00] Speaker 03:
Remington obviously disputes what Ms.

[00:25:04] Speaker 03:
Peters reported during its investigation.

[00:25:09] Speaker 04:
She's reported on the bartender and then after that is resolved and he comes back to work, the bartender comes back to work, her schedule puts her working with him.

[00:25:27] Speaker 04:
She says he's not filling

[00:25:30] Speaker 04:
My orders.

[00:25:31] Speaker 04:
And I don't want to deal with that.

[00:25:35] Speaker 04:
He's retaliating against me at least.

[00:25:38] Speaker 04:
And the boss says, oh, quit complaining.

[00:25:41] Speaker 04:
So she quits.

[00:25:43] Speaker 04:
Don't you think requiring her to work for somebody who she's reported would sufficiently deter people from reporting misconduct?

[00:25:58] Speaker 04:
that it rises to the level of retaliation?

[00:26:03] Speaker 03:
Well, I think you have to focus continuing to work with the person that you made a complaint about assuming she did.

[00:26:13] Speaker 03:
That would go more towards a hostile work environment claim.

[00:26:16] Speaker 04:
Well, just are the elements of retaliation satisfied?

[00:26:21] Speaker 04:
Why aren't they?

[00:26:22] Speaker 04:
No.

[00:26:23] Speaker 04:
I thought the judge's view was this is not sufficient to constitute

[00:26:28] Speaker 04:
It's not harsh enough.

[00:26:32] Speaker 04:
It didn't affect her enough.

[00:26:33] Speaker 04:
But the test is whether it would deter someone from reporting, from engaging in protected activity.

[00:26:40] Speaker 04:
And if she's forced to work with someone who won't fill her orders and the response by the employer is, oh, suck it up, then why is that not sufficient to rise to the necessary level?

[00:26:56] Speaker 03:
Well, Your Honor, we would argue that this court should follow its sister circuits of the second and the fourth that inaction does not support a retaliation claim.

[00:27:07] Speaker 03:
Retaliatory conduct is based on action, not inaction.

[00:27:12] Speaker 03:
So under its fincher, the second court's decision, the court went on to explain that it leaves the employee no worse off if the employer conducts either an inadequate investigation or fails to take action.

[00:27:28] Speaker 03:
The employee is no worse off than had they never made the complaint in the first place.

[00:27:33] Speaker 03:
And I think that rationale should be followed by this court as well.

[00:27:42] Speaker 04:
Let me ask you about an evidentiary issue.

[00:27:44] Speaker 04:
So part of the evidence introduced, it was the second issue, sorry.

[00:28:03] Speaker 04:
Not the emotional distress issue, but the other one.

[00:28:08] Speaker 04:
That's part of the emotional distress issue.

[00:28:13] Speaker 04:
I'm sorry.

[00:28:15] Speaker 04:
Can you recall what the second evidentiary issue was?

[00:28:18] Speaker 04:
Because it was offered to show that the culps, the felis, had conducted an adequate investigation.

[00:28:31] Speaker 04:
Her complaining at her prior employer when she worked at Applebee's.

[00:28:36] Speaker 02:
Yes, Your Honor.

[00:28:37] Speaker 04:
And how was that evidence relevant?

[00:28:40] Speaker 04:
It was offered, as I understand it, because it would show that the Phillies did an adequate investigation, but there was no evidence that the Phillies were ever told about this, as I recall.

[00:28:53] Speaker 03:
Your Honor, with respect to Joelle Ricaldi's testimony, and I think in the briefing, they represent it wasn't relayed to the Feelys.

[00:29:02] Speaker 03:
In our brief, we cite she did also tell the Feelys in the investigation about her experience.

[00:29:12] Speaker 04:
Was that elicited at trial that she had told the Feelys?

[00:29:17] Speaker 03:
Yes.

[00:29:18] Speaker 04:
during trial was pointed out.

[00:29:20] Speaker 03:
Yes.

[00:29:21] Speaker 04:
And that's contrary to what the plaintiffs argued.

[00:29:23] Speaker 03:
Yes.

[00:29:24] Speaker 03:
It was after her initial answer where she discussed what she claimed she told the Feelys, or at least Mr. Crippen and Eric Feely, regarding her experience at Applebee's.

[00:29:37] Speaker 03:
And later on in the testimony, we cite the testimony in our brief where she also confirms that she told the Feedly's that information in the investigation.

[00:29:48] Speaker 03:
Plus there was trial exhibit 80, the page regarding Mrs. Feedly's handwritten notes.

[00:29:55] Speaker 03:
Substantively the same, and that exhibit was admitted, but substantively the same information is contained within that exhibit as well.

[00:30:06] Speaker 03:
I see my time is up, so of course, we would ask that this court affirm the district court judgments in full in this case, and thank you for your time.

[00:30:18] Speaker 04:
Thank you, Council.

[00:30:27] Speaker 04:
Thank you, Council.

[00:30:27] Speaker 04:
Do I have any remaining time?

[00:30:31] Speaker 04:
No?

[00:30:33] Speaker ?:
Okay.

[00:30:34] Speaker 04:
Thank you.

[00:30:35] Speaker 04:
Case is submitted, counts are excused.