[00:00:05] Speaker 02:
Council, the next case this morning is 23-3074, Weah versus State of Kansas.

[00:00:16] Speaker 00:
May it please the court.

[00:00:17] Speaker 00:
This case is about whether Title VII makes unlawful racial and national origin discrimination in a planet generally, or only when that racial and national origin discrimination fits within a certain specific formula or mathematical rubric of discriminatory actions.

[00:00:37] Speaker 00:
Your Honor, the general case law and law about Title VII and hostile work environments

[00:00:44] Speaker 00:
treatment and retaliation is well known.

[00:00:46] Speaker 00:
This case is about the facts.

[00:00:48] Speaker 00:
That's where I missed in most of my time.

[00:00:51] Speaker 00:
In general, Ms.

[00:00:52] Speaker 00:
Oweehaw, a black Nigerian-born woman, worked as a staff pharmacist for Larnett State Hospital from September 2017 until June 2020.

[00:01:03] Speaker 00:
For the majority of that time, she was the only Nigerian-born person in that pharmacy, and she was the only black person in that pharmacy.

[00:01:11] Speaker 00:
During that time, she was

[00:01:14] Speaker 00:
Subjected to continuous hostility and racial and national origin based demeaning remarks and questions and conduct from her coworkers.

[00:01:26] Speaker 00:
None of which were treated the same as she was.

[00:01:29] Speaker 00:
All of which were not Nigerian-born and who are not black.

[00:01:33] Speaker 03:
Can you counsel before you go too much further?

[00:01:36] Speaker 03:
I noticed that the district court, two of the issues are under 12B6.

[00:01:42] Speaker 03:
dismissals here before us.

[00:01:44] Speaker 03:
The rest of them are summary judgments.

[00:01:48] Speaker 03:
Is that your understanding, dude?

[00:01:50] Speaker 00:
Your Honor, I believe all we're bringing forth is the summary judgment.

[00:01:53] Speaker 00:
Just the summary judgment.

[00:01:54] Speaker 00:
Okay, thank you.

[00:01:55] Speaker 00:
I apologize for making that a little start.

[00:02:00] Speaker 00:
But again, going back, Ms.

[00:02:02] Speaker 00:
Lehow was treated differently than her co-workers.

[00:02:05] Speaker 00:
who, again, were not Nigerian and were not black.

[00:02:08] Speaker 02:
Well, when she complained about her conduct, she did not say that she did not raise race or her national origin, did she?

[00:02:15] Speaker 02:
She said she did not remember exactly what she said.

[00:02:17] Speaker 02:
Well, she doesn't remember.

[00:02:21] Speaker 02:
That's a pretty important thing to remember, isn't it?

[00:02:23] Speaker 02:
Whether you felt you were racially or discriminated or discriminated based upon national origin.

[00:02:29] Speaker 00:
She said she did not remember the exact words, but she said specifically, I made it clear that I was being discriminated against.

[00:02:35] Speaker 02:
Well, you can be discriminated against for reasons that the law doesn't protect.

[00:02:39] Speaker 02:
You can be discriminated against because they don't like you, and therefore I'm not treated similarly.

[00:02:44] Speaker 02:
I'm not treated the same as my peers.

[00:02:47] Speaker 02:
That's not something that would get you relieved, would it?

[00:02:51] Speaker 00:
Your Honor, I believe

[00:02:52] Speaker 00:
discriminated against would imply at least taking the facts most in favor of the plaintiff and drawing inferences there from the discriminated against of normal parlance would imply and would infer a class base to protect a class base, especially when it's the only Nigerian, it's the only black person saying this.

[00:03:12] Speaker 00:
Especially when she says, one of the things I'm offended by is the fact that my coworker brought in slave trade beads to shove in front of my face and tell me that that was my heritage.

[00:03:21] Speaker 02:
Well, we got the slave trade beads.

[00:03:23] Speaker 02:
And I mean, I think that there's a cold argument there that that implicates both race and national origin.

[00:03:29] Speaker 02:
But your position is that just saying you're discriminated against, well, I mean, she's a woman, too.

[00:03:36] Speaker 02:
I mean, you could say that she felt discriminated against on the grounds of gender.

[00:03:40] Speaker 02:
And you're not raising that, are you?

[00:03:42] Speaker 00:
No, but again, if that's what the employer believed that she was saying she was discriminated against because of gender and then took an adverse employment action, that would certainly qualify as a Title VII retaliation action, I believe.

[00:03:54] Speaker 00:
But that's not the argument you're making here.

[00:03:56] Speaker 00:
That's not the argument I'm making, but the argument I'm making is that the employer knew through her supervisor, through complaints, repeated complaints through her supervisor about being discriminated against, about being treated unfairly,

[00:04:10] Speaker 00:
about being treated differently than everyone else, and about clearly racial or national origin-based conduct, that the reasonable inference that a jury can draw is that the employer was well aware that Ms.

[00:04:27] Speaker 00:
Weehaw was making complaints about activity that is made unlawful by Title VII.

[00:04:35] Speaker 00:
Is the jury required to draw that conclusion?

[00:04:37] Speaker 00:
Maybe not.

[00:04:38] Speaker 00:
But that, I don't believe, is the question for the court on the question of whether or not she was retaliated against, whether or not she engaged in protected activity.

[00:04:48] Speaker 00:
But going back to the facts of the issue, the facts show that for the almost three years that she worked there, she never had a single informal or formal disciplinary action taken against her.

[00:05:00] Speaker 00:
She was never reprimanded by her supervisors or anyone else.

[00:05:05] Speaker 00:
In fact, the facts show that she dutifully performed her activities despite the abuse, harassment, and exclusion she faced on account of her race and national origin.

[00:05:16] Speaker 00:
However, despite that, this action continued and in fact intensified in the spring and summer of 2020, likely related to the general national focus on the issues of race and discrimination that were going on at that time.

[00:05:32] Speaker 00:
In fact, one of the things that came out of that was a letter by the Kansas governor, Kelly, about the George Floyd death and subsequent protests, offering support for black employees of the state like Ms.

[00:05:47] Speaker 00:
Weehaw.

[00:05:48] Speaker 00:
That letter was dated June 3rd, 2020.

[00:05:54] Speaker 00:
Ms.

[00:05:54] Speaker 00:
Ouija put that letter up.

[00:05:57] Speaker 00:
That incensed her co-workers.

[00:05:59] Speaker 02:
And the district court said that you waive reliance on that letter.

[00:06:03] Speaker 02:
And you have not engaged with that district court ruling that you waive reliance on that letter.

[00:06:08] Speaker 02:
So how can you rely on that letter now?

[00:06:11] Speaker 00:
Your Honor, I'm relying on that letter not as a specific protected activity for retaliation.

[00:06:17] Speaker 00:
I'm relying on that letter to show the hostile work environment and that the ultimate adverse employment decision

[00:06:24] Speaker 00:
was based upon Ms.

[00:06:25] Speaker 00:
O'Neill's race and national origin.

[00:06:27] Speaker 02:
Well, I'm not sure why can you rely on the letter at all?

[00:06:30] Speaker 02:
I mean, you didn't include it as any piece of evidence related to the climate, the existence that goes on in that office.

[00:06:38] Speaker 02:
Why is it a non-issue at all?

[00:06:43] Speaker 00:
Your Honor, respectfully, that letter was part, was an exhibit to the summary judgment.

[00:06:47] Speaker 00:
It was discussed in the summary judgment motion as a

[00:06:52] Speaker 00:
as to explain the hostile work environment, especially the negative reaction that that letter got by her coworkers, and the fact that so shortly, close during time after that letter was posted, these events occurred.

[00:07:05] Speaker 02:
And help me to understand then, how does that relate to the fact that it was not listed in the pretrial order and the district court said that you waived it?

[00:07:14] Speaker 00:
Again, I believe the district court was talking about as a specific protected activity.

[00:07:20] Speaker 00:
not as a piece of evidence to the hostile work environment or adverse employment action, because those are, all the Title VII claims are of different nature and species.

[00:07:31] Speaker 00:
So again, the retaliation, Your Honor, that I've heard before you is the informal complaints to the supervisor.

[00:07:37] Speaker 00:
That is the most clear, obvious instances of protected activity.

[00:07:45] Speaker 04:
But, and...

[00:07:48] Speaker 04:
I know you're doing a recitation of the facts, but we've also got to look at claims that have been made here.

[00:07:55] Speaker 04:
And could you address on the hostile work environment claim, are you making an argument based on severity or pervasiveness?

[00:08:07] Speaker 00:
Your Honor, it's both.

[00:08:09] Speaker 00:
And I believe it's either or.

[00:08:10] Speaker 00:
Is that generally how that's?

[00:08:11] Speaker 04:
Well, that's why I'm asking you that.

[00:08:13] Speaker 04:
If it's the former, that is severity,

[00:08:17] Speaker 04:
What is the strongest evidence of severity?

[00:08:20] Speaker 00:
The severity, Your Honor, the strongest evidence is the slave trade beach, which is an incredibly offensive action.

[00:08:27] Speaker 00:
The second strongest is the comment by Ms.

[00:08:32] Speaker 00:
Uweha's direct supervisor.

[00:08:34] Speaker 00:
Mary said that Nigerian women are uneducated, and those that are educated are bossy.

[00:08:41] Speaker 00:
And then the pervasiveness, Your Honor, is just the continuous

[00:08:46] Speaker 00:
demeaning conduct, demeaning questions.

[00:08:50] Speaker 00:
Does Nigeria even have schools?

[00:08:52] Speaker 00:
Do you even have roads?

[00:08:54] Speaker 00:
Do you even have cars?

[00:08:55] Speaker 00:
Do you even have currency?

[00:08:57] Speaker 00:
I mean, those are clearly demeaning questions.

[00:08:59] Speaker 00:
It's not a dogma, so that's an error.

[00:09:03] Speaker 00:
That's saying Nigeria is not a civilized country.

[00:09:06] Speaker 00:
Nigerians are not civilized people.

[00:09:08] Speaker 00:
They don't have the basic amenities and features we associate with civilized people.

[00:09:12] Speaker 00:
We're surprised to learn that they might have them, and we do not believe they do.

[00:09:15] Speaker 04:
What would you say, in our case law, would be most comparable to this situation on a hostile work environment, at least in terms of supporting your claim?

[00:09:31] Speaker 00:
Sure, Your Honor.

[00:09:32] Speaker 00:
Three cases come to mind, Hernandez v. Valley v. Hospital Association.

[00:09:37] Speaker 00:
That was a similar case where there was a subjected to racial and sensitive and offensive comments.

[00:09:45] Speaker 00:
that the plaintiff was able to give a few examples of and then describe that those were continuous.

[00:09:50] Speaker 02:
And they actually used racial epithets, right, in Hernandez?

[00:09:55] Speaker 00:
I believe there may have been racial epithets, but I do not believe Hernandez stood for or indicated that that was a, that this was some sort of mathematical formula.

[00:10:05] Speaker 00:
You have to check this box.

[00:10:07] Speaker 02:
Oh, I'm not saying they did that, but you responded that that's a comparable case.

[00:10:12] Speaker 02:
And the point I'm making is you don't have that here, right?

[00:10:16] Speaker 00:
We do not have that one element, but we have a bunch of other similar elements.

[00:10:19] Speaker 02:
Which is?

[00:10:20] Speaker 00:
Which is the continuous demeaning comments about her schooling, about her country, about questions about her hair.

[00:10:34] Speaker 00:
constantly being, her qualifications being constantly questioned because of where she went to school.

[00:10:41] Speaker 00:
She went to school in Nigeria because she went there instead of that.

[00:10:44] Speaker 00:
These questions were not asked of her coworkers.

[00:10:47] Speaker 00:
These questions were not directed to her coworkers.

[00:10:48] Speaker 02:
And one could argue that those were neutral things.

[00:10:51] Speaker 02:
There was nothing facially discriminatory about those questions.

[00:10:55] Speaker 02:
Somebody from, you know, somebody from Kansas that know anything about Nigeria, they ask questions.

[00:11:00] Speaker 00:
It's possible, Your Honor.

[00:11:01] Speaker 00:
Okay.

[00:11:09] Speaker 00:
It was not for any reason.

[00:11:11] Speaker 02:
That's true.

[00:11:12] Speaker 02:
But I mean, when you look at the quote, I think it was Hernandez, in fact, that talked about this notion of neutral factors.

[00:11:18] Speaker 02:
But the neutral factors have to be considered in the context of factors that themselves speak to racial animus.

[00:11:26] Speaker 02:
And then they have meaning.

[00:11:28] Speaker 02:
Well, the point here is, unlike Hernandez, you don't have any facially discriminatory conduct beyond perhaps the slave beads, do you?

[00:11:36] Speaker 00:
Well, Your Honor, I'd certainly state the statement that from Supervisor that Nigerian women are uneducated and those that are educated or bossy is directly and facially on point about national origin.

[00:11:48] Speaker 00:
I mean, it specifically references Nigerian women.

[00:11:51] Speaker 00:
Frankly, I don't know how you could be more on point or more facially discriminatory than that.

[00:11:57] Speaker 00:
So again, when you combine the arguably neutral

[00:12:06] Speaker 00:
comments and actions that I was discussing previously, combined that with the statements by her own coworkers that she didn't fit in with that crowd, that they were trumpers and rednecks.

[00:12:21] Speaker 00:
And what is the implication there?

[00:12:22] Speaker 00:
What is the implication that they were incensed by her posting the governor's letter?

[00:12:26] Speaker 00:
And then a few days later, she's suspended and ultimately terminated.

[00:12:30] Speaker 00:
for getting yelled at by a coworker, for having a coworker threaten her.

[00:12:34] Speaker 00:
That's what she was suspended and terminated for.

[00:12:37] Speaker 02:
I thought, well, go ahead, Judge Paul.

[00:12:40] Speaker 03:
Which then brings up the issue of pretextual.

[00:12:43] Speaker 03:
You're arguing that the statements made were pretextual, or as we said, specifically not worthy of belief.

[00:12:52] Speaker 03:
So on that basis, which of the comments made by her

[00:12:58] Speaker 03:
co-employees or by the superiors there are not worthy of money?

[00:13:05] Speaker 03:
Pretextual.

[00:13:07] Speaker 00:
Her protection?

[00:13:08] Speaker 00:
I apologize.

[00:13:09] Speaker 03:
No, I didn't say protection.

[00:13:10] Speaker 03:
I said pretextual.

[00:13:11] Speaker 00:
Oh, pretextual.

[00:13:12] Speaker 00:
I apologize, Your Honor.

[00:13:14] Speaker 00:
Pretextual is very clear in this case.

[00:13:17] Speaker 00:
It's from the investigation, the sham investigation Longstreet Press got.

[00:13:22] Speaker 00:
The statements made against their allegations are that she was on her phone all the time.

[00:13:26] Speaker 00:
Well, the phone records show she wasn't.

[00:13:28] Speaker 00:
She's asleep all the time.

[00:13:31] Speaker 00:
Well, her own supervisor said she never caught her sleeping once, even though that's what the claims were, and that she was maybe one instance where she might have been asleep at work in the break room.

[00:13:42] Speaker 02:
Are you saying that Prescott had racial or national origin bias?

[00:13:47] Speaker 00:
I'm saying either she had national or racial origin bias, or she was fully committed to not only rubber-stamping, but justifying

[00:13:55] Speaker 00:
the race and national origin based employment action that the pharmacy wanted to take against Ms.

[00:14:03] Speaker 02:
Alika by not... Let's not speak in terms of pharmacy.

[00:14:07] Speaker 02:
There has to be somewhere along this chain, Ms.

[00:14:12] Speaker 02:
Prescott is conducting an investigation.

[00:14:14] Speaker 02:
Ms.

[00:14:14] Speaker 02:
Dipman, I think that's her name, she's the decision maker, right?

[00:14:20] Speaker 02:
Yes, Your Honor.

[00:14:21] Speaker 02:
Are you claiming that she had racial and national origin bias?

[00:14:25] Speaker 00:
No, Your Honor, but we are claiming that she had no independent investigation or thought about the matter and simply rubber stamped the recommendation to terminate Ms.

[00:14:36] Speaker 00:
Awiyah.

[00:14:36] Speaker 02:
Well, then somewhere along this line, there has to be somebody who had racial and national origin bias.

[00:14:42] Speaker 02:
And so if Ms.

[00:14:44] Speaker 02:
Prescott, she may have been committed to getting rid of Ms.

[00:14:49] Speaker 02:
Awiyah for many reasons, but if they aren't protected reasons, it doesn't matter, does it?

[00:14:53] Speaker 00:
Well, the reason she wanted to get rid of them is because the people in the pharmacy, her co-workers, John Fox, Janet Finger, and her supervisor, Mary Seddon, had demonstrated a severe hostility to Ms.

[00:15:05] Speaker 00:
Alihab based off her race and national origin.

[00:15:07] Speaker 02:
They told her that they had hostility against her because of her race and national origin.

[00:15:11] Speaker 00:
I don't believe they told her, but they clearly demonstrated through her actions.

[00:15:14] Speaker 00:
I apologize, John, I see that I'm out of time.

[00:15:17] Speaker 02:
And let me, let me, I interrupted your answer to Judge Matheson.

[00:15:21] Speaker 02:
You said you had three cases, just so that the record is clear, you had Hernandez as comparable cases.

[00:15:27] Speaker 00:
Hernandez?

[00:15:28] Speaker 02:
Oh, I apologize.

[00:15:28] Speaker 00:
Go ahead, please.

[00:15:29] Speaker 00:
Lowndes v. Lincare.

[00:15:30] Speaker 02:
Yes.

[00:15:32] Speaker 00:
And McCowen v. Ulster-Main-In-Sync.

[00:15:35] Speaker 02:
Okay, all right.

[00:15:36] Speaker 02:
And we'll give you a little bit of rebuttal time.

[00:15:38] Speaker 02:
Thank you, I appreciate that.

[00:15:44] Speaker 01:
May it please the court, my name is Jeff Kuhlman, and it's my privilege to represent the defendant's appellees in this matter, who I'll just refer to as the defendants in the course of my argument.

[00:15:56] Speaker 01:
Two of this court's well-established and often cited maxims apply squarely to this matter.

[00:16:02] Speaker 01:
In the hostile work environment context, that maxim is that Title VII does not establish a general stability code, and a few isolated incidents do not constitute a hostile work environment.

[00:16:13] Speaker 01:
The second maxim is in the employment law context, which is that when looking at employment cases, this court is not tasked with determining whether an employer's decision was wise, fair, or correct in terminating an employee.

[00:16:28] Speaker 01:
This court has said that it does not sit as a super personnel department that second guesses a company's business with the benefit of 2020 hindsight.

[00:16:37] Speaker 01:
The end of the day, that is what the plaintiff wants this court to do.

[00:16:41] Speaker 01:
Ms.

[00:16:41] Speaker 01:
Preskoff's investigation was not a sham.

[00:16:44] Speaker 01:
It was thorough, it was long, it was independent.

[00:16:48] Speaker 00:
Ms.

[00:16:48] Speaker 01:
Aliyah just disagrees with it.

[00:16:49] Speaker 01:
She disagreed with it then, and she disagrees with it now.

[00:16:53] Speaker 01:
But there's no evidence that it was based on any unlawful animus, any racial or national origin.

[00:17:00] Speaker 01:
discriminatory motives.

[00:17:02] Speaker 01:
Ms.

[00:17:02] Speaker 01:
Prescott came in and did her job the best way that she sees fit.

[00:17:06] Speaker 01:
Coming in Monday morning quarterbacking it does not change that analysis, especially when there is no evidence of the animus.

[00:17:15] Speaker 02:
Do you agree that Ms.

[00:17:17] Speaker 02:
Dipman did not conduct her own independent evaluation of this before making the determination?

[00:17:23] Speaker 01:
No, I don't agree with that.

[00:17:25] Speaker 01:
She relied

[00:17:27] Speaker 01:
or resorted to and referenced Ms.

[00:17:31] Speaker 01:
Prescott's investigation, but she reviewed it and made an independent determination to act based on it.

[00:17:39] Speaker 02:
And I'm sorry, but let me make sure I hear you respond.

[00:17:42] Speaker 02:
The language we use in our case law quite often is uncritical reliance.

[00:17:48] Speaker 02:
So did she uncritically rely on the report from Ms.

[00:17:53] Speaker 02:
Prescott and if not, explain why?

[00:17:56] Speaker 01:
I don't believe that she had any criticism of Ms.

[00:17:58] Speaker 01:
Prescott's report.

[00:18:00] Speaker 02:
Yeah, and I'm sorry.

[00:18:02] Speaker 02:
What I meant by uncritical reliance is without actually rigorously evaluating it itself and therefore just accepting it without any sort of scrutiny of it.

[00:18:13] Speaker 01:
No, I don't believe there's any evidence of that.

[00:18:16] Speaker 01:
remember exactly what this testimony was offhand, but I believe she reviewed it, and based on it, I mean, she's the superintendent that bucks off with her, so she didn't do the investigation herself.

[00:18:32] Speaker 01:
If that answers your question.

[00:18:35] Speaker 01:
I thought it was interesting that Mr. Weas' counsel argued that this case was about the facts.

[00:18:40] Speaker 01:
But in the recitation of the facts, really, there was more arguments of counsel, more embellishment or exaggerations of what really went on.

[00:18:49] Speaker 01:
The word continuous, that she was subjected to continuous comments, continuous derogatory comments, is just simply not supported by the record.

[00:18:58] Speaker 01:
Mrs. Belia was asked how often, she was asked to give every instance of discrimination that she faced.

[00:19:04] Speaker 01:
She identified them.

[00:19:05] Speaker 01:
A lot of them are not purely examples of discrimination.

[00:19:09] Speaker 01:
They're faith and neutral.

[00:19:10] Speaker 01:
Where did you go to school?

[00:19:12] Speaker 01:
What currency does Nigeria have?

[00:19:14] Speaker 01:
How do you wash your hair?

[00:19:15] Speaker 01:
Things that are not necessarily even offensive.

[00:19:18] Speaker 01:
She gave those examples, and then when she was asked, how long did all of these things happen?

[00:19:23] Speaker 01:
For each time, it was one time.

[00:19:26] Speaker 01:
And then when they checked it, but there was other things, but there was continuous, she could never provide testimony.

[00:19:32] Speaker 01:
There's just nothing in the record supporting a constant barrage of appropriate conduct as this court requires.

[00:19:38] Speaker 04:
Why couldn't a jury

[00:19:44] Speaker 04:
see the complaints that were made to Ms.

[00:19:48] Speaker 04:
Sneddon, some of which you just mentioned.

[00:19:52] Speaker 04:
Maybe she didn't use the words racial or national origin discrimination, but at least

[00:19:59] Speaker 04:
in context, why wouldn't a reasonable inference be that they were at least discriminatory based on national origin, for example?

[00:20:11] Speaker 01:
Because there's no miserable, competent evidence suggesting that she ever complained of unlawful discrimination.

[00:20:17] Speaker 04:
Well, no.

[00:20:19] Speaker 04:
But I'm saying if she thought that the comments about her schooling

[00:20:25] Speaker 04:
were demeaning was tied to where she came from.

[00:20:30] Speaker 04:
Why wouldn't that permit an inference that those were discriminatory comments?

[00:20:38] Speaker 01:
Well, that's kind of a jury question.

[00:20:41] Speaker 01:
And I think at the summary judgment phase, what the district court did- Well, that's what I'm saying.

[00:20:45] Speaker 04:
Why isn't it a jury question?

[00:20:47] Speaker 01:
Well, the district court cited

[00:20:50] Speaker 01:
Brown v. O'Hara, I think, I can't remember the case I'll fan, but it cited this court's precedent that the district court can resolve hostile work environment claims at the summary judgment stage if, excepting all the plaintiff's allegations as true and meeting them in the liable state of the plaintiff, it still just does not establish, meet the standard of hostile work environment.

[00:21:11] Speaker 04:
Well, no, I understand that.

[00:21:13] Speaker 04:
But I guess my question is, why wouldn't these complaints at least count on the hostile work environment?

[00:21:22] Speaker 04:
May not be enough, as you're arguing, but at least they're on the table, especially when they're put on the table with a complaint about the slave trade.

[00:21:31] Speaker 01:
I think for purposes of summary judgment, they did count.

[00:21:34] Speaker 01:
The district court considered them and assumed without deciding that these count as instances of discrimination.

[00:21:40] Speaker 01:
But comparing them against the other law of this precedent,

[00:21:43] Speaker 01:
including Hernandez, which it's always interesting when both sides think that a case supports their position.

[00:21:49] Speaker 01:
I agree with the allegations of Hernandez, which are much more severe and pervasive than anything that even accepted.

[00:21:58] Speaker 04:
Do you think the slave trade deeds were not severe?

[00:22:05] Speaker 01:
Not really, no.

[00:22:06] Speaker 01:
I think that Mr. Fox had a jewelry hobby, and Mrs. Weehaw, who did complain about feeling like she didn't fit in and was excluded, not necessarily about an awful discrimination, I think Mr. Fox tried to connect with her about something.

[00:22:21] Speaker 01:
This is also why they asked about Nigerian schools and currencies, but that's getting to...

[00:22:26] Speaker 01:
Assuming for the for the sake of summary judgment that it is that he had a stimulatory animus and this is one isolated incident.

[00:22:34] Speaker 01:
It's one

[00:22:37] Speaker 01:
piece of conduct that is not nearly as severe as what the case law requires.

[00:22:40] Speaker 02:
And under hostile work environment, and under the case law, Lowndes being the case that I'm thinking of right now, who cares what he thought?

[00:22:49] Speaker 02:
It's the question of what she thought when was presented with these slave deeds that, I mean, whether he thought it was a hobby or not doesn't matter.

[00:22:57] Speaker 02:
What matters is, is it one element of creating a hostile work environment for her, right?

[00:23:02] Speaker 02:
Right.

[00:23:03] Speaker 02:
Okay, and what about the question where they asked her whether she ever washed her hair?

[00:23:09] Speaker 02:
Now, why is that not offensive?

[00:23:14] Speaker 01:
I think we can assume for the purposes of summary judgment that it was.

[00:23:17] Speaker 02:
Oh, we certainly can assume for the purposes of summary judgment that it was.

[00:23:19] Speaker 01:
I'm not sure the record is that she was asked if she ever washed her hair.

[00:23:22] Speaker 01:
I think it was how we washed her hair.

[00:23:24] Speaker 01:
But, in any event, taking the facts that are most favorable to the plaintiff, we can assume they were offensive.

[00:23:31] Speaker 01:
That's two isolated incidents.

[00:23:35] Speaker 01:
when you go read the cases in which a hostile work environment has been found, when you listen to the oral arguments in front of this court in cases where a hostile work environment had been found, usually counsel won't say what was said.

[00:23:48] Speaker 01:
They hesitate to repeat it in open court.

[00:23:50] Speaker 04:
Well, counsel, I'm going to ask you the same question I asked your opposing counsel, which is, what are the cases you would point to where there were discriminatory

[00:24:04] Speaker 04:
statements made, but this court found that they didn't rise to the level of severe pervasive.

[00:24:12] Speaker 04:
In other words, what's your best case to support the decision here?

[00:24:19] Speaker 01:
I think it's the Tunde v. Safeway is the one that comes to mind, which is what the district court cited in its summary judgment order about there being a lack of severity.

[00:24:28] Speaker 01:
Brown v. La Peria is another one.

[00:24:32] Speaker 01:
Brown Beagle Ferry, rather, where someone's given the cold shoulder, given silent treatment.

[00:24:38] Speaker 01:
In one case, the supervisor said that you know why the inside of black people's hands are white and the bottom of their feet are white from making some sort of joke.

[00:24:45] Speaker 01:
That was a stray comment, one or two offensive comments that were made, but the court found in the totality do not rise to the level of severe pervasive treatment.

[00:24:55] Speaker 01:
The district court also found that there was no evidence of anything that altered

[00:25:01] Speaker 01:
as far as these allegations of hostile work environment?

[00:25:06] Speaker 01:
And I would argue that the district court was correct in making that determination.

[00:25:10] Speaker 03:
Well, let me ask you this too, because in looking at the litany, and looking at it from the standpoint of the lady that's involved here, at what point, because I'm looking at some too,

[00:25:28] Speaker 03:
or 20 maybe plus bases for either discrimination or at what point in time, on the basis of these allegations, does that not become pervasive and severe?

[00:25:46] Speaker 03:
I mean, there's a lot.

[00:25:50] Speaker 01:
Are you talking about in district?

[00:25:55] Speaker 01:
Again, the pervasive and severe are two separate things.

[00:25:59] Speaker 01:
I'd say we lack both in this case.

[00:26:03] Speaker 01:
And pervasive would be if there's just a lot more of it.

[00:26:07] Speaker 01:
Again, capital can say the words constant and continuous, but the evidence in the record is that these things happened once, asked about hair once, asked about currency, cars once each.

[00:26:19] Speaker 01:
And I don't consider those very severe.

[00:26:21] Speaker 01:
The most severe thing here is the needs.

[00:26:24] Speaker 01:
And probably the second most severe thing is the Nigerian women comment, which was not made about, which is not alleged to have been made about Ms.

[00:26:33] Speaker 01:
Owehiha, but about another Nigerian coworker, but that's who you're hearing over there.

[00:26:37] Speaker 01:
Those things each happened once.

[00:26:39] Speaker 01:
It's also important that what the record shows is that when the beads happened, Ms.

[00:26:44] Speaker 01:
Owehiha told Mr. Fox that she was offended, and the conduct stopped immediately.

[00:26:51] Speaker 01:
When you told Mr. Fox to stop it, and he stopped, and we never hear another word about it again.

[00:26:57] Speaker 03:
So... But we're here on summary judgment.

[00:27:01] Speaker 03:
Yes.

[00:27:02] Speaker 03:
And we've got to look at this in the light most favorable to the plaintiff.

[00:27:05] Speaker 01:
Yes.

[00:27:06] Speaker 03:
And now there may be overblown statements here or not, but I'm just wondering, okay, on the basis of what we have,

[00:27:17] Speaker 03:
then I'm not quite sure I've ever seen a case based upon discrimination that goes much further than the allegations here.

[00:27:28] Speaker 01:
I think it's the nature of the comments.

[00:27:29] Speaker 01:
The hostile work environment cases that we see, there's usually several instances of explicit, explicit, some things that I don't want to utter in this courtroom, but explicit racially motivated insensitive jokes, racial epithets, racial slurs.

[00:27:47] Speaker 03:
You're saying none of those exist here as outlined?

[00:27:53] Speaker 01:
There's a comment on Nigerian women being bossy, which is not

[00:27:57] Speaker 01:
Insulting sounds like racial animus.

[00:27:59] Speaker 01:
It's not that or a slur.

[00:28:02] Speaker 01:
The beads are just bringing in jewelry to work.

[00:28:04] Speaker 01:
I don't think it was intended to be offensive.

[00:28:06] Speaker 02:
But the Nigerian women being bossy, given that she's raising also national origin discrimination, claim that is saying something negative about somebody because they're Nigerian.

[00:28:19] Speaker 02:
I mean, that's national origin discrimination, right?

[00:28:22] Speaker 02:
Yes, it's one instance, one isolated incident.

[00:28:25] Speaker 02:
What period of time were these incidents, what period of time did these incidents take place?

[00:28:30] Speaker 02:
I wouldn't say Nigerian women.

[00:28:31] Speaker 02:
No, I'm talking about if you cataloged all of the things that were alleged to have been discriminatory, what period of time are we talking about?

[00:28:39] Speaker 01:
During the entire course of our employment is my understanding.

[00:28:44] Speaker 01:
I can remember during the course of her employment, as far as I can remember.

[00:28:48] Speaker 01:
I think it's from when Ms.

[00:28:49] Speaker 01:
Senn became her supervisor to when she was put on leave, which I think was 18 to 20, but I couldn't remember.

[00:28:57] Speaker 03:
I've forgotten how long a period was she there as far as these overlapping.

[00:29:02] Speaker 01:
A year or two prior to Ms.

[00:29:04] Speaker 01:
Senn becoming her supervisor.

[00:29:05] Speaker 01:
Initially when we started, her supervisor was another Nigerian woman, Lola Longinu.

[00:29:13] Speaker 00:
and it would lower the left instead of the goer for her.

[00:29:20] Speaker 01:
Just quickly, I have about a minute left.

[00:29:23] Speaker 01:
It seems like counsel has conceded that neither the governor's letter or the active fact letter from her attorney are protected action.

[00:29:33] Speaker 01:
But even if there was protected action, which I'm not conceding, I don't believe her vague, nonspecific comments meet that.

[00:29:39] Speaker 02:
Do you agree with that?

[00:29:43] Speaker 02:
opposing counsel's view that those things could be considered in the hostile work environment context.

[00:29:47] Speaker 02:
In other words, the reaction to the letter was something that is open fodder for considering to be hostile work environment.

[00:29:59] Speaker 01:
If there was competent and reasonable evidence of that, yes.

[00:30:01] Speaker 01:
The statement that Ms.

[00:30:04] Speaker 01:
Leal's co-workers were incensed is nowhere in the record.

[00:30:08] Speaker 01:
That's not the fact in this case.

[00:30:16] Speaker 01:
He speculated that he had no problem with the letter.

[00:30:19] Speaker 01:
He speculated that we have some people who are, I think he said, are redneck and kind of chumpers, who they probably didn't like it.

[00:30:26] Speaker 01:
But he doesn't know.

[00:30:27] Speaker 01:
And Mr. Wheelock didn't oppose any of those co-workers.

[00:30:30] Speaker 01:
Nobody has testified.

[00:30:32] Speaker 01:
I was ticked off about that.

[00:30:34] Speaker 02:
Well, and beyond being ticked off about it, Fox speculated as it relates to that, but did he indicate that anybody overtly demonstrated their ire about the letter?

[00:30:45] Speaker 01:
I don't remember.

[00:30:46] Speaker 01:
I think it was... I don't remember that in the record.

[00:30:49] Speaker 01:
If I remember, it's a testimony that it was just you just sitting there speculating.

[00:30:53] Speaker 01:
I blew my time's up, but I'm happy to answer any questions anybody else has.

[00:30:58] Speaker 02:
Hearing none.

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

[00:31:01] Speaker 02:
Thank you, James.

[00:31:04] Speaker 02:
All right, we'll go for a minute of rebuttal.

[00:31:12] Speaker 00:
Thank you.

[00:31:13] Speaker 00:
I want to focus directly on the letter.

[00:31:15] Speaker 00:
It was recorded by her coworkers to the supervisor in HR about her posting the letter as a complaint, saying it was inappropriate.

[00:31:26] Speaker 00:
It's obvious that they didn't like it.

[00:31:27] Speaker 00:
It's obvious that they were angry about it.

[00:31:29] Speaker 00:
Mr. Fox said just as much himself.

[00:31:32] Speaker 00:
Why would they have reported her posting a governor's letter to state employees in her personal workspace if they weren't offended, if they did not like it?

[00:31:40] Speaker 02:
But is there any testimony that any of their ire about the letter was communicated to her?

[00:31:45] Speaker 00:
I do not believe so, but the temporal proximity of her posting that letter, and then right after that, Mr. Fox yelling at her, threatening her, and her being suspended

[00:31:56] Speaker 00:
and all these people bringing up complaints and essentially asking for and hoping for Ms.

[00:32:03] Speaker 00:
Aliha to be terminated.

[00:32:06] Speaker 00:
And then Ms.

[00:32:07] Speaker 00:
Prescott doing everything she can to justify the termination.

[00:32:12] Speaker 04:
How is the reaction to posting the letter discriminatory?

[00:32:19] Speaker 04:
What if anyone else had posted the letter and people were upset that some other person posted the letter?

[00:32:26] Speaker 04:
What brings this, I mean, where is it relevant to your clients?

[00:32:31] Speaker 00:
It's relevant in the temporal proximity to the events that a court occurred within a week later of the arguments, the yelling, and then these people going to her supervisor and complaining about her.

[00:32:43] Speaker 00:
It shows the temporal proximity between that, it upsetting them, and them trying to get her fired is why it's relevant.

[00:32:51] Speaker 00:
And that is ultimately where the relevancy comes in, is that when she

[00:32:56] Speaker 00:
I apologize, I'm way over my time.

[00:32:59] Speaker 02:
No, I answer the question.

[00:33:00] Speaker 00:
When she stands up for, when she posts about discrimination, that she, you know, when she stands up, when she, essentially action, action of standing up against it,

[00:33:11] Speaker 00:
the racial national origin becomes even worse.

[00:33:15] Speaker 00:
And it culminates in this argument and fight and termination.

[00:33:19] Speaker 00:
That's where the relevance comes in, is that it's this building this simmering, continuous thing that intensified, as it did, frankly, across the country at that time, culminating in this posting a letter.

[00:33:32] Speaker 00:
And then right afterwards, we find that we have this incident.

[00:33:37] Speaker 00:
Thank you very much.

[00:33:39] Speaker 02:
Thank you, Council.

[00:33:40] Speaker 02:
The case is submitted.

[00:33:41] Speaker 02:
Thank you for the fine arguments.

[00:33:43] Speaker 02:
We are going to now take the break for about 10 minutes and we'll be back.