[00:00:00] Speaker 04:
Next argument before us is 23-3145, Fannisdale versus Kansas.

[00:00:09] Speaker 01:
Thank you, Your Honor.

[00:00:10] Speaker 01:
I'm Alan Johnson, and I represent the three appellants who remain in this case.

[00:00:16] Speaker 01:
And I would like to reserve three minutes of my time for rebuttal.

[00:00:20] Speaker 01:
As the Court knows from reading the briefs, all three of the plaintiffs who remain in the case have filed asserted

[00:00:27] Speaker 01:
Title VII hostile work environment claims against the Kansas Highway Patrol.

[00:00:33] Speaker 01:
In addition, one of the plaintiffs, Jarrah Cooper, has filed a 1983 First Amendment claim against the former superintendent of the Highway Patrol, Herman Jones, in his personal capacity.

[00:00:47] Speaker 01:
Because of my limited time here, I want to focus just on the hostile work environment claims of Ms.

[00:00:54] Speaker 01:
Fannin-Steele,

[00:00:55] Speaker 01:
and Ms.

[00:00:56] Speaker 01:
Harrington because those are the more complicated claims.

[00:01:00] Speaker 01:
And my main contention is that the district court in considering the hostile work environment claims of Ms.

[00:01:08] Speaker 01:
Harrington and Ms.

[00:01:09] Speaker 01:
Fannin-Steele did not consider the totality of the circumstances which this court has made clear must be considered.

[00:01:17] Speaker 01:
Now, taking Ms.

[00:01:18] Speaker 01:
Fannin-Steele first, she was the

[00:01:21] Speaker 01:
At the time of the events in this lawsuit, she was the human resources director for the Kansas Highway Patrol.

[00:01:28] Speaker 01:
She testified that there were four hostile acts directed toward her by Mr. Jones and that one of those involved a sexually suggestive text message or instant message that she found to be offensive.

[00:01:47] Speaker 01:
The other three are more complicated and are described in the brief, but the district court found that at least that first text message or instant message, which had an emoji with a tongue hanging out and referred to a couch in the office, was at least arguably sex-related.

[00:02:05] Speaker 01:
And so she found that there was at least one act towards Ms.

[00:02:10] Speaker 01:
Vanesteele that was sex-related.

[00:02:13] Speaker 01:
What the district court didn't consider, we contend, is

[00:02:17] Speaker 01:
that there were other acts of sexual harassment that Ms.

[00:02:20] Speaker 01:
Fannin-Steele was aware of that was direct against other women in the work environment.

[00:02:28] Speaker 01:
And this court has made clear in several cases that in looking at the totality of the circumstances, you must look at not only the acts directed toward a plaintiff, but also acts directed towards other women in the work.

[00:02:42] Speaker 01:
And you said there were two other instances

[00:02:45] Speaker 01:
The claim there's actually three, Judge.

[00:02:46] Speaker 01:
In fact, the district court... Could you just refresh my memory on... Yes, the district court... Give me five words on each of the three.

[00:02:53] Speaker 01:
Okay, one of them was Amber Harrington, who I'll talk about in a minute, and what her issues are.

[00:03:02] Speaker 02:
The other one... The touchings.

[00:03:04] Speaker 01:
Right.

[00:03:05] Speaker 01:
The other one was Kimberly Meader, who was a former plaintiff, and there were four incidents being hugged by

[00:03:14] Speaker 01:
Mr. Jones.

[00:03:15] Speaker 01:
And the third was Natasha McCurdy, who was also a plaintiff originally.

[00:03:20] Speaker 01:
And she testified that she was hugged by Mr. Jones on three occasions and that that made her feel uncomfortable.

[00:03:27] Speaker 01:
Now, all of those allegations are in the record because all three of them, two of them remain plaintiffs.

[00:03:34] Speaker 01:
The other one, Miss McCurdy, actually Miss Meader and Miss McCurdy are no longer plaintiffs, but their testimony is in the record.

[00:03:43] Speaker 01:
And Ms.

[00:03:43] Speaker 01:
Fanon-Steele testified that Ms.

[00:03:46] Speaker 01:
Harrington and Ms.

[00:03:48] Speaker 01:
Meeder came to her and complained to her about Mr. Jones in her capacities as the human resources officer.

[00:03:57] Speaker 01:
Now Ms.

[00:03:57] Speaker 01:
McCurdy testified that she did not initially complain, but that Ms.

[00:04:03] Speaker 01:
Fanon-Steele, who'd heard rumors about conduct directed towards her call,

[00:04:10] Speaker 01:
Ms.

[00:04:10] Speaker 01:
McCurdy, and Ms.

[00:04:11] Speaker 01:
McCurdy then testified I told her about all of these instances.

[00:04:15] Speaker 01:
So the district court, we believe, did not consider those.

[00:04:20] Speaker 01:
All the district court looked at were the four incidents directed directly towards Ms.

[00:04:25] Speaker 01:
Fanon-Steele and not the larger totality of the hostile work environment that Ms.

[00:04:33] Speaker 00:
Fanon-Steele was seeing.

[00:04:34] Speaker 00:
Counsel, when you mentioned the totality, the severity and pervasiveness or independence

[00:04:39] Speaker 00:
means, would you say that all this wrapped up into one could be both determined to be both severe and pervasive, or is it more go to pervasive?

[00:04:50] Speaker 01:
It goes to both.

[00:04:51] Speaker 01:
It's my contention, a reasonable jury could find, when all of them are wrapped up together, that it was either pervasive and or severe.

[00:05:01] Speaker 01:
Because some of the acts interfered with their conduct.

[00:05:04] Speaker 01:
Many of the acts were physical touchings, which the court has said is important.

[00:05:09] Speaker 01:
to look at.

[00:05:10] Speaker 01:
So yes, my contention is that jury could reasonably find them to be pervasive and or severe.

[00:05:17] Speaker 04:
The cases that you rely on as the physical touching, they go way beyond a hug, don't they?

[00:05:24] Speaker 01:
Yes.

[00:05:24] Speaker 04:
I mean, it's essentially an assault.

[00:05:26] Speaker 01:
Yes.

[00:05:27] Speaker 04:
So I mean, we're not looking at the kind of severity

[00:05:32] Speaker 04:
that we have faced in some of those other cases.

[00:05:35] Speaker 01:
Well, it depends on how you look at the record in terms of the hug.

[00:05:40] Speaker 04:
Well, one of them touching, she wasn't even aware it happened until somebody told her later, right?

[00:05:45] Speaker 01:
That's true.

[00:05:46] Speaker 01:
And that's the least severe of those.

[00:05:48] Speaker 01:
There are other ones in which it was a chest hug that lasted a long time, that Colonel Jones wrapped his hands around the body and that they felt very uncomfortable.

[00:05:58] Speaker 01:
There was another one in which he didn't touch her,

[00:06:01] Speaker 01:
Testimony was he stood behind her, breathed.

[00:06:04] Speaker 01:
She could tell him breathing behind her, and then made a remark about shaking it for her.

[00:06:11] Speaker 01:
Again, those are not what the courts have called uncivil actions.

[00:06:16] Speaker 01:
Those are actions that have physical components to it.

[00:06:19] Speaker 01:
And certainly, our contention is that whether or not they're severe and pervasive should be decided by the jury because, as this court had said many times, hostile work environment claims

[00:06:31] Speaker 01:
are quintessentially jury questions.

[00:06:35] Speaker 01:
So unless the court has any questions on Ms.

[00:06:38] Speaker 01:
Fannin's deal, I would like to turn to Ms.

[00:06:41] Speaker 01:
Harrington's claims.

[00:06:43] Speaker 01:
Now, Ms.

[00:06:44] Speaker 01:
Harrington is still employed by the Highway Patrol.

[00:06:47] Speaker 01:
And at the time of the incidents involved here, she was in charge of security at the Kansas Capitol Building.

[00:06:55] Speaker 01:
And she testified that there were three incidents where Mr. Jones touched her.

[00:07:01] Speaker 01:
And Judge McHugh, as you pointed out, in one of those, she also testified, conceded she did not remember one of those.

[00:07:09] Speaker 01:
But the second one was more than not remembering it.

[00:07:12] Speaker 02:
Didn't she indicate that she didn't deem it to be an inappropriate action?

[00:07:20] Speaker 02:
And somebody came up to her and said, well, didn't you see this?

[00:07:24] Speaker 02:
And she said, no.

[00:07:25] Speaker 01:
Right.

[00:07:26] Speaker 02:
OK.

[00:07:27] Speaker 02:
So it was not misremembering.

[00:07:29] Speaker 02:
Right.

[00:07:30] Speaker 02:
not deeming it to be a problem.

[00:07:33] Speaker 02:
Correct.

[00:07:34] Speaker 02:
So did that make it two instances rather than three?

[00:07:37] Speaker 01:
I would go back to two, because subjectively, she may have felt that way.

[00:07:41] Speaker 01:
But objectively, she didn't.

[00:07:44] Speaker 01:
Now, the key in Ms.

[00:07:45] Speaker 01:
Harrington's, though, is that in looking at totality of the circumstances, you have to look at the retaliatory acts at Mr. Jones primarily.

[00:07:54] Speaker 04:
And is this the placement of manpower at the state?

[00:07:59] Speaker 04:
Is that what you're talking about?

[00:08:00] Speaker 01:
No.

[00:08:00] Speaker 01:
What I'm actually talking about, which the district court I contend did not view the record most clearly, was the fact that after Ms.

[00:08:09] Speaker 01:
Harrington filed this lawsuit, then Colonel Jones took retaliatory actions against her.

[00:08:16] Speaker 01:
We contend in response to the filing of this lawsuit.

[00:08:20] Speaker 02:
But those acts, allegedly, even the evidence indicated, did not start till 2021?

[00:08:28] Speaker 01:
Correct, right after this lawsuit was filed, which makes it very similar to the Chavez versus New Mexico case in which this court said that retaliatory acts have to be considered on hostile work environment claim, even though those retaliatory acts in the Chavez case were not actionable by themselves.

[00:08:47] Speaker 01:
And in that case, those retaliatory acts... Were those exhausted?

[00:08:51] Speaker 01:
In this case?

[00:08:51] Speaker 01:
Yes.

[00:08:52] Speaker 01:
No, they don't have to be.

[00:08:54] Speaker 01:
My contention is that she exhausted by filing her first EEOC complaint in September of 2020.

[00:09:02] Speaker 01:
She then got a right to sue letter and filed this lawsuit.

[00:09:06] Speaker 01:
And then the filing of this lawsuit was what prompted those other actions.

[00:09:10] Speaker 01:
And this court in the Ford versus Jackson Life insurance case said that as long as there is a hostile work environment as a single act or single violation law,

[00:09:21] Speaker 01:
with many component parts.

[00:09:23] Speaker 01:
As long as one of those component parts is exhausted, the other ones both pre and post 300 days do not have to be because as long as they form one part of the same hostile work environment, the same component.

[00:09:38] Speaker 04:
The retaliation claim is separate from the hostile work environment claim, isn't it?

[00:09:42] Speaker 01:
No.

[00:09:43] Speaker 01:
It is part and parcel of that.

[00:09:45] Speaker 01:
That's what this court has said

[00:09:47] Speaker 01:
in the Chavez versus New Mexico case.

[00:09:51] Speaker 01:
Again, I'm relying upon that because in that case, the retaliatory acts were because she filed the lawsuit.

[00:09:57] Speaker 01:
That's what happened in this case.

[00:09:58] Speaker 01:
There are a variety of retaliatory acts, but I contend that the strongest retaliatory acts are after she files this lawsuit.

[00:10:08] Speaker 01:
Mr. Jones gets served personally summons, and then nine days after that, he orders

[00:10:15] Speaker 01:
an internal investigation of Ms.

[00:10:17] Speaker 01:
Harrington.

[00:10:18] Speaker 00:
But wasn't that based upon a complaint made by another female employee against her?

[00:10:23] Speaker 01:
That was originally started out that way, and then it was determined that that female complaint was not substantiated, but they found that she was insubordinate based upon her own statements.

[00:10:36] Speaker 00:
But at what point was that developed and that determination made about it not being substantiated?

[00:10:41] Speaker 01:
Well, the timeline is important because she

[00:10:44] Speaker 01:
was there was an investigation going on for approximately a month that she was not told about.

[00:10:51] Speaker 01:
Colonel Jones approved the investigation without notifying her, which the Lieutenant Colonel DeVore testified was unusual, and his experience had not ever been done in the last three years.

[00:11:06] Speaker 01:
Then after a month, they suspended her, not they, Colonel Jones,

[00:11:12] Speaker 01:
put her on administrative leave, cut her off with all contact with the highway patrol, and then continued to investigate that.

[00:11:20] Speaker 01:
Then Ms.

[00:11:21] Speaker 01:
Harrington gets notice that the original complaint about her was unsubstantiated, but that this insubordination claim was substantiated.

[00:11:30] Speaker 01:
Now, she denied that in her deposition.

[00:11:33] Speaker 01:
But furthermore, even after she had been notified that there has been substantiation of the claim,

[00:11:39] Speaker 01:
She remains on administrative leave, which obviously interfered with her ability to perform her duties for another six weeks.

[00:11:47] Speaker 01:
And then she gets returned, and all of those actions are by Colonel Jones.

[00:11:51] Speaker 01:
He's the head of the agency.

[00:11:53] Speaker 01:
He's the only one who can order an internal investigation.

[00:11:57] Speaker 01:
He's the only one who can order somebody to come back to work.

[00:12:00] Speaker 01:
He's the only one who can decide to fire somebody.

[00:12:02] Speaker 00:
There's a record support that Ms.

[00:12:04] Speaker 00:
Harrington or Trooper Harrington, Captain Harrington, I think, was aware of other hostile work environment claims made by other women employees of the Kansas Highway Patrol, similar to the Fannin's deal.

[00:12:14] Speaker 00:
Yes.

[00:12:15] Speaker 01:
In fact, she testified, Ms.

[00:12:16] Speaker 01:
Fannin's deal told her about that.

[00:12:18] Speaker 01:
She also testified that all five of the women were interviewed on the same day by a television reporter.

[00:12:26] Speaker 01:
And my contention is a logical reasonable inference from that is that they knew

[00:12:32] Speaker 01:
what each other claims were.

[00:12:33] Speaker 04:
You know, the record is so vague on those television interviews.

[00:12:38] Speaker 04:
We don't know who said what or what one person knew about the other person's complaints.

[00:12:45] Speaker 04:
I mean, it's not even clear to me that they were all present when one of them was being interviewed or if they ever saw the tape.

[00:12:53] Speaker 04:
I mean, that doesn't really help us much here.

[00:12:57] Speaker 01:
I agree with that, but Ms.

[00:12:59] Speaker 01:
Harrington, it's important

[00:13:01] Speaker 01:
her mind still works for the highway patrol.

[00:13:03] Speaker 01:
So there's no end to her hostile work environment claim.

[00:13:06] Speaker 01:
And she certainly knew about the allegations of all the other plaintiffs when this lawsuit was filed in January of 2020.

[00:13:12] Speaker 01:
I see, unless the court has any other questions, I'd like to reserve what little time I have for rebuttal.

[00:13:20] Speaker 04:
Thank you.

[00:13:21] Speaker 01:
Thank you.

[00:13:29] Speaker 03:
I represent the state of Kansas primarily, the Kansas Highway Patrol's actions in this case, and also Herman Jones individually.

[00:13:39] Speaker 03:
There are two issues that are on appeal.

[00:13:41] Speaker 03:
The first is the Title VII hostile work environment.

[00:13:44] Speaker 03:
that he's discussed, and I suppose that I'll probably spend most of my time discussing.

[00:13:50] Speaker 03:
The second is a First Amendment prior restraint claim.

[00:13:53] Speaker 03:
I just want to be sure that the court understands it's a prior restraint claim, because that has a completely different analysis than a typical First Amendment claim.

[00:14:03] Speaker 03:
I want to note that this started with six plaintiffs, five to 10 defendants, and we've kind of whittled it all down.

[00:14:13] Speaker 03:
And now what we have are just these three.

[00:14:16] Speaker 03:
Two of them are former employees.

[00:14:20] Speaker 03:
One is a current employee.

[00:14:21] Speaker 03:
And they have sort of gathered together everything that they've been complaining about and said, now, the only thing we really still want to advance is a sexual harassment hostile work environment claim.

[00:14:35] Speaker 03:
And so the two things that you have asked about, well, first off,

[00:14:40] Speaker 03:
One thing that is different about each of these women is they worked in different places.

[00:14:45] Speaker 03:
I mean, we can't have an assumption that they were observing anything.

[00:14:48] Speaker 03:
The record will show that Ms.

[00:14:49] Speaker 03:
Harrington worked in what they call the docking building because she was in charge, Captain Harrington, was in charge of the guards at our capital.

[00:14:59] Speaker 03:
Ms.

[00:14:59] Speaker 03:
Mater was more like an administrative assistant at the headquarters, and then Ms.

[00:15:04] Speaker 03:
Cooper worked about two hours away, or no, an hour away, because that's kind of part of what they argued about is how long it would take her to drive back and forth between Topeka and Manhattan.

[00:15:14] Speaker 03:
One thing they do have in common is none of them ever heard a sexist comment, a bad joke,

[00:15:21] Speaker 03:
you know, was showing any pictures.

[00:15:23] Speaker 03:
None of them were hit on.

[00:15:24] Speaker 03:
There was no evidence here of any kind of statements that women don't belong in the workplace.

[00:15:29] Speaker 03:
None of that kind of thing.

[00:15:30] Speaker 03:
Well, but that's not what they're... I mean, their claim isn't...

[00:15:33] Speaker 04:
that kind of harassment, it's unwanted touching, right?

[00:15:39] Speaker 04:
Yes.

[00:15:39] Speaker 04:
And not treating them as favorably as the men.

[00:15:43] Speaker 03:
And the reason that I think, though, that it's important to point that out is in these cases where they've taken what they call gender neutral conduct and combined it with gender motivated conduct, one of the things you'll notice in all of those cases is that there are statements or actions

[00:16:01] Speaker 03:
that make you say, ah, the gender neutral conduct must have been motivated by that other conduct, because they say things like, you know, women are incompetent, or they make sexual comments.

[00:16:13] Speaker 03:
They say those kinds of things.

[00:16:15] Speaker 03:
So I think it is important that we don't have any of these actors making those kinds of statements.

[00:16:20] Speaker 04:
Well, I mean, if I make no comments but I never promote a woman and only promote men,

[00:16:25] Speaker 04:
I think you can still see what's going on.

[00:16:28] Speaker 04:
I mean, I don't think we require those comments.

[00:16:31] Speaker 03:
I don't think it required, but you'll note that in the cases he relies on, those are present.

[00:16:36] Speaker 03:
So I do think that that's a distinction to take some note of.

[00:16:40] Speaker 02:
Was it Harrington on one of the two touches said that she felt icky or it was inappropriate?

[00:16:51] Speaker 03:
Um, the very first time they met, her testimony there is the very first time they met, he tapped her on the back of the shoulder and she said,

[00:16:59] Speaker 03:
Don't do that.

[00:17:00] Speaker 03:
That's inappropriate.

[00:17:01] Speaker 03:
He said oh, I take it back and he didn't just say I take it back He touched her again.

[00:17:06] Speaker 03:
Yes, he did he's a clown.

[00:17:09] Speaker 04:
I mean he's a He doesn't come across as a clown he comes across as a problem But the question is whether it raises to the level of a hostile work environment that happened in August

[00:17:21] Speaker 03:
He touched her again in October.

[00:17:23] Speaker 03:
She says that as he was reaching for her hand, as he shook the hands of all the men in the room, that he put his hand down her arm and stood close to her.

[00:17:33] Speaker 03:
That was in October, so a couple of months later.

[00:17:36] Speaker 03:
December is the one that you've already referred to, Judge Murphy, where she didn't even realize until somebody said later, oh, I think he was touching your shoulders, and that was inappropriate.

[00:17:44] Speaker 03:
And then you have from December until eight months later when her supervisor is replaced by

[00:17:50] Speaker 03:
Andrew Dean, where you don't have anything by anybody that she is complaining about.

[00:17:55] Speaker 03:
She begins to complain because, or she complains in her briefing, that Andrew Dean gave her assignments that she thought were setting her up wrong.

[00:18:04] Speaker 03:
And then after that, there is the report by the subordinate that she is creating a hostile work environment in their crew.

[00:18:16] Speaker 03:
And there's no evidence in this record anywhere.

[00:18:18] Speaker 03:
any of these supervisors had anything to do with that report.

[00:18:23] Speaker 03:
When they begin to investigate that report, they have not had the records clear.

[00:18:27] Speaker 03:
They've not had that kind of report with somebody who's this high ranking before.

[00:18:30] Speaker 03:
I mean, it goes Colonel, Major, and the Captain.

[00:18:34] Speaker 03:
So she's a very high ranking person in this sort of military title kind of job.

[00:18:39] Speaker 03:
And so they don't tell her.

[00:18:40] Speaker 03:
because she has control over a lot of things.

[00:18:43] Speaker 03:
And it is not, unlike what he said, it's not Colonel Jones who makes that decision.

[00:18:48] Speaker 03:
The people in what we call in Kansas PSU, but you might think of them from TV instead of internal affairs, they said, she's high ranking.

[00:18:56] Speaker 03:
Will you give us permission to not tell her while we start the investigation?

[00:18:59] Speaker 03:
And he said yes.

[00:19:01] Speaker 03:
During that investigation, as you asked Judge Federico,

[00:19:05] Speaker 03:
They did uncover that several of the people who worked for her said she was saying insubordinate things.

[00:19:12] Speaker 03:
She was called the Colonel a dirty old man.

[00:19:16] Speaker 03:
She said that he didn't care about him.

[00:19:18] Speaker 03:
There was a whole list of things.

[00:19:20] Speaker 03:
They found the original complaint to be unsubstantiated, but that she was insubordinate and had been fostering unrest against the Colonel with her group.

[00:19:33] Speaker 03:
And so after they make that finding,

[00:19:36] Speaker 03:
Her supervisor, Andy Dean, there is nothing.

[00:19:38] Speaker 03:
He never touched her.

[00:19:39] Speaker 03:
He never said anything negative.

[00:19:41] Speaker 03:
He didn't do anything.

[00:19:42] Speaker 03:
Andy Dean gives her an unsatisfactory evaluation.

[00:19:45] Speaker 03:
He says, you've been insubordinate to me.

[00:19:48] Speaker 03:
I've told you to do things.

[00:19:49] Speaker 03:
You didn't do them.

[00:19:50] Speaker 03:
And PSU found you were insubordinate.

[00:19:52] Speaker 03:
So now you have had an unsatisfactory evaluation, and I'm going to put you on a hundred

[00:19:58] Speaker 03:
50-day performance plan.

[00:20:00] Speaker 00:
Counsel, can I ask you, you're talking about this one chain of events that plaintiffs argue is retaliatory, and you're saying, well, no, here's how we explain it.

[00:20:09] Speaker 00:
And we've been discussing different incidents where it's a hugging, and maybe it happened one way or maybe the other.

[00:20:16] Speaker 00:
As I hear us sort of dissecting all of these distinct either events or chain of events,

[00:20:23] Speaker 00:
I begin to struggle and think, well, aren't these quintessentially questions a fact?

[00:20:27] Speaker 00:
Why shouldn't the jury be deciding and see these people on a witness stand and hear them explain what happened to them?

[00:20:32] Speaker 00:
Why isn't that the right answer?

[00:20:34] Speaker 03:
Because could somebody have made that claim?

[00:20:37] Speaker 03:
Maybe.

[00:20:39] Speaker 03:
But in this record, you do not have them combined in some kind of hostile work environment.

[00:20:45] Speaker 03:
If we're just talking about Harrington, which is what I've just been talking about, there's not anything there that would connect what Andrew Dean did with her with being touched, let's call it two times frankly, a year before.

[00:20:59] Speaker 00:
But again, but maybe I think what happened to Captain Harrington, as I just hear it described, I think, well, maybe, you know, she's the classic eggshell plaintiff, perhaps.

[00:21:08] Speaker 00:
But she's also a high-ranking official in the Kansas Highway Patrol, who, as you noted, was entrusted to guard the state capitol.

[00:21:14] Speaker 00:
So, you know, she's a person of some achievement and esteem.

[00:21:17] Speaker 00:
And wouldn't the jury, you know, wouldn't they be better positioned to have her come in and explain, these are the events, this was the context of the events, and again, is it that?

[00:21:26] Speaker 00:
what our case law says, why these are questions of fact that a jury should decide.

[00:21:30] Speaker 03:
But in order to keep every woman who's employed and who is unhappy with their supervision or unhappy with her review, there are some requirements.

[00:21:38] Speaker 03:
One is it has to be somehow connected to her sex.

[00:21:41] Speaker 03:
And all she has to connect this to her sex is those two touchings a year before by somebody else.

[00:21:47] Speaker 03:
And then

[00:21:49] Speaker 03:
All of the things that Andrew did, there's no link between what Major Dean did and her sex.

[00:21:56] Speaker 03:
And we have the severe and pervasive.

[00:21:59] Speaker 03:
And you say, well, maybe she's an eggshell plaintiff.

[00:22:01] Speaker 03:
Well, she doesn't.

[00:22:02] Speaker 03:
It has to be subjective and objective.

[00:22:04] Speaker 03:
Subjective?

[00:22:05] Speaker 03:
OK, great.

[00:22:05] Speaker 03:
She's an eggshell plaintiff.

[00:22:06] Speaker 03:
It's too bad.

[00:22:08] Speaker 03:
Objective, other people would have to say, that's hostile work environment.

[00:22:12] Speaker 03:
Two touches on the shoulder.

[00:22:13] Speaker 03:
So, and he just said that she knew about them.

[00:22:16] Speaker 03:
You search this record.

[00:22:18] Speaker 03:
You will not find that Amber Harrington knew about all of these things.

[00:22:24] Speaker 03:
It's not in the record.

[00:22:27] Speaker 03:
I hate to be the kind of lawyer that points out that a record is poor, but

[00:22:31] Speaker 03:
You know, the court below said, well, you've said a bunch of stuff here, but none of it was attached, and it's not connected.

[00:22:37] Speaker 03:
And then even in this appeal, the same thing happened.

[00:22:40] Speaker 03:
He cited the pages, and it's not there.

[00:22:43] Speaker 03:
And in his reply brief, he says, well, but you acknowledged in the brief below that there had been some reports.

[00:22:50] Speaker 03:
And I'm like, you can't do that in your reply brief.

[00:22:53] Speaker 03:
You have to tell me what we're relying on before we get to the reply.

[00:22:59] Speaker 03:
I want to talk specifically though about the other evidence.

[00:23:04] Speaker 03:
So you've got Mrs. Harrington.

[00:23:06] Speaker 03:
Unless she brings you evidence that either the things that Andy Dean did were somehow connected to her gender or

[00:23:16] Speaker 03:
that these things that happened with other women were a part of her work environment.

[00:23:22] Speaker 03:
You can't just lump it all together and say, well, it sounds like it was pretty bad around there.

[00:23:28] Speaker 03:
So I want to go from Ms.

[00:23:30] Speaker 03:
Harrington to Ms.

[00:23:31] Speaker 03:
Fannin-Steele.

[00:23:32] Speaker 03:
Ms.

[00:23:32] Speaker 03:
Fannin-Steele was the HR director.

[00:23:35] Speaker 03:
the instant messages.

[00:23:37] Speaker 03:
I don't know if you need me to read them to you, but they are not sexual by any means.

[00:23:43] Speaker 03:
And he said something about how the court found they might have been gender-related.

[00:23:46] Speaker 03:
I think she used the phrase might.

[00:23:48] Speaker 03:
I mean, like, it was sort of like, well, okay, even if you thought these were gender-related, she didn't make a finding that they were gender-related.

[00:23:56] Speaker 03:
But fantasy still has that.

[00:23:57] Speaker 03:
That's in October of 2019.

[00:23:59] Speaker 03:
In December of 2019, she has Major Murphy, a different guy, who comes into her as the HR director, closes her door, and says, let me tell you what an employee did.

[00:24:10] Speaker 03:
And he gets right close to her.

[00:24:11] Speaker 03:
She says, you're in my space.

[00:24:12] Speaker 03:
And he's trying to show her something.

[00:24:15] Speaker 03:
So that's her second thing that she claims is based on sex.

[00:24:18] Speaker 03:
And then she has a discussion about a letter written to Colonel Jones.

[00:24:26] Speaker 03:
and her description of it, which we have to take at this point, is that they were angry about it and that Colonel Jones said, I'll find out who writes this letter.

[00:24:35] Speaker 03:
But it was a letter that was critical of both her and of Colonel Jones.

[00:24:41] Speaker 03:
And Lieutenant Colonel DeVore was in that meeting.

[00:24:46] Speaker 03:
She has no evidence in this record at all that he had anything to do with

[00:24:50] Speaker 03:
treating people unfairly because of their gender.

[00:24:53] Speaker 03:
He was a part of that discussion.

[00:24:54] Speaker 03:
And then the final thing is she says that DeVore and Jones would not listen to her HR recommendations during meetings

[00:25:06] Speaker 03:
between about February of 2020 and when she left in September of 2020.

[00:25:10] Speaker 03:
And again, no connection there.

[00:25:13] Speaker 03:
She doesn't say, they listen to the men in the room.

[00:25:16] Speaker 03:
She doesn't say, here's a recommendation I made that a man had made.

[00:25:19] Speaker 03:
There's no connection to her gender.

[00:25:22] Speaker 03:
And the way that they try to get around that is they say, well, she has these gender things, these instant messages and this visit with the major.

[00:25:32] Speaker 03:
It was brief and he wasn't involved in anything else.

[00:25:34] Speaker 03:
And that's enough for us to bring in these gender neutral things and ask the jury to decide, is this all a hostile work environment for her?

[00:25:42] Speaker 03:
And it's just not, the record is not there.

[00:25:46] Speaker 03:
Could somebody have made a record by doing that?

[00:25:48] Speaker 03:
Perhaps, but it's not in this record.

[00:25:51] Speaker 03:
And then finally, I want to talk just a minute about Ms.

[00:25:55] Speaker 03:
Mater and Ms.

[00:25:56] Speaker 03:
McCurdy.

[00:25:57] Speaker 03:
Ms.

[00:25:57] Speaker 03:
Mater worked in that same building.

[00:26:00] Speaker 03:
She had, let me see.

[00:26:02] Speaker 03:
They said she had five instances over the time, but one of them is he shakes her shoulders and says, why are you shaking it for me?

[00:26:10] Speaker 03:
One, he says, oh, feel how cold my hands are.

[00:26:12] Speaker 03:
One, he's breathing on her neck and asking her, is this making you feel uncomfortable?

[00:26:16] Speaker 03:
And then singing.

[00:26:17] Speaker 03:
And then he shook her hand when she came back from COVID.

[00:26:21] Speaker 03:
And when he reached for her hand, his hand touched her leg, which was because her hand was on her lap.

[00:26:26] Speaker 03:
And then he asked her about sitting crisscross applesauce in her chair and said, a lot of girls don't sit like that when they're in the office.

[00:26:35] Speaker 03:
That's it.

[00:26:36] Speaker 03:
That's, what, six months, six incidences, and not a single plaintiff in this who's left here observed any of that.

[00:26:47] Speaker 03:
And there's really not even good evidence that any of them ever knew about those things while Ms.

[00:26:52] Speaker 03:
Mater was there.

[00:26:53] Speaker 03:
There is this, by the time that they got to the television station, I don't know if they were interviewed together, I don't know who shared what.

[00:27:02] Speaker 03:
There's just not an evidentiary record from which you could conclude.

[00:27:06] Speaker 03:
Could that record maybe have been made?

[00:27:08] Speaker 03:
I don't know.

[00:27:09] Speaker 03:
But there's nobody who says, in October this happened, in November this happened.

[00:27:13] Speaker 03:
I found this particular thing out in May.

[00:27:16] Speaker 03:
Mrs. McCurdy or Ms.

[00:27:17] Speaker 03:
McCurdy,

[00:27:19] Speaker 03:
Trooper McCarty, actually, is a completely different story because she was in, she was in Salina, I think.

[00:27:26] Speaker 03:
I can't remember where she's stationed, but she's in a different city.

[00:27:30] Speaker 03:
And she has three interactions where he hugged her.

[00:27:33] Speaker 03:
Nobody was present during any of those.

[00:27:35] Speaker 03:
She never told him to stop.

[00:27:36] Speaker 03:
And then he says to her during a meeting, hey woman, woman, woman, did you bring your own lunch?

[00:27:42] Speaker 03:
Good for you.

[00:27:43] Speaker 00:
Those are her things.

[00:27:44] Speaker 00:
Can I ask you about the Cooper claims?

[00:27:46] Speaker 00:
Absolutely.

[00:27:47] Speaker 03:
Yes, yes, yes.

[00:27:48] Speaker 00:
About the prior restraint argument, is there evidence in the record that Trooper Cooper communicated to someone she had this letter, she intended to send it, but... Never.

[00:27:56] Speaker 03:
Never, never, never.

[00:27:56] Speaker 03:
Her whole claim is based on her saying that Colonel Jones had encouraged people to get in the canoe, which is basically, you know, he's trying to run the thing, and he says everybody needs to be paddling in the same canoe, and that he put that in the newsletter, wasn't there,

[00:28:12] Speaker 03:
And then they pointed to him saying we should protect the reputation of the highway patrol.

[00:28:21] Speaker 03:
Thank you.

[00:28:22] Speaker 03:
Thank you.

[00:28:29] Speaker 01:
Since I didn't address Ms.

[00:28:30] Speaker 01:
Cooper's claim in my first part, I'd like to very briefly describe what that was.

[00:28:36] Speaker 01:
Ms.

[00:28:36] Speaker 01:
Cooper testified that she prepared a letter that she intended to send to the governor.

[00:28:41] Speaker 01:
The letter was part of the record and she testified that she did not send it because she felt that Mr. Jones, Colonel Jones had threatened their jobs.

[00:28:52] Speaker 01:
And the best evidence of the threat comes from Colonel Jones himself in which he admitted yes when he would have in training sessions he would tell the people that we've all got to be in the same canoe and row the same way and people who are not in my canoe will be dealt with.

[00:29:06] Speaker 01:
And he further admitted that

[00:29:07] Speaker 01:
that two people who were not in his canoe had been terminated.

[00:29:12] Speaker 01:
She reasonably assumed from that if she was not in his canoe, if she criticized him to the governor, she would be fired.

[00:29:19] Speaker 01:
And that's the chilling of her speech.

[00:29:22] Speaker 01:
That's the claim.

[00:29:22] Speaker 04:
Even assuming that Ms.

[00:29:24] Speaker 04:
Cooper has standing on a First Amendment claim, she didn't raise any argument in response to the qualified immunity defense

[00:29:36] Speaker 04:
in the district court.

[00:29:38] Speaker 04:
So hasn't she waived that?

[00:29:39] Speaker 01:
No, she did.

[00:29:40] Speaker 01:
She sided the wolf versus city of Wichita, which talks about what is a matter of public concern.

[00:29:47] Speaker 01:
And in a First Amendment claim, that's really the essence of that claim.

[00:29:52] Speaker 04:
The fact that you sided wolf, but you didn't make any argument about the two prongs of qualified immunity isn't preserving it.

[00:30:01] Speaker 01:
Well, we argued that it meant the public concern issue, which was at the heart of that claim.

[00:30:08] Speaker 01:
I see I'm out of time.

[00:30:09] Speaker 04:
All right, thank you.

[00:30:10] Speaker 04:
We will take this matter under advisement.