[00:00:03] Speaker 04:
Good morning and may it please the court, Kathleen Hartnett, on behalf of the structure entities and Dr. Stevens.

[00:00:09] Speaker 04:
I'd like to reserve four minutes for rebuttal and we'll watch the clock.

[00:00:12] Speaker 05:
All right.

[00:00:14] Speaker 04:
Your honors, there are multiple independent reasons that the court should reverse the district court's order and compel arbitration, statutory interpretation, waiver, and failure to state a claim.

[00:00:25] Speaker 04:
I will address these in turn and, of course, welcome the court's questions.

[00:00:30] Speaker 04:
First and the most straightforward resolution is to reverse the district court's ruling, misinterpreting the EFAA to allow something that Congress never provided for, which is a plaintiff who elects to proceed in arbitration and then purports to withdraw from the arbitration after over a year of arbitrating and then refiling suit in court, adding a sexual harassment claim in an attempt to avoid further arbitration, even though as the district court

[00:00:57] Speaker 04:
recognized in its opinion, and this is at ER 30, that the plaintiff's non-sexual harassment claims are based on the same underlying facts as the sexual harassment claim.

[00:01:08] Speaker 04:
So we would respectfully submit there's no support in the EFAA for this use of the statute.

[00:01:14] Speaker 04:
This is not a criticism of the EFAA or an attempt to limit it.

[00:01:17] Speaker 04:
It's an attempt to apply it.

[00:01:19] Speaker 04:
And the one other court that has reached a similar, it's been presented with a similar issue is the Ramirez case in Colorado,

[00:01:26] Speaker 04:
reach the same conclusion that a withdrawal and then attempt to move to court after starting an arbitration is improper under the EFAA.

[00:01:36] Speaker 01:
The EFAA's language... Council, the withdrawal was actually based on the California provision about the payment of late fees and not under the EFAA, so how does that affect your argument?

[00:01:49] Speaker 01:
I understand your point that you argue that it's preempted by the FAA, but if the mechanism of withdrawal is not actually under the EFAA, are we dealing with a withdrawal claim or an election to proceed with a new claim?

[00:02:04] Speaker 04:
That's a great question.

[00:02:05] Speaker 04:
I think either way you look at it, the EFA doesn't support it.

[00:02:08] Speaker 04:
The district court looked at it more through the election lens.

[00:02:11] Speaker 04:
But let me just one quick update for the court on the CCP ground, the actual ground that was the purported basis for the withdrawal.

[00:02:20] Speaker 04:
In 2025, the California Supreme Court in the Hohenschelt case, and this is not in the briefs because it wasn't raised as an alternative ground for affirmance or something else, has actually determined that essentially you can still challenge,

[00:02:34] Speaker 04:
Basically, you can get relief from a nonpayment if the nonperformance is not willful, fraudulent, or grossly negligent.

[00:02:41] Speaker 04:
And so the California Supreme Court has clarified that the kind of technically, you know, kind of harsh reading of 1291.98 is not the right reading of the statute.

[00:02:52] Speaker 04:
And so even though here the district court applied a kind of technically harsh reading of the statute and found it preempted, the California Supreme Court has since basically held that that would not have been an appropriate basis for withdrawal.

[00:03:04] Speaker 04:
So I just wanted to bring that to the court's attention if there's curiosity about what the status would be of the FAA preemption claim.

[00:03:10] Speaker 04:
But the point you're making, and I think the basis was supposedly under the CCP rule and not under the EFAA.

[00:03:19] Speaker 04:
And so what really should have happened is once the district court at that point determining that the CCP rule was preempted, it should have sent the case back without anything further because there's nothing in the EFAA that would have purported to allow the withdrawal.

[00:03:33] Speaker 04:
And we point this out in our brief, but the CCP provision expressly provides that a party can withdraw upon the non-payment.

[00:03:42] Speaker 04:
There's no language in the EFAA.

[00:03:43] Speaker 01:
And I take it your argument about the EFAA is election and waiver are almost two sides to the same coin.

[00:03:52] Speaker 04:
I actually think it's partially the withdrawal and election are kind of two sides of the same coin.

[00:03:56] Speaker 04:
It doesn't allow the withdrawal and it doesn't kind of allow you to reelect later.

[00:04:00] Speaker 04:
What the judge below did

[00:04:02] Speaker 04:
was sort of just look with tunnel vision at what was before her and said, OK, you're facing a motion to compel arbitration.

[00:04:08] Speaker 04:
You're opposing it.

[00:04:09] Speaker 04:
At that point, you're electing.

[00:04:11] Speaker 01:
So what statutory language are you relying on for waiver, since EFA does not speak to waiver itself?

[00:04:17] Speaker 01:
The word waiver's not in there.

[00:04:18] Speaker 04:
No, that's fair.

[00:04:18] Speaker 04:
And in our brief points out, it doesn't expressly say that.

[00:04:20] Speaker 04:
But the court has generally read into statutes like this that they would be a waivable right.

[00:04:26] Speaker 04:
But I do think we have two separate arguments that the plaintiff has blurred into one.

[00:04:31] Speaker 04:
One is just a statutory interpretation argument that there was no basis for either a withdrawal under the FAA or a reelection under the FAA because Section 402A allows for an election.

[00:04:44] Speaker 04:
And then separately, even if the statute was allowed to account for some situation where you could withdraw or reelect, here there was a waiver because even if they had had some right to do that by arbitrating for an entire year,

[00:04:58] Speaker 04:
They had waived that right under the cases from this court, the Naguiam case.

[00:05:04] Speaker 04:
And then we cite some other cases.

[00:05:05] Speaker 01:
I mean, I understood the beginning of your argument to be that you were going to make a statutory interpretation argument.

[00:05:10] Speaker 01:
And so that's what I'm waiting for.

[00:05:11] Speaker 01:
What within the EFAA statute says that plaintiff was not allowed to make an election upon discovering sexual harassment claims?

[00:05:24] Speaker 01:
And I know you dispute the discovery piece as well, but just to start with the statutory interpretation, what is it about the statute that we should look to?

[00:05:32] Speaker 04:
that it doesn't provide for withdrawal or reelection, but simply election.

[00:05:36] Speaker 04:
So it's the language that is in the statute.

[00:05:38] Speaker 04:
I'm just referring to the 9 USC 402A, which is in our addendum.

[00:05:44] Speaker 04:
At the election of the person alleging conduct constituting a sexual harassment dispute, they can

[00:05:51] Speaker 01:
So why can't a person be in arbitration, discover a sexual harassment claim pending through discovery, and elect then to pursue that claim in state or federal court?

[00:06:02] Speaker 01:
Why is that not permitted by the statute?

[00:06:05] Speaker 04:
Just because the language of the statute provides for an election and not an additional election after you've commenced.

[00:06:12] Speaker 04:
So that would be the statutory interpretation argument, full stop.

[00:06:15] Speaker 01:
So what authority do you rely on for the notion that if the statute doesn't specifically say withdrawal, it's not permitted?

[00:06:25] Speaker 04:
Just the canons of statutory construction that we cited and also the example of the CCP in our brief where they actually, in that case, the California legislature provided for withdrawal as a potential remedy upon a nonpayment, not just an election.

[00:06:39] Speaker 04:
And we also cited an environmental statute that similarly envisions a withdrawal.

[00:06:44] Speaker 05:
So, counsel, is it your argument that the statute contemplates either arbitration or an action under the statute?

[00:06:56] Speaker 05:
Correct.

[00:06:56] Speaker 05:
But not both?

[00:06:58] Speaker 04:
That's right.

[00:06:59] Speaker 04:
And just two things on that point.

[00:07:01] Speaker 04:
One is I understand the point.

[00:07:02] Speaker 04:
What if something was discovered later?

[00:07:04] Speaker 04:
Did Congress really mean to exclude it?

[00:07:06] Speaker 04:
I think our point of view would be the FAA is the overall policy for arbitration.

[00:07:11] Speaker 04:
Our reply brief talks about how this was supposed to be a narrow exception.

[00:07:14] Speaker 04:
to for sexual assault and sexual harassment.

[00:07:17] Speaker 04:
And we have to apply the language as we find it.

[00:07:19] Speaker 04:
And this doesn't contemplate a withdrawal in the first place.

[00:07:22] Speaker 04:
So there was no real basis for her to even come out of the arbitration, nor a re-election, assuming that she could be in front of the district court at that point.

[00:07:32] Speaker 01:
Well, let me posit this.

[00:07:33] Speaker 01:
If we're interpreting the plain meaning of election, there are different definitions that speak to something knowing or intentional or something where there's knowledge that precedes that act of electing or choosing.

[00:07:47] Speaker 01:
And as plaintiffs are arguing, she was not aware of a viable sexual harassment claim at the time that arbitration was occurring.

[00:07:56] Speaker 01:
And the district court seemed to agree and said, well, I don't find any evidence that she intentionally chose not to pursue a sexual harassment claim.

[00:08:05] Speaker 01:
So why, to go back to my earlier question, why wouldn't that interpretation of the statute permit her upon this discovery of something new to then elect to proceed in state court instead of arbitration?

[00:08:18] Speaker 04:
So on the way the district court read it, it was not dependent on whether or not it was something new.

[00:08:23] Speaker 04:
The district court pointed that out as one of the reasons, but also said that, for example, a plaintiff could bring their claims, not mount the sexual harassment claim at first, wait to see if there was some larger

[00:08:33] Speaker 04:
out support or additional evidence and then bring the claim.

[00:08:37] Speaker 04:
And so I think our main point there would just be the statute does not provide for it.

[00:08:41] Speaker 04:
It clearly provides a choice.

[00:08:43] Speaker 04:
And there would really be a very negative incentive here then to bring an arbitration, withhold a sexual harassment claim in particular to see how things are going in arbitration, and then pick out a couple of pieces of evidence that you've found in arbitration to say now that you see you have a sexual harassment claim.

[00:08:59] Speaker 04:
and to try to move to federal court.

[00:09:01] Speaker 01:
What about the alternative possibility?

[00:09:03] Speaker 01:
Let's say someone is going into arbitration thinking they have a certain set of claims.

[00:09:08] Speaker 01:
They go through arbitration discovery and then they realize actually the motivating factor or at least one of the motivating factors behind this discrimination that I experienced or harassment is something gender-based.

[00:09:22] Speaker 01:
Could that person then elect, knowing now, a real choice to do this under the EFAA?

[00:09:27] Speaker 04:
I think we would say no in the terms that that would stretch elect too far when you're looking at the legislative history and even just the plain meaning of the word it's to make a choice and she already chose the arbitration form and that's kind of you get your chance in a case where as like I said the district court noted the corpus of evidence was the same except and this is where I do want to I hesitate to go too far in the weeds but they're really important here the district court was under a misimpression that discovery had created some brand new

[00:09:54] Speaker 04:
revelation that wasn't available to the plaintiff before, and that is not true, because sexual harassment is based on the notion of how you're being treated.

[00:10:01] Speaker 04:
The plaintiff brought a harassment claim in arbitration initially, but claimed national origin, not gender.

[00:10:08] Speaker 04:
And then, so that would mean that they had some, at that point, some basis to believe that they were in a harassing environment, and it wasn't until later.

[00:10:14] Speaker 04:
And so the only two things, and this is really critical, and I, the court may have already looked at this, but I would urge you to do so, the phenotype email that was three ER,

[00:10:23] Speaker 04:
359, and that basically lists two potential candidates that would be good fits for the role based on their experience.

[00:10:32] Speaker 04:
They both were men.

[00:10:33] Speaker 04:
And if that would be enough to take, say, here are examples of people I'm looking for, and there are two men to take the perceived experience and to shift it to sexual harassment, we submit it doesn't bear that weight.

[00:10:44] Speaker 04:
And this is really important as well.

[00:10:45] Speaker 04:
There's a narrative in the complaint adopted by the district court without scrutiny that the board somehow was

[00:10:52] Speaker 04:
pro-diversity, and Dr. Stevens was anti-diversity, and that's how we ended up in this situation.

[00:10:57] Speaker 04:
There is no support in the record.

[00:10:59] Speaker 04:
This has been subject to full discovery.

[00:11:01] Speaker 04:
There's no support for those allegations in the complaint, and I would direct the court to 3ER 297 to 299.

[00:11:06] Speaker 04:
That's Dr. Stevens' deposition testimony, which makes clear that he was the one that was helping to run the search.

[00:11:13] Speaker 04:
He agrees in questioning from plaintiffs' counsel that he asked for gender diversity and other diversity to be part of that search.

[00:11:20] Speaker 04:
So we would respectfully submit that even if there was room in elect to do the work, even if there's some room in the analysis of waiver to do this work for a case where there really was something revelatory and new, that here this really was not that situation.

[00:11:34] Speaker 04:
It's paragraphs 16 and 17 of the amended complaint.

[00:11:37] Speaker 04:
Our conclusory allegation is that the board had some other motive that is not supported by the record.

[00:11:43] Speaker 03:
Before you run out of time, I want to be sure you have a chance to address, if we get past waiver and election, why doesn't this allege a sexual harassment dispute?

[00:11:56] Speaker 04:
Yes, and I realize I'm happy to address both those things.

[00:12:00] Speaker 04:
Under California law, we would say there are three reasons you have to have conduct that objectively constitutes harassment.

[00:12:08] Speaker 04:
We made that argument in our brief, and we didn't see it responded to in theirs.

[00:12:11] Speaker 04:
They may just be saying, well, that's

[00:12:13] Speaker 04:
We just are saying the conduct is that.

[00:12:15] Speaker 04:
But the subjective prong is actually important.

[00:12:17] Speaker 04:
And they have resisted the notion that there is this need to have subjectively experienced the harassment as gender harassment.

[00:12:26] Speaker 04:
But we would direct the court to Jones and to Nichols.

[00:12:30] Speaker 04:
In both of those cases, it was clear that the court required in Jones, the person said she didn't know if the harassment was based on gender or race.

[00:12:37] Speaker 04:
And that made it not enough to be subjectively perceived as

[00:12:41] Speaker 04:
gender harassment, and Nichols likewise.

[00:12:44] Speaker 03:
Do you agree this is a question of California law at this point?

[00:12:52] Speaker 04:
Yeah, so there's basically a California harassment claim.

[00:12:55] Speaker 03:
There's also the New York claims, but it's a state law question.

[00:12:57] Speaker 04:
It is for both California and New York law.

[00:13:00] Speaker 03:
Because as a matter of ordinary understanding and maybe federal law as well, sexual harassment

[00:13:10] Speaker 03:
I think is ordinarily thought of as harassment that is sexual in nature.

[00:13:13] Speaker 03:
But as I read the California cases, you can have sexual harassment where the harassment itself is not of a sexual nature, but it's based on the gender of the plaintiff.

[00:13:25] Speaker 03:
And do you agree that that is a correct view of California law?

[00:13:28] Speaker 04:
We do.

[00:13:28] Speaker 04:
New York is in the camp that you've described, and I think that was well articulated in Singh.

[00:13:33] Speaker 04:
Although even if you don't

[00:13:34] Speaker 04:
for an alternative view to the Singh view that still understands the problem with the decision in this case, I would direct the court to Owens on the New York side.

[00:13:41] Speaker 04:
Because Owens said, no, we're not going to go as far to say it has to be sexual in New York, but it has to be more than just you treated me differently because of gender.

[00:13:48] Speaker 04:
And in fact, similar, instead basically Singh wouldn't pass that test.

[00:13:51] Speaker 04:
So I think between Singh and Owens, New York is covered.

[00:13:55] Speaker 04:
And then for California, I think you do have to look at the places that we think would do the work if we get to that analysis would be

[00:14:02] Speaker 04:
the subjective perception, which was admittedly not gender-based at the time, and the severe and pervasive.

[00:14:07] Speaker 04:
And the argument that the new California statute was a complete sea change is not correct.

[00:14:12] Speaker 04:
It did make a new direction to courts interpreting California law, but it retained the severe and pervasive requirement.

[00:14:19] Speaker 04:
And here, there are not allegations that anything was one, any one incident was severe with respect to gender or pervasive.

[00:14:27] Speaker 04:
She worked there for four months.

[00:14:30] Speaker 05:
Do you see a distinction between discrimination based on gender and harassment based on gender, or has California merged those two?

[00:14:43] Speaker 05:
That's the difficulty I had with this case is different treatment based on gender is not harassment.

[00:14:51] Speaker 05:
That's discrimination.

[00:14:53] Speaker 05:
And so that's where I have the different, that's where I have a

[00:14:57] Speaker 05:
problem with the way this case has been couched?

[00:15:00] Speaker 05:
Because to me, the discrimination and harassment have been kind of merged.

[00:15:06] Speaker 04:
Your Honor, I think we agree with you 100%.

[00:15:08] Speaker 04:
Congress agreed 100% by saying they were going to carve out sexual harassment claims, not gender discrimination at large.

[00:15:15] Speaker 04:
New York has not had to distinguish between the two, because it's sort of under one test.

[00:15:19] Speaker 04:
But the courts have been trying to grapple with what's sexual harassment versus gender discrimination in New York post-EFAA, in California likewise.

[00:15:27] Speaker 04:
there is a distinction.

[00:15:28] Speaker 04:
They are different things and here I think what we have at most is an effort to avoid arbitration that was being proceeded as going too slowly by adding on a claim that at most would be

[00:15:38] Speaker 04:
gender discrimination, not sexual harassment.

[00:15:41] Speaker 03:
Just so I understand the distinction.

[00:15:43] Speaker 03:
So imagine a hypothetical under California law.

[00:15:48] Speaker 03:
You have a supervisor who doesn't think that there should be women in his office because he doesn't like women.

[00:15:56] Speaker 03:
And so when he goes by the office of the female employees, he throws a pencil at them and he steals their lunch from the break room.

[00:16:06] Speaker 03:
goes to the parking lot and lets the air out of their tires.

[00:16:10] Speaker 03:
Would that be a FIHA sexual harassment claim?

[00:16:13] Speaker 04:
If it was subjectively perceived as harassment based on gender and it was actually changing the situation in the workplace to make it unbearable and was something that he didn't do that to all the men, employees as well, then yes.

[00:16:25] Speaker 04:
I think that is the difference that we would see in the way, and that's what Congress said, look to each state.

[00:16:30] Speaker 04:
We're not saying you have to, we're not creating a federal law here of EFAA harassment.

[00:16:34] Speaker 04:
And so under New York, we feel like that one

[00:16:37] Speaker 04:
is not clearly not the facts of this case.

[00:16:39] Speaker 04:
And in California, the issue is that these were not a situation where there was a environment being created in which women were somehow being treated differently or lesser.

[00:16:48] Speaker 04:
This person has a problem with the fact that they were terminated, and they believe that's on the basis of their gender.

[00:16:54] Speaker 01:
I was just going to say, Title VII works the same way, right?

[00:16:58] Speaker 01:
There is a distinction between sexual harassment and discrimination claims, but you can raise a hostile work environment claim that might be gender-based, even if there's no sexual connotation behind it.

[00:17:11] Speaker 04:
Yes, and that's what the New York cases have actually been trying to grapple with that line.

[00:17:14] Speaker 04:
There's sexual harassment versus gender-based harassment.

[00:17:17] Speaker 04:
And it does somewhat depend on how the state itself views the law, because the EFAA directs the court to look to the relevant state or federal law to figure out, have they alleged a claim of sexual harassment?

[00:17:28] Speaker 04:
At some level, because New York doesn't have its own claim of sexual harassment, you could have just stopped the analysis there and say, that's not how New York thinks about it.

[00:17:35] Speaker 04:
There isn't a way to get out of arbitration under the EFAA.

[00:17:38] Speaker 04:
But what the courts have done is to try to parse, OK, what counts as sexual harassment versus

[00:17:43] Speaker 04:
possibly gender discrimination or gender-based harassment that's not sexual harassment.

[00:17:48] Speaker 04:
But I do think California doesn't seem to have the same hard and fast sexual line that the courts have leaned in New York.

[00:17:53] Speaker 05:
Well, it still has the severe and pervasive.

[00:17:56] Speaker 05:
Correct.

[00:17:57] Speaker 05:
Which I have some difficulty with here with the email.

[00:18:01] Speaker 05:
And I just, pervasive means more than once.

[00:18:07] Speaker 05:
continuing at a level that's higher than just different treatment.

[00:18:11] Speaker 05:
That's the difficulty I'm having with some of the facts in this case.

[00:18:14] Speaker 04:
Well, and we tried to cite in our briefs the types of things that counted and have counted as severe and pervasive, which are in a different league entirely from this case.

[00:18:21] Speaker 04:
There is the new legislation, but as we cited the Beltran case and others have made clear, it's not like that erased all the law before.

[00:18:27] Speaker 04:
It targeted, as you'll see when you look at the legislation, certain specific decisions that they believe were outliers, such as, for example, one act wouldn't be enough for severe.

[00:18:36] Speaker 04:
It's now clear.

[00:18:36] Speaker 04:
One act could be enough if it were severe.

[00:18:38] Speaker 04:
We don't have any of that here.

[00:18:40] Speaker 03:
All right.

[00:18:42] Speaker 03:
And can you just, what is the authority for the proposition that it needs to be perceived subjectively, not only as harassment, but as harassment based on gender, and that it needs to be perceived that way at the time as opposed to, you know, she understands later that, oh, that's why I was being harassed.

[00:19:01] Speaker 04:
It's a good question.

[00:19:02] Speaker 04:
And because a lot of the cases, it's just obvious due to the nature of the comments or the conduct.

[00:19:06] Speaker 04:
I think the best two cases we have for that proposition would be the Jones case, the California case, where that's where she basically, the complainant was unable to identify what the basis was or her perception of it.

[00:19:18] Speaker 04:
And then Nichols also, where- You say Nichols?

[00:19:22] Speaker 04:
Nichols.

[00:19:23] Speaker 04:
Because they're in the subjective analysis.

[00:19:25] Speaker 04:
They try to say that, oh, the subjective was separate from the because of sex analysis in Nichols.

[00:19:30] Speaker 04:
but in Nichols, in the subjective analysis, it said, he viewed relentless verbal affronts as sexual harassment, meaning he viewed it as that at the time.

[00:19:39] Speaker 04:
So there's not a case that's as perfectly clear as we'd like, but we believe that Jones and Nichols together make clear that the subjective requirement is there.

[00:19:47] Speaker 04:
It's usually there just by self-evidently, if it's sexual nature or expressed gender comments.

[00:19:53] Speaker 04:
Here, which is actually something I think only in our favor, there weren't expressed gender comments, and so that just

[00:20:00] Speaker 04:
is a little bit more of an outlier fact pattern because it's not harassment.

[00:20:03] Speaker 04:
Thank you.

[00:20:04] Speaker 05:
Thank you, counsel.

[00:20:05] Speaker 05:
We'll give you a couple minutes for rebuttal.

[00:20:06] Speaker 05:
Thank you.

[00:20:10] Speaker 00:
Good morning, your honors.

[00:20:11] Speaker 00:
Good morning.

[00:20:12] Speaker 00:
May it please the court, Melissa Zoni, for appellee, Dr. Ding.

[00:20:15] Speaker 00:
I will be addressing the waiver portion of the argument and my colleague, Maria Noah, the issues of plausibly pled claims.

[00:20:21] Speaker 00:
We appreciate you allowing us to split our time.

[00:20:25] Speaker 00:
The Enforced Arbitration Act provides survivors of workplace sex harassment a unique and powerful choice.

[00:20:31] Speaker 00:
That real choice is a right that cannot be inadvertently waived.

[00:20:36] Speaker 00:
Appellant has a burden this morning to establish by clear and convincing evidence that any alleged waiver by Dr. Ding was clear, knowing, and voluntary.

[00:20:47] Speaker 00:
And there are two issues here.

[00:20:48] Speaker 00:
First, appellant has presented no such evidence

[00:20:51] Speaker 00:
The district court correctly found that there is no clear and convincing evidence that Dr. Ding made that choice and waived her right with these facts.

[00:20:59] Speaker 05:
Well, opposing counsel is couching this as a matter of statutory interpretation.

[00:21:05] Speaker 05:
What does the word election mean?

[00:21:08] Speaker 05:
And does that allow someone to, because this is all under the umbrella of the FAA.

[00:21:14] Speaker 05:
And so once one begins the arbitration process, is that the election?

[00:21:22] Speaker 05:
that is contemplated in the EFAA.

[00:21:25] Speaker 05:
That's the question that I have in my mind, as it's not so much as a waiver issue as to whether or not at what point has the election been made.

[00:21:34] Speaker 05:
And if an election is made to commence arbitration, then that precludes an election under the EFAA because it only speaks to one election.

[00:21:46] Speaker 05:
What's your response to that?

[00:21:47] Speaker 00:
Yes, Your Honor.

[00:21:48] Speaker 00:
If the election precludes, that is a waiver.

[00:21:51] Speaker 00:
and the way to honor the plain meaning and congressional intent of the statute is to affirm the district court's denial because to force these claims into arbitration would be to rewrite the statute, to find that withdrawal is not allowed or that waiver occurs when any arbitration is filed.

[00:22:09] Speaker 05:
But that's not necessarily a waiver if you have the option to make an election and you elect one.

[00:22:16] Speaker 05:
Is your argument that if an individual

[00:22:20] Speaker 05:
has the opportunity to make an election, the fact of making that election constitutes a waiver of any other options?

[00:22:28] Speaker 00:
Is that your argument?

[00:22:29] Speaker 00:
No, Your Honor.

[00:22:30] Speaker 00:
Let me clarify.

[00:22:31] Speaker 00:
This is always a fact-based analysis.

[00:22:34] Speaker 00:
And so there may be circumstances when that is the case.

[00:22:37] Speaker 00:
But here, the way appellant would read it is to read into the definition of election something more, such as one-time election, a timely election, that withdrawal is never allowed from arbitration.

[00:22:49] Speaker 00:
None of those things occur in the plain language of the statute.

[00:22:53] Speaker 00:
That would go beyond the statute.

[00:22:56] Speaker 05:
But would you agree that this statute was contemplated to be a narrow exception to arbitration that's contemplated under the umbrella FAA?

[00:23:09] Speaker 00:
Certainly, this is narrow in the sense that it is for a specific type of plaintiff and a specific type of case.

[00:23:14] Speaker 00:
But within those bounds, and Congress here in the statute did create limitations.

[00:23:20] Speaker 00:
It created limitations for the type of case.

[00:23:23] Speaker 00:
And it has to be filed in federal, state, or tribunal forum.

[00:23:26] Speaker 00:
It has to be a sexual, sex harassment, or discrimination case.

[00:23:30] Speaker 00:
It contemplated certain limitations.

[00:23:32] Speaker 00:
It did not, and purposely did not, contemplate other limitations.

[00:23:36] Speaker 00:
And so to read that in would be to limit it beyond what the meaning of this, as you point out, already narrow statute is, and would be to take away the legislative intent to allow the plaintiff within those bounds a real choice of forum.

[00:23:53] Speaker 01:
Are you suggesting that if someone knew that they could bring a sexual harassment claim under the EFFA but chose to pursue arbitration, goes through that process for a year and then changes her mind and goes that that would be permitted by the statute as well?

[00:24:11] Speaker 00:
That would be up to that district court judge to look at those facts and determine if there was clear and convincing evidence of waiver.

[00:24:16] Speaker 00:
Here it is well established that Dr. Ding did not know until she received

[00:24:21] Speaker 00:
not just one, but at least six pieces of new evidence that showed her that there was a sex-based animus that motivated the conduct that she experienced.

[00:24:31] Speaker 01:
So you're saying that one could waive it by electing to go into arbitration, but there has to be clear and convincing evidence, and that's implied in the statute itself?

[00:24:41] Speaker 00:
Not implied in this statute, just the regular construct of waiver.

[00:24:45] Speaker 00:
This statute is silent as to that.

[00:24:47] Speaker 00:
And so we cannot read anything into it beyond what it says.

[00:24:50] Speaker 00:
Are there factual circumstances where the district court could find, in other facts, could find waiver?

[00:24:55] Speaker 00:
Sure, we've seen cases where that's the case.

[00:24:58] Speaker 00:
In those cases, that district court judge found clear and convincing evidence of a knowing, voluntary, and clear waiver by the plaintiff who had the EFA right otherwise.

[00:25:08] Speaker 00:
Here, not the case.

[00:25:10] Speaker 00:
As I said, Dr. Ding found out she had a sex-based claim only after she received the discovery, after she had already been in arbitration.

[00:25:18] Speaker 00:
As we've pointed out,

[00:25:19] Speaker 00:
The arbitration did not adjudicate anything at all, actually, beyond the procedure, whether the claims were related or not to sex, but they were not.

[00:25:28] Speaker 00:
And so she followed, and I believe as Judge Corley said in her opinion, she followed the precise procedure that is anticipated by the EFA.

[00:25:44] Speaker 00:
She learned that she had a sex-based claim.

[00:25:46] Speaker 00:
She filed her case in court.

[00:25:48] Speaker 00:
They moved to compel, and now that triggers her right under the EFA to have a real choice in forum.

[00:25:54] Speaker 05:
Counsel, you would agree that the EFA does not explicitly address the situation when an arbitration has already begun?

[00:26:03] Speaker 00:
Correct.

[00:26:03] Speaker 00:
And that is why it's our position that you cannot read into it that there is a blanket ban on withdrawing from arbitration in these circumstances.

[00:26:10] Speaker 00:
A plaintiff in Dr. Ding's circumstances would have no recourse.

[00:26:14] Speaker 00:
She discovers her sex-related claim

[00:26:17] Speaker 00:
And does what is allowed by the statute, brings the case in court.

[00:26:23] Speaker 00:
To find that there is no withdrawal would be to read beyond the statute.

[00:26:27] Speaker 05:
What's your response to opposing counsel's argument that this facilitates circumvention of the FAA?

[00:26:35] Speaker 00:
The EFAA amends in a discreet way for a discreet case in plaintiff, the FAA.

[00:26:43] Speaker 00:
And so the purpose of it is to allow a choice where there otherwise is not one.

[00:26:47] Speaker 00:
It came after the FAA, so it doesn't contradict it.

[00:26:51] Speaker 05:
But a person engaging in arbitration that sees the arbitration isn't necessarily going his or her way could then opt to try to use the EFAA to get out of the arbitration.

[00:27:09] Speaker 05:
problem that's articulated by the other side.

[00:27:12] Speaker 05:
What's your response to that?

[00:27:14] Speaker 00:
One of appellant's themes is gamesmanship, that Dr. Ding somehow participated in some complex procedural gamesmanship to get a second bite of the apple.

[00:27:22] Speaker 05:
I'm not talking about her specifically, but the whole system.

[00:27:26] Speaker 05:
Yes.

[00:27:26] Speaker 05:
How can the system work the way it's contemplated if there is this avenue for gamemanship?

[00:27:34] Speaker 00:
We see in some of the cases how that would work.

[00:27:36] Speaker 00:
In those cases, the district court found

[00:27:38] Speaker 00:
through those facts that there was waiver.

[00:27:41] Speaker 00:
Perhaps that plaintiff made it very, very clear that they knew what they were doing.

[00:27:45] Speaker 00:
They knew they were waiving.

[00:27:47] Speaker 00:
And by participating in that gamesmanship, that was also a waiver.

[00:27:51] Speaker 00:
In this case, not the case at all.

[00:27:53] Speaker 00:
She didn't even know she had a claim, so she could not have conducted that kind of gamesmanship.

[00:27:57] Speaker 00:
But we see cases where, for example, take it all the way to a binding arbitration award and then won a second bite of the apple.

[00:28:03] Speaker 00:
Those courts found that that was waiver.

[00:28:05] Speaker 00:
Those facts were there.

[00:28:06] Speaker 00:
And again, this gets back to the burden.

[00:28:07] Speaker 00:
Have any of those cases been in the EFAA context?

[00:28:11] Speaker 00:
There are hardly any cases in the EFAA context.

[00:28:13] Speaker 00:
And I believe Ramirez is the only one.

[00:28:16] Speaker 00:
And Ramirez is different for two reasons.

[00:28:18] Speaker 00:
First of all, as we discussed, the court found clear and convincing evidence

[00:28:22] Speaker 00:
the plaintiff knew of the sex-based claims at the time.

[00:28:26] Speaker 00:
And second, just as you described, Your Honor, the evidence was clear that that plaintiff did not like the way it was going, was getting bad results, and then so, again, wanted an alternative route.

[00:28:37] Speaker 00:
Here, I'll remind the court, the only result at all that we got in the arbitration that barely got past the procedural stages was a bad result for appellant.

[00:28:47] Speaker 05:
I just wanted to ask you one final question.

[00:28:49] Speaker 05:
Opposing counsel said everything that was alleged in the EFAA complaint was already known at the time of the arbitration.

[00:29:01] Speaker 05:
Do you agree with that?

[00:29:02] Speaker 00:
Not at all, as I mentioned, and I'm happy to walk the court through it.

[00:29:05] Speaker 05:
No, I just wanted to know if you agree.

[00:29:07] Speaker 00:
At least six pieces of new evidence that informed her experience.

[00:29:11] Speaker 05:
What were the six new pieces?

[00:29:13] Speaker 00:
Sure, and I'll just note my colleague will talk more about what was discussed in terms of the client.

[00:29:16] Speaker 05:
We'll let your colleague discuss it.

[00:29:18] Speaker 00:
Oh, I'm happy to go through the six.

[00:29:20] Speaker 05:
Quickly.

[00:29:20] Speaker 00:
Most importantly, the email we've discussed in which Dr. Stevens expressed his phenotype.

[00:29:24] Speaker 00:
I'll point out the phenotype is a very specific word choice.

[00:29:27] Speaker 00:
It is a set of observable characters.

[00:29:29] Speaker 05:
Just list them please.

[00:29:30] Speaker 00:
Sure.

[00:29:31] Speaker 00:
Number two, another email in which the board of directors indicated that, quote, gender diversity needed to be emphasized in the CFO search in order to appeal to investors.

[00:29:39] Speaker 00:
Number three, Dr. Stevens testified that he, and I'm happy to provide sites as well, Dr. Stevens testified that he relied upon sexist comments from Wall Street bankers who claimed Dr. Ding was lecturing and too aggressive to justify her termination.

[00:29:53] Speaker 00:
He used what they were saying as a justification for what he was trying to do.

[00:29:56] Speaker 00:
Number four, piece of evidence, discovery confirmed that Dr. Ding was replaced not only by a man, but by a less qualified man, which showed the bias behind the decision.

[00:30:05] Speaker 00:
The phenotype was not Dr. Ding.

[00:30:08] Speaker 00:
Number five, Mr. Yoon admitted in his deposition, these are all post arbitration, that he thought the domestic violence incident would distract Dr. Ding from her duties.

[00:30:19] Speaker 00:
And number six, Dr. Stevens admitted in his deposition that he first recommended her termination

[00:30:24] Speaker 00:
only nine days after she reported the domestic violence incident.

[00:30:27] Speaker 00:
All right.

[00:30:28] Speaker 05:
That's six.

[00:30:28] Speaker 05:
Thank you, counsel.

[00:30:29] Speaker 00:
Thank you.

[00:30:39] Speaker 02:
May it please the court?

[00:30:40] Speaker 02:
Mariah Noah for Appellee Dr. Ding.

[00:30:43] Speaker 02:
In the wake of the Me Too movement, Congress, California, and New York each passed legislation to expand access to the courts for victims of sex harassment at work.

[00:30:52] Speaker 02:
And Dr. Ding has plausibly pled each of her three harassment claims under these standards.

[00:30:57] Speaker 02:
First, under California law, she pleads that she subjectively felt harassed, that the environment was objectively hostile, that the harassment was severe and pervasive, and that the harassment was based on sex.

[00:31:08] Speaker 02:
And that is all that is required under California law.

[00:31:11] Speaker 01:
Ms.

[00:31:11] Speaker 01:
Noah, can you start with that?

[00:31:12] Speaker 01:
What made this alleged conduct severe and pervasive in your view?

[00:31:17] Speaker 02:
Right, well, as I will point out to the court, and as an appellant also discussed, California did recently clarify a standard of severe impervasiveness through section 12.

[00:31:30] Speaker 02:
It's a long section, apologies.

[00:31:33] Speaker 02:
And through the Beltran case noted that, sorry, 12-9-2-3, it had clarified existing law on what constitutes workplace harassment, clarifying that the standard is lower than how other courts have been previously applying it.

[00:31:47] Speaker 02:
And the Beltran case, while it did say, yes, this wasn't a change in law, it did explicitly hold that the trial court had erred in granting summary judgment in the employer's favor, because one, it relied on authority applying the standard, severe and pervasive standard,

[00:32:03] Speaker 02:
prior to that change in law, and two, because it ignored the legislature's instruction that sex harassment is rarely appropriate for disposition on summary judgment.

[00:32:12] Speaker 02:
So here, drawing all reasonable inferences in Dr. Ding's favor, as the district court did and as the court must do here, she does plausibly plead a sex harassment case under California law.

[00:32:25] Speaker 05:
So, Counselor, is it your position that harassment no longer needs to be severe and pervasive in order to constitute sexual harassment?

[00:32:34] Speaker 02:
That is not our position, Your Honor, and the cases cited by appellants about severe and pervasiveness are either before that clarification of California law or they involve just a handful of instances over a course of a long time.

[00:32:46] Speaker 02:
The difference here is that we allege as soon as Dr. Dink started her work, almost immediately she was sidelined, she was belittled, her role was diminished,

[00:32:55] Speaker 02:
She was treated in a lot of similar ways to the plaintiff and Roby versus McKesson in the belittling, excuse me, sidelining and harassment.

[00:33:03] Speaker 02:
And all of that happened constantly during the entire course of her employment, and it happened immediately.

[00:33:10] Speaker 02:
So it was pervasive.

[00:33:11] Speaker 02:
It was severe.

[00:33:12] Speaker 02:
And importantly, these are the types of questions that are classically for a finder of facts.

[00:33:17] Speaker 05:
these should be going to a jury to decide whether there is an inference that this was- We can do summary judgment if there is no material issue of fact regarding it.

[00:33:26] Speaker 05:
If we looked at the facts and we, as a matter of law, determined it was not severe or pervasive, then summary judgment would be appropriate.

[00:33:35] Speaker 02:
At summary judgment, yes, Your Honor, but here we're importantly not under a summary judgment standard.

[00:33:40] Speaker 02:
The standard here is just plausible pleading.

[00:33:50] Speaker 02:
Was it plausibly pled?

[00:33:52] Speaker 02:
Here Dr. Ding pleads that Dr. Stevens expressed that he wanted a particular phenotype.

[00:33:56] Speaker 02:
As my colleague mentioned, phenotype's a really specific word.

[00:34:00] Speaker 02:
And it's not one that I would necessarily jump to.

[00:34:02] Speaker 03:
She wasn't aware of that at the time, right?

[00:34:04] Speaker 02:
That's correct.

[00:34:05] Speaker 03:
So what do you have in the pleadings that goes to the subjective perception element?

[00:34:14] Speaker 02:
Right.

[00:34:14] Speaker 02:
And as the district court also noted these facts as well in her ruling, when Dr. Ding started, she was immediately and consistently sidelined.

[00:34:22] Speaker 02:
Nothing was 100% her responsibility.

[00:34:25] Speaker 02:
She was told just to read and learn her entire first year, and then she was further limited to only working in Asian markets, even though she was the CFO for the whole company and had extensive experience in New York markets.

[00:34:37] Speaker 01:
Was she aware that this IPO schedule, this sort of aggressive IPO schedule was occurring?

[00:34:43] Speaker 02:
Yes, she was.

[00:34:43] Speaker 02:
It was a part of when she was recruited.

[00:34:46] Speaker 01:
So is, I guess, part of the argument about being sidelined is being sort of sidelined from that process of the IPO process and speaking with the bankers?

[00:34:53] Speaker 02:
Yes, absolutely, Your Honor.

[00:34:55] Speaker 02:
And it didn't match up with what her job title or her job description was supposed to be when she started.

[00:35:00] Speaker 02:
After that also, Dr. Stevens told her that investors thought she was too lecturing and aggressive, which did surprise and offend her at the time.

[00:35:08] Speaker 02:
But it wasn't until discovery later revealed that Dr. Stevens relied on those sexist comments to recommend her termination.

[00:35:14] Speaker 05:
So that kind of implies at the time that she didn't perceive it as harassment if she only realized it later.

[00:35:22] Speaker 02:
Not true, Your Honor.

[00:35:23] Speaker 02:
She perceived harassment at the time.

[00:35:25] Speaker 02:
She knew it was a hostile environment.

[00:35:27] Speaker 02:
She knew that she didn't feel welcomed.

[00:35:29] Speaker 02:
She knew that she felt like she was being pushed out.

[00:35:32] Speaker 02:
She just didn't know what the animus was behind that harassment.

[00:35:36] Speaker 02:
And as appellants point out, she did bring a national origin harassment because she thought maybe that was the reason.

[00:35:42] Speaker 02:
It wasn't until the post-arbitration discovery that she was able to find evidence that gave a reasonable and plausible inference

[00:35:49] Speaker 02:
that the animus behind the harassment was sex-based.

[00:35:53] Speaker 01:
I guess one of the becoming more important aspects is this notion that for Jones and Nichols, a person who's receiving the harassment has to be aware subjectively that it's sexual harassment or sex-based or gender-based.

[00:36:09] Speaker 01:
Can you speak to that issue?

[00:36:10] Speaker 02:
Yes, and I'm glad you raised that, Your Honor.

[00:36:12] Speaker 02:
Appellants very much mischaracterized Jones.

[00:36:15] Speaker 02:
Jones was decided after summary judgment, so after full discovery.

[00:36:19] Speaker 02:
And the court there found the plaintiff failed to present any evidence whatsoever that the harassment was based on sex at all.

[00:36:27] Speaker 02:
In so doing, the court also noted that at her deposition, she was asked, do you think you were harassed based on sex?

[00:36:33] Speaker 02:
And she said, no, or I don't know.

[00:36:34] Speaker 02:
But the court never said that answer, that in and of itself, was dispositive in dismissing her case.

[00:36:40] Speaker 02:
The court said, in addition to that, she's brought no evidence at all of sex-based harassment.

[00:36:45] Speaker 02:
Nichols, if you actually look at page 872 of Nichols,

[00:36:48] Speaker 02:
The elements are listed separately, that there's a subjective understanding of harassment, that it was severe and pervasive, and that it was based on a protected characteristic.

[00:36:58] Speaker 02:
They're separate elements.

[00:37:00] Speaker 02:
They're analyzed separately.

[00:37:01] Speaker 02:
And if I may briefly, I'd also like to point the court to New York state law, which is quite clear here.

[00:37:07] Speaker 02:
New York state law, it's black letter law, that it follows identical standards to Title VII.

[00:37:13] Speaker 02:
And except for the fact that New York removed the severe and pervasive requirement in 2019.

[00:37:18] Speaker 02:
This court itself has been explicitly clear in cases like EEOC versus the National Education Association of Alaska that there is no legal requirement that the hostile acts be overtly sex or gender specific in content, whether through sex or gender stereotypes.

[00:37:35] Speaker 02:
or through sexualized overtures.

[00:37:38] Speaker 03:
There's no legal.

[00:37:39] Speaker 03:
I mean, that is correct.

[00:37:42] Speaker 03:
It violates Title VII to harass people on the basis of sex, even if the harassment is not itself sexual.

[00:37:52] Speaker 03:
But what the EFAA says is not just conduct that violates Title VII.

[00:37:58] Speaker 03:
It has to be sexual harassment.

[00:38:00] Speaker 03:
And I'm not sure that the kind of conduct we've just described

[00:38:04] Speaker 03:
can reasonably be described as sexual harassment.

[00:38:07] Speaker 03:
I mean, California may have its own definition of what sexual harassment is.

[00:38:10] Speaker 03:
But if New York is just following Title VII, there seems to be a mismatch.

[00:38:15] Speaker 02:
Well, that case, EEOC, as well as a Supreme Court case on Kale versus Sundowner, also says that harassing conduct need not be motivated by sexual desire.

[00:38:25] Speaker 02:
Those do talk about sex harassment.

[00:38:28] Speaker 02:
And at Title VII, it is, again, black letter law that New York State

[00:38:32] Speaker 02:
law for sex harassment follows identical standards to Title VII minus the severe and pervasive requirement.

[00:38:38] Speaker 02:
Dr. Ding brings a claim under New York's sex harassment law.

[00:38:42] Speaker 02:
Those cases do discuss sex harassment.

[00:38:44] Speaker 02:
That is sex-based harassment.

[00:38:45] Speaker 02:
Take, for example, also as the California Supreme Court, but similar concept, the plaintiff there felt she was being harassed.

[00:38:52] Speaker 02:
She was being belittled in her job.

[00:38:54] Speaker 02:
She was being sidelined.

[00:38:55] Speaker 02:
She was being called out in meetings.

[00:38:56] Speaker 02:
The supervisor gave little gifts to everyone else, but not to her.

[00:39:01] Speaker 02:
those types of things were harassment, even though they were neutral as to her disability.

[00:39:06] Speaker 02:
But later discovered there was other evidence that supported the personnel and management decisions, which we do agree to Judge Rawlinson's question, are different from harassment.

[00:39:17] Speaker 02:
Those did support a specific bias based on her disability.

[00:39:21] Speaker 02:
So there are cases like Dr. Ding, especially where she's the only woman here, that she can't provide evidence of here's how other women were treated versus other men.

[00:39:28] Speaker 02:
She only knows how I was treated.

[00:39:30] Speaker 02:
Those are harassment cases.

[00:39:31] Speaker 02:
She did feel subjectively harassed at the time.

[00:39:34] Speaker 02:
And it can't be the fact that because she's the only woman in the C-suite that she can't establish a sex harassment claim because these defendants were smart enough to hide their animus from her and because she doesn't have a wide pool to see how they treated men versus how they treated women.

[00:39:49] Speaker 01:
All right.

[00:39:50] Speaker 01:
Just last question.

[00:39:51] Speaker 01:
If we decide that California provides a viable basis for plausible allegations, do we need to reach the New York side as well?

[00:39:58] Speaker 01:
What do you think?

[00:39:59] Speaker 02:
You do not, Your Honor.

[00:40:00] Speaker 02:
The EFAA is clear, and there's case law interpreting it that is clear, that at the election of the person bringing the claims, the arbitration agreement, a pre-dispute arbitration agreement, is not enforceable as to a case relating to a sexual harassment dispute.

[00:40:16] Speaker 02:
And courts have been clear and consistent saying that that means the entire case comes into court.

[00:40:21] Speaker 02:
The arbitration agreement is not enforceable as to the entire case, not just one claim.

[00:40:25] Speaker 02:
So all that to say

[00:40:26] Speaker 02:
that if Your Honors found even one of her claims was plausibly pled, that means that the motion to compel arbitration must be denied and that the district court's decision doing so must be affirmed.

[00:40:36] Speaker 05:
All right.

[00:40:37] Speaker 02:
Thank you, Counsel.

[00:40:37] Speaker 02:
Thank you, Your Honors.

[00:40:38] Speaker 05:
Let's have two minutes for rebuttal.

[00:40:44] Speaker 04:
Thank you, Your Honors.

[00:40:45] Speaker 04:
I'll try not to talk too fast.

[00:40:47] Speaker 04:
I just would want to do call out, though, that the notion that she was the only woman, what we just heard, is not true.

[00:40:52] Speaker 04:
It's not in the record, but it also is not true.

[00:40:55] Speaker 04:
And I think just a couple of key points.

[00:40:57] Speaker 04:
On the statutory interpretation piece, I think we don't read in from statutory silence additional mechanisms or rights.

[00:41:04] Speaker 04:
That's a kind of basic principle.

[00:41:05] Speaker 04:
And so that's really where we start from on reading the text that is there.

[00:41:08] Speaker 04:
We also, page 28 of our reply, cite some of the legislative history, making clear that the language was intended to be narrowly interpreted and the bill was a narrow carve out.

[00:41:17] Speaker 04:
So we put that before the court.

[00:41:19] Speaker 04:
On the six items, I think it's, we've gone through this in our reply brief.

[00:41:22] Speaker 04:
I believe it's that page.

[00:41:24] Speaker 04:
four to nine of our reply briefs, so I don't need to belabor them.

[00:41:26] Speaker 04:
But put simply, three through six are not new or not related to sex harassment.

[00:41:31] Speaker 04:
So the only two that might be would be the email.

[00:41:35] Speaker 04:
And again, I would direct the court to review the email, which doesn't talk.

[00:41:38] Speaker 04:
It talks about a phenotype in the sense of observable characteristics such as a Wall Street investor type with US-Asia public financing strategy, strong relationships with equity research, and health care specialist investors.

[00:41:50] Speaker 04:
That's what this is about.

[00:41:51] Speaker 04:
If you took the theory that this email could transform a case from a non-sexual harassment case to a harassment case based on that, any listing of two men or two people of a certain descent for a position where you're describing equality would turn the case around.

[00:42:05] Speaker 04:
And that's not supported by the law.

[00:42:08] Speaker 04:
I also really would direct the court to the thing they mentioned about the board wanting gender diversity is actually not in the record, the email.

[00:42:16] Speaker 04:
There is deposition testimony.

[00:42:17] Speaker 04:
This is ER 297 to 299.

[00:42:20] Speaker 04:
That contradicts that claim.

[00:42:22] Speaker 04:
That contradicts that pleading in the complaint.

[00:42:24] Speaker 04:
You have Dr. Stevens actually saying, we're looking for diversity.

[00:42:28] Speaker 04:
I was looking for diversity.

[00:42:30] Speaker 04:
Not that he was opposed to the board.

[00:42:32] Speaker 04:
At the end of the day, in this case, there are three independent bases, as I said, to reject the claim.

[00:42:37] Speaker 04:
This belonged in arbitration.

[00:42:38] Speaker 04:
As we heard, if there was some sense of harassment and we didn't know the basis, they put in national origin.

[00:42:43] Speaker 04:
They should have put in gender then.

[00:42:45] Speaker 04:
And that could have been the right time to do it.

[00:42:47] Speaker 04:
It's not the right time after a year of arbitration.

[00:42:49] Speaker 05:
So your argument is,

[00:42:52] Speaker 05:
she had perceived gender discrimination at the time, subjectively, it would have been part of the arbitration case.

[00:42:58] Speaker 04:
It certainly dovetails with her point that that's a requirement for a sexual harassment claim.

[00:43:02] Speaker 04:
But it also just goes to the point that we heard here that she felt harassed.

[00:43:05] Speaker 04:
She wasn't sure why.

[00:43:06] Speaker 04:
She put in national origin.

[00:43:07] Speaker 04:
There's no reason to not put in sex at the time.

[00:43:09] Speaker 04:
Thank you.

[00:43:10] Speaker 05:
Thank you.

[00:43:10] Speaker 05:
Thank you to all counsel for your helpful arguments.

[00:43:13] Speaker 05:
The case just argued is submitted for a decision by the court.

[00:43:16] Speaker 05:
That completes our calendar for the morning.

[00:43:18] Speaker 05:
We are at recess until 9.30 AM tomorrow morning.

[00:43:22] Speaker 05:
All rise.