[00:00:02] Speaker 02:
May it please the court, I would like to reserve five minutes time for rebuttal.

[00:00:05] Speaker 02:
So before you start the clock, we had this issue yesterday.

[00:00:08] Speaker 02:
15 minutes is listed.

[00:00:11] Speaker 02:
So that is your time.

[00:00:13] Speaker 02:
Obviously, monitor your time.

[00:00:15] Speaker 02:
And if you want to reserve, reserve.

[00:00:16] Speaker 02:
We had a counsel yesterday who thought that already deducted the five minutes.

[00:00:20] Speaker 02:
So just so we're clear about that.

[00:00:22] Speaker 01:
So go ahead.

[00:00:22] Speaker 01:
Thank you for the very useful warning.

[00:00:24] Speaker 01:
You got it.

[00:00:26] Speaker 01:
This case is an instance of unrefuted sexual harassment.

[00:00:31] Speaker 01:
Normally sexual harassment cases, as all of your honors know, tend to be things like he said, she said situations.

[00:00:38] Speaker 01:
This is a she said situation for the factual record, and then she recorded it.

[00:00:43] Speaker 01:
The facts in the record are the victims sworn deposition and declarations, the audio recording that she has of sexual harassment where her harasser

[00:00:53] Speaker 01:
told her that he wanted to come inside her and make her come too.

[00:00:58] Speaker 01:
I apologize for the vulgarity of the language.

[00:01:00] Speaker 01:
And then there is also a surveillance video that Defendant Seeley had at one point recording the harassment that they lost or destroyed

[00:01:10] Speaker 01:
That was not reviewed by their HR during the investigation and surrounding the complaint, despite the plaintiff requesting that HR review that video.

[00:01:21] Speaker 01:
Now, how we got here, to refute the claims of plaintiff Jamie Elward,

[00:01:28] Speaker 01:
Seeley presented an empty chair.

[00:01:31] Speaker 01:
They did not call Alfredo Perez, the harasser, to testify, to give a deposition, to give a declaration.

[00:01:39] Speaker 01:
Instead, Seeley just told us what Perez might have said and might have meant and what his motives might have been.

[00:01:46] Speaker 01:
Now the district court viewed those

[00:01:50] Speaker 01:
claims from an empty chair as fact.

[00:01:53] Speaker 01:
And that is how we ended up with a summary judgment.

[00:01:56] Speaker 01:
For example, the district court addressed the quid pro quo claim.

[00:02:01] Speaker 01:
There were two instances of Perez, the supervisor, offering or demanding sex from the plaintiff in exchange for an invitation to a trip tied to a promotion.

[00:02:13] Speaker 01:
It was a supervisor trip.

[00:02:15] Speaker 01:
plaintiff would not normally be allowed to attend that.

[00:02:18] Speaker 01:
If she shared a hotel room with Perez, he was going to get her invited.

[00:02:23] Speaker 03:
That was his... I guess the question on that one, at least looking at the summary judgment, is that we have Perez who's inviting her on the trip and saying he can get her onto the trip.

[00:02:44] Speaker 03:
But then the question is, did he have that authority?

[00:02:49] Speaker 03:
Where does he run in the chain of supervisory command?

[00:02:54] Speaker 01:
Thank you, Your Honor.

[00:02:54] Speaker 01:
That's an excellent question and clarification for me to make.

[00:02:58] Speaker 01:
We're dealing with either actual or apparent authority.

[00:03:01] Speaker 01:
And Your Honor has touched upon, which the district court did as well, the actual authority element.

[00:03:06] Speaker 01:
Now, I would argue that the district court erred in that because actual authority

[00:03:11] Speaker 01:
doesn't mean the signature that is signed on the promotion papers.

[00:03:16] Speaker 01:
It means who has actual authority to make that happen.

[00:03:20] Speaker 01:
Now, Perez was the sole supervisor for plaintiff.

[00:03:24] Speaker 01:
He was the only one that was directly observing her.

[00:03:28] Speaker 01:
He was the only one that could have told management, yes, she is good for promotion or no, she's not.

[00:03:34] Speaker 01:
But the great part for plaintiff is we don't even need to get there because we can rely on apparent authority.

[00:03:40] Speaker 01:
The Smith v. Hanson, Hanson and Johnson case explains apparent authority.

[00:03:46] Speaker 01:
It says apparent authority can be created by appointing a person to a position which carries with it generally recognized duties, regardless of unknown limitations which are imposed upon the particular agent.

[00:03:58] Speaker 01:
That's what we have here.

[00:04:00] Speaker 01:
It's easy for Sealy now to look and say, here's the chain of command.

[00:04:03] Speaker 01:
let me explain it to the court.

[00:04:05] Speaker 01:
The issue is the plaintiff was in a position where she had a sole supervisor who was telling her, I can get you the promotion.

[00:04:13] Speaker 01:
I am grooming you for this promotion.

[00:04:15] Speaker 01:
I am going to get you an invitation to this supervisor event.

[00:04:21] Speaker 04:
How do you respond to their concern that she didn't report right away?

[00:04:27] Speaker 01:
Excellent question.

[00:04:30] Speaker 01:
issue that only comes into play, and that is only material to this case, if we adopt the federal defense, the Faragher-Ellert defense, and I'm just going to call it a federal defense, or I'm going to stumble over those words every single time.

[00:04:42] Speaker 01:
Fine.

[00:04:43] Speaker 01:
I don't know how to say it either.

[00:04:44] Speaker 01:
Thank you, Your Honor.

[00:04:45] Speaker 01:
We only reach that as a material fact if we get to the defense the quid pro quo claim that defense would not apply even in federal court her hostile work environment claim It does not apply as long as there is a tangible work

[00:05:00] Speaker 01:
event, here it's a denial of a promotion.

[00:05:03] Speaker 01:
I'm happy to return to that in a moment, but to answer your question instead of avoiding it, there's a two-prong requirement.

[00:05:11] Speaker 01:
The second prong is that.

[00:05:12] Speaker 01:
The first prong, Sealy would have to prove that they acted reasonably, as we've briefed extensively, and I can come back to that.

[00:05:19] Speaker 01:
We do not believe that they acted reasonably.

[00:05:21] Speaker 01:
There's certainly a factual dispute there in our view because he was not monitored, because the same quid pro quo behavior he had done once before that Sealy looked over happened again.

[00:05:32] Speaker 01:
A variety of issues there why they can't satisfy the first trial.

[00:05:35] Speaker 04:
Can you help me with the timeline there?

[00:05:36] Speaker 04:
So the first investigation is about five months prior to her complaint?

[00:05:42] Speaker 04:
Is that right?

[00:05:42] Speaker 04:
Or ended about five months prior to it?

[00:05:45] Speaker 01:
Yes, Your Honor.

[00:05:46] Speaker 01:
So on... Then how many weeks did she work there?

[00:05:49] Speaker 01:
Sure.

[00:05:50] Speaker 01:
She had been working there for a good amount of time and had a prior supervisor, which she had no issues with.

[00:05:57] Speaker 01:
Got it.

[00:05:57] Speaker 01:
The initial complaints against Perez were ended around March 2021.

[00:06:03] Speaker 01:
Now, defendant and the district court relied on this idea that Richard Cotney

[00:06:08] Speaker 01:
One of the managers was observing and monitoring Perez during this whole period, so that made it reasonable what they did.

[00:06:15] Speaker 01:
In fact, that is not what the factual record says by Kotny's own representations.

[00:06:21] Speaker 01:
In his own representations, Richard Kotny said,

[00:06:26] Speaker 01:
He was monitoring Perez for his mistreatment of women in March 2021, and that got resolved in March 2021.

[00:06:34] Speaker 01:
That is his signed declaration.

[00:06:36] Speaker 01:
So he stopped monitoring Perez in March 2021.

[00:06:40] Speaker 01:
Fast forward to end of September 2021.

[00:06:43] Speaker 01:
That's when Perez started to supervise Jamie Elward.

[00:06:49] Speaker 01:
So there was no monitoring between March 21st to September 21st and no monitoring to get back to your question from September 21st through November

[00:06:59] Speaker 01:
2021, which is when Perez was the supervisor for Jamie Alward.

[00:07:06] Speaker 04:
Was Holliday the same HR person in the March 21st era with the first incident?

[00:07:14] Speaker 01:
Yes, she was.

[00:07:15] Speaker 01:
And there was, just to refresh the court's memory, there was a quid pro quo complaint filed against Perez then.

[00:07:23] Speaker 01:
Very, very similar MO.

[00:07:26] Speaker 01:
One of the female subordinates said, I would like to come into work earlier.

[00:07:30] Speaker 01:
I'm more effective in the morning.

[00:07:31] Speaker 01:
And he said, come in a few hours.

[00:07:33] Speaker 01:
On Sunday, I think it was, come in on your back.

[00:07:36] Speaker 01:
and we'll get you the better hours.

[00:07:39] Speaker 01:
That was reported.

[00:07:40] Speaker 01:
During the investigation, multiple subordinates said that Perez inappropriately or unnecessarily touched them, made innuendos and comments, et cetera.

[00:07:51] Speaker 01:
Again, same MO.

[00:07:54] Speaker 01:
Seely ultimately said, well, you call some of your subordinates babe and baby, and you shouldn't do that.

[00:08:00] Speaker 01:
And that was the end of the investigation.

[00:08:03] Speaker 01:
Towards the end of the investigation, the original quid pro quo victim, who had said he wanted me to come in on my back for better hours, went back to Sealy and said, hey, he's retaliating against me.

[00:08:15] Speaker 01:
He's suddenly very mean to me.

[00:08:16] Speaker 01:
He gave me different job duties that are less favorable that I'm not good at.

[00:08:21] Speaker 01:
Help me.

[00:08:22] Speaker 01:
And Sealy listened to her and then did nothing.

[00:08:24] Speaker 01:
Didn't admonish Perez, didn't say, hey, you can't retaliate, didn't require additional training from him, none of that.

[00:08:32] Speaker 03:
I want to ask about the reporting on the hostile work environment, because it did seem contemporaneous to me, but then I realized Sealy has a fairly restrictive policy.

[00:08:44] Speaker 03:
So my note suggests that there was claimed harassment on the 15th, the 17th, and the 18th of November, and she reported on the 19th.

[00:08:55] Speaker 03:
And does that somehow disqualify her reporting, because

[00:09:01] Speaker 03:
It's within three days of the first reporting and then four days of the second incident.

[00:09:08] Speaker 01:
Until I read the district court's decision, I would have said no.

[00:09:12] Speaker 01:
Right.

[00:09:13] Speaker 03:
That's what I'm trying to understand.

[00:09:14] Speaker 01:
I did not think the timeline.

[00:09:16] Speaker 01:
It was a matter of a few days from the overt, and I won't repeat it, but the previous things I said that he told Jamie.

[00:09:26] Speaker 01:
It was only a matter of days that she quote unquote delayed and she delayed because she did not believe that Celie would believe her.

[00:09:34] Speaker 01:
She didn't want it to be a he said she said situation.

[00:09:37] Speaker 01:
That is what happened the last time with a prior investigation full disclosure.

[00:09:43] Speaker 01:
She was not aware of that investigation directly at the time.

[00:09:46] Speaker 01:
although she was part of the culture and community of Sealy where people talk.

[00:09:50] Speaker 01:
Jamie had a firm belief that Sealy would not believe her based upon the culture at Sealy.

[00:09:58] Speaker 03:
But to go- You're basically- your bottom line, as I understand it, is factual issues on both quid pro quo and hostile work environment.

[00:10:09] Speaker 01:
Yes, Your Honor.

[00:10:10] Speaker 03:
Even if we apply the federal defense.

[00:10:13] Speaker 03:
I like that shorthand.

[00:10:17] Speaker 01:
The district court ruled against plaintiff summary judgment motion based upon facts, and I'll use air quotes that they won't be able to see in recordings, based upon facts that Sealy presented from the empty chair.

[00:10:31] Speaker 01:
They could have called Perez.

[00:10:33] Speaker 01:
I don't know what he would say.

[00:10:34] Speaker 01:
I don't know that they know what he would have said.

[00:10:36] Speaker 01:
He might have said,

[00:10:38] Speaker 01:
I look back, I was a terrible person and during that time I did try to have sex with her in exchange for a promotion.

[00:10:45] Speaker 01:
That is what is the record says.

[00:10:47] Speaker 01:
That is all we have.

[00:10:48] Speaker 01:
That is what we have from Jamie and sworn declarations depositions.

[00:10:52] Speaker 01:
She is the only person that was available.

[00:10:55] Speaker 01:
or the only person involved here that has provided evidence, actual evidence, sworn statements, facts.

[00:11:01] Speaker 01:
We don't know what Perez said.

[00:11:03] Speaker 01:
And the major error that the district court made, yes, is a factual one.

[00:11:08] Speaker 01:
And it is giving that empty chair some sort of factual relevance in the case.

[00:11:13] Speaker 01:
Seeley could have called Perez to testify.

[00:11:15] Speaker 01:
They chose not to.

[00:11:16] Speaker 01:
I don't know why that was their choice, but they cannot now speculate facts as to what Perez would have said or what he meant or what his motives were.

[00:11:26] Speaker 01:
All we have is Jamie Elward's account.

[00:11:29] Speaker 04:
Can I ask about the spoliation issue?

[00:11:33] Speaker 04:
Did you counter sue or counterclaim for spoliation on holidays notes that she didn't ever have those notes right from the interview, the first reporting interview?

[00:11:45] Speaker 01:
We did not, Your Honor.

[00:11:46] Speaker 01:
We had a potential spoliation issue both for the investigation notes, as you said, from both investigations.

[00:11:54] Speaker 01:
Those were destroyed without explanation.

[00:11:57] Speaker 01:
We just know that best practices for HR is that you keep those.

[00:12:00] Speaker 01:
There were also videos that our client requested HR to watch.

[00:12:05] Speaker 01:
Those disappeared.

[00:12:07] Speaker 01:
I don't know if those were lost or destroyed.

[00:12:09] Speaker 01:
We didn't file anything because our intent the entire time and according to the

[00:12:14] Speaker 01:
rules of civil procedure, you want to favor resolution on the merits.

[00:12:19] Speaker 01:
As the district court correctly found in this regard, neither party was prejudiced.

[00:12:24] Speaker 01:
There was no question of whether there was sexual harassment.

[00:12:28] Speaker 01:
The case could go on, as you might say, and so we did not want to further delay or increase expense in the litigation to

[00:12:35] Speaker 01:
Um, argue over something that we would have liked to have, but wasn't needed to resolve.

[00:12:40] Speaker 04:
Certainly it would have corroborated her if those, according to her, it would have corroborated her, right?

[00:12:46] Speaker 04:
Those videos that she complained or she asked holiday to watch, right?

[00:12:51] Speaker 01:
Yes, Your Honor.

[00:12:51] Speaker 01:
And because she's the only person that testified that was there because Perez was not called to testify, she's unrefuted anyways.

[00:13:00] Speaker 01:
So the videos would have been great and I'm sure would have resonance for a jury when he's touching her and being incredibly creepy for lack of better terms.

[00:13:09] Speaker 01:
But that wasn't something we needed to litigate the case on the merits.

[00:13:13] Speaker 04:
And did the co-worker Aureliano Zanabria, did she testify at all?

[00:13:19] Speaker 04:
Because she's the one that your client went to and cried right before she reported?

[00:13:24] Speaker 01:
Yes.

[00:13:26] Speaker 01:
Gentleman, but yes.

[00:13:27] Speaker 01:
Gentleman, I'm sorry.

[00:13:28] Speaker 01:
After she went to HR to make her complaint,

[00:13:31] Speaker 01:
He unbidden went to HR and said, this is not right what you did, and told HR that.

[00:13:37] Speaker 01:
And afterwards, he resigned.

[00:13:40] Speaker 01:
He quit Seeley because he was so disgusted with how Seeley handled this.

[00:13:44] Speaker 01:
I will leave it at that for my rebuttal.

[00:13:45] Speaker 02:
We'll round up to three.

[00:13:47] Speaker 02:
Thank you, Your Honor.

[00:14:00] Speaker 00:
May it please the Court.

[00:14:02] Speaker 00:
I'd like to talk now about the actual evidence in the case.

[00:14:06] Speaker 00:
Plaintiff's quid pro quo claim fails because there's no evidence of any quid pro quo.

[00:14:11] Speaker 00:
Plaintiff's entire argument throughout this litigation has been predicated on the repeated claim that Mr. Perez offered plaintiffs some kind of stepping stone to promotion in exchange for her having sex with him.

[00:14:26] Speaker 00:
But there's no evidence that the trip ever had anything to do with promotion, or that plaintiffs believed that it did.

[00:14:33] Speaker 04:
Wasn't it just for supervisors?

[00:14:34] Speaker 00:
It was just for supervisors.

[00:14:37] Speaker 00:
As regards the trip itself.

[00:14:38] Speaker 00:
And she wasn't a supervisor.

[00:14:40] Speaker 00:
She was not a supervisor, no.

[00:14:41] Speaker 03:
But that would be a promotion for her, right?

[00:14:44] Speaker 00:
Well, no, that would not be a promotion.

[00:14:46] Speaker 00:
It would just be an opportunity to go on a trip that she wouldn't otherwise be on.

[00:14:48] Speaker 03:
Oh, but being a supervisor.

[00:14:50] Speaker 00:
Being a supervisor, sure, would have been a promotion, yes.

[00:14:53] Speaker 00:
But there's no evidence that the trip had anything to do with getting a promotion, or even that plaintiff thought it did.

[00:14:59] Speaker 00:
And as regards the trip itself, it might be that Perez did hope.

[00:15:04] Speaker 00:
that being on an out of town work trip with plaintiff would lead to her having sex with him.

[00:15:09] Speaker 00:
But there's no evidence that he ever made the trip contingent on her having sex with him.

[00:15:15] Speaker 00:
or that plaintiff thought that it did.

[00:15:17] Speaker 00:
In fact, the undisputed evidence shows the trip was not contingent on sex and that plaintiff knew that it was not.

[00:15:24] Speaker 00:
First, plaintiff admits that Perez mentioned the trip weeks before he ever brought up having sex.

[00:15:30] Speaker 00:
And then he brought it up again, even after she angrily refused his sexual advances.

[00:15:36] Speaker 00:
That's ER 51 and 80.

[00:15:38] Speaker 00:
And at ER 51 and 74, plaintiff admits three more things.

[00:15:43] Speaker 00:
She knew Perez had to ask permission of his bosses for her to even go on the trip.

[00:15:49] Speaker 00:
She knew those bosses had to ask somebody else for permission for her to go on the trip.

[00:15:55] Speaker 00:
And she admits that Perez and his bosses had already done that and were waiting on approval.

[00:16:02] Speaker 00:
That shows two things.

[00:16:04] Speaker 00:
Plaintiff knew that Perez didn't have the authority to deliver this work trip.

[00:16:09] Speaker 00:
And she knew that Perez had already done whatever it was he could do to get her on the work trip, despite the fact she never had sex with him.

[00:16:18] Speaker 00:
So in other words, the work trip was never quid pro quo for her agreement to have sex.

[00:16:24] Speaker 00:
Now, hostile environment law strikes a balance of responsibilities between employees and employers by imposing on the employer liability for a supervisor's harassment, but only if that harassment reaches the level of severe or pervasive conduct.

[00:16:41] Speaker 00:
and by including an affirmative defense that allows the employer the opportunity.

[00:16:47] Speaker 00:
It's designed to allow the employer the opportunity to intervene and to stop the harassment from ever reaching the level of being severe or pervasive.

[00:16:56] Speaker 00:
And it does that by imposing on the employee the responsibility, the duty to report misconduct when it occurs and to avoid more misconduct.

[00:17:07] Speaker 00:
but plaintiff deprived Seeley of the opportunity to intercede early and to stop the harassment earlier because

[00:17:16] Speaker 00:
Instead of reporting Mr. Perez's first sexual comments on November 15th and his touching of her arm, instead of doing that, instead of deliberately avoiding, trying to avoid more misconduct, she made the deliberate choice to risk more misconduct in order to try to record it.

[00:17:36] Speaker 00:
And then even after she succeeded in getting a recording of sexual comments,

[00:17:40] Speaker 00:
She still did not report it.

[00:17:42] Speaker 00:
She made again the deliberate choice to expose herself to more misconduct.

[00:17:48] Speaker 00:
All this conduct added up together doesn't reach the level of severe or pervasive.

[00:17:54] Speaker 00:
But even if it did, it certainly did not as of November 15th when she should have and could have reported it and stopped it.

[00:18:02] Speaker 00:
The employee's role is not to gather evidence of more misconduct, but to report it and to avoid more of it.

[00:18:11] Speaker 04:
In the words... Maybe she was concerned that she wouldn't be believed.

[00:18:15] Speaker 04:
such as when she showed her arm to Ms.

[00:18:18] Speaker 04:
Holliday and Ms.

[00:18:18] Speaker 04:
Holliday didn't want to look at it and she said look at these videos and Ms.

[00:18:22] Speaker 04:
Holliday didn't gather them and when she complained at that point, she didn't have very much of a, shall we say, compassionate listener to her complaint.

[00:18:35] Speaker 00:
I think that that is, it's true that she testified that she was concerned that she would not be believed.

[00:18:43] Speaker 00:
But it's also the case that there's a string of cases that we cite in our brief that says that fear that you won't be believed, speculation that you

[00:18:52] Speaker 00:
won't be believed that she'll be retaliated against.

[00:18:55] Speaker 00:
None of that excuses the employee's duty and role as designed by the Supreme Court and fair her an alert.

[00:19:02] Speaker 00:
Her job is to report it and give Sealy the opportunity to stop it.

[00:19:05] Speaker 03:
And here as well as- Isn't there a little bit of a contradiction here because

[00:19:10] Speaker 03:
You're arguing to us, well, look, these events, 15, 17, 18, 19, whatever, are really not all that serious in terms of a hostile work environment.

[00:19:20] Speaker 03:
They don't rise to the level.

[00:19:22] Speaker 03:
And then you're turning around and say, even the very first incident should have been immediately reported.

[00:19:28] Speaker 03:
So she did what many victims would do, is to feel like,

[00:19:35] Speaker 03:
I'm not going to report this.

[00:19:37] Speaker 03:
They're not going to believe me.

[00:19:39] Speaker 03:
But you're also arguing it doesn't matter anyway because none of this is sufficient to rise to the level of a hostile work environment.

[00:19:47] Speaker 00:
Do I have that right?

[00:19:48] Speaker 00:
I am arguing both, but I don't think that there's any contradiction there.

[00:19:52] Speaker 00:
The Supreme Court designed this test so that when an employee experienced

[00:19:58] Speaker 00:
harassment, they had a duty to go and report it for the very purpose of preventing it from ever rising to the level of severe or pervasive harassment.

[00:20:07] Speaker 00:
And in the words of the fairer court, the plaintiff should not be rewarded with the cause of action, quote, for what her own efforts could have avoided.

[00:20:14] Speaker 03:
Well, how do you get a hostile work environment out of one incident?

[00:20:18] Speaker 00:
Well, it would have to be a more severe incident.

[00:20:20] Speaker 00:
It can't be pervasive that it's only one.

[00:20:22] Speaker 03:
When you read the cases, none of them really would give you a claim after

[00:20:28] Speaker 03:
a single touching in that location.

[00:20:31] Speaker 00:
Certainly, the law is not designed to give the plaintiff a claim.

[00:20:33] Speaker 00:
The law is designed to deter harassment in the workplace.

[00:20:36] Speaker 00:
And the employee's part in that is to report it when it occurs.

[00:20:39] Speaker 00:
In the Ribello case, the plaintiff was sexually assaulted.

[00:20:43] Speaker 00:
The co-worker grabbed her breast, and this court said, that's not severe or pervasive.

[00:20:47] Speaker 00:
In the Brooks case, a superior put his hands on the

[00:20:53] Speaker 00:
plaintiff's stomach and made sexual comments to her and put his hand under her shirt and under her bra and fondled her breasts and prevented her means of egress.

[00:21:01] Speaker 00:
And this court said it's not severe or pervasive.

[00:21:03] Speaker 00:
So if outright sexual harassment like that, outright physical assault doesn't rise to the level of severe or pervasive harassment, it certainly didn't in this case.

[00:21:13] Speaker 00:
And it certainly didn't

[00:21:16] Speaker 00:
based on one touch of the forearm and a couple of days of sexual comments, particularly when most of that could and should have been avoided if she'd only gone to HR when it first happened.

[00:21:28] Speaker 00:
And we know, by the way, we know as to was it futile to do it.

[00:21:34] Speaker 00:
We know from the facts of this case it wasn't futile to do it.

[00:21:37] Speaker 00:
All it took was plaintiff climbing the stairs to human resources.

[00:21:42] Speaker 00:
Mr. Perez knew he was in trouble.

[00:21:43] Speaker 00:
He told his coworker, I'm in trouble.

[00:21:45] Speaker 00:
I might get fired.

[00:21:47] Speaker 00:
And he quit, and he never came back.

[00:21:48] Speaker 00:
That's all it took.

[00:21:49] Speaker 00:
It was effective.

[00:21:50] Speaker 00:
And as to plaintiff's position that there's some weakness in the fact that he hadn't been fired before, it may be that Perez, the reason he knew he was in trouble was because he was on a final warning from the first time.

[00:22:04] Speaker 00:
He knew Sealy took this seriously.

[00:22:06] Speaker 00:
And putting him on a final warning is a perfectly appropriate response to that first earlier incident.

[00:22:13] Speaker 00:
There's no law that says he needed to be fired right away just because of one incident.

[00:22:16] Speaker 04:
But isn't that all conjecture that you're saying about Mr. Perez that he knew this and that's why he quit and he was on a final warning and that's why he quit?

[00:22:25] Speaker 00:
Excuse me.

[00:22:26] Speaker 00:
I don't think that it is conjecture because the record shows that he went to a co-worker and said, I think I'm in trouble for what I said.

[00:22:34] Speaker 00:
And I think the quote was, if I get fired, I get fired.

[00:22:38] Speaker 00:
So he knew that it was an issue.

[00:22:40] Speaker 00:
He certainly left for the day when he was called in to be interviewed as part of Sealy's investigation.

[00:22:48] Speaker 00:
He just decided to resign instead.

[00:22:50] Speaker 00:
And he asked if he could get his two weeks of vacation.

[00:22:53] Speaker 00:
And they said no.

[00:22:54] Speaker 00:
So he just resigned immediately.

[00:22:56] Speaker 00:
He knew, obviously, what was going to happen to him.

[00:23:00] Speaker 00:
But more importantly, there's nothing.

[00:23:02] Speaker 03:
Where is the missing witness?

[00:23:03] Speaker 03:
You don't have?

[00:23:04] Speaker 00:
He quit.

[00:23:05] Speaker 00:
He's not our employee.

[00:23:06] Speaker 00:
We have no control.

[00:23:07] Speaker 00:
I don't know where he is.

[00:23:08] Speaker 00:
There's nothing in the record.

[00:23:10] Speaker 03:
You don't have any control.

[00:23:11] Speaker 03:
But I practiced law for 25 years.

[00:23:13] Speaker 03:
And just because somebody quit the company doesn't mean that you can't

[00:23:16] Speaker 03:
go to them and seek a declaration or take a deposition.

[00:23:21] Speaker 00:
That's correct, but I don't think that there's any adverse inference to be drawn from the fact that he's not a witness in this case.

[00:23:27] Speaker 03:
Well, there might not be an adverse inference, but there's just no evidence.

[00:23:30] Speaker 03:
I mean, you can't really rely on

[00:23:32] Speaker 00:
We have not denied that what plaintiffs said happened.

[00:23:38] Speaker 00:
We're not denying it.

[00:23:38] Speaker 00:
We don't need him to rebut it, because we haven't denied what she said.

[00:23:42] Speaker 00:
What we've said is it doesn't rise to the level of severe or pervasive.

[00:23:45] Speaker 00:
And even if it does, it shouldn't have, because she should have reported it.

[00:23:51] Speaker 00:
And let me say something about her failure to report to.

[00:23:53] Speaker 00:
This is not an employee who didn't know what she was supposed to do.

[00:23:57] Speaker 00:
She knew Sealy's policy required her to report immediately.

[00:24:00] Speaker 00:
This is an employee, not an employee who's confused or timid or anything like that.

[00:24:06] Speaker 00:
This is an employee who set out on a deliberate course of action, an intentional course of action.

[00:24:11] Speaker 00:
It just wasn't the one required by the law, which is to go and report this and give the employer the opportunity to stop it.

[00:24:17] Speaker 00:
She made a deliberate choice.

[00:24:19] Speaker 00:
She made the wrong deliberate choice.

[00:24:20] Speaker 00:
She tried to go out and gather evidence.

[00:24:23] Speaker 00:
And that's not her job.

[00:24:25] Speaker 00:
It's, in fact, counter to her job.

[00:24:27] Speaker 04:
Your brief focuses so much on the spoliation issue, and yet you haven't mentioned it at all here.

[00:24:32] Speaker 04:
Have you changed your tune on that one?

[00:24:34] Speaker 00:
No, I haven't.

[00:24:35] Speaker 00:
I haven't changed my tune, but I do admit that it only comes into play if this court doesn't affirm the summary judgment.

[00:24:41] Speaker 00:
And so I'm spending most of my time convincing this court that the district court got it right and that it should be affirmed.

[00:24:47] Speaker 00:
Let me briefly address

[00:24:49] Speaker 00:
my opponent's arguments that we should never even get to the affirmative defense.

[00:24:54] Speaker 00:
I mean, there's simply no merit in that.

[00:24:57] Speaker 00:
The Washington Court of Appeals has four times approved the Farrar-Ellert defense.

[00:25:03] Speaker 04:
In their opening brief... You need to have undisputed issues of fact to get to that defense, correct?

[00:25:09] Speaker 00:
Of course, of course.

[00:25:10] Speaker 00:
That's true.

[00:25:11] Speaker 00:
But the defense certainly applies under Washington law.

[00:25:13] Speaker 00:
The Washington Court of Appeals says it applies.

[00:25:17] Speaker 00:
There's no contrary opinion from the Washington Supreme Court.

[00:25:21] Speaker 00:
Plaintiff's opening brief is all about some sense that the defense shouldn't apply because Title VII and the WLAD have different purposes.

[00:25:31] Speaker 00:
Seely debunked that in our opening brief, and plaintiff seems to have abandoned that argument.

[00:25:38] Speaker 00:
And instead, in the reply brief, plaintiff now argues that there's some kind of dispute among the Washington Courts of Appeals, and cites two cases, I think Campbell and Davis, as saying that they hold actually that the defense doesn't apply.

[00:25:53] Speaker 00:
In fact, that's just not the case.

[00:25:57] Speaker 00:
Those cases don't say anything about the Fair and Elearth affirmative defense one way or the other.

[00:26:04] Speaker 00:
And so what this Court is left with is clearly the case that the Washington Courts of Appeals

[00:26:10] Speaker 00:
have decided the issue, the defense applies.

[00:26:12] Speaker 00:
As to whether the fact that it doesn't apply in the case of a tangible employment action, there's no evidence here of any tangible employment action.

[00:26:19] Speaker 00:
There's not even any evidence that there ever was a promotion available, much less that she didn't get it, much less that she didn't get it because of anything Perez did.

[00:26:26] Speaker 00:
And the alleged quid pro quo of the trip can't be the tangible employment action, because there's no evidence that plaintiff either acceded to the request for sex or suffered any consequences from refusing.

[00:26:40] Speaker 00:
That's in the Holly Dee versus Caltech case.

[00:26:44] Speaker 00:
I've already talked about their attempt to excuse her non-report, but it is important to note that Sealy policy and the law require

[00:26:51] Speaker 00:
her to report and to avoid harm, not to go gathering evidence, whether it's to bolster her report or to bolster a legal claim, or as she said to a coworker, to get the supervisor fired or for use in blackmailing him.

[00:27:05] Speaker 00:
None of those are good excuses.

[00:27:06] Speaker 00:
The case law is specific that there is no exception to the reporting duty.

[00:27:12] Speaker 00:
based on speculation about not being believed and speculation is all the plaintiff had and the fact show that it wasn't reporting is not feudal not only did he quit the minute she walked up the stairs and say that he knew he was in trouble

[00:27:25] Speaker 00:
They want to make it some kind of weakness that they hadn't been fired the first time.

[00:27:29] Speaker 00:
It's not a weakness.

[00:27:30] Speaker 00:
It shows that Sealy thoroughly investigated that first incident, and they put him on a final warning.

[00:27:35] Speaker 00:
And they're not required to do more than that.

[00:27:37] Speaker 00:
They have to respond to the harassment, but they don't have to fire everybody who does it.

[00:27:42] Speaker 00:
As regards to why he wasn't more closely monitored,

[00:27:45] Speaker 00:
All I can say is the plaintiff admitted that Cotney and Coley were on the floor a lot and that in fact Mr. Cotney walked by twice during the 45-minute conversation she had with Perez on November 17th.

[00:27:56] Speaker 00:
I'm not exactly sure what they expected Sealy to do in terms of monitoring Mr. Perez.

[00:28:01] Speaker 00:
Should they have hung a microphone around him and recorded every single thing that he said?

[00:28:05] Speaker 00:
They haven't said what Sealy should have done that they didn't do.

[00:28:09] Speaker 04:
Look at those videos that she asked them to look at maybe?

[00:28:12] Speaker 00:
They never said they wouldn't look at the videos, Your Honor.

[00:28:14] Speaker 00:
I admit, agree with you, that Miss Holliday said that she wasn't going to do it right then in that meeting, but she never said she would never look at it.

[00:28:22] Speaker 04:
But then they were never available after that.

[00:28:25] Speaker 00:
I don't recall when they were no longer available, but the point is, Mr. Perez quit.

[00:28:33] Speaker 00:
And I think that at that point, Sealy was able to say that we don't have to do more of an investigation.

[00:28:38] Speaker 00:
It's done.

[00:28:39] Speaker 00:
And one last point.

[00:28:41] Speaker 00:
The plaintiff makes a big deal about, well, Sealy should have publicly denounced Perez or publicly condemn the harassment.

[00:28:51] Speaker 00:
But the cases and the regulation that they cite for that proposition do not say that.

[00:28:56] Speaker 00:
They talk about public disapproval of sexual harassment as a tool of prevention.

[00:29:01] Speaker 00:
CFR on that.

[00:29:03] Speaker 00:
In other words, Seelys should say, we disapprove of harassment, which they do in their policy.

[00:29:08] Speaker 00:
And it's particularly unreasonable for them to even make that argument when plaintiff testified that she did not want more attention drawn to this situation.

[00:29:17] Speaker 00:
So I'm more than happy to address any issues that I haven't touched on already.

[00:29:24] Speaker 00:
Otherwise, I would just like to conclude by saying this.

[00:29:26] Speaker 00:
Plaintiff may have shown successfully that Mr. Perez wanted to have sex with her.

[00:29:32] Speaker 00:
and that he was explicit about that at work.

[00:29:35] Speaker 00:
But the statute demands more than that for liability, and both the plaintiff's claims fail on the evidence.

[00:29:41] Speaker 00:
Seeley asks that this court affirm summary judgment.

[00:29:44] Speaker 00:
Thank you very much.

[00:29:45] Speaker 02:
Thank you, counsel.

[00:29:51] Speaker 01:
Thank you, your honors.

[00:29:53] Speaker 01:
First, I wanted to correct, Sealy does have an obligation under the law to remediate.

[00:29:59] Speaker 01:
They did not do that here.

[00:30:00] Speaker 01:
The proof is in the pudding.

[00:30:02] Speaker 01:
There was a complaint.

[00:30:04] Speaker 01:
They did virtually nothing to Perez.

[00:30:05] Speaker 01:
They said, don't call women babe or baby.

[00:30:08] Speaker 01:
But they didn't give him more training.

[00:30:11] Speaker 01:
say, hey, don't retaliate against people who complained against you.

[00:30:14] Speaker 01:
There was the thing, what more could Richard Kootenay have done?

[00:30:17] Speaker 01:
He walked by multiple times during a 45 minute conversation.

[00:30:21] Speaker 01:
In the record, it is undisputed that those conversations were not normal, that it was not normal to close talk a female subordinate for 45 minutes on the factory floor.

[00:30:32] Speaker 01:
What was Kootenay doing?

[00:30:33] Speaker 01:
Why did he not stop and see why this was happening?

[00:30:36] Speaker 01:
Especially because he was supposed to be, and admittedly,

[00:30:40] Speaker 01:
according to his own declaration, was not monitoring Perez anymore for sexual harassment issues.

[00:30:47] Speaker 01:
He stopped doing that in March 2021.

[00:30:50] Speaker 03:
I wanted to move to... What about the argument that in the November time frame she should have reported immediately, but instead she waited, and in their view, waited to collect evidence?

[00:31:05] Speaker 01:
Excellent, Your Honor.

[00:31:06] Speaker 01:
I don't know which of defendant, which of Sealy's facts I should argue against.

[00:31:11] Speaker 01:
On one hand, they argue September 20 for, or 2021 to November 2021, there was no hostile work environment.

[00:31:19] Speaker 01:
The Perez telling her, don't tell your husband what we talk about was innocuous, according to Sealy.

[00:31:25] Speaker 01:
I don't understand that.

[00:31:26] Speaker 01:
Perez touching her inappropriately, him singling her out, him telling her that he was so excited to be alone with her.

[00:31:36] Speaker 01:
All of that according to the hostile work environment claim for Sealy was innocuous.

[00:31:40] Speaker 01:
But then they blame her for waiting a few days to report in November.

[00:31:45] Speaker 01:
So either she waited too long because the hostile work environment didn't exist.

[00:31:51] Speaker 01:
Well, then it was only a matter of a few days and she didn't wait too long.

[00:31:54] Speaker 01:
Or this whole thing was a grooming exercise, in which case they're arguing, well, then she should have reported earlier.

[00:32:02] Speaker 01:
So that is another issue with their stance.

[00:32:06] Speaker 01:
I wanted to also note

[00:32:08] Speaker 03:
But you haven't quite given me a resolution to that line of logic.

[00:32:12] Speaker 03:
She should have reported earlier.

[00:32:14] Speaker 03:
Why not?

[00:32:16] Speaker 01:
She wanted, as she's testified, she wanted her job and her life back.

[00:32:20] Speaker 01:
She is a layperson.

[00:32:21] Speaker 01:
She does not have the benefit of a legal degree or advanced understanding of what the law or the policy even requires.

[00:32:29] Speaker 01:
But what she did do is, when it reached a point where he was saying incredibly sexual vulgar things, she wanted to report, and then she did not, because she wanted to get that recording.

[00:32:42] Speaker 01:
Again, it was only a matter of days.

[00:32:43] Speaker 01:
Also, defense said that these statutes don't have different purposes.

[00:32:49] Speaker 01:
That is false.

[00:32:50] Speaker 01:
The Washington state statute is focused on a constitutionally guaranteed civil right for people to be free of harassment.

[00:32:57] Speaker 01:
The federal statutes have none of that in it.

[00:33:00] Speaker 01:
They are focused on encouraging employers to do a better job of

[00:33:05] Speaker 01:
implementing processes so that they are protecting employees.

[00:33:12] Speaker 01:
Again, the focus is on the protection and remediation in the Colorado statutes, in the federal statutes.

[00:33:19] Speaker 01:
It's focused on the behavior of the employers.

[00:33:23] Speaker 01:
That is a very distinct thing.

[00:33:25] Speaker 01:
That has caused Courier v. Northland Services, a Washington state course.

[00:33:30] Speaker 01:
It covers independent contractors in Washington state.

[00:33:32] Speaker 01:
That isn't covered by federal law under the same thing.

[00:33:36] Speaker 01:
Lotus v. Corbis is another situation where in the state of Washington, HR can be protected against retaliation because in situations where HR had a duty to report wrongdoing, in federal law, that's part of their job.

[00:33:53] Speaker 01:
They can't get protected for retaliation in the same way.

[00:33:57] Speaker 01:
So there are multiple major situations in which the Washington state law covers and protects individuals in the way the federal law just doesn't, because they have different purposes.

[00:34:10] Speaker 01:
Let me just check with my colleagues.

[00:34:12] Speaker 01:
Do you have any more questions?

[00:34:13] Speaker 02:
No, I don't.

[00:34:13] Speaker 02:
Thank you.

[00:34:13] Speaker 02:
Anything further?

[00:34:14] Speaker 01:
All right.

[00:34:15] Speaker 02:
Thank you so much.

[00:34:16] Speaker 02:
Thank you, Your Honor.

[00:34:17] Speaker 02:
Appreciate it.

[00:34:18] Speaker 02:
Thank you for your briefing and your argument in this case.

[00:34:19] Speaker 02:
This matter is submitted.