[00:00:06] Speaker 05: The next case this morning is 24-2055 Sharp Miller versus Wal-Mart. [00:00:15] Speaker 05: Counsel for appellant, if you would make your appearance and proceed, please. [00:00:21] Speaker 02: May I please the court? [00:00:23] Speaker 02: My name is Derek Garcia. [00:00:25] Speaker 02: I represent the plaintiff appellant in this case, Jerry Sharp Miller, who is also present today in the gallery. [00:00:30] Speaker 02: This is an employment discrimination case. [00:00:34] Speaker 02: brought under Title VII of the Civil Rights Act of 1964, as well as the New Mexico Human Rights Act, both of which explicitly prohibit discrimination on the basis of sexual orientation. [00:00:45] Speaker 02: There are four compelling, highly compelling reasons why summary judgment in Walmart's favor was improper. [00:00:52] Speaker 02: First of all, Mr. Sharp Miller demonstrated numerous disputed material facts requiring findings by a jury. [00:01:01] Speaker 02: Without a fair apprehension of these facts, [00:01:04] Speaker 02: The district court's subsequent legal analysis became flawed. [00:01:08] Speaker 02: A fair and reasonable reading of available evidence reveals that he was not terminated for attendance reasons. [00:01:16] Speaker 02: He was not demoted for performance-based reasons, but in fact was experiencing unlawful employment discrimination. [00:01:25] Speaker 02: Second is the second most compelling reason this court should reverse the granting of summary judgment in this case. [00:01:32] Speaker 02: Sharp Miller demonstrated a prima facie case for discrimination, for sexual orientation and hostile work environment discrimination, including undocumented demotion, undocumented and baseless sexual harassment investigation that was concurrent to his demotion, undocumented by Walmart, and admitted erroneous termination. [00:01:58] Speaker 02: And Walmart had achieved actual notice of all of these numerous instances of adverse employment actions through its 14 managers over the course of the entire employment. [00:02:10] Speaker 00: You know, there's a reference to these 14 managers, but I was never able to identify who these 14 managers are and where in the record it shows [00:02:22] Speaker 00: that these 14 managers, these 14 unidentified managers, have noticed? [00:02:30] Speaker 02: They were named throughout the brief by name. [00:02:33] Speaker 02: A lot of it comes directly, Your Honor, from Jerry Sharp Miller's own deposition-based testimony, subject to cross-examination. [00:02:41] Speaker 00: I, you know, maybe I missed it, but I could identify a few, but I sure couldn't find 14. [00:02:52] Speaker 02: Managers Zamora and Moro originally mentioned that plaintiff had a catwalk and that his hips swayed a lot, you know, as testified to by my client directly, Mr. Sharp Miller, directly. [00:03:07] Speaker 02: And it was just one example of management level perpetuation of discrimination based, you know, employment discrimination by the managers themselves. [00:03:21] Speaker 00: Well, I mean, that was one. [00:03:25] Speaker 00: The catwalk was two. [00:03:27] Speaker 00: It was a manager and an assistant manager, right? [00:03:29] Speaker 02: Yes. [00:03:32] Speaker 00: He was afraid to break a nail, was a co-worker. [00:03:36] Speaker 02: Yes, correct. [00:03:36] Speaker 00: And there was no allegation that any manager was there or heard that. [00:03:43] Speaker 02: We believe that there were managers, as mentioned in the brief, that were present during other instances of overheard offensive statements. [00:03:52] Speaker 00: OK, well, I'm taking one at a time. [00:03:54] Speaker 00: There weren't any that were there on the, are you afraid to break a fingernail? [00:04:01] Speaker 02: I don't believe so, unless I'm mistaken, Your Honor. [00:04:03] Speaker 00: OK. [00:04:04] Speaker 00: And then there was the comment of Jerry the fairy, and again, [00:04:10] Speaker 00: I didn't see anything to indicate there was a manager around when that was said. [00:04:17] Speaker 02: Jerry, the ferry was testified to by my client in deposition, and it came overheard through the break room. [00:04:27] Speaker 02: So in other words. [00:04:28] Speaker 00: He said it was said in the break room. [00:04:30] Speaker 00: It was said in the break room. [00:04:31] Speaker 00: And he said that they, as a matter of course, were using the F word in the break room. [00:04:37] Speaker 00: Who, what managers? [00:04:39] Speaker 00: does he claim heard those things? [00:04:44] Speaker 02: I believe it was Tai Lozano in that specific instance, as if my memory serves. [00:04:50] Speaker 02: As this Court knows, the plaintiff may demonstrate and satisfy the second prong of a McDonnell-Douglas analysis through either indirect or direct evidence. [00:05:03] Speaker 00: And that this Court established in- There's two issues. [00:05:07] Speaker 00: One is whether [00:05:08] Speaker 00: You can show that there was, well, we have two claims, first of all, and you have to separate them out. [00:05:16] Speaker 00: One is that he has a claim that he was, suffered disparate treatment. [00:05:24] Speaker 00: And the other one is hostile work environment. [00:05:27] Speaker 00: And so they have different elements and you have to look at them separately. [00:05:32] Speaker 00: But if you want to get the defendant here, which is Walmart, [00:05:37] Speaker 00: you have a further requirement that you've got to show that they were aware of it and didn't act appropriately to stop it. [00:05:47] Speaker 02: Yes, and I believe there are numerous instances of other direct, more direct evidence where the management basically ignored the whiteboard scrawling of the capitalized letters of the words. [00:06:00] Speaker 02: And that was directly complained to by Karina Lopez, who is a manager. [00:06:05] Speaker 02: She said that she would give the plaintiff a statement, and she declined to do so or refused to do so afterwards. [00:06:12] Speaker 02: I think there are numerous examples. [00:06:13] Speaker 00: Karina Lopez. [00:06:14] Speaker 00: And again, I'm just trying to say where these 14 come from, because I think we've at most right now identified maybe five or six. [00:06:24] Speaker 02: I attempted to highlight each manager I mentioned throughout the opening brief just to really highlight each manager that was specifically involved in the emotion decision and as well as the termination decision. [00:06:40] Speaker 02: Manager Charles Stark who testified that he didn't even remember personally firing the plaintiff. [00:06:46] Speaker 02: So certainly circumstances giving rise to reasonable inference of discriminatory intent. [00:06:54] Speaker 02: is another example of manager that contributes to the 14 managers that were involved in numerous instances of discriminatory treatment and disparate treatment. [00:07:05] Speaker 05: And can I hit the pause button for a second? [00:07:06] Speaker 05: I mean, does this have to be actual knowledge? [00:07:10] Speaker 05: I mean, I thought our case law forward being one example, [00:07:13] Speaker 05: Ford versus West says it can be constructive knowledge. [00:07:17] Speaker 05: So I mean, it's just clear to me that it really matters, at least for a hostile work environment. [00:07:25] Speaker 02: Yes, I think that's correct. [00:07:26] Speaker 02: Actual knowledge is not necessarily needed to be demonstrated. [00:07:30] Speaker 02: I think we might be held to a higher standard here. [00:07:33] Speaker 02: We're talking about the standard is, on the prima facie case, circumstances giving rise to a reasonable inference of discriminatory intent [00:07:42] Speaker 02: And then on the third step of McDonnell Douglas is we're required to show that the excuses for the demotion, the excuses for the termination were pretextual. [00:07:54] Speaker 05: Yes, but the point is that to hold the employer liable, there has to be knowledge. [00:07:59] Speaker 05: The question becomes, what kind of knowledge are you talking about? [00:08:03] Speaker 05: And I guess what I'm saying is it's my understanding that it could be actual or constructive. [00:08:07] Speaker 05: I take it you agree with that. [00:08:09] Speaker 05: Yes, Your Honor. [00:08:10] Speaker 05: And let me ask you about the hostile work environment claim. [00:08:13] Speaker 05: What theory of hostile work environment are you pursuing? [00:08:17] Speaker 05: Are you saying that this atmosphere, this polluted discriminatory conduct was severe, or are you saying that it was pervasive, or are you saying it was both? [00:08:29] Speaker 02: Both, Your Honor. [00:08:30] Speaker 05: I assumed as much. [00:08:31] Speaker 05: Well, if you're saying that, which one is stronger here? [00:08:34] Speaker 02: I would say [00:08:37] Speaker 02: severe in that even overheard uncorrected uses of the F word in a workplace environment are completely improper and certainly ignoring any kind of substantive investigation concerning the capital letters of the F word use on the back room board. [00:08:58] Speaker 02: One of the most compelling parts of this case is that Walmart failed to refuse to basically document anything. [00:09:06] Speaker 02: There was nothing [00:09:07] Speaker 02: Jerry Sharp Miller's personnel files that show he had any performance-based issues or habitual tardiness, as the district court erroneously found. [00:09:17] Speaker 02: So I think that for those reasons, a reversal of summary judgment is proper. [00:09:22] Speaker 00: Did Mr. Sharp Miller ever complain about these offensive comments? [00:09:31] Speaker 02: Yes, he complained directly to Manager Karina Lopez about the [00:09:35] Speaker 02: anonymous scrolling of the F-word in the back room and then Walmart failed to refuse to obtain any sort of witness statements or attempt to identify who was responsible for this or preserve it. [00:09:50] Speaker 00: So you say he complained about the drawing on the board in the break room? [00:09:55] Speaker 00: Yes, Your Honor. [00:09:56] Speaker 00: Is that the only complaint? [00:09:58] Speaker 02: I know he also made originally some written complaints about disparate treatment in work assignments. [00:10:05] Speaker 00: But that had nothing to do with his sexual preference. [00:10:08] Speaker 00: In fact, one of them was a complaint that his crew was being worked too hard, and another one was about one employee was getting favored treatment over other employees. [00:10:23] Speaker 02: Yes, I believe that maybe it wasn't as [00:10:28] Speaker 02: closely related to unlawful sexual orientation discrimination. [00:10:33] Speaker 05: But are you accepting the premise that it cannot be considered because it was not closely related? [00:10:39] Speaker 02: No, I believe it should be considered in a continuing violation doctrine. [00:10:44] Speaker 02: As the Charles case, New Mexico Supreme Court makes clear, totality of the circumstances needs to be considered going all the way back to the original employment in 2017. [00:10:55] Speaker 02: And Aaron Jones is, manager Aaron Jones, [00:10:57] Speaker 02: original offensive statements comparing LGBTQ status to pedophilia and bestiality going all the way back. [00:11:05] Speaker 05: Let me ask you a grand, I know you're out of time, but I'll allot for that. [00:11:12] Speaker 05: Let me ask you sort of a granular question. [00:11:14] Speaker 05: On page 10 of your opening brief, there's a reference to Sharp Miller testified to his prior written complaint being ignored by historic core co-managers. [00:11:25] Speaker 05: of the time, Ivan Lujan and Louisa Lozano. [00:11:31] Speaker 05: And you cite to a page 97 of the record. [00:11:37] Speaker 05: What written complaint are you talking about? [00:11:40] Speaker 05: I couldn't find that reference. [00:11:44] Speaker 02: It comes from Sharp Miller's. [00:11:47] Speaker 02: oral deposition testimony that he made that written complaint, we asked for a discovery and it was never provided to us. [00:11:53] Speaker 02: And so we believe that under the summary judgment standard, his testimony on that specific issue should be believed and constricted in his favor. [00:12:03] Speaker 00: What was the subject matter of that written complaint? [00:12:08] Speaker 02: If I'm not mistaken, I believe it was for disparate treatment in work assignments and the scheduling disparities [00:12:18] Speaker 02: And with that, I have no further time reserved for rebuttals, so thank you. [00:12:25] Speaker 05: Thank you, Council. [00:12:38] Speaker 01: Good morning, Your Honors. [00:12:39] Speaker 01: Chelsea Sharon for the EEOC as a new guest. [00:12:42] Speaker 01: We're here today to ask this court to correct several legal errors in the district court's analysis of the disparate treatment and the hostile work environment claims. [00:12:50] Speaker 01: I'd like to begin, if I could, with the disparate treatment claim and point to three errors that we believe the district court committed. [00:12:56] Speaker 01: The first is that the district court said that plaintiffs' demotion, which has undisputed resulted in a loss of pay, did not qualify as an adverse employment action, whereas under both the Muldrow and pre-Muldrow standards, [00:13:08] Speaker 01: a demotion resulting in a loss of pay is actionable because it causes harm to a term or condition of employment, namely compensation. [00:13:16] Speaker 01: Second, with respect to the inference of discrimination prong of plaintiff's prima facie case, the district court treated as dispositive Walmart's proffer non-discriminatory reasons, whereas this court's case law makes clear that a plaintiff does not have to dispel the employer's purported non-discriminatory reasons at the prima facie stage. [00:13:35] Speaker 01: By treating those Walmart's reasons as dispositive, [00:13:38] Speaker 01: the court short-circuited the analysis at the prima facie stage. [00:13:42] Speaker 00: It collapsed. [00:13:43] Speaker 01: Exactly, exactly, Your Honor. [00:13:45] Speaker 01: With respect to the third error, the district court treated Walmart as having satisfied the second step burden here, even though Walmart produced no admissible evidence of the reasons for plaintiff's demotion or termination. [00:13:59] Speaker 01: Walmart did not offer any personnel records. [00:14:02] Speaker 01: It did not offer any testimony from decision-makers. [00:14:04] Speaker 01: Instead, it relied on double as to the demotion [00:14:07] Speaker 01: It relied on double hearsay testimony from plaintiff's deposition that amounted, even if admissible, to nothing more than vague allusions to something that the market manager saw the plaintiff did that the market manager didn't really like. [00:14:21] Speaker 01: And as to the termination, Walmart again relied on hearsay testimony from Supervisor Melendez that another supervisor, Stark, told her that plaintiffs should be removed due to attendance violations. [00:14:34] Speaker 01: However, Melendez subsequently [00:14:37] Speaker 01: contradicted that testimony by stating that she could not recall that conversation, by stating that Stark had never directed her to remove Sharp Miller from the payroll, and Stark himself testified that he could not recall the reasons for Sharp Miller's termination, or even if he had any involvement at all. [00:14:57] Speaker 01: I'd like to turn, if I could, to the hostile work environment claim and point to five discrete legal errors the district court committed with respect to that claim. [00:15:08] Speaker 01: First, Your Honors, the district court suggested that the district court did not deem related to plaintiff sexual orientation should be disregarded. [00:15:19] Speaker 01: Legally, that's incorrect under this court's case law, because facially neutral conduct cannot simply be disregarded under a totality of the circumstances analysis. [00:15:29] Speaker 01: In addition, as a factual matter, a reasonable jury here could easily find that certain incidents the district court [00:15:37] Speaker 01: suggested were not related to sexual orientation were, in fact, facially discriminatory. [00:15:42] Speaker 01: For example, the fact that plaintiff was called Jerry the Fairy, for example, the break a nail and catwalk comment, and of course, the drawing of an individual with the F word across their forehead. [00:15:55] Speaker 01: Second, Your Honors, the district court suggested that conduct that was not directed at the plaintiff or that was not attributable to a specific declarant should be discounted [00:16:07] Speaker 01: in the hostile work environment analysis. [00:16:09] Speaker 01: But we know from this court's case law that that conduct, especially derogatory comments, can be offensive to a plaintiff even if not directed specifically at that plaintiff and should not be disregarded as part of the analysis. [00:16:22] Speaker 05: The employer has to know about this conduct and so speak to the issue of knowledge and where we can glean that the employer would have known about this discriminatory conduct. [00:16:36] Speaker 01: I apologize, Your Honor. [00:16:37] Speaker 01: We did not take a position with respect to employer liability here. [00:16:40] Speaker 01: Our focus was on the specific legal errors that we believe the district court committed. [00:16:45] Speaker 01: So I apologize that I'm not authorized to take a position on that issue. [00:16:47] Speaker 05: Well, are you authorized to take a position on what theory of hostile work environment is most appropriate here? [00:16:54] Speaker 01: I'm not, Your Honor. [00:16:55] Speaker 01: I apologize that we did not take a position to get on the factual application of the severity or pervasiveness standard to the conduct here, but again, just on the district court's legal errors with our limited space. [00:17:04] Speaker 03: Can you take a position on whether or not the requirement of notice must be pled or argued under Burlington and other cases? [00:17:15] Speaker 01: Are you speaking specifically with respect to employer liability, Your Honor? [00:17:18] Speaker 03: Yes. [00:17:19] Speaker 01: I cannot take a position on that. [00:17:21] Speaker 01: I apologize. [00:17:24] Speaker 05: Continue with your litany of errors. [00:17:28] Speaker 01: Please feel free to interrupt. [00:17:29] Speaker 03: You're going for a third one, right? [00:17:31] Speaker 01: Yes, I am. [00:17:31] Speaker 01: I see I only have seven seconds. [00:17:32] Speaker 01: Do you want me to continue or do you? [00:17:34] Speaker 01: Yeah, knock it out. [00:17:35] Speaker 01: OK, thank you. [00:17:36] Speaker 01: With respect to the third legal error, Your Honors, the district court suggested that interference with work performance was required to show a hostile work environment claim. [00:17:46] Speaker 01: We acknowledge, of course, that under Harris, that is one of the relevant factors to be considered. [00:17:51] Speaker 01: However, the district court appeared to distill from Harris's [00:17:54] Speaker 01: five factor test that that was the overall inquiry that the court should look to and also seemed to confine that inquiry too rigidly to whether the plaintiff quit or wanted to quit his employment. [00:18:07] Speaker 01: The district court emphasized at page 26 that Shartmiller did not quit despite the offensive comments, but of course interference looks more generally to whether it was more difficult for the plaintiff to do his or her job. [00:18:21] Speaker 01: If you want me to continue, please tell me if you want me to stop. [00:18:25] Speaker 01: The fourth area, Your Honors, is with regard to the different court's suggestion that a steady barrage of offensive comments was required for a hostile work environment claim. [00:18:37] Speaker 01: We recognize, of course, that this court's case law has used that term, but it has in subsequent decisions clarified that that's meant simply to mean that isolated incidents do not amount to pervasive conduct. [00:18:50] Speaker 01: but there's no indication here that the district court believed the incidents to be isolated. [00:18:56] Speaker 01: In fact, in that same paragraph, in discussing a steady barrage, the district court noted that plaintiff had said that over a two-year period, he overheard the F word and the term, but pirate, and the district court did not seem to suggest that he believed the conduct to be isolated, just that it was not numerically sufficient. [00:19:15] Speaker 01: It's hard to discern exactly what he meant, but he seemed to think that it was [00:19:19] Speaker 01: I'm sorry, the district court seemed to think it was insufficient, numerically insufficient, to amount to study barrage. [00:19:24] Speaker 00: If the conduct is particularly severe, then you'd need less of it, right? [00:19:31] Speaker 01: And that's correct, Your Honor. [00:19:32] Speaker 01: Of course, the conduct does not have to be. [00:19:34] Speaker 01: It's a disjunctive standard. [00:19:35] Speaker 01: It needs to be either severe or pervasive. [00:19:37] Speaker 01: So even if it were not pervasive, that would not necessarily be fatal, of course, to the claim. [00:19:42] Speaker 01: And the final point we wanted to make was with respect to the categorical rule the district court [00:19:47] Speaker 01: advance that discrete discriminatory acts like demotion or termination can never form part of a hostile work environment claim that is contrary to the Supreme Court's decision in green, which suggests that discrete acts can form part of a hostile work environment claim as well as the overwhelming majority of circuits and all circuits post-green that have considered the issue have reached a contrary conclusion. [00:20:13] Speaker 01: Those are the areas we wanted to bring to your Court's attention. [00:20:15] Speaker 01: I'm happy to answer any other questions, but I do appreciate the extra time. [00:20:20] Speaker 05: All right, thank you, Council. [00:20:21] Speaker 01: Thank you very much. [00:20:24] Speaker 05: Would you give Walmart 20 minutes, please? [00:20:29] Speaker 05: And we'll be liberal if you end up needing more. [00:20:33] Speaker 04: Good morning, Your Honors. [00:20:34] Speaker 04: May it please the Court? [00:20:35] Speaker 04: Larry Montano on behalf of Walmart. [00:20:39] Speaker 04: Summary judgment should be affirmed in this case. [00:20:44] Speaker 04: As this court understands well, cases that present tribal issues of fact should survive summary judgment and should be allowed to go to trial. [00:20:57] Speaker 04: In this case, the district court judge undertook great effort in an attempt to discern what the plaintiff's allegations are, what evidence had been presented to sustain those claims, [00:21:12] Speaker 04: And after reviewing all of that evidence, the district court judge rightly determined that summary judgment should be granted to Walmart. [00:21:21] Speaker 00: Turning to the hostile work environment claim, the district court judge decided that it couldn't consider comments that weren't directed specifically at Mr. Sharp Miller. [00:21:36] Speaker 00: That's incorrect, isn't it? [00:21:38] Speaker 04: If that's what the district court judge had done, that would be incorrect, Your Honor. [00:21:42] Speaker 04: That's not what I believe occurred here. [00:21:44] Speaker 04: Relative to the EEOC's arguments, what the district court judge did, both in the initial decision and then also relative to the plaintiff's motion for reconsideration, is the judge articulated the legal standards and then [00:22:05] Speaker 04: in an attempt to approach those issues in a logical fashion, proceeded to address each one of them. [00:22:12] Speaker 04: And so with respect to the different elements, the different factors that weigh into an analysis of hostile work environment under Title VII and those related issues, that is what the district court judge did. [00:22:28] Speaker 00: Well, the district court's opinion doesn't even discuss the drawing in the break room [00:22:35] Speaker 00: of the picture with the F word right there for everyone to see. [00:22:40] Speaker 00: That seems like a substantial omission in analysis. [00:22:47] Speaker 04: Your Honor, I agree that the district court judge did not discuss that one particular act. [00:22:53] Speaker 04: Earlier today, we heard counsel say that it was Mr. Sharp Miller who complained about that. [00:22:59] Speaker 04: If you read the testimony, he did not complain about that. [00:23:03] Speaker 04: What happened is that a supervisor went into the room, observed that there was that inappropriate. [00:23:11] Speaker 00: And she erased it and said, boys will be boys, and did nothing else. [00:23:16] Speaker 04: Agreed, Your Honor. [00:23:18] Speaker 04: I think if we refer to that one discrete act, obviously that is one discrete act. [00:23:25] Speaker 04: And if that had had an impact on Mr. Sharp Miller, [00:23:30] Speaker 04: then certainly, as this court has already observed, it doesn't have to be a barrage of incidences. [00:23:38] Speaker 04: It doesn't have to be a litany of inappropriate remarks. [00:23:42] Speaker 04: And Walmart understands that. [00:23:44] Speaker 04: But this was a discreet remark. [00:23:46] Speaker 04: It was not directed at the plaintiff. [00:23:49] Speaker 05: There was no suggestion by the plaintiff that in his testimony... You just said it didn't have to be directed at the plaintiff. [00:23:54] Speaker 05: So what if it wasn't directed at the plaintiff? [00:23:56] Speaker 05: I mean, it was there for the plaintiff to see. [00:23:59] Speaker 05: And it suggested something about the environment. [00:24:03] Speaker 05: I mean, although it's not a complete match, but I think of our case, Tatami, which involved the noose hanging up there. [00:24:11] Speaker 05: And we found that that was a very significant act, had significant impact for the plaintiff. [00:24:17] Speaker 05: And the plaintiff knew that this was a sign of, and actually he quit right after that happened. [00:24:23] Speaker 05: why can't we infer from how Walmart responded? [00:24:28] Speaker 05: One, they knew what it meant. [00:24:30] Speaker 05: Number two, that they blew it off, that that's a significant variable going towards the nature of the environment. [00:24:37] Speaker 05: I mean, you know, it's severe or pervasive. [00:24:39] Speaker 05: Well, that's pretty darn severe, isn't it? [00:24:42] Speaker 04: That is a severe comment, Your Honor, but again, I think what the district court judge did here relative to whether specific comments or that particular drawing was [00:24:53] Speaker 04: directed at plaintiff was not to suggest that if it wasn't, that therefore it's irrelevant. [00:25:00] Speaker 00: It was more in the nature of if someone makes a direct comment to you and says something directly to you that is... Well, you know, if I went into the roving room and somebody had drawn a picture of a woman and put the C word across the top, it wouldn't have to be specifically directed to me for me to be pretty upset about it. [00:25:23] Speaker 04: I understand what Your Honor is saying, and I'm not here to tell you that Mr. Sharp Miller should not have taken offense to that. [00:25:31] Speaker 00: Well, and it's not one instance of, you know, if we're looking at either pervasive or severe, I think reasonable people could say use of the F word is severe. [00:25:44] Speaker 00: And it's not even a single incident. [00:25:47] Speaker 00: The records suggest that it was thrown, that word was thrown around routinely. [00:25:53] Speaker 00: in the break room. [00:25:55] Speaker 04: If I might address that, Your Honor, and you touched upon this in counsel's opening remarks, there are allusions in their briefs to these different comments. [00:26:07] Speaker 04: But if you look at the record, they're not substantiated in many instances. [00:26:12] Speaker 04: That's one of the dilemmas that we are dealing with here, both in their briefs and also in their pleadings where assertions were made. [00:26:19] Speaker 04: But then you look at the record, and where is [00:26:22] Speaker 04: the evidence to support that. [00:26:24] Speaker 00: Well, didn't Shark Miller testify to that? [00:26:28] Speaker 04: He testified to that one specific incident, Your Honor, but again, I thought he also said that it was used routinely in the break room. [00:26:38] Speaker 04: He did say that. [00:26:40] Speaker 00: Why isn't his testimony evidence? [00:26:43] Speaker 04: It is evidence, Your Honor, but ultimately it has to be imputable to Walmart. [00:26:49] Speaker 04: And I would like to commend to the court [00:26:52] Speaker 04: Mr. Sharp Miller's deposition testimony, which we supplemented the record so that this court would have all of his testimony. [00:27:00] Speaker 04: At page 181 of his deposition, he was asked the following question. [00:27:05] Speaker 04: Now, you would agree with me that if there was any corrective action that could have been taken or should have been taken with regard to the incidents that you complain about, you never gave Walmart an opportunity to do that, correct? [00:27:20] Speaker 04: Council objected to form. [00:27:22] Speaker 04: Council followed up and said, correct, Mr. Miller, no objection, answer, yes. [00:27:28] Speaker 04: Next question. [00:27:30] Speaker 04: And you would agree with me that as part of your knowledge of the policies at Walmart, you would agree with me that Walmart provided you with opportunities to report the discriminatory comments and actions that were discussed today, correct? [00:27:45] Speaker 04: Answer, yes. [00:27:47] Speaker 04: Your Honors, that's the issue that we have here, is over the course [00:27:52] Speaker 04: of four years of employment at Walmart. [00:27:56] Speaker 04: There is no suggestion by Walmart that there were never inappropriate comments made, or that that drawing on the chalkboard was not there. [00:28:08] Speaker 03: What about the evidence that was pointed out by opposing counsel of knowledge by supervisors and management people? [00:28:17] Speaker 04: Your Honor, Judge McHugh rightly noted [00:28:21] Speaker 04: that there are two instances in the record in which there were managers that were present. [00:28:29] Speaker 04: The first one that occurred during Mr. Sharp Miller's employment, which as I understand was within a matter of a couple months of the time that he first became employed by Walmart. [00:28:43] Speaker 04: That was one of those comments. [00:28:45] Speaker 04: And Mr. Sharp Miller's subsequent testimony is that he never [00:28:50] Speaker 04: had another negative experience with that person, and that person did not have supervisory control over Mr. Sharp Miller. [00:28:59] Speaker 04: That's one of those incidences. [00:29:01] Speaker 05: The other incidence that Judge McHugh... Are you talking about the catwalk and that kind of thing? [00:29:05] Speaker 04: No, Your Honor. [00:29:06] Speaker 04: What are you talking about? [00:29:07] Speaker 04: That is the one where the person talked about pedophilia. [00:29:12] Speaker 05: Okay. [00:29:12] Speaker 05: Well, I mean, all right, so we got the bestiality pedophilia. [00:29:16] Speaker 05: We have the later [00:29:17] Speaker 05: We have supervisors, two supervisors talking about his catwalk and swishing of the hips, right? [00:29:24] Speaker 05: Yes. [00:29:24] Speaker 05: Okay. [00:29:24] Speaker 05: Well, I mean, how much, how much do you need? [00:29:28] Speaker 05: I mean, you've got it on the wall, which, which was, which was blown off apparently by Walmart. [00:29:35] Speaker 05: You have the pervasive, according to the testimony of Mr. Sharp Miller in the break room, the use of the F word, if one wants to put it that way. [00:29:44] Speaker 05: And then you have these other instances. [00:29:46] Speaker 05: I mean, how much you need before, I mean, the standard is severe or pervasive before the environment is as such that an employer who is sensitive to discriminatory conduct [00:29:59] Speaker 05: would know that something was going on. [00:30:02] Speaker 05: And even if they didn't know it, they should be put on constructive knowledge that something is going on. [00:30:08] Speaker 04: The issue with that, Your Honor, is there cannot be constructive knowledge imputed to Walmart. [00:30:15] Speaker 04: Judge McHugh. [00:30:16] Speaker 05: Why not? [00:30:18] Speaker 05: Our Ford case specifically says that you can use constructive knowledge. [00:30:22] Speaker 04: I'm speaking factually here, Your Honor. [00:30:25] Speaker 04: Because these comments that Mr. Sharp Miller talked about, he was asked in his deposition, well, who else was present during this? [00:30:34] Speaker 04: And he couldn't say. [00:30:35] Speaker 00: Well, he testifies that Myra Hernandez was in the back room when these homophobic slurs were being used. [00:30:45] Speaker 00: She's a supervisor. [00:30:47] Speaker 00: He testified that Karina Lopez saw the drawing [00:30:53] Speaker 00: on the board and said boys will be boys and that the people who made the comments about the catwalk were two supervisors. [00:31:01] Speaker 00: And then there's also Jones, a senior member of management that was there when the, who actually said the homosexuality, bestiality and pedophilia comments. [00:31:14] Speaker 00: I mean that sounds like a, it's not 14. [00:31:18] Speaker 00: But that's what I've been able to call from the record. [00:31:21] Speaker 04: Your Honor, first of all, with respect to the catwalk issue, Mr. Sharp Miller testified that they were joking. [00:31:31] Speaker 04: And he said that he took offense to that. [00:31:35] Speaker 04: When he was asked, did you say anything about it, he said, no, I didn't. [00:31:40] Speaker 05: I think about a case where Judge McHugh and I were on Lownes versus Lynn Care. [00:31:46] Speaker 05: And a lot of these same issues came up, and it was very clear that the fact that they were joking was irrelevant. [00:31:52] Speaker 05: The point was, did they pollute the environment with stuff that would be objectively offensive? [00:31:57] Speaker 05: Somebody saying, oh, well, I was joking when I called somebody the N-word, or I was joking when I called somebody the F-word is irrelevant. [00:32:05] Speaker 05: It doesn't matter. [00:32:06] Speaker 05: The point is, you put it in the environment, and it was objectively offensive. [00:32:11] Speaker 05: And whether it was directed at the plaintiff or not, was it objectively offensive? [00:32:15] Speaker 05: That case maps right onto this case. [00:32:18] Speaker 05: Unless you tell me differently, I don't understand why the results shouldn't be the same. [00:32:22] Speaker 04: I do think that this is different because as Mr. Sharp Miller himself testified, this was in the context of a discussion where they were joking. [00:32:36] Speaker 04: Again, Your Honor, I hear what you're saying and I do not disagree with the notion [00:32:41] Speaker 04: that there are certain statements, certain terms that could be used that are so overtly offensive. [00:32:48] Speaker 04: In Mr. Sharp Miller's case, he says, yes, I do walk with a sway. [00:32:51] Speaker 04: And I do a catwalk from time to time. [00:32:55] Speaker 04: But again, that was not, at least from the perspective of the declarant, there was no attempt made to say something offensive. [00:33:06] Speaker 04: The fact that it might have been [00:33:07] Speaker 04: taken that way is a different matter. [00:33:09] Speaker 05: I'm sorry if I did not communicate this point correctly, which is simply that whatever the employer, whatever the declarant said, whatever their intent was is irrelevant. [00:33:22] Speaker 05: I mean, we made that clear as a matter of law, it doesn't matter. [00:33:26] Speaker 05: If I call you the N-word and I'm the best, you're my buddy, it really doesn't matter. [00:33:31] Speaker 05: If I pollute the environment with things that are objectively offensive to other people in that environment on a discriminatory basis, that's it. [00:33:41] Speaker 05: What difference does it make whether I had a pure heart or not? [00:33:44] Speaker 05: It doesn't matter. [00:33:46] Speaker 04: Your Honor, I think it matters only in the sense that this was a conversation between them and Mr. Sharp Miller. [00:33:51] Speaker 04: There weren't other, at least as I can tell from the record, no other people were present. [00:33:58] Speaker 04: The way that the testimony came across is that this was a joking discussion amongst friends. [00:34:03] Speaker 03: You keep going back to the joking, and one minute you say you understand and it doesn't matter if it's joking, and then you go back and keep repeating that it's joking, so it doesn't count. [00:34:18] Speaker 04: Where are you coming from on this? [00:34:20] Speaker 04: It counts, Your Honor, in terms of the law, but it doesn't count in terms of [00:34:25] Speaker 04: the overall environment that Mr. Sharp Miller was in. [00:34:29] Speaker 04: Let me ask you this. [00:34:33] Speaker 03: Apparently, there are not 14 instances of supervisors in management. [00:34:37] Speaker 03: Would you agree that there are more than two? [00:34:39] Speaker 04: I would not agree that there were more than two. [00:34:45] Speaker 05: All right. [00:34:45] Speaker 05: How is that possible since two of the people who were making comments were supervisors? [00:34:50] Speaker 04: Those are the two that I'm aware of. [00:34:53] Speaker 05: Well, the person who wiped off the F word on the board, was that one of the two? [00:35:02] Speaker 05: I don't think so. [00:35:03] Speaker 04: I think that that would be a third one. [00:35:06] Speaker 04: And that's the third one that I can think of, Your Honor. [00:35:09] Speaker 00: And what about Senior Management Jones? [00:35:13] Speaker 00: who is the one who compared homosexuality to bestiality and pedophilia? [00:35:18] Speaker 04: That's the first one. [00:35:19] Speaker 04: That's the first one. [00:35:20] Speaker 00: Oh, well, what about then the two, the supervisor and assistant supervisor that made fun of his catwalk? [00:35:27] Speaker 04: That is the second one. [00:35:29] Speaker 00: Those two people are one? [00:35:32] Speaker 04: The testimony wasn't clear to me, Your Honor, if those were set in two different settings. [00:35:37] Speaker 04: That would be the second one. [00:35:39] Speaker 05: Well, that's a reference to an episode. [00:35:40] Speaker 05: That's not a reference to a person. [00:35:42] Speaker 05: I mean, if there was one episode and there were two people involved and they were both management people, they were individuals. [00:35:49] Speaker 05: And I mean, those individuals are on notice for Walmart that there's conduct going on, but they're the perpetrators of the conduct, right? [00:35:57] Speaker 04: Correct. [00:35:57] Speaker 04: Correct. [00:35:58] Speaker 04: I agree with that, Your Honor. [00:35:59] Speaker 05: All right. [00:36:00] Speaker 05: Before you sit down, I'm going to ask the question about the [00:36:04] Speaker 05: the ability to carry out the second step of McDonald Douglas as it relates to the demotion and the termination. [00:36:11] Speaker 05: I think I've been on this court more than 18 years, and I don't recall seeing a situation in which the employer relied upon some garble statement of the plaintiff as their legitimate explanation for why he was fired. [00:36:27] Speaker 05: How does that make any sense at all? [00:36:29] Speaker 05: The statement of Mr. Sharp Miller was equivocal as to the demotion, as to why he was demoted. [00:36:37] Speaker 05: I don't think he even knew why he was demoted. [00:36:39] Speaker 05: How can that be your legitimate explanation for why he was demoted? [00:36:44] Speaker 04: Your Honor, in the first instance, as we have pointed out in our papers, that complaint is untimely. [00:36:52] Speaker 05: Let's assume for the moment it is timely. [00:36:56] Speaker 05: I'm asking you on the merits so I understand what your position is. [00:37:00] Speaker 04: Yes. [00:37:01] Speaker 04: And the other thing I would say and it's clear that Your Honor has read much of his deposition testimony. [00:37:07] Speaker 04: I myself have read his deposition testimony. [00:37:11] Speaker 04: It's not unclear. [00:37:12] Speaker 04: He testified in his deposition for pages upon pages about being brought back into a room where he was told that his [00:37:22] Speaker 04: work was deficient and he was specifically told that a market manager who had visited the location, that he had observed that Mr. Sharp Miller had not complied with company policy with respect to spilled liquids. [00:37:41] Speaker 04: Mr. Sharp Miller acknowledged that he did not. [00:37:46] Speaker 05: I read that statement and regrettably, [00:37:48] Speaker 05: It was not expressed as eloquently as you're doing now. [00:37:51] Speaker 05: I mean, and concisely. [00:37:53] Speaker 05: I mean, there was a lot of hemming and hawing about what Mr. Sharp Miller knew or what he didn't know. [00:37:57] Speaker 05: But more to the point, is there an affidavit or anywhere from a Walmart employee saying, we demoted him for X reason? [00:38:06] Speaker 04: There isn't, you're off. [00:38:08] Speaker 05: And why isn't that important? [00:38:10] Speaker 05: I mean, who cares what Mr. Sharp Miller thought? [00:38:12] Speaker 05: I mean, Walmart is the one. [00:38:14] Speaker 05: who's got the burden to explain why they did what they did, right? [00:38:20] Speaker 04: Your Honor, when you look at the summary judgment evidence, certainly a statement by the plaintiff, a statement by a party opponent is an admission. [00:38:32] Speaker 04: Walmart was entitled to rely on his testimony. [00:38:36] Speaker 00: Well, his testimony is, I'm not really sure it might have been this. [00:38:42] Speaker 00: I mean, that's the best I got out of his testimony. [00:38:45] Speaker 04: Your Honor, as I was rereading his deposition testimony, it's a bit sinuous. [00:38:51] Speaker 04: 386, 387 is what I have. [00:38:55] Speaker 04: Yeah, and I'm happy to go through the pages because it went over the course of several pages. [00:39:01] Speaker 04: And I agree with Your Honor that there were times when he said, yes, and then there were times when he says, I'm not sure. [00:39:09] Speaker 00: Well, you're asking him to speculate what was in Wal-Mart. [00:39:13] Speaker 00: I mean, nobody ever said to him, this is why you're being terminated. [00:39:17] Speaker 00: He never got any. [00:39:18] Speaker 00: There's no paperwork that says this is why we terminated him. [00:39:23] Speaker 04: If I might address the termination issue, because again. [00:39:26] Speaker 00: I'm sorry. [00:39:26] Speaker 00: I'm talking about demotion. [00:39:28] Speaker 04: OK. [00:39:29] Speaker 04: Well, relative to the demotion, Mr. Sharp Miller articulated that one thing. [00:39:36] Speaker 04: And as far as, [00:39:38] Speaker 04: If Walmart, if he had speculated and he had said, it could have been this, it could have been that, it could have been three things or four things or five things, and Walmart said it was all of those things, then I think we would be having a very different discussion here. [00:39:51] Speaker 00: But we don't have that piece of Walmart saying this is what it is. [00:39:57] Speaker 00: But we do, Your Honor. [00:39:58] Speaker 00: We have Sharp Miller saying, you know, I'm not really sure. [00:40:01] Speaker 00: This might have been what it was. [00:40:03] Speaker 00: But you don't have testimony or record evidence, documents, [00:40:08] Speaker 00: that it can be evidence of Walmart's position for why they demoted him. [00:40:15] Speaker 04: Walmart's position is set forth in its motion for summary judgment. [00:40:20] Speaker 04: When Mr. Sharp Miller testified to this, it agreed to that. [00:40:25] Speaker 04: That was the only testimony that it relied on for purposes of his demotion. [00:40:31] Speaker 04: And that is evidence. [00:40:32] Speaker 04: Ultimately, and I can see that my time is finished here, [00:40:38] Speaker 04: But at the end of the day, I go back to what I read into the record just a moment ago relative to Mr. Sharp Miller's own testimony where he said he was a supervisor at one point. [00:40:52] Speaker 04: He was educated on what he could do if he was subjected [00:40:56] Speaker 04: or if he was aware of any approprious comments, anything that would create a hostile work environment, he was told how he could seek relief. [00:41:09] Speaker 00: And he knew that- So is it your position that if he doesn't make a complaint, but Walmart is, let's just say, and not even just constructively, but actually aware of repeated use of the F-word and harassing comments to him [00:41:26] Speaker 00: Because he didn't make a complaint, they have no obligation to make efforts to stop it? [00:41:34] Speaker 04: No, Your Honor. [00:41:34] Speaker 04: That is not Walmart's position. [00:41:36] Speaker 04: Walmart's position is, over the course of four years, what plaintiff has been able to identify are a discrete number of comments. [00:41:46] Speaker 04: There have been allusions to 14 managers and to lots of comments and backrooms and all of those things. [00:41:55] Speaker 04: But in terms of admissible evidence, what is it that could actually be presented to a jury? [00:42:02] Speaker 04: That is what the district court judge relied on. [00:42:05] Speaker 04: And I will just end with this, that relative to really this entire case, as I understand it, plaintiff's complaint is that he was constructively discharged. [00:42:20] Speaker 04: And for purposes of that claim, [00:42:23] Speaker 04: He relies on comments dating back to 2017. [00:42:27] Speaker 04: And what the district court judge concluded is that you weren't terminated. [00:42:34] Speaker 04: There was a mistake that was made. [00:42:37] Speaker 04: It was acknowledged. [00:42:39] Speaker 04: An apology was made to Mr. Sharp Miller. [00:42:43] Speaker 04: And Mr. Sharp Miller was reinstated that very day. [00:42:48] Speaker 04: And so this suggestion that there might be confusion about why he was temporarily terminated, with respect, just by virtue of the temporal proximity to him having missed a day and him having been temporarily terminated, and then to be reinstated that very same day, I think it speaks to the fact as to why he was mistakenly terminated, why he was reinstated. [00:43:17] Speaker 04: and why all of these things do not give rise to constructive discharge, because he was not discharged, and he was not put in a position where his conditions of employment were so intolerable. [00:43:30] Speaker 04: And to that end, I would say it is my understanding that Mr. Schartmiller continues to be employed by Walmart, and that has not been something that has been brought to the attention of this Court. [00:43:41] Speaker 03: We understand that. [00:43:43] Speaker 03: Thank you, Your Honor. [00:43:43] Speaker 03: Let me ask you this. [00:43:44] Speaker 03: Did you plead and submit [00:43:48] Speaker 03: Farragher Burlington claim that, or defense, that the plaintiff had to report the hostile work environment, the hostile work environment matters? [00:44:00] Speaker 04: I don't think that it was put that specifically, but it was argued in the papers. [00:44:06] Speaker 03: It's clear in the papers that he had, the plaintiff had to complain to Wal-Mart. [00:44:13] Speaker 04: Yes, Your Honor. [00:44:14] Speaker 04: What was presented in [00:44:17] Speaker 04: the papers and Mr. Sharp Miller testified about this throughout his deposition where he was both as part of the orientation process and then when he was made a supervisor for a period of time that he was advised about all of these policies. [00:44:36] Speaker 03: My question is, are you saying that regardless of what his education was on that, that his failure to report [00:44:46] Speaker 03: is the death nail for his claim on hostile work environment. [00:44:50] Speaker 03: Yeah, I wouldn't go that far, Your Honor, because... Well, then how far do you go? [00:44:57] Speaker 03: Is his complaint irrelevant? [00:45:00] Speaker 04: I don't think it is irrelevant, Your Honor. [00:45:02] Speaker 03: I think to the Chief Judge's point... This sounds like it's a kind of a defense, but not really. [00:45:09] Speaker 04: It is a defense in the following sense, Your Honor. [00:45:13] Speaker 04: If Walmart itself, if [00:45:17] Speaker 04: people in a managerial capacity were not made aware of these comments other than the three and possibly four that we've talked about. [00:45:27] Speaker 03: But you're dancing around this. [00:45:29] Speaker 03: There are two issues on this notice, and that is management observing this and whether there was an obligation for the plaintiff to report to management. [00:45:43] Speaker 03: I'm talking about the latter. [00:45:44] Speaker 03: Are you taking that position? [00:45:46] Speaker 03: that his failure to report is a death nail to his claim. [00:45:52] Speaker 04: No, we are not. [00:45:53] Speaker 05: Thank you. [00:45:55] Speaker 05: All right. [00:45:55] Speaker 05: Thank you, counsel. [00:45:56] Speaker 04: Thank you. [00:45:56] Speaker 05: Thank you, your honor. [00:45:57] Speaker 05: I thank you both. [00:45:58] Speaker 05: We'll understand you've been heard. [00:46:01] Speaker 05: Case is submitted.