[00:00:00] Speaker 02:
Case number 21, Dutch 1746.

[00:00:03] Speaker 02:
Luis R. Martinez, affluent, versus Gonzalez, triple canopy.

[00:00:07] Speaker 02:
Ms.

[00:00:08] Speaker 02:
Farr, pretty affluent.

[00:00:09] Speaker 02:
Ms.

[00:00:09] Speaker 02:
Carnell, pretty affluent.

[00:00:16] Speaker 01:
Good morning, Ms.

[00:00:17] Speaker 01:
Farr.

[00:00:19] Speaker 04:
Good morning.

[00:00:24] Speaker 01:
You may proceed.

[00:00:25] Speaker 04:
Thank you.

[00:00:27] Speaker 04:
Good morning.

[00:00:29] Speaker 04:
Thank you for your time today.

[00:00:30] Speaker 04:
My name is Kristen Farr and I represent the plaintiff appellant, Luis Martinez.

[00:00:37] Speaker 04:
Today we ask this panel to reverse the decision made by the district court and find that the plaintiff has sufficiently pled claims for a hostile work environment and false imprisonment.

[00:00:49] Speaker 04:
When looking at the totality of the circumstances, Mr. Martinez states a claim for a hostile work environment.

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The harassment he experienced was due to his protected classes.

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He checks off both the severe and pervasive requirements of a hostile work environment claim.

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The comments regarding his beard were pervasive.

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His supervisor, Mr. Williams,

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gave Mr. Martinez a hard time about his beard for approximately five years, two of which more while he was employed by the defendant.

[00:01:25] Speaker 02:
You don't counsel describe with any particularity, any harassment beyond the three, I believe it was either two or three instances of comments related to the beard, correct?

[00:01:45] Speaker 02:
I mean, you sort of summarize that he was weakly questioned about it, but we don't have a sense from the complaint of the extent of those comments.

[00:01:58] Speaker 04:
Well, those are the examples that he experienced that his supervisor, Mr. Williams, approached him and made comments like that on a regular basis.

[00:02:12] Speaker 02:
I understand, but in our circuit, you have to have allegations that actually, if true, would substantiate the claim.

[00:02:22] Speaker 02:
And sort of generic one or two examples, not with particular detail, is typically held not to be sufficient to state a claim for the kind of hostile work environment that you appear to be alleging here.

[00:02:42] Speaker 04:
Well, if that is all that occurred,

[00:02:46] Speaker 04:
That would be true, but these happened for years and small offhanded comments, one, two, three, certainly aren't going to rise to the level of a hostile work environment.

[00:03:01] Speaker 04:
But this was going on for years that he would make comments, compare them to other employees, talk about the length of his beard that he had as a reasonable accommodation.

[00:03:14] Speaker 04:
So it's the cumulative effect of these slight comments that add up into a hostile work environment claim.

[00:03:25] Speaker 01:
What term condition or privilege of employment was affected by the hostile environment?

[00:03:39] Speaker 04:
Well, he was in a very stressful environment having to worry about his supervisor always commenting on his beard that he had due to his disability.

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So he is always on edge whenever his supervisor comes around him.

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doesn't have the ability to just do his job as other employees without a disability have to constantly be on edge and worried about more comments and harassment from his supervisor.

[00:04:23] Speaker 02:
I don't see that statement in the complaint.

[00:04:29] Speaker 02:
Aren't we at a motion to dismiss stage and evaluating the allegations of the complaint?

[00:04:40] Speaker 04:
Yes, that is the stage that we are at.

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I mean, I believe that the inferences that can be drawn from the allegations in the complaint lead to that conclusion.

[00:04:55] Speaker 02:
Is your hostile work environment claim also related to the

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facts concerning the unlawful detention or are those two separate?

[00:05:14] Speaker 04:
No, absolutely those are together and that is one of the problems with the district court's decision is it's the comments in combination with the unlawful detention that create the totality of his claim for a hostile work environment and

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the district court essentially analyzed those separately.

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And it's the comments that give rise to the motive there, the reason that he is engaging in this behavior.

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And then Mr. Martinez, along with one other employee with a beard, were the ones that were not so randomly selected for this drug test in a really

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peculiar and outrageous manner.

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You know, it was just conducted contrary to policy in a way that would embarrass him in front of colleagues, as he is disarmed, taken through the facility by an armed security officer, which gives the impression that he has done committed some egregious act.

[00:06:26] Speaker 04:
And then, you know, he's taken

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on a wild ride through Washington D.C., downtown Washington D.C., without being told where he is going.

[00:06:36] Speaker 04:
So it's a combination of those together that, you know, on one hand, you have the pervasive comments, on the other side, you have the severe unjustified drug test in that manner that create the hostile work environment claim.

[00:06:55] Speaker 02:
And you also allege a common law false imprisonment claim.

[00:06:59] Speaker 02:
Are you maintaining that there was a threat of force with respect to the your analysis random testing.

[00:07:09] Speaker 04:
Yeah, I mean, I think this case is distinguishable from the Faniel case.

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Stripping of a weapon is a nonverbal threat.

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It is part of his identity as a security guard.

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You know, it's important to understand the environment in which Mr. Martinez worked.

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This is an environment that values chain of command and strict compliance.

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Ms.

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Spaniel had a fear of losing her job, but Mr. Martinez not only had that fear of losing his job, but potentially his career because losing your job for being terminated for cause, for being terminated for insubordination can affect his potential employment elsewhere, his security clearance,

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And in that way, his situation is vastly different from Miss Daniel, who was a key punch operator.

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at AT&T.

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So, you know, there's a distinction there with the manner in which he was taken into the car.

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He did not know where he was going, whereas Ms.

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Fanuel was aware of where she was being taken and why she was being taken there.

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And she did, she consented to the trip.

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She did not consent specifically

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to picking up the security officer.

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And it's at that point where the court notes that she did not object or manifest a desire to change her prior consent.

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However, in this case, Mr. Martinez did not give that original consent.

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He was stripped of his weapons and escorted out by an armed security guard.

[00:08:57] Speaker 02:
But I guess I'm curious about

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your view of whether there was a threat of force.

[00:09:05] Speaker 02:
I mean, it seems that as though the Faneuil case, when it talks about the requirements, I understand the facts are different, but to show unlawful detention or restraint, says the district court, the plaintiff must demonstrate that his movements were totally restrained through, quote, threats of force or by exertion of legal authority.

[00:09:26] Speaker 02:
And he quotes Faneuil for that proposition.

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Is that not an accurate statement of the law?

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And if it is, where is the threat of force or exertion of legal authority in this case?

[00:09:39] Speaker 04:
Well, the fact that he was being escorted by an armed security guard who's essentially acting as, you know, not just the employer, but as a position of authority, you know, enforcing the safety of the building and having that authority to command him to come with him.

[00:10:00] Speaker 04:
I mean, even if he said, well, I quit, you know, there's still he's still being detained.

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He can still be escorted out, especially by the security guard.

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So I think it's very different.

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And yes, you accurately stated the law.

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And I believe that Mr. Martinez's case falls within that standard.

[00:10:24] Speaker 01:
So let's suppose we agree that there's a detention against his will.

[00:10:30] Speaker 01:
You also have to show the unlawfulness of the restraint, right?

[00:10:36] Speaker 02:
Yes.

[00:10:37] Speaker 01:
So what was unlawful about what they did?

[00:10:43] Speaker 04:
There is a specific policy that governs drug testing that was not followed here.

[00:10:56] Speaker 04:
There's different reasons that somebody can be drug tested.

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You can have cause for the drug test if you are giving suspicion that you are under the influence.

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They can specifically point to you, send you for a drug test.

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That is not the case here.

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Alternatively, it can be a random drug test.

[00:11:23] Speaker 01:
Even if I point that they violated policy, how does that make his restraint unlawful?

[00:11:33] Speaker 04:
They did not have the authority to do it in this manner, that it is, you know, again, a specific way of

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treating their employees.

[00:11:54] Speaker 04:
I mean, this is a collective bargaining agreement, not just a company policy.

[00:12:00] Speaker 04:
So it's contrary to the contract.

[00:12:05] Speaker 00:
An arguable violation of a contract, which doesn't seem like that's unlawful.

[00:12:13] Speaker 00:
There's a difference.

[00:12:16] Speaker 04:
That's true, yes.

[00:12:20] Speaker 01:
All right, your time is up.

[00:12:22] Speaker 01:
expired, we can give you some time on rebuttal.

[00:12:25] Speaker 01:
I'll ask my colleagues if they have any further questions at this time.

[00:12:32] Speaker 01:
All right, we'll give you a couple of minutes on rebuttal.

[00:12:35] Speaker 01:
Let's hear from Council for Constellas Triple Canopy, Ms.

[00:12:45] Speaker 01:
Farnell.

[00:12:46] Speaker 03:
Yes, good morning, Your Honors.

[00:12:48] Speaker 03:
May it please the court.

[00:12:49] Speaker 03:
My name is Susan Cornell and I'm here representing Mr. Martinez's employers, Constellus and Triple Canopy.

[00:12:56] Speaker 03:
We are asking the court, as you might imagine, to affirm the lower court's decision to sink the amended complaint with prejudice.

[00:13:03] Speaker 03:
The appellee has raised three grounds of appeal, that he stated a plausible claim for hostile work environment, that he stated a plausible claim for false imprisonment, and that the dismissal with prejudice was improper.

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And I'll address each in turn.

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Mr. Martinez has asserted a hostile work environment based on his appearance or disability.

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But to make out, as you've noted, a hostile work environment claim, there must be discriminatory intimidation, ridicule, or insult that is severe or pervasive so as to alter the terms and conditions of employment and create an abusive working environment.

[00:13:39] Speaker 03:
The severity and pervasiveness are supposed to be determined by the totality of the circumstances.

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Those circumstances include the frequency of the alleged discriminatory conduct, their severity, whether those instances were physically threatening or humiliating, and whether they unreasonably interfere with the work performance.

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The standard is an objective one, and it's a standard that this court has characterized at time as requiring extreme conduct.

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Here, essentially Mr. Martinez relies on frequency alone.

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None of the specific comments alleged could be fairly characterized as insulting or intimidating or humiliating.

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He also alleges the circumstance that this was a work rule requiring that his beard be trimmed so that the hairs quote, not protrude more than a quarter inch from his face.

[00:14:38] Speaker 03:
There is simply no discriminatory insult and injury.

[00:14:42] Speaker 01:
Even if we assume that Mr. Martinez is alleging- Someone who have for medical reasons disappeared and is being harassed on a daily basis about that, even though they are complying with the medical exemption, they're complying with the work rule every day for a five-year period.

[00:15:06] Speaker 01:
Isn't that, would you want to work under those conditions?

[00:15:11] Speaker 01:
Wouldn't that be psychologically debilitating?

[00:15:16] Speaker 03:
Your Honor, we do not contend that there are no set of circumstances under which daily appearance-based or disability waiver-based comments could create a hostile work environment.

[00:15:29] Speaker 03:
I certainly agree that they could.

[00:15:31] Speaker 03:
I think that the allegations, and I think the record reflects that the allegations identified in this complaint do not support that.

[00:15:38] Speaker 03:
The allegations were asking about the length and shape of the beard.

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There are very few specifics in here.

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And my point is that if those happen on average every other day, that what we have is a beard that grows and that it can't be a one and done conversation if the obligation is to demonstrate or to confirm compliance with a work rule where that compliance will always be ongoing.

[00:16:08] Speaker 01:
Council, that's not reading the complaint in the light most favorable to the plaintiff, though.

[00:16:15] Speaker 01:
That's not, the complaint describes the interactions and the conversations about the beard, is it?

[00:16:22] Speaker 03:
I think the complaint describes two specific conversations with my client.

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One in which he compares his face to another person and we don't actually know what he says.

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And one in which he says, I believe that he asks for the length and shape of his beard.

[00:16:42] Speaker 03:
Those words do not suggest to me anything inherently harassing, intimidating, or insulting.

[00:16:49] Speaker 03:
I think that the characterizations in the complaint where the appellant and his counsel call them humiliating or call them harassing are characterizations that need not be assumed true.

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But I would argue that what Mr. Martinez is relying on is frequency alone.

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And I would suggest that a long list of trivial incidents is no more a hostile work environment than a pile of feathers is a crushing weight, as this court said in the Baird decision.

[00:17:25] Speaker 03:
With respect to the false imprisonment claim, this claim was- Can I just ask you before you go on to that claim?

[00:17:31] Speaker 02:
Yes.

[00:17:32] Speaker 02:
Ms.

[00:17:34] Speaker 02:
Farr also indicates that the hostile work environment claim itself is supported by the additional facts related to what she says was an unlawful detention.

[00:17:48] Speaker 02:
Do you have any response to that?

[00:17:49] Speaker 02:
In other words, you're not only looking, she says, you said totality of the circumstances and she has added to the circumstances the incident concerning your analysis.

[00:18:03] Speaker 02:
Is that a thing to do and what is your response to that?

[00:18:08] Speaker 03:
Thank you for raising that.

[00:18:09] Speaker 03:
I appreciate that opportunity to add to my argument.

[00:18:13] Speaker 03:
We don't believe that that drug test constitutes any instance of harassment at all, much less one that can contribute to a hostile work environment.

[00:18:23] Speaker 03:
It is a drug test that occurs in workplaces.

[00:18:28] Speaker 03:
It was not particularly severe.

[00:18:30] Speaker 03:
It's not frequent.

[00:18:31] Speaker 03:
It only happened one time.

[00:18:33] Speaker 03:
It was not objectively humiliating, although Mr. Martinez says it was subjectively humiliating.

[00:18:39] Speaker 03:
It was not threatening, and I would argue it's a perfect example of an ordinary tribulation of a workplace.

[00:18:44] Speaker 03:
He actually identifies having been approached in private when no one else was around and being asked to go with Major Rouse.

[00:18:54] Speaker 03:
And although he walked through a public location, I don't think we can assume that that was objectively humiliating.

[00:19:00] Speaker 03:
So I would argue that that incident alone would not constitute a single institute of harassment, nor would it contribute to an ongoing pattern of harassment.

[00:19:10] Speaker 02:
All right.

[00:19:11] Speaker 02:
So the standing alone, then, in looking at the unlawful detention claim, what's your argument about that?

[00:19:19] Speaker 03:
Well, Your Honor, I think you all have keyed on the key case, which is the Spaniel or Finial case, where the court confirmed that in order to have a false imprisonment claim, you needed to have an unlawful detention without consent.

[00:19:34] Speaker 03:
And here, Mr. Martinez was not restrained of movement.

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His restraint was not total at all.

[00:19:41] Speaker 03:
He walked on his own volition down through an elevator and a public building.

[00:19:45] Speaker 03:
He walked away from Major Rouse and returned.

[00:19:48] Speaker 03:
He may have been concerned about the circumstances of what was going on, but he did not express any unwillingness to go.

[00:19:56] Speaker 03:
He did not refuse to get in the car.

[00:19:58] Speaker 03:
He did not attempt to leave the car.

[00:20:00] Speaker 03:
He, in fact, got in the car a second time for the return trip.

[00:20:04] Speaker 03:
There's no question that it was, in essence, voluntary, even if he thought that his responding to a show of authority by a supervisor.

[00:20:13] Speaker 01:
I mean, it would have been insubordinate for him to have gone with his supervisor when his supervisor says, give me your gun and you're coming with me.

[00:20:29] Speaker 03:
I think that it is fair to assume from the facts alleged in the complaint that Mr Martinez believed his job was in jeopardy, or he would be subject to discipline if he did not comply I think that is absolutely fair to assume from the allegations from the point that that is sufficient to rise to the level of a false imprisonment under the common law of the District of Columbia, he needed to be subject to the threat of threat of force.

[00:20:52] Speaker 03:
and to actual force or the threat of force.

[00:20:56] Speaker 03:
I think the complaint allegations make clear that he was not.

[00:20:59] Speaker 03:
I think that Ms.

[00:21:00] Speaker 03:
Farr's argument today confirms that he was not.

[00:21:03] Speaker 03:
She distinguished it from the Fanil case by saying that Ms.

[00:21:07] Speaker 03:
Fanil was concerned about her loss of job, but not her loss of career.

[00:21:12] Speaker 03:
But here, there's no distinction in the allegations of the complaint.

[00:21:15] Speaker 03:
Mr. Martinez may have thought he had to go to save his job, but that's essentially identical.

[00:21:21] Speaker 03:
to the case in Samuel.

[00:21:24] Speaker 02:
I'll also point out... I'm sorry, can I just ask you about the restraint against his will, though, peace?

[00:21:32] Speaker 02:
I mean, do you deny that this was against his will, that he was asked to go or that he went?

[00:21:41] Speaker 03:
I would say from the allegations in the complaint, it is safe to assume he did not want to go, but that he did voluntarily in any event.

[00:21:49] Speaker 03:
Just like if your supervisor tells you to do something you don't want to do, you can't claim it's involuntary when you do it.

[00:21:55] Speaker 03:
It's not subject to the threat of force or actual force because you comply.

[00:22:00] Speaker 02:
What about false pretenses?

[00:22:02] Speaker 02:
What about the fact that he apparently was told, according to the complaint, that he was going to complete a survey and that that was not true?

[00:22:11] Speaker 02:
Does that play any role in our understanding of whether or not unlawful detention occurred?

[00:22:17] Speaker 03:
I think that the Fenil case would suggest that it does not convert an otherwise consensual car ride into a non-consensual car ride.

[00:22:26] Speaker 03:
Ms.

[00:22:27] Speaker 03:
Fenil understood she was going home, but the court actually addressed the fact that they made an unannounced diversion

[00:22:33] Speaker 03:
to pick someone else up and she made the argument that she had not consented to that unannounced diversion and the court said that was not sufficient.

[00:22:41] Speaker 03:
She made no effort to get out of the car and she made no effort, she made no vote objection.

[00:22:47] Speaker 03:
Here I would argue Mr. Martinez actually went without knowing the nature of the survey, which, you know,

[00:22:58] Speaker 03:
I don't know exactly what was said.

[00:23:00] Speaker 03:
We know that in that complaint, it's alleged that he was told it was a survey, but he went not knowing what that meant.

[00:23:06] Speaker 03:
And I would argue that makes his consent to get into that car as he walked hundreds of feet down the hallway, even more consensual than that for Miss Vanille, who thought she was being only driven home.

[00:23:21] Speaker 03:
I would also say that, although Ms.

[00:23:23] Speaker 03:
Farr argues that the complaint says that Major Routes was armed, I don't actually see that in the complaint itself.

[00:23:31] Speaker 03:
And we don't know from the Fenil case whether the aren't the security officers from CMP Telephone or AT&T were armed.

[00:23:38] Speaker 03:
I just don't know that we can assume that they were not.

[00:23:41] Speaker 03:
I also think that it would be a troubling extension of the false imprisonment law to assume that because one party is armed, even if we're going to accept that argument, and one party isn't armed, that that necessarily implies a threat of force.

[00:23:56] Speaker 03:
And I think that would greatly expand the law of false imprisonment to a point beyond which the law permits.

[00:24:06] Speaker 03:
Lastly, I would just argue that this was an appropriate use of a dismissal with prejudice.

[00:24:11] Speaker 03:
Mr. Martinez had already had an opportunity to amend his complaint.

[00:24:16] Speaker 03:
And so this is not an initial amendment.

[00:24:20] Speaker 03:
And also, Mr. Martinez and his counsel did not at any point before the district court asked for an opportunity to amend the complaint a second time, nor have they at any point in this proceeding identified additional facts

[00:24:32] Speaker 03:
that they could use to bolster their their any of their claims.

[00:24:37] Speaker 03:
At this point, I think that what they're arguing is the district court should have been obligated to offer a third bite at the apple without being asked.

[00:24:46] Speaker 03:
And I don't think that either Rule 12 B6 or Rule 41 would make such an obligation required.

[00:24:52] Speaker 03:
For all of these reasons, we ask that the decision of the lower court be affirmed in total.

[00:24:57] Speaker 01:
All right.

[00:24:58] Speaker 01:
Thank you, counsel.

[00:25:02] Speaker 01:
Ms far will give you two minutes.

[00:25:08] Speaker 04:
Thank you.

[00:25:09] Speaker 04:
Just a couple points with regard to the employers right to monitor the accommodation.

[00:25:14] Speaker 04:
This monitoring is visual, it would not require constant commentary by Mr Williams.

[00:25:21] Speaker 04:
To see whether or not the beard is too long.

[00:25:25] Speaker 04:
And if the beard is on a compliance Mr Williams could privately speak to Mr Martinez document the issue re engage in the interactive process, if necessary, asking a clean shaven employee.

[00:25:37] Speaker 04:
for input on Mr. Martinez's appearance is inappropriate.

[00:25:42] Speaker 04:
In the same way, you know, if a employer commented on an employee's short skirt and asked another employee to take a look at that, consider that, even if there's a dress code policy,

[00:25:58] Speaker 04:
That would still be sexual harassment.

[00:26:02] Speaker 04:
This visual monitoring could have been done without the constant comments.

[00:26:08] Speaker 04:
Also, the ordinary tribulation with regard to the drug test.

[00:26:20] Speaker 04:
I mean, all they could have said is, you know, we need to take a drug test, you know, there are facilities and the building that could have done, they could have done that there is no reason to go on this crazy ride through DC under false pretenses.

[00:26:37] Speaker 04:
Just say that you need to drug test the employee that you have the ability to do that.

[00:26:42] Speaker 04:
and I believe that this complaint, as written with inferences in the favor of the plaintiff, state a claim for these allegations.

[00:26:57] Speaker 04:
But I will note that the amended complaint, the original complaint was pro se.

[00:27:03] Speaker 04:
There was only one complaint drafted by council.

[00:27:08] Speaker 02:
Does that really matter though?

[00:27:11] Speaker 02:
It seems to me that the issue is not who drafted the first complaint, but the fact that the district court wrote an opinion with respect to the first complaint and said very clearly that he was concerned about the allegations that the pro se plaintiff had made.

[00:27:27] Speaker 02:
He laid out, you need to say more about these incidents.

[00:27:32] Speaker 02:
You need to comply with the requirement that they be frequent, et cetera.

[00:27:38] Speaker 02:
And to the extent that then this amended complaint comes in drafted by an attorney but does not, in fact, say much more.

[00:27:48] Speaker 02:
Why isn't Ms.

[00:27:53] Speaker 02:
Cornell correct that this plaintiff should not be given a third bite at the apple related to this?

[00:28:01] Speaker 04:
Well, I mean, I think that this and that's why we filed the appeal because I think this complaint does address the court's original concerns with regard to frequency and really gets into the detail of the

[00:28:26] Speaker 04:
unlawful restraint in that element that was really not fleshed out in the original complaint.

[00:28:33] Speaker 02:
So I think that the complaint- In fairness, the unlawful restraint wasn't in the original complaint, right?

[00:28:42] Speaker 02:
I mean, it wasn't in the original complaint.

[00:28:45] Speaker 04:
True.

[00:28:46] Speaker 04:
I also mean with regard to it being an element of the hostile work environment claim that was really fleshed out in the amended complaint.

[00:28:55] Speaker 04:
that wasn't in the original present complaint.

[00:29:02] Speaker 01:
All right.

[00:29:02] Speaker 01:
Well, thank you, counsel.

[00:29:05] Speaker 01:
We will take the matter under advisement.