of my goals here today is to dissuade the court from accepting the conclusion of the trial court that this case is no more than say an office romance gone bad it's far more than as record clearly demonstrates that is the i disputed material facts show that when ms ali tory was hired in her position as a skilled rider at camp pendleton as a civilian employee for a period of time there after mr berger meaning pursued her she rejected his pursuit for a period of time she became vested in her job in jordan she needed the work and she feared that she would be fired because bergen beenie was a supervisor in her division who could exercise power over her relented and they began a relationship she chose to terminate that relationship get shot with knowledge of this i think certainly when i miss out i mean i think we're good i think i mean he's an individual and so long as what he's doing is just between the two supervisors and i'll bow out the conduct of berg and me and others in the office why is it was it reasonable for her to complain to her immediate supervisor who was i think lower in the pecking order than berg to the next level of the current person and it was at that juncture that colonel kersey again either very sparingly investigated or came to the conclusion that the only way he could complaining to or superiors of the harassment and discrimination that was being undertaken by a number of employees and we have to bear in mind i'm not going to repeat them you know in court we're dealing with a number of incidents where expletives were tossed and we're going to get mouse was wrapped in a candy the we really heard were there were familiar with those and also the explicit e mails so counsel i don't want to go through it because i don't want to have all of your time tick away but isn't it correct your client has described that chain of command differently in the record are you aware of that are you were you are you taking the position today that when she complained to her supervisor she complained to somebody who supervised  the specific supervisor for they have an entire department which was colonel kirsten in january yeah twenty twelve i think correct so so he responded the next month by me by transferring her moving her to public works to a different building to perform the same work that she had been doing correct so is there a problem with that and with that response that's certainly there is because the law is quite clear that the employee we're here the government had a duty to investigate t protect her and allow her to continue with her duties certainly on a human level i would agree i think a lot of those are slightly different in that the got the government the navy had a policy the policy said when you when an employee makes this type of comply we your employer must investigate it we must take action to remediate what occurred in the past prevent it from happening in the future here colonel cursing he simply extricated ms allegory from her work environment and put her in another building now again on a human level i think that eased her she wasn't exposed to this periodic near constant harassment and she was effectively able to get her work done as the record reflects current person said she was a highly valued employee she was good at her job then what happens when colonel kirsten retires a joint decision is made between hot hill and burger meaning to move her back to the site where she was being discriminated in harassed i've looked for can you can you give me a citation to the record where mr bergen many participated he said so so the government's position is that there was a cooling off period they brought her back they had an all hands meeting where everybody was at their employees were don't recall seeing in the record a specific objection by ms allegory but she i think that she was powerless at that point she had had as you characterize it cooling off period perhaps he thought that the situation i've been a tone down enough we should be able to function well it's hard to say i think i should have asked a better question here's my here's my question is it your position that the transfer to the public just take them one at a time if you would the first transfer what i characterized it as perhaps they were trying to protect her by moving her to public works you put your position is that that was an adverse employment action tangible and employment action i would argue that it was for this reason while there were people in the that was a tangible employment act and certainly resulted in it for several reasons the most important being the one she was moved back she was deprived of her ability to work she was ordered to take online courses i don't think the record i have is that the online courses started in september she moved back in me yes and when she first moved back she was working right then we may enter between may and september correct and then she's certainly our inability to get work done affects your performance reviews in levels or their sense of self worth doing productive work for the government the employer for whom she  and the navy to take affirmative action to remedy what occurred in the past and to prevent it from occurring in the future putting those two elements together that tells me well at that point i think is that right yes certainly one row was and and he was well that's correct but she doesn't really have a basis for any old complaint at the point she first complains about the conduct right about her about the conduct she has to bring into the employee's attention in order for there to be the basis for your complaint or certainly yes i yes i would agree with that  withdrawing the government or he is a supervisor he is part of the management right she informs the person that she feels most comfortable talking to which would be her supervisor which seems natural rather than going to somebody who's stamps up the of this chain of command is needed to take off the back so under the department navy's sexual harassment policy he would have an obligation to report that if he understood it to be a complaint about sexual harassment i mean you say so i'm kind of complained that hunt would have been the right person to go to who would complain about sexual harassment by bergamin and hunt had that we see that complaint and yes hunt would have had an obligation to take that to another level ok ever so what  somewhat you so a few minutes ago well ok so what is that so what is it that you can point to hunt about so she want to hunt and complained about things being moved in her office about pictures being crooked about miscellaneous office supplies missing help files be rearranged about mr monro showing her a mouse things of that nature nothing to do with m let's assume for argumentative purposes that she did say that that was in january of twenty twelve right mr berger meaning according to plaintiff started harassing her in august of two thousand and nine that's not in a reasonable action saving action on  economy out of her office so that was on november of two thousand and nine your honor and with the record reflects again mr hunt denies this but for purposes of summary judgment we will accept point his version on the citation is paged two hundred forty six of the excerpts of record and that's a an excerpt from plaintiff's personal diary where she made a handwritten two taishan and what she says i asked jeff meaning mr hunt to keep jay out of my office so i could get work done that's the extent of it and that's not a complaint about sexual harassment why did he think s fears to keep man in the office you know because he was just coming to our office for no reason and and sitting there the whole time you don't think there was somebody in that discussion would have inference under the facts here at that time mr berger any although he was michelle tori's third level supervisor he was directly supervising her on what she was working on writing the standard operating procedures that's number one so he had a reason to be in her of reasons she was needed he was coming too frequently she was getting distracted she wasn't wasn't able to complete the work that she wanted to but that's it's a long way from that point your honor to join us and in the context of this case discussed what reason well mr hunt was there on site i'm sure he could observe as well mr berger me spending some spending time around plaintiff in the office and keep in mind this point even though the dating relationship had not  after hours to dinner and the like so clearly and that was that was well known i believe to everyone in the facilities maintenance division that they had this social after hours relationship they were friends they went on walks together  but there was no reason from that for to mr hunt to conclude or even suspect that miss allegory was being stalked or sexually harassed at the reason a quid pro quo demands for sexual favors in exchange for any employment action or or anything of that nature it's just simply not supported by the record your honor there wasn't anything you read miss allegories complaint that she filed in this case and compare it to what the complaints were along the way  everybody she was working with so that point they said enough enough will move you to a safer work environment where you don't have to endure this and that was the remedial action that she's taken and once an employer gets notice of sexual harassment the employer has an opportunity to remediate it and it's only the failure to remediate that can cause the employer to be liable in damages i would say two things first of all that complaint under this court's decisions was not about sexual harassment falls far south of the severe or pervasive  hostile work environment that's permeated with intimidation and ridicule as is the court has quoted but let's assume for argument purposes that was about sexual harassment the remedy was appropriate to move her away from those harassing coworkers to the public works department who made the decision to move her back so that was mr hans altman decision and i know the court asked some questions about mr berger mean his role and the evidence in the record is that it was a back to her perspective that mr hunt instructed her to do that but she doesn't deny that she was willing to do it and let me go on if i may with respect to that so she was moved back in roughly mid may of it didn't work out so two weeks later she felt that she was being harassed again and that's when she went to e o and they said ok fine moved her back again to public works because it didn't work i thought she actually first went to hunt and said aren't you following up and that's when he indicated something that you again doesn't get anywhere and then two days later i believe she went to go which was the appropriate thing for her to do if she wanted to make a complaint about sexual harassment but i would still emphasize that not in march of two thousand and eleven not in january of two thousand and twelve not even with respect to mr hill two days before she went to the show that she complained about mr bergen meenie harassing her that never happened until she went to that was the first time and that was more than two and a half years after she claims that this rassmann by  all along the way there is no reason for anyone you know maybe to believe that there is anything on tour going on and in fact the plaintiff has acknowledged it was a consensual relationship so there were navy didn't have any right let alone duty to interfere with that  and she was and i think a lot of the you see extent that she was having tension with her coworkers the source that tension because they perceive that ms allegory was getting favorable treatment because of her relationship with mr brahimi she had her own office she was getting a special simon she wasn't having to this gets back to a point that we discussed earlier whether she had any confusion about the navy's e e o policy the allow her to go to her supervisor she hasn't claimed any such confusion in fact along the way she was thinking out loud well maybe i i ma sexual harassment claim and start a sexual harassment investigation well it sounds like there is some confusion about her knowing that that option is available but if a person just a hypothetical person is trying to keep her job and advance her career and get along with coworkers there's a lot to balance a lot of balls in there and it's hard to know with especially with twenty twenty hindsight when the switch have been flipped i don't mean to say get second guess that i'm i'm trying to figure out as a legal matter whether what your position is about whether the earlier complaints  really fair fairly play any role in our analysis here i don't think played a major role or role at all with respect to the issues that we've been discussing however i would you know i think it became relevant to extent that plaintiff was going to argue that she didn't know about the remedies and how to file a proper complaint demonstrates that she does because she's done it before and she's familiar with that system just when you say the navy has a policy of talked a lot about a little bit about the policy today and these were other complaints where it other facilities is it the same navy policy well throughout the system are they different sort of base by base i don't know well there is one general overriding navy policy that governs sexual harassment throughout the hold up her end of the bargain by taking failing herself of those remedies and giving the navy the opportunity to redress the sexual harassment especially the sexual harassment by mr berger me thank found and if i may i think some of the questions by the justices in the case watch involved here and that is we're appealing the grant of summary judgment by the ultimate dismissal the court has asked a number of questions about can be drawn from the evidence that was presented before the trial court as we know all reasonable and for answers are to be construed in favor of the plaintiff at the trial court level while there may be affairs with other coworkers and the like and from i'm sure this was a complaint that others was saying about her that shews having affairs with let me restate the question when is the first time that you made a sexual harassment complaint to h what i'm having a problem with your honor is this if a male worker uses a person in a power to demean a female employee it's not sexual harassment and yet that is that's what has been going on at least from august of two thousand and ten up to march of two thousand and eleven have to keep in mind bergen maney stormed into her office in august of two thousand ok if you're not if you don't want to answer my question you don't have to and then i studied i asked you i didn't ask you what was happening i was asking when is the first time that your client complained about sexual harassment mr hill's another supervisor's conduct and what was that to congress mr hill had stormed into her office i slammed the door on leaving i threatened her and then the allegation by other coworkers that she was having affairs and i was certainly it's there was something sexual abouts there was sexual harassment and mr hill walking in so i mean that door maybe i'm i'm my own chauvinist writer but one of a man storms into all woman's office and starts yelling at her here zain the power of the male gender to me that's a form of harassment  and gauging the sexual harassment guess they're trying to figure out that just common courtesy primarily how to address the situation and then february she's moved to the other building is there any record of her having objected to moving say no i would stay here