criteria for sexual harassment there really is no dispute what took place there was sexual harassment a textbook case and if this were in a purely private or civilian setting there would be no doubt that it what survive motion i think it is back claire even the trial in that decision agreed that this was fairly agree just misconduct a bad behavior by the individual appellate so what is the issue that what is the problem it has been are reviewed in different ways by different circuits and there are exceptions to it and one of those exceptions involves a hybrid dual status employment situation where  the plane just works in both civilian and military capacity which is what we have here and there are several significant cases which are reviewed and the factory that must  be determined the activity or conduct being challenge and whether that conduct or activity is in tripoli related to military mabs or the military in nature rather than focusing on the employment or status relationship between the parties i believe that would apply here the nd issue is the application of the test lock it to the facts let's hear by the a overwhelming majority of the alleged misconduct and harassment against the appellant was not related or committed and for example of any military objective or a function and thus cannot be protected by faris and thus this case c purposes of this appeal and which i will also point out that the government or the military personnel involved never really dispute them when you look at the incidences and just read them as they are described in the record training and less promotion equipping or discipline it really in so many ways has nothing to do with the military just because you know an individual or a uniform that should not be there get out of jail free card should not allow them to get away with doing harm to a woman and then gauging this type of abuse you know the uniform should be make a statement that they're here to protect the we job and was quite agree just lee sexually harassed by several men and nothing was done about it and the only thing that can be done about it is through this route that we have right now with the fairness doctrine there will be exceptions to it that allow her to bring a title seven case and put her case before a jury so those are the end of my prepared remarks i want to thank you very much and i will answer any doctrine has been in place since i guess it's the early fifty's and you know we start with the principle that the government is you know it's a software and from damages action event to the federal tort claims ago we've been struggling with how to make sure that it's particularly in the circumstance of the hybrid worker in the military that norms of not discrimination and harassment are observed but i haven't seen much by way of case law that cuts back on the barest doctrine immunity that you're seeking here your brief focuses on that says that we should basically focus on conduct in a way that means that anytime someone behaves in a way that contravenes title seven that we should treat that as not behavior in trickily related to the military  exception a title seven exception to the fairest doctrine actually awarded damages or juxtapid relief or what have you and treated this hybrid employee bringing suit in the military as a regular title step and claim and overlooked terrorists when it found in favor of the majority opinion which was that overturned could not recover in that overturned case would be dismissed it was different the supervisor involved was his military superiors and did implicate military concerns of military decisions one of overton's complaints was that i was you know denied a promotion again the kind of thing you see in civilian cases as a case as quite a bit but here you know that sergeant who had a relationship with the plaintiffs because they were working on a base together i mean their conduct was not you know promotion it was as alleged anything it was harassing and totally inappropriate but the left for a court to hold the army responsible for damages or require reinstatement seems intrusive into the structure of the military in a way that very speaks to your honor if that's the case that almost no matter what they're on a military base no matter what somebody is wearing  woman there but it could be racial it could be you know based on any number of protective categories there would be no means or route to get to a title seven claim i think what the government was doing and i think in part what your hono trying to devil's advocate and looking at our facts in our case seems well but if there's any case i think that satisfies the exception that i'm not looking to a hybrid employee is being supervised and harassed by the other civilian employee would be a cleaner example of where the military as a player might be billion and military roles her military a brutal as a member of a national guard unit and it was other members of this guard unit who allegedly harassed her they were not her civilians or providers in fact she even alleges that they had court would interfere with military discipline and decision making the answer here is clearly as her claim against the army is that the army permitted a white boys club culture to exist among the service members of her reserves unit conducted a sham investigation when she complained about it and that was brought and what and when michael military supervisors failed to discipline them for their conduct if this case were to proceed in a district where this martinez would need to prove not only that the combat to she complains of occurred and occurred because a person x rays but also know that the army was aware of that conduct and failed to take appropriate action or claims therefore complaints that she made and their decision making the decision making is st search and you know that sorry supervisors to not discipline them for the challenge conduct and to not even ringback if this case were to proceed instantly in court it would absolutely implicate the military structure the relationship between service members and military policy and decision out few and far between and not a single court including this one has allowed one of these claims to proceed under title seven this is not the case  but there is no such exception for this case miss martinez suggest in her reply brief that the claims can somehow be separated that the individual acts that are engage in that type of i section this is not a twenty one count harassment complete against the individual staff sergeant who are no longer defendants in this action she does not appeal from the  actually had if she could but she has alarming allegations of harassment and a hostile work environment discrimination what is available to her to ok thank you very much that's all i have