following a little short that actually demonstrated outright disdain for these standards well ok puts their i mean i know that we've got the appeal from there were certain things that you lost on such certain count she lost on summary judgment we had a trial where inferences in your favor so how did what did the district judge get that wrong i mean essentially there has to be no evidence as a matter of law to set that aside so he got it wrong because he came back in after the verdict was rendered and he said that the affair was the only issue before the court essentially before the jury and then complains about the appearance of an improper sexual relationship in a workplace where inadequate serve the human resources person fact that it was not the affair that was was put to the jury that was not the question that was put to the jury and i have copies if i me approach we have to look at all the evidence and we have to if if what if  found if there is some fairy whether even if you didn't argue it if there was because the jurors the jurors are told but the attorney say is not evidence listen to them but that's their theory of the case so i under the evidence that the jury had is you know obviously when as if if you're a supervisor or people come and complain to you and they say that i think that you know if you're concerned about i've seen sexual har cases where people complain that someone's getting favorable treatment because they're having sex with someone that's a supervisor or other people feel concerned about they they feel like they can't do certain things in the workplace because the person that's having an affair may be empowered to do other things about it so what what could the jury have found that would have been you know obviously a supervisor if my staff comes in and says well you know two of your law clerks are having an affair and where the other law clerks are really uncomfortable about that because they feel like they're mourning it over us or we feel like someone is getting preferential treatment or maybe it's you know what your senior law clerk that you put more work with is having an affair with one of the junior ones and all of that so i mean there could be some unlawful conduct that isn't per se that two consenting adults are having an affair but it can be unlawful in how it affects the workplace right and here's the straw man that we've been arguing against from the beginning and all the different forms in which that leaders have presented this issue they have always  obligation to investigate that they do but they knew there was more to the story ending willfully ignored the most single significant thing about he said that he had a public servants servant with eighteen years experience with a blemish free think part of the reason is i mean i'm feeling like i can articulate better what the jury could have thought than you can if you're too close to this case in some ways and in terms that you have to look at there there's well there's when you look at discrimination cases a jury is entitled to they can look to temporal events how they happen here and the jury could have arguably b that the chief knew that it wasn't true or that someone else in the department had put that up to starting hey let's investigate riper because of yes and could they could there's a lot of smoke here and the jury could have found fire certain ways feeling like these people are unscrupulous that they only started this investigation they knew that there wasn't anything to it they only started it because he was being he was making comments this other way and they you know they could have put that's how they could have connected the dots they didn't have to follow your way to connect the dots and keep getting stuck with your way so is there enough evidence is there any theory that if the jury was there enough evidence there that the jury could have believe that the chief complaint that knew that it wasn't true and entered it with the idea like i'm going to get him because i want to get rid of this other problem in terms of how the dates all line up and you put into evidence at this that driver had never been investigated before and i think the other officers that got investigated as well you put in evidence that all of them have unblemished careers right yes they did so isn't couldn't the jury have taken a different approach than even whatever you argued and found that it was no matter what i argued on behalf of these parties they had before them evidence that on april twenty eighth james turpin accused very serious inappropriate conduct in the workplace very serious he asked me whether this occurred i said it did not occur and we asked a number of different ways in a couple of different proceedings so that we're a somewhat yet so what you're saying is to cherry credible dave that that's what taylor told the chief and the chief just human resource officer used terpenes memo april twenty eighth to frame fifteen questions put to twenty two members of the department the first two weeks in may of two thousand and nine and all of them presumed that he had that what you had a first amendment claim and i think that the court found that it wasn't as a matter of law there was no public concern and and i think your point was that it's a small town and there were actually nice the newspaper there were all there was a lot of coverage on s s there was sort of the peyton place of pullman york and so it maybe f at work a small town and maybe if the newspaper hadn't written those that wouldn't have been something of public concern but that was enough to get back my summary judgment is that what it was and we believe that whether a mid level manager in a fire department in the city of that size especially was engaged in that kind of conduct a if any could the jurors have found what the evidence was presented any legitimate support for the verdict and actually judge rice found and we strongly support the answer is no you obviously well he thought it should go to a jury and then he kind of went back and said oh shouldn't have but there's a lot smoke here and there's a lot of things that the jury could have concluded that not necessarily either of you argued and that really concerns me here after and when you set aside a jury verdict if there's any way that it can be you can hold together a theory that could be supported it doesn't have to be the one you walk or doesn't have to be the one they argued in employment cases you can there's a there's some bad temporal evidence for your position i actually i disagree with your honor i think that judge rice actually looked at what was what was the testimony before before the i think he considered every reasonable inference from the evidence but he did not consider what he considered an reasonable so it's unreasonable to think that the city had to investigate this even if the jury thought after hearing everything that it was basically  and that he did counsel her about issues related to her probationary status but he did not actually ever raise the issue of an affair with chelsea had a mother he was counseling her about other issues related to her doing  chores and going out to to get food for the rest of the crew and things like that but he never raised the issue of the affair and then when he submits his rebuff written rebuttal when he is being investigated for a hostile work environment  he says that he did not credit the rumors about an affair because he did not believe that they were romantically involved so when and when you look when you look at this and what this is what judge rice conclude it this does not the loudermilk statements that that could qualify as protected activity but what judge rice found wise's given the content of the loudermilk statements and the testimony and other evidence that came in on that issue  no reasonable juror could conclude that what they did was protected under either title seven or or the washington against discrimination and that with with regard to that issue he first took a look at these loudermilk statements and in his decision granting the renewed motion as a matter for judgment as a matter of law he quoted extensively from one of them where he said this goes well beyond what we should be considered protected activity and  retaliatory animists how can that be right if the chief knew they weren't true but why are you legally required to investigate things that you know were not true actually i you know prudent in the modern era that if a complaint is made alleging a violation of the discrimination retaliation or anti harassment laws that the employer actually look into it because the risk of being held liable for the conduct goes retaliation is what basically motivated the city to x to do it is it possible that the chief and others could have been involved in some way to get this thing is it conceivable that when you have a duty to investigate you could that was not true i don't you know i don't i don't believe that that would run afoul of either title seven or while out although there could be other causes of action that somebody could bring was there evidence before the jury that this individual picked the chief had spoken to this individual and  from the perspective of based on the evidence that did come in you know could a reasonable juror jury have concluded this and the way the judge rises dealt with that and i agree with that is saying that the naked photos was one aspect of several allegations against captain reiver there were allegations against captain reiver that when speaking to other other firefighters wives he asked them how are my children doing suggesting that he was the father of their child or he would ask other firefighters can you leave the back door open for me i'm going to go in and service your wife tonight so so it wasn't it wasn't just the naked photo allegation that the city was looking into when it initially looked into the complaint against captain reiber there were many allegations that it looked into some of them were found not to have any merit others were and the fact is that that karen sire's you know asked people if have heard about allegations on all the issues that were raised and then and then when she got you know a final answer she did it she did her report coming to her own conclusions and she was actually found not liable by the jury for any kind what she did she somewhat removed from some of the other things is it possible they still kind of found that other people did things wrong and gave her wrong information they well they could have found yeah they could have found that that certain people gave karen sires in accurate information but again that doesn't that doesn't you know it's a big leap to go from there to actually holding the city liable for violations of either title seven or the washington logon screen nation and i think that you're pointing out the real challenge in this case is it's so factually complex with so many issues involved i think it was probably difficult for the jury to focus on just what is protected activity and whether there was any retaliation for engaging in it and that's and that i think judge rice saw that that what the jury failed there half there has to be no way the jury could have seen the evidence to come to that conclusion no way yeah a reasonable jury could not have whether it's a matter of public concern or not because i represent cities and i know that anything that happens in municipal government becomes of interest to the public everything from you know affairs that city employees are having all the way to things that you  in you know a malicious fashion not based you know if if if they were doing investigations to sort of further their own purposes or whatever could that be an issue of public concern i don't believe it can because i don't think that that that the public can be concerned about that i'm saying that the public could be concerned about that but i also don't think that that meets the past for a matter of public concern that that triggers first amendment protections i think that when you look at what is it issue here  there are you know allegations and counter allegations regarding affairs and the like and altogether it is not a matter of public concern as has been defined by the court would you understand th better than the people who submitted statements in support about leaving the back door open so he could come in and service them there is not a single entry on this record that suggests that that occurred and this is the kind of allegation that captain reiber and those who supported him have been fighting absolutely correct and that's exactly why riper should have been protected when he was assigned to supervise tedham not after the first of the year when she rotated onto his shift he'd already heard there been concerns about an inappropriate relationship between