humiliated she was embarrassed she didn't think people would believe her because she had and also didn't work relationship with the assailant and she was intimidated by the interviewer when out the key allegations of sexual and even if we assume that her testimony in her deposition about being sexually assaulted his boss she has consistently stated to work for her and even to the investigator that she was subjected to unwelcome groping touching of a private parts at the workplace and that conduct alone was sufficient to support her sexual harassment suit independent of whether or not she  know officers are about to date each other and sergeants are allowed to be officers the problem with that interpretation is it me explain the first part of what we're going to miss is i knew something was going on but it doesn't explain the second part i i'd like to touch briefly on the district judge is reasons for disregarding just doing this is testimony he refers to it as self serving and conclusory i think it's important for the court to recognize pittman construction case and again about six weeks ago in a case down word of life church for cystic farming which judge jones was on the panel testimony is not excludable just because it's self serving i mean every witness presents self serving testimony or has different party present self serving testim that's not a basis for excluding them from evidence the district judge also referred to her testimony a and in her testimony she described the sexual assault in some detail i don't i don't know where the characterization of the testimonies conclusory comes from or what it's intended to mean but she didn't just say oh i was assaulted or i was resting she did give the on more than one occasion later to say no that was not true was not consensual you know i think that the evidence establishing that she was terminated because of the statements made in that investigation allows the jury to find that she was terminated because of the complaints of harassment and not because of the false statement that that she the sting consentual the person the person she was complaining about h resigned he was effectively forced out and then that does counsel a bit against saying is retaliating when they they even though they've consistently enforced the no sex in your policy against both complain or in victim i think that's an her self serving testimony without more does not is not competent summary judgment to show sexual harassment is not determinative in this case this court might find that there is a fact issue but still when you've got people testifying in cases you know gave a reporter their employer then they then they get depose there's always going to be some inconsistencies how how do you determine how much inconsistency is enough to just discount the testimony you're and i think that is a difficult question and that's why you see jay would ask this court to focus on the other elements of this case which is that t v c j did not have the knowledge or could not have known before october thirtieth to and county case including that t c g took the allegations seriously it conducted a prompt and thorough investigation it implemented remedial and disciplinary measures based on the results and most importantly that the action was reasonably calculated to stop the harassment now prior to october thirtieth two thousand and fifteen julian swain yes testified that there was no reason t c g should have known or could have known of the sexual harassment so it is undisputed that there was a consensual personal relationship between doing is an atty on no prior to that dates i think the deposition testimony is while versed in kind of how their relationship progressed how it got to vault us on the personal side but that does not mean that t c g knew that there was any unwelcome or discourteous  conduct of a sexual nature towards her and on page twenty nine of appleby's brief there's a long string site of all the evidence showing that t t c j could not and should not have known prior to october thirtieth now  her response to a question about having a personal relationship with or an id on no not sexual harassment then later on the record on page two ninety four she said the comment was i knew something was going on i just needed to  her was not about harassment but about the relation about the personal relationship so there is no evidence and it's her burden there's no evidence to show that t c g had knowledge that it was harassing conduct in violation v c j policy two days later he told me to file a complaint i'm sorry didn't he tell her to file a complaint or helped her file a complaint shortly afterward that immediate day so she unit in el paso the standard operating procedures of a neo investigation is in the record it starts at page five seventy nine there is no deadline by which the investigator needs to go out there's no hard deadline by which the investigator needs to go out and take that deposition so i think that that's not determinative of that t v c j was trying to cover it up there's no evidence that they were trying to cover it up instead they took her excuse me they they investigated her claims they interviewed her in the interview and this is on me page three eighty of the record she was asked did audio no forced you to perform oral sex on him and she said no it was consensual the only thing that t c g knew if even if she was sexually harassed in other ways she admitted to a consensual act after admitting to a personal relationship she committed to a sexual act on the units there were no witnesses and then are an audio gave an interview in which he also said that there were two sets consensual sexual acts on the unit testified that they didn't talk before their interviews so they have no witnesses and these two statements saying that she performed consensual acts nothing else substantiated the her sexual harassment complaints so disciplinary hearing on feb fourth two thousand and sixteen when she finds out that she is going to possibly be terminated for her actions she leaves work and she goes to the hospital she says that she claims she was sexually harass the hospital records and show that still there is nothing in the record showing on this day that t v c j d had any knowledge that she had been forced to perform oral sex it's only february ninth that the disciplinary hearing when that knowledge is learned word in whitfield who was a neutral word in from a different unit who was running the the disciplinary hearing with rosa revises each are representative immediately stops her disciplinary hearing and allows her to supplement her information so what she does is she sends in a statement explaining why it was in consistence now to see jerry has her first statement on december third and her second statement  on february ninth and they need to make a determination about whether she is guilty of the offense of on duty conduct unbecoming of an officer with no other witnesses no other evidence to support it word in whitfield by in whitfield was the reprimanding authority rosa rebus was in the room after he makes the recommendation for dismissal it gets forwarded on and there are several individuals who go through and it's huge it's looked through several officers and ultimately the executive mostly based in huntsville and so she to testify that she did not know any of those individuals personally if they approved her dismissal and she was dismissed so the the law around this is very simple the facts are a little dense but it's undisputed that until october thirtieth t c g did not know and could not have known about the sexual harassment and because of that this court should find and should truth the district court's ruling now turning to the retaliation aspect of it for purposes of her claim to be c j assumed that she met the prime official element of the claim and so it switched to t t c j to show a legitimate non retaliatory reason as to why she was dismissed recommend for dismissal and that was because again going back to what i just discussed on december third she claimed that she had consensual sex even if all of that other stuff happened or even if all of that sexual harassment happened the unwelcome groping she still admitted to this consensual act on the unit and while yes it was found in the course of the investigation that should not excuse her wrongful conduct but under the frameworks for reviewing the temperature how ancient claim that have been set up by the courts you know that the dish a court may well be right it does seem though if you want your television provision to saying we don't want employers to discourage employees from reporting misconduct it does seem like that's the effect of this i mean if you're someone in the prison asked at that december third interview was the oral sex did arianna forced you to perform oral sex she could have said yes instead she said no it was consensual so that was her decision and now she is creating an issue where she has two conflicting statements which t v c j has to determine whether or not she's guilty of this disciplinary hearing so i don't go to your question and i don't think that this would discourage anyone from reporting anything and it's also mandated by policy it encourages to be truthful from the outset i mean she was fired for being untruthful she was fired for that the first statement which is like it and by a preponderance of the evidence they found that she was guilty of it with feel good but it doesn't mean but it's the policy still requires the victims or witnesses for that matter to be truthful upfront so her making her changing her statement making it difficult for t v c j or making having d c j to decide which statement is the truth i don't think discourages future  victims from coming forward instead it is it's clear that mr lynn yes if she was sexually assaulted or if she was for course from oral sex the she should have said when asked if it was force she should have said yes it was forced at that time and we can't say for certain where this case would have gone from there but i think it's fair to say it probably would have taken a different path yes very briefly i mean i think it's easy for those of us in this room to say that when the interviewer asked her what happened she should have told them what happened but she was in a position where she felt like the interviewer was not listening to or the interviewer was interruption of the interview or was saying you couldn't be that naive could you interview or corrupt interview or shut her down and so it's the this is not a case arising from a you know good faith employer investigation to determine what happened the evidence would allow a jury to find that this case arose because the interviewer went out there with the with the intent or at least the effect of covering up the harassment not investigating the resident  if there are no other questions i think this is really just you know we can talk more about the facts most of the t t c j s argue it was about the facts and there are there are different versions of the facts and different interpretations of the summary judgment should be