record shows mr kellerman finally became sort of fed up with what had been going on for a good long while and wrote a pretty detailed letter in addition to providing some of the letters that the alleged harasser provided to both the personnel people and his boss how long after that one of the two things in the act of retaliation is self determination but in addition to that they from your perspective the fishing into the omission on the application how long after it was written ws then went to read in naples on the twenty sixth we think on the twenty six is when they suspended the alleged harasser so in the tween those two times when they went through their their files  remember i don't know why i did it but i get it there's also some evidence a little later after that that someone they said someone went to them and told them oh by the way kellerman didn't work at this other place that he didn't know but the seems to be after th but they began to look at the file in between those time periods and one when he first disclosed to them the employment at the other hospital was that in the resume that accompanied the application will do time the two places or are first in the resume but then also during contrary to bragging about your experience right but the point is from a summary judgment record it makes sense that regardless place the company says he disclosed none of his prior medical experience or hospital  resolved a factual dispute factual dispute as to whether he ever handed them a resume showing is prior in hospital employment at the time of his initial investment you're saying there's enough in just his testimony however implausible that my day to create an issue of fact that the jury should have been allowed that's that's correct your honor and my correct that the other fact that there's another fact that you say you say in your brief that he resolved it was his testimony when they first he first reported it to management to go see the judge found november but he testified in those little bay that's the money not exactly a model but july august because i don't have the exact things but and what he said was that she's infatuated me and following me around and i mean things that they are so you're saying that there's a three month that he resolved the factual this in favor of the testimony of the company employees purses his own test that's correct or other really the only two clearly areas where the court is or any other that where he you would say he was on i mean the district judge resolved the  facts favorably to the defense when there's contrary and you know those are the big ones your honor i mean there are some little things but those are the big ones that when they knew when the hospital know or when he told them and also her employer about the employment and then when the hospital had noticed that there was that he was complaining that he was being subjected to a welcome conduct because of the judge in each case you are saying that is testimony by itself is enough to  if it's somewhat implausible in some respects in both cases it's enough to send it to the jury let the jury decide oh absolutely your honor this court said repeatedly the supreme court says so and reduced to some issue  if they knew about it and suddenly it became important at the time and that's why that's why no matter what the issue was in the matter what he was say what the jury would believe in his interview if he told them there's there their best evidence your honor is that we don't remember they don't say no it didn't happen i mean it's almost as if i've got the only testimony on that because they say i don't remember you know i interview a lot of people we interview of people we don't remember what he said which tells me it's either not important we were concerned about his lack of hospital experience but we hired him many well right so there is some memory completely believing them ok but believing me which was a leave the court has to do he told them they knew about it short circuited by firing and that usually doesn't happen in a hostile environment that they end up firing the the complainer but what the adverse action could have been in this hemphill was suspended  they were going to move them to different departments the people in the samples department complained that she was being moved she went out on a medical leave then for about a month my time she comes back he's gone he's been discharged so we don't know but ultimately it mr if mr y would feel that his conditions of employment changed by virtue of the alleged harassment i think that's what they say yes your honor member he's having her social contact well outside the office with these phone calls and they're pretty they're pretty gross and disgusting at home at work she's calling him around and yeah i do that's the term a condition of employment he complains the hospital warns her they suspend her and then the s it changed the terms and conditions of this employment yes and your honor i i think i've been consistent it does because what has happened is it is continuous this occurred mr calories legally did occur at least from the summer of two thousand three up until may of two thousand and four it affected him he's testified that i was becoming you know upset about i don't want to go to work etc the fact that they met with the husband on occasion or two i agree is a fact that favors a defendant's but it's a fact it's an inference that for for purposes the summary judgment that's where we are here are that evidence is not even to be given credit believe it believe if you will or not the point is that i the conduct consistent enough they have an alleged that it was consensual in fact the hospital itself when they saw the letter said oh my god the may fourteenth letter the hospital punished mishap hill now they something different what she did and they got this policy in place and see the subjected to the sanction that we discussed plans for two different the department which and i know you may not be content with but may well satisfy their this conduct they didn't complete the investigation they fired him and there is no deterrent effect whatsoever as this is an odd situation because the conduct stopped because mr kellerman was fired and i can't believe we're not in the situation where there was a supervisor involved but if there was a supervisor involved the employer is automatically liable for that because of because of that this starts now the supreme court i think we understand your position but unfortunately times i'm confused and so we're going to have to go back  that you talked about the second important issue as to which there is a material dispute a fact being when the employer should have realized that this was a gender based problem and in the course of the discussion there was a it was suggested that the district court found that that in that that the employer i realized that in the vendors i thought the district court said the employer didn't recognize it until may and that was all right i mean that that was they were reasonable in not so recognizing you know what the district courts the district court said that in in november the the employer only believe t your client wants damages or a condition that existed with respect to the conditions of his employment now during what period of time are you does that plane covered it  realized what was going on here in the member they did virtually tell her to lay off well we told her don't bother him at home ok they didn't do anything beyond gave them the letters in may it was made around so there's a time period i mean if you would have gone to them every week they would be complaining well you're just you know you're just you just complaining because you're complaining the time periods that i think  pretty agreement is summer november april and then he gave them the specific letters even letters right away because that's where you read even the little least offensive of the use words we mean it gets much clearer from the letters and yet he really waited quite a while the need fronter in the letters here and he was telling them no and i just i'm no there's no good explanation for why i maybe should have given the letters earlier but but the point is are this is an ongoing situation the that is you know like you know we don't agree that you didn't in fact we raise that with the district court the district court didn't get to that argument and then complaining to the supervisor about harassment as well in order to establish protected activity the plaintiff needs to be able to show that he had a good faith subjective belief that he was being sexually harassed or that a violation of title seven was occurring and that his belief was objective we reasonable in light of all the circumstances you say he is going you're going to basically the student thing go and she had some information in those letters that she only got from him and therefore there's no good faith belief and therefore no it isn't and not only that your honor i mean if you really look at the record in this case there's only one incident of alleged sexually charged conduct here the rest of the comments the rest of this alleged harassment consists of statements like for example and this is cited in our brief i have to go to bed because i have to get up early for church in the morning plaintiff testified he found that comic to be offensive and sexually harassing because the plaintiff i'm sorry miss temple was stating describe herself going to that these are the types of statements that that are you know form the conduct that the plaintiff is alleging forms the basis of his  of the letter insurance going this is much more interesting truthfully you know the september two thousand and three letter was sexually explicit and we're not denying that but it but as it goes to the claim i mean the plaintiff needs to be able to prove that he was subjected to severe or pervasive and regular harassment it's our position that one ladder was sexually explicit you know content and it is not the type of conduct that rises to the level of but and the letters didn't stop and you know the evidence in this case is very clear that the letter stopped in september of two thousand and three so at no point between september two thousand and three and may of two thousand contained in that letter i mean first the prior conduct that we first prior conduct in remember the record is also very clear that in this with respect to the complaints and this is where the district judge went in terms of they were standing out here your liability here know material this beautiful fact as to whether the employer as of november should have known that this was a gender based problem the spite the fact that he told them that she was infatuated with him that when he was a word she continually invaded his space when she spoke to him that there were rumors he was concerned because a lot of people in the office were talking about this relationship and their opposite sex and she's bugging them like there's no material dispute fact is whether they should have well maybe the maybe this has something to do be very clear here that i repeated the question the plaintiff in his deposition as to what exactly he informed human resources and his supervisors when he made his november complaint after repeated repeated prodding he finally stated you know how she was infatuated with me and stuff in the entire two volume record that's before this court that's the only time the word infatuation is mentioned and from that the plaintiff has basically alleged in in his brief that therefore that statement in and of itself put them on notice that she was basically romantically in love with him and wanted to engage in sexual contact with them i don't think that's that's enough and i don't think that the record really support that was going on here back rubs squeezing i mean physical contact now granted not most of your kind you think i mean i just think that most courts would look very ask  somebody giving up if i went up to and i say i have male went up to a woman co employee and started giving her a back rub or squeezing her arm or referring to her sweet tea same for before we go to the jury well this standard for sexual harassment the standard persevere and you know or pervasive harassment is the same regardless as to whether or not only discussion about like that robin implicit in that is look it's a woman saying that to a male and i guess you could then argue that the ordinary employee male employee in the plano circumstance would not have been offended at it as both my colleagues are suggesting that we don't look at this as a woman pursuing a man and therefore it's not as a big deal but as an employee engaging arguably in conduct did the employer nel and what prompt remedial action did the employer take once it had knowledge and certainly asserted and as i've explained to the court we don't believe there's any evidence or in the record establishing that the defendant knew that conduct the don't believe that's that's what i represented i think what i'm saying your honor is that the employer the supervisors who plaintiff allegedly he claims he's been reporting this conduct throughout his employment there's an issue as to what the employer knew trudy have received a warning she was told no contact with the plaintiff other than business related contact or the evidence is also undisputed that following this warning to ms hemphill that his supervisor that kind of supervisor checked in with him and asked him how are things going is everything ok and he said they were fine it wasn't until april of two thousand and four that he came forward again with another of e mail that he  look basically i want to be friends anymore i appreciate your concerns but you know it's in our best interests not to have this friendship at that point in time then came to management's attention again now between april and may when he finally decided to complain about sexual harassment there were no incidents there were two alleged boys no messages or telephone calls to him on april twenty ninth that he didn't report in tel so there's no evidence in the record that between you know his early two thousand and three complaints and this may two thousand and four complaint that there was nothing done the employer did what it was obligated to do under the law just make an attempt fourteenth he turns these letters over he says i'm being sexually harassed and i'm talking to my lawyer lawyers about bringing a lawsuit  june twelfth he was terminated and there appears to be a material dispute of fact as to whether the employer says the reason he was terminated was the failure to disclose the prior employment but there is a material dispute of fact as to whether the employer knew about that mis read in particular who interviewed him why is that  problem summary judgment was well i don't think it's a problem and for a couple reasons first of all there's no evidence in the record that ms reed knew about the omission on the employment application all that's in the record taking all the facts in the light most favorable to plaintiff is that during his interview he allegedly cresent at her with a resume there's no evidence that she sat and compared that resume to see you know where he worked at divine providence with the employment application there's no  by the way did not and the truth the matter is the plaintiffs claiming here that since two thousand and three he had been complaining about sexual harassment complaining and complaining from the beginning of his employment all the way until the end of his employment now thank you thank you this notion in the title seven in the hostile environment claim that there was no sort of this was hinted about is sort of belied by the record they the kellerman complained about being a factual ated getting letters in the middle of the night he shares information with a lab manager the lab manager said is none of my business he then for two weeks she said they warned him feel for two weeks he complained in april they did nothing they did nothing between april and may it all an entire month passes where miss hemphill showed the e mail so there's an entire month where nothing is done and this is you know and you can't we can cherry pick these pieces of evidence  and say well this one doesn't make a big deal but you've got to look at the entire picture this course being repeated and saying that you know the the things that happened in april are the end result of what happened in august so that to take august and separate it and say well that was august and that doesn't matter because now this is april but you august is followed by november is followed by giving the calendar but i think the corner stands the issue is you've got to look at the entire picture of what happened and think i think i'm not asking the court in any way to say who wins in this case but i think there's plenty of evidence of retaliation to get to enjoy and i also think there's plenty of evidence looking at the pick the case as an entire picture to get to a jury on