i think there are two essential issues that we bring to this court both of which require that the summary judgment be reversed in the matter remained to the court the first what i would like to address is a matter of first impression we believe we've spent a considerable amount of time trying to research it very thoroughly we continue and that there  inherent conflict of interest when a magistrate judge acts as a mediator and then as a decision maker the action of the district court below adopted the report and recommendation of the magistrate judge and the district court is his decision itself is improper and therefore tainted if the magistrate judges in tainte just just to be clear this was not a magistrate judge trial there wasn't a waiver to the magistrate that is entirely correct or the recommendation which at least under the law of the district judge is supposed to consider right and he said he foam judge from the magistrate judge this is not a matter of a judge doing a bad thing or a wrong thing we are not throwing stones at the district court we held that district judge and steam but you what you are saying that they did something wrong in the sense of not assigning a different magistrate judge to do the r and r absolutely and here's here's here's the twist  could break her you have any sort of knowledge is this a practice that is followed on more than one occasion either by this district judge or by the district court in memphis generally in memphis when you file a that's how it worked for the last perhaps five i'm resigned to having a mediation and certainly magistrate judge is doing mediation is very common across the whole country it's the fact that  a mechanism at that point it was not a any thing that that the plaintiff would have known what to do the plaintiff received an order saying it's being referred it was a done deal only well but he could move to vacate that order yes or i'm not denying that he could protest she could protest yes or she did not it was only after she had an unfavorable otherwise i would say this when we intervened or when we put in their appearance and we filed objections to the magistrate judge is really important recommendation there was an ample opportunity right there for the district court to have then object yes or immediately we're going to be done and we did it immediately first thing we did was in other words all this was p recommendation i'm going to conclude to an extent right there because i have so little time remaining that i think i leave three three minutes forty seven seconds just claim a five minutes if you ask for with reference to the various steps that i think are of keen significance the second issue that requires reversal magistrate judge reached a decision in which he weighed the evidence he compares affidavit this person versus affidavit and that person he makes credibility determinations that alone should be sufficient to river of mr polk all of these what was going to the some some of the facts here the this some of this starts when polk was trying to get her to sign a final warning what was that final warning about i was trying to find that in the record it's really not clear what it is because he tore it up and said it wasn't going to be against her will not be used and then her so can't lend supervisor mr tetlow says well i'm going to make sure it's in your record anyway sign it and she refused to sign it and they were soon on to jump again and i don't mean to abuse what we're doing here we're asking this court to take a new position we're asking this court here to find that it's not a reasonable person standard and whether the evidence was sufficiently provide a civil or severe we're saying it should be from the viewpoint of a reasonable woman and some critics have been finding that if you look at i reply brief we've cited to those cool works well is there any indication the district judges and the magistrate judge's findings rested on that distinction i think it did your honor because he said he didn't see why looking at a woman's breast would be that big a deal that was as i understand his ruling your honour's a woman who wears breasts who has greste can know what it's like to have her self stared at day in and day out ruby blackman's standard needed to be a reasonable woman standard we have provided some case law and so our views that support that position and it's you don't say much about causation that's a separate issue are we we supposed to assume that various causation here because you because of your presentation of facts you don't spend a lot of time arguing that that you satisfied causation requirement s is sort of separate issue except in the context of a conversation with h r personnel about the use of the in word and they asked her about it and she used the n word in within that context not not openly out with other  people and she said she was being treated this way on account of her work her complaints and i think the record is replete with efforts to get a different supervisors both internally and then took on the know i can't say what's in the mind of the defendant sure i can say that she'd never had a complaint before now i'm just asking you what are they a living and well it's a it's less than clear to me but we did produce a witness who testified he h she had never heard her use in word before another man and which way does that cut because i think the question about causal connection is that on a retaliation claim you can't just claim that this was a bad h r decision and usually you start out with she does something and a day later or a week later they fire ok right this is what seven and a half months or seven months something like that said it was care what the good her complaining was continuous her complaining was continuous she kept going to various persons trying to get help to get her out of out of the predicament  environment you will hear the defendant more likely than not say that there was a period of several months with no it to vittie i think i briefed shows that that's not true that she had been making complaint what's what's your best claim of something of that sort let's say within a month or two months what within six weeks and wait and i would say it was a it would she was saying that the harassment was two to three to four times a week  harassment is not the issue would be the complaining that's the issue and then she would go to supervisors and she would call the person at corporate and would have that we have a specific event in my head ever so sorry but you blackman had a lawyer she was not shy about asking for an extension she asked for an extension to file her response to summary judgment which was great and then in that request she asked without a lawyer for more time so that she could get the  needed to respond to sever a judgment she responded to some rejection it still didn't provide the affidavits that she only provided after her time was up and the report recommendation came down it was only then that she came up with this new evidence where she was alleging constant harassment by mr tetlow and additional declarations from witnesses that were due back when the summary judgment response was due she never alleged that they were not available at the time to the due date and as the district point where pointed out on page disputes things like whether she used the racial slur in the workplace of course in the sixth circuit it does not matter whether also minutely what is believed by the person who makes the terminations decision what's true what actually happened what matters is whether they had an honest belief at the time and a reasonable basis for that belief when making the time a nation decision however however the the could be a huge issue of fact as to whether the invocation discussed on page thirty three of the report recommendation is the fact that despite me does not dispute that support the defense of the honest belief roll it for example she does not present any evidence to infer pretax at all are all that we need to affirm the summary judgment of the district court specifically with regard to the pretexts issue that you brought up when the plaintiff in this particular case miss black men does not dispute that she engaged in alter cation now she ma what exactly happened in that alter cation but she does not dispute that one happened on the floor moreover she does not dispute that gentleman's her coworker accused her of using the racial slur that is not in dispute she also does not recitation of that is that she was simply saying i didn't do it that's what she claims i mean there's there's other views on the other side but at this point if she says that that's all that happened and the decision makers or the people who were there or writes isn't the case correct me this isn't a case where somebody writes up a report and it goes to a higher up in the higher up doesn't know anything that's not correct ok miss florence and mr poe were the ones that were in the office having a discussion about the altercation when the use of the racial slur was used however it was used and at that point in time this hood kimberly hood was out of the office away from the facility she was the decision maker so what happened is after the meeting miss florence and mr polk reported to miss hood their findings that the investigation rate related to incident and their belief based on that investigation that miss blackman violated their harassment free workplace policy by using a racial slur repeatedly in the workplace ok so that their phone their finding was not that it just happened in the office it was repeatedly during the ult well now that's not correct that the finding that they made was that she used it on the warehouse floor cording to stephanie jack and that while they were meeting with tyra talking to her about it that she used it so frequently that they had to repeatedly ask her to stop recommendation at the chain for just to review and they agreed with their decision and i firm did based upon a review of the information gained through the investigation of the incident with respect to the cause of the causation that i was taken up with your colleague at page's no end of her grief she does recite a series of statements about things that happened after this beginning of the seven months for example in early september blackman states she approached hood and asked why she hadn't heard anything and then was called in to tell the loos office threatened her job and that sort of thing why aren't  sufficient complaints to at least bring the causation issue to a much narrower timeframe would you say page seven ninety nine ok but the problem that i have with all of the citation on page nine ten and prior to that for the most part you'll notice that they relate to a declaration of ruby black men at record fifty eight that is the declaration that mr black men submitted with information never heard before in objection to the report recommendation this is this she was deposed is this post a position this deposition absolutely so new information that did not come out in the deposition and if you all look at the deposition mr doyle my colleague repeatedly asked her if and the hostile work environment itself i'm talking about the time water on the retaliation right again she's claiming that these things occurred after she reported the election arrest and february of course her terminations was not until seven and a half months later in september the problem is that this information that there were any specific instances like talking that miss her you know any of the information that she's got in here in this declaration that was filed after the report recommendation was all information that did not exist until that late file declaration so that would go under the under the legal principle about not contradicting your deposition post up position that it being untimely and that even per se litigants are not excused from untimely evidence especially after they had already been given an extension by the court well but normally and you know opposition to timely they did not in fact i have a footnote in my brain about the fact that the district judge references some of the information that's and this late filed declaration but did not specifically reject it but citing it suggest that he considered it and even when you consider the information that you provided in the late bob exhibit there is no rights unless i'm overlooking something any example i guess the only thing she says that's close to her terminations da she claims in september two thousand and ten that she approached of course the problem with that is because it was not timely because it was filed after not only the deadline for her to provide her response but even beyond the extension that she was granted by the trial court even does not have an opportunity to refute that with any type of additional evidence we don't get to take her deposition on these new allegations and at a minimum judge you're right it does it is inconsistent with her prior deposition testimony does also at the bottom of nine talk about things in may and june which are right in between the no nos the time period let me ask you one one other thing then because we haven't really talked about the substantive hostile work environment  allegation of physical touching back rubbing breathing you do have i guess mr pope says something about the like breasts but is that the only verbal that's alleged  pervasive well because she doesn't lead at any time that any of the things that she claims mr tetlow did were sexual in nature she claims that he touched her back and then he breathed on her and she does she claims he was staring at her but let's remember m depose the that was the reason he was steering her rose the information from that came from mr hood who conducted the investigation at the sexual harassment allegation and this likely made additionally there's or did she say th t i thought this was you know we know that there's these allegations about the cell phone charger we know at least there's a statement that in fact when she was run out of the building she pulled it out but i'm saying is that and i'm saying you know lighten the most favorable to miss blackman even if what she says is true it's not severe in her make sense based upon her evidence that she put forward it was not a situation that it was hack happening frequently she said it br neck two to four times she and her late found exhibits that he was constantly staring at her when in her deposition when ashley said she couldn't remember exactly how many times she claimed it made uncomfortable and she changed the way that she dressed and looked around but when you look at the numerous cases cited in the report recommendation as well as by the district court and that you all are familiar with starting on page fifteen at the report recommendation this does not amount to anything close to the six circuits high best case that you say gives you high standards that show any stake case se she was pro se her deposition there was not a material inconsistency between that affidavit and her deposition testimony then when we took produced with our help is again consistent it emphasize it tells the letter but it doesn't say anything that is contradicted when you say it tells more i mean you're probably you're familiar with the case that says that you can't contradict if somebody says you know i can i don't have anything more i can't remember when they remember later on isn't that inconsistent no sir not in the context of the question how many times did he do it and she says well i'm really not sure i've got to think about it this is a very illiterate person i mean if i didn't mean to kill aspersions on mr blair but she is a shipping clerk who has struggle to do just as well as anyone can do she's done well but she's not illiterate she's not college educated they should not literate she filed all number of pleadings in english the literate to that extent she certainly did and you may say she's not learned it but the word literate has a meaning right well i agree with you but she certainly did not know the terms of art she did not know an awful lot about the law that she needed to know  the requirements of what severe a pervasive for example she did not know that to the extent we're talking about contradiction with the deposition she's just a witness she just a little better no worse and shouldn't really contradict yourself if you read it in context and we have we've provided all of that to you in the record it is it is abundantly clear especially on page ten of our brave that there was a very active period well in on page and then in the summer of two thousand and ten and in september at least three different episodes were significant  right the pages nine and ten pretty much comes from record fifty eight one it does we've cited to it and that was because it was because in their motion they said nothing going to happen during the summer for months you know there was a gap and we cleaned up the game but it's also very very clear and it's again consistent with the proof it shows about the episode when she's called and close office and he makes accusations and he threatens her to send her home and then she ends up at the end of the mat getting terminated i think one of the quest i had before was was how close in time was all of that well that's a matter of maybe two was not there miss blackman could have answered those questions there's no record created if the district court had asked for some sort of or put her position paper  cause all of that could have been done but there's a could have been done the other way if you thought that there was something that happened at the mediation that would really have prejudiced him you know if for example the magistrate was beating on her to