court did not submit the failure to provide accommodations to the jury grant a summary judgment on that on the reasoning that the claims were the same they are not the same the state of indiana did not argue that the scheidler used the catchy rhyme it's who you know and who you love to complain about personal and political favoritism she did not mean to complain about a physical sexual act and the district court act when you use that kind of language and she was talking about the personal and political favoritism it's a matter of fact the state's witness acne confirmed that by the statement by her in march of two thousand and thirteen until she complained about her a disability being aggravated by gunter trying to correct him like she was going to strangle her but basically that in the important thing is that no one complained about that at the time as a matter of fact the only mention of her in march of two thousand and thirteen was that mentioned by  because they were carpooling together exactly this is this is a conversation between a private conversation between people in a carpool they were off duty she just made this a general statement the statement about favoritism they said well three months earlier she made this general statement and then in order to get her fired the state senate and furthermore that is a complaint a sexual harassment not only as a complaint of sexual harassment the state alleged that it was a that they thought it was sexual act she's complaining generally and the district court ruled that way and the order a motion for summary judgment but the state double down and try to make her look bad by saying you know what she was complaining about lawful for the employer to terminate someone we're complaining about sex harassment this person as a comparative so she's obviously relevant and then the courts said well maybe maybe it's hearsay and and we pointed out that the state already stipulated to the authenticity of that song personnel records and then the court said well state so during the trial the state did not present anyone who was a credit employee who was a custody record so we couldn't ask them we couldn't talk to anyone in the state because doctor in which both employees were disciplined for inappropriate conduct and second it was her offensive statement that came to light during the investigation of that incident in which referring to a potential promotion that another employee was interviewing for scheiber said well it's not what you know it's who you blow and anthony and gunter interpreted that as being sexual in nature they told her that's inappropriate they disagreed with that position but they didn't report it at the time but three months later when the incident occurs with her there's the state personnel department investigation and as these things often do they ask questions about employee conduct not only this incident but in the past on both sides and that's how it came to light that's how the department learned about it now as we discussed in our brief we believe that not to be fired for her misconduct and not to be treated the same as gunter well being treated differently from cantor's run of the mill discrimination claim as far as not being terminated for misconduct that is not a viable accommodation bromfield holds you cannot bromfield them palmer a disabled employee is not entitled to an accommodation for his or her misconduct functions of her job now with regard to the retaliation claimed the district court correctly found that there was no statutorily protected activity she insists that the it's not what you know  blow comment was the complaint about sex discrimination but at worst that comment is a highly offensive sexual insult to impugning the integrity integrity not only of the employee but the commissioner himself at best it's just a general complaint favoritism neither one of those is a complaint about sex discrimination under title seven there's also no factual support for applying  the argument that the state interpreted this as a complaint about quid pro quo sexual discrimination comes from a snippet in a reply brief and taken out of context there's just no support for that with regard to the  rehab act retaliation claims the only specific statement that she had her designated below was that she told h r that she reacted to the argument with gunter the way she did because of her and gunther received the reprimand because it was her only act of misconduct and thirty years whereas scheidler received the term nation because of the argument and the statement why didn't the state not entirely sure why they didn't raise all the other immunities but even though the district court as you point out should have given notice that it was considering dismissing the claims against the commissioner on those grounds any error in failing to give that notice harmless because the fact of the matter is whether it was the state proper or the commissioner standing in as the state all of the district court doomed can you name another example of a case where this court dismissed a complaint in the circumstances under harmless or i think the hotel conference that although the state had stipulated to authenticity authenticity is not the same as admissibility and so scheidler would need to establish the foundation under the business records exception authenticity is one of the foundation she hasn't established relevance because she hasn't even mentioned who thomas that is she hasn't shown that thomas also was not disabled and as a district court noted because she hadn't mentioned anything she hadn't even shown in the trial that thomas the been disciplined by the same decision maker so the jury would have been completely unsure what to do if they've not heard anything about and with regard to the idea bit the state's either agreed that we didn't have to call it in and a custodian of records again we agreed to au thomas was disabled as a matter of fact the state offered her evidence as a person he compared who was not disabled and tried to claim that years and not disabled person was terminated for only one incident we come to find out  what about all the waivers