what's key in this particular case and we're here on a summary judgment that we say should not have been granted had the prior appellate decision by this court been given the proper weight by the district court judge and so this is the nd time this case has been before and appellate economy and this is a very straightforward application of the u s supreme court decision in crawford v metro government of nashville in that it's argile never used magic words this was sexual harassment but she did say in response to questioning that she felt that hardly you have been a chief corrections officer for the company a very very high ranking executive when he grabbed her hand it kind of held it for and i'm comfortably on period of time she thought it was odd and she felt uncomfortable that was her report and under the standard of this court  n previously and under crawford v metro government that is enough to do to meet the standard for protected opposition activity what's key here is to pay attention to the kind of two timelines  she's going around the prison saying that she was molested and that she's going to use this incident for her protection later on which is very bizarre statement considering that miss archer led had a perfect record his comments about it being audited making her uncomfortable were said in the context of a sexual harassment investigation and she did not ask for it and she gets interviewed by an attorney who's telling her that you know about that there's an accusation that she said she was molested i mean if you're saying that the incident was caught on tape if you because this was a prison and everything pretty much that happens within the four walls of the prison is going to be captured by surveillance video for the most part so it's captured on video and she desperately does not want to be labeled as somebody who's accusing the chief corrections officer  one of the highest ranking executors of the company of molesting her and so she denies that she was molested but she makes it clear in the interview that she thought it was art it made her uncomfortable and at that point based on the law of this case that this court previously enunciated that isn't enough to stay protected opposition so there should not have even been an issue of whether she stated protective opposite problem whether she was engaged in protected opposition but instead the district court described her behavior as the antithesis of protected opposition what she did exactly what this court already said was legitimate opposition so  she again with the did not use the magic words but she clearly very clearly wasn't gaijin protected opposition and within she's interviewed on september rd continue with this timeline  and on september th she received the st disciplinary write up in her career something that was foreshadowed by harley lap and e mail of august nd that we knew that that was coming at this point and so on september  retaliation campaign against you norcia letter for just merely saying that she thought harley livens actions were odd and made her uncomfortable causing a sexual harassment investigation to be launched suddenly she's a target and so the nd time line comes up because she has engaged in protected opposition according to crawford and the standards of this court so there's an incident on february th or seven it was late at night so it's kind of unclear calendar wise which date it was but it was you know late evening or early morning february th every seven where there's an incident involving release of an inmate out of segregation segregation in the prison context that i know and has worked with the california department of corrections so he's probably more familiar with inmates segregation issues than i am but this was an issue of releasing an inmate from segregation and the inmate was not released from tell the truth she didn't get into what the truth was she said tell the truth to the inmate because that's one of the core principles of corrections corporation  supposed to be a policy that is followed she tells the inmate passing on a directive no addition there's no evidence that she somehow added to that and she gets fired march suspended on march st and then fired on on june th what kind of interesting is she was accused of in danger in the life of two corrections officers yet she continued to work for eight weeks which is strong evidence that this was just a pre that they decided this was the best that they had to get rid of the person who got harley lout in trouble the chief corrections officer in trouble and so it clearly has evidence is put in the send this back we should send this case back to the district court to complete the analysis you could do that we would have asked that it be reversed and remanded for trial because we think that the evidence because you've got authority to review th but i think it's pretty clear that we've put evidence in the record of pretax that's all that we need to do is put evidence in the record of the pretext and so and you know if we've made out the prima facia case it's pretty clear a employer offered up the legitimate nondiscriminatory reason it's this incident in february six february th that they said was the basis of the terminations and then we get the pretext analysis and we think because you are to review this to in the prior decision we were determining whether or not that claim had being plausibly stated in here on appeal we're here on summary judgment does that make a difference in the whether or not we are bound by the a panel in this particular instance yes because evidence was put in the record to back up what was said in the pleadings that she testified under but that was out of the comfortable so therefore she put the evidence in the record to back up what this court has already said was protected opposition thank you are just pious i think you were corrections corporation which is a corporate corporation's corporate directors corporation of america and here your honor  thousand and thirteen and no less than six times does she say that she had a quote i have no problems with my interactions with mr lap and if i felt it was inappropriate i would have filed a written report i cases where people are afraid because when you worked at a place for twenty years and there now are free that there might be some consequence because i understand that after she made the record company did so and i i did an investigation so by then it was on the radar and she had already received i believe some indication that she had received a critical performance of the valuation of the time purpose of the laws to protect them when they retract something later on we still can be mindful of the context and all of that can be subject to i suppose cross examination concerning her credibility and trial but i fail to see how it impacts on the opposition component of the analysis two thousand and thirteen she never tracked it even a question about it in deposition she agreed that this was her statement of this is the raised this i think it is i'm not suggesting that she retracted it i'm giving you an explanation for why she would thing to happen for all she knows she's hoping to get rehired for all she knows there are other you know i don't know retirement consequences benefit consequences of these so i guess i'm in response to the investigation saying at no time did i feel that this was in any way inappropriate and i actually said she felt it was insane that someone reported also miss archer a letter argues that she the investigator was odd and uncomfortable again in this statement this warrant statement she does not say odd and uncomfortable anywhere i combed through it so i'm still trying to figure out where in the record other than her complaint and a self serving affidavit submitted in response to a motion for summary judgment what how she can change the statement that she actually gave the investigator and make it fit her narrative in addition this statement is completely consistent with the crawford court's indication that this is not oppositional behavior and in fact i have a quote from the crop report opposition for purposes of protected activity that is to resist  had printed out a picture of mr lapin and put it on it was the bottle was taught think about how she was going to write a book about all of the things she's seen at c c a she was laughing although misconstrued in the breathing as molested in the of this being a big zero the reason that they did that was because miss archer let it kept laughing and joking and talking about how this was going to go in her memoirs so what the warden collins did is  abundance of caution and to simply close the loop on this issue and ensure there was no issue she told her supervisor or ask that this rd party investigation be conducted that what she went above and beyond to as the ring incident where mr lapin held her hand and looked at her ring and made a comment about it it was completed before that time and she was interviewed on september rd two thousand and thirteen the discipline issued august  between what's got what is hard to let a claims happen and with the timing if the audit was completed and the discipline issued not handed to her but issued and signed folklore of the ring incident even occurred and certainly before with respect to that issue when she instructed her subordinates to tell the truth about the fact that they had expressed concerns of the state to print inmate that she had already greenlighted to be out of segregation when she told them not be used to subordinates who complained to their supervisors at their higher ups about her instructed instruction which regardless of what she speculates they  statements that they had no idea about the arrangements and the rd party investigator who conducted the investigation and obtained witness what witness statements from fifteen individuals as part of this see if you my a of her subordinates and on top of that  disavowing throughout the entirety of the case as early as the investigation that she was ever subject to sexual harassment at that she ever had a problem with any of the interactions which although characterized as grasping her hand and ongoing which is extremely overblown she says was a stick nd incident where he simply looked at her rank and he can't she couldn't even remember at least protected activity and she has been reasonable belief i think correct so if she says burb a doubt that this is not is that she does not believe this was sexual harassment and her sworn statement on page two of those statements she specifically says in no way did she think this was sexual harassment and also she says it wasn't inappropriate it's insane anybody reported this as inappropriate it didn't make september rd two thousand and thirteen sworn statement that miss archer let a percentage where she completely disavowed any misconduct by mr lapin or that she had any problem with the conduct whatsoever i believe that what the co investigator that came after her if it's not engaged in opposition that you know and he let me tell you why i believe that and why i believe crawford supports crawford even specifically says  dicta when they're explaining to why there might be an exception where you're answering questions and it wouldn't constitute oppositional behavior they said if the person being interviewed is complaining or is talking about a supervisor  making racist remarks and then comments that those remarks were hilarious that would potentially undermine that individual's claim that they were engaged in opposition and all protected activity if they are also saying well those sworn statement it is not a sworn statement is not a statement made under oath there's nothing it's not notarized there's nothing in here to show that it's a sworn statement it's just something she desperately was trying to save her job with when she was told she was true or not what was said under oath what is said in this warrant testimony unlike just this statement the sworn testimony is that it was odd and it made her uncomfortable the most interesting factual dispute here is actually within is serious opposition if that's so that so their own inconsistency is on whether she was molested or was it sexual harassment that's something for the jury to decide and judge prayers and made some very good points about drawing the correct inferences and as to why somebody would desperately pleading when confronted with the idea that she was accusing a high level executive of molesting her why somebody would desperately try to downplay so that's not enough to be undisputed evidence there and i also want to point out with his brains and says well i was just six seconds ok let me shake your hand if i hold is holding your hand that's going to make it feel odd and that's going to feel uncomfortable so six seconds is a long time to hold a handshake and the other kind of thing i'll mention real briefly with with regard to this wildly applauding their barreda passout finally one gentleman the manager of a local paper factory sits down is then arrested by the k g b that night and sent to the gulag for ten years ok is it a defense of stalin to say well you know it wasn't because of his sitting down he was applauded for fifteen minutes well you know he was