all right we'll call they file a case for the day sixteen five one three six nine  court applied the wrong standard to her first amendment claim in this case missin the ball complained of sexual harassment the city then defined those complaints of sexual harassment is insubordinate in disrupt the city then fired included those complaints of sexual harassment during discovery for this case defendants or achilles in this appeal admitted that the insubordination to send a ball was fired from included allegations of sexual harassment therefore a jury could infer that the true reason for missing doubles termination was the television for making complaints of sexual harassment at the summit judgment stage all reasonable inference must be made in favor of the not be part of the protected activity was it her going to her supervisor or her talking to her colleagues in the dispatch area what maybe it's all of the pinpoint for me the protected activity that you're saying she was retaliated for engaging in just one of the protected activity would actually be all it would be when she went to her supervisors and complained of sexual harassment they did not provide an adequate response would be when she had these conversations because nothing was what would stop at the actually went to a supervisor a couple different times during this case the first time was in two thousand and the only advice she was given was to simply defund soja drug nothing else was done by time are you alleging that two thousand and ten incident was a protected activity that she was retaliated for three more than three years later i think her complaints of sexual harassment played into it but the specific ones at issue in this case are the ones that happened much later when it comes up again in two thousand and fourteen right in two thousand and thirteen looking at the aug their supervisor says the plaintiff came to me advising she was having issues with sergeant branca constantly bother her with text messages but she stated his remarks were not of a sexual nature but enough to where she did not want to text any longer so you characterize that is there anything else in the record that would show me that she said she was being sexually harassed at that time because what i just read indicates she said it wasn't a sexual based problem yes i can't tell you whether she used the word sexual harassment she went to her supervisor but she did believe that she was being sexually harassed and the evidence of that is the report you know she says it was not sexual in nature well if you look at what the the complaint that constantly disregarded the employer's instructions to stop talking about things that weren't happening in the office and at home and and off campus don't have and things like that i mean it the the record before us reads like a multiple of no good deed goes unpunished they tried they moved people they gave instructions and she disregarded you out of my response that would mean they didn't do and in fact when she was when she complained the first time all they did was say different when she went in to get his from the first time monique gets greater and greater and greater the first time was minimal and the response was reasonable and it keeps escalating by her well you know when she went to that when she went to her supervisor in august of two thousand and thirteen she stated that she did not want to be on the same shift as such a drunk she asked if he could not be placed because at that time they were placing police officers on the shifts she said she was uncomfortable with that she did not like the tax the frequency the content in the times they were sent to her and she asked if she could be if they could not place them on a ship they ignored it and they did and then these issues continued and we have text messages in the record showing that these things continued after she went to her supervisor if you look at a record page for sixty forty four sixty five these are issues happening in september where other option really she was kind of corny because she got to her supervisor a couple different times they had not made an adequate response instead they put it on her they said you defend him you stop talking about it and then they wrote her up in fact they didn't even they even put him on the same shift as her and so i jury could infer the that she had acted reasonably when she did go to the only other people she could go to who dispatchers because  said nothing was happening that the actual wording on record page five eighty nine is that a police officer has had quote sexually harassed and made advances towards her and nothing had been done about it in the bill in the polis affidavit record page five ten this poll a second also acknowledges that miss and of all felt she had no other options quote she did not believe anyone was listening to her about these allegations so here she's got to her supervisor and they told her you know that they didn't do anything until it's your fault stop talking about it so she goes to these dispatchers who do ask her what's going on and in fact the significant thing about this is that after she was given this order not to discuss personal issues after she was written up in october she goes to these dispatches in and asks them and this is on record page for sixty five and i do apologize in the reply brief we misstate the page number of this following quote do you want me on the shift or not in the responses oh yes and that's on page record record page four sixty five she also talked to her dispatcher to the other dispatchers they said they didn't have any problems with anything that missing of all discussed and that's on record page for thirty two they told her we didn't complain about you again that's a record page for thirty two page one forty in fact they would ask what's going on again look at page four thirty two page one sixteen and so what a jury could infer from that is that the true reason for terminations was retaliation and there was one hearing where he testified that the reason she was being funny was because of her complaints of sexual harassment at the unemployment hearing he engaged in the following testim question would you agree that this end of all complained of sexual harassment to miss bennett on february seventeenth two thousand and fourteen she folk are responded that is what miss bennett states you have no reason to doubt that correct i have no doubt from hispanic innocent of all said would you agree that an ascent of all was written up because of this complaint of course there was an brief at peach thirteen retaliate she claimed the conduct the plaintiffs complaining about doesn't actually have to be a title seven violation but it does the point it does have to have a reasonable belief that it was a title seven violation  so tell me what supports your cause and believing that she had been subject to unlawful harassment well i would say that what supports that is the same of all received a large volume of t ten right yes those talks were in two thousand and ten and then when she read from to the same type of text messages once i face book messages started coming up again these were personal messages sent at all times of the day and they at least included at least one photograph of such a drunk on a bike that was sent to my client she thought this was this was unwelcome to her she felt that this made her uncomfortable she you know that under our case law just communications from someone to another from one  to another even if excessive even if you know it makes someone uncomfortable doesn't get close to the severe pervasive requirement we have for the harassment because while you're at it what i would say is that the sexual harassment was not potentially action it was based on a single job in the question was whether or not she believed that it was sexual harassment what this court did what your honor did in the case was go through all of the cases where the fifth circuit had found that there was not actual sexual harassment but that the person's honest belief that they had been sexually harassed gave rise to a ballad of a television claim and one of the cases cited in there this court so the pony's have not said that it was unreasonable for her to think that such advances actions were sexually harassing they only challenge whether or not it was actionable and then whether or not the way that she complained about it provided it legitimate reason for her terminations to have knowledge of that have to be viewed within the four corners of her activities to her continued talking about sexual things to her coworkers and everything that she was doing despite having been told numerous times not to do that fired in part due to conversations that included allegations of sexual harassment in fact the trial court found that that was as can that was consistent with their stated reason for missing devolves terminations under this court's  they also made a reference to a period of time that was covered by a finale and what this court show was quote the inclusion of this statement in the same paragraph listing reasons for ions terminations could indicate that his absence was also a reason personal conversations some level of discussion including about personal life well occur during a nightly ship if you look at interactive tory thirteen a record page one fifty five no one else was written not investigated reprimanded terminated or disciplined pretty basic any in evidence anyone else was engaging in the conduct she was engaging in i mean to say no one else wrote an op you have to have some identify someone who did something similar but wasn't as well we have lloyd bowman's affidavit saying that people did civil rights violations that is an inference the jury couldn't and that is an inference that the court erred in failing to making favor of the sample i see that i am out of time and so i'll simply us this court to reverse this case involves a supervisor who is terminated after repetitive progressive discipline both informal and formal about her communication with her subordinates that is what this case about there is no evidence that anything that was done by the city of pflugerville was because of the specific complaints that were made it's because of a supervisor who continued to subject her subordinates to what was  situation this case involves a supervisor who puts her subordinates in a place where they can't respond a subordinate is not in a position to tell someone i don't want to hear that anymore i disagree with you i don't want to be in this room anymore and i'm going to walk out that is what the problem was with missy in the halls conduct this is not a case where she made a single complaint and the city said you're talking about something that we think is protected where you shouldn't be we're letting you go was i on a single complaint case i and was it's different because i guess the only issue was the reference to f m l a in the report about terminations and the difference in that case that's fundamental as in that case the employer was saying look his f m l a leave had nothing to do with it not retaliation vs not retaliation for leave but being off of work had nothing to do with it the city has never tried to dance around the reality that does make this and more delicate situation for us which is the communication she engaged in involved all types of things but they most definitely included items that are protected by the statute we have never tried to dance around that the city has never said that wasn't part of her communications when the complaints came in they were what they were we couldn't change them if we wanted what her employees were complaining about you heard some of our questions when you say items that were protected what aspect was it that was protected where had she complained of sexual harassment with respect to sexual harassment the first time she used the word sexual harassment was when she talked to calk been about something that happened months previously and that had ended months previously but we do not dispute that she used to those words now is that reasonable we would say no and frankly temp testimony that in the record in deposition she admitted there was nothing that's me i had said to her in two thousand and thirteen that was sexual in nature not one bit she was concerned that his texts were increasing but you can look at the record and look at what he sent her and there is nothing about it there's also her admission that she never told him she didn't want those communications and in fact in september of two thousand and thirteen she told him that he apologized and they stopped there is no evidence in the record of anything involving this individual after that so by the time she is talking to ms cotton and she uses the word sexual harassment we are well beyond those moments but we do not dispute that she used those words at that time in in conjunction with a number of other complaints but the issue for the city was not what words she used it's why are you still talking to your statements about firing her for i guess record page thirteen what what would your thoughts be on that the cost miss cottons complaint she was terminated because miss causton complained about her supervisor subjecting her to this environment absolutely i mean that's that's what violated her previous order do you not talk to your subordinates about this last fall there with the home theory of for get determination right the first time it came up we didn't even put her take her aside right the first thing they did is brought all the dispatch supervisors in and said guys don't be doing that to your suit your subordinates don't be talking to them about your personal gripes and your personal issues you put them in a bad spot they also sent everyone including her to a supervisor class that talked about the same thing if you're unhappy about something with your employer talk to the guys on the same level as you go upstream don't go down  strike those people can't do anything about it they're not your friends you need to be able to supervise them and there's no dispute in this case that she was their supervisor right if you read appellant's brief you will not see the word supervisor you will not see the wor that was the relationship and there is no dispute she held her hand over their future she did their write ups she approved time off she recommended discipline and so we started saying look all supervisors you can't do that don't do that to your people when it continued we took her aside and for millions and you can't be doing that it's not fair to your subordinates when it continued we wrote her up when it appeared that she was really having some problems that we hadn't seen in the past she a long term employee we could have at that moment just said you know what that's enough we told you not to be doing it we've met with you three times it's enough but they didn't they said fine let's give you some you know employee time we're going to let you see if you can get better when you come back they sat down with her again and said don't do that to your subordinates we didn't tell her don't talk about if you've been harassed or you think you've been mistreated we didn't say that you couldn't make complaints this woman could have gone upstream she could've gone to any of her coworkers we said don't do that to your subordinates and then she kept doing it it's just she did it again and so it is that issue not only when she came back we gave her a new shift we said these dispatchers have already complained about you  that's not fair to put her back in that place we gave her a new shift of subordinates we gave her a new shift to patrol officers so it was a fresh start for her and within three weeks we got two complaints from subordinates the only reason the why we knew we would not had a clue otherwise and i think that's the most important distinction when it comes to what the court had to do when it looked at both was this reasonable opposition was the terminations a pretext how do we and the communication started so by her choice she read friends him and his soon as she tells him to stop he stops he has no idea there and welcome you read the text you will not see anything from her th please you know i wish you wouldn't be communicating with me anymore but this is a coworker this isn't her supervisor this is someone who's also a supervisor of his patrol they're on equal foot so it could have been remedied and was remedied back in september two thousand thirteen so why in october is she still complaining to her subordinates about this you know what counsel said is she had no other choice what is talking to your subordinates about this going to do how is that presenting your complaint she had choices if she thought something was going on we have an h r department we have a police chief we have a city manager we have a city attorney she had counsel by fall she already had legal counsel with us in the record so she had legal counsel by february when she has now talked to two more subordinates and two more subordinates have gone to a supervisor and said i don't want to be part of this she has a ton of options if she wants them but that's not what she's doing what she's doing is ruining the lives of the people underneath her and they don't have a choice and that's particularly true when we're talking about descript we're talking about just batters who can't walk away right their job is is in a room on the phone right they can't walk away we're talking about a relationship that this court has recognized multiple times being particularly important is not a measure of any other area where the courts have said the relationship between communications and patrol is really important we have got to have harmony between those two departments that's exactly what we have here we have a group that is particularly important to this court and that has been recognized by this court of being different and so what the plaintiff and what the to do is actually brought in amity any evidence any evidence that says here's why what i did was reasonable it was reasonable for me to be talking to my subordinate in february two thousand and fourteen about things that were over because because what there is no reason for her to be talking to them right that's when we do a balance both or whether it's reasonable opposition and similarly when we talk about the first amendment the movement has to come and say yeah here's why i had to do it this way this is why what i was doing was reasonable for send out the topics are important but but what did she what was it about what she did it was reasonable on the other hand we've got exceptionally strong evidence this isn't one of these hypotheticals we were worried that there was just loyalty or we were worried about disharmony we were concerned that there has the potential for people to have problems we only know about this problem because her subordinates individually separately multiple have come to us and said i don't want to be here i don't want to work like this she's telling me she can get people fired she's telling me she's going to she's going to sue people i can't answer her i don't want to be in this environment so there's no recognition from  what was the city supposed to do and number five came to our offices after we've already done progressive discipline after we've already given her a change of environment after we've already explained her very clearly here's what your choices are talk to the people at your level talk up stream from you do not do that here support this that's what this case is about is what she's done to them and so the trial court was correct when it looked at the facts and said where is the evidence that those brought that said this is something that a reasonable person would do there is a balance of interest for her to take this action and we would say your honor that there are there is none like the court  record if you look at the text messages you will see that they were converts they said that she was being watched you need to be careful what you're six it's an old boy's network here a jury could was disciplined or reprimand but the fact that she was told not to discuss personal missions and personal issues that of how he just said she was fired for was a complaint a sexually her sexual harassment and i heard complained of sexual harassment because she believed she sexually harassed as this is the district court's opinion staines this will put the fifth circuit in conflict with at least four other circuits the second circuit the fourth circuit this is the six circuit then held that at the summary judgment stage we cannot accept an employer's conclusory claim that an employee was insubordinate when the alleged insubordination consists of refusing to see what the jury could find to be a reasonable title activity the court went on to say that insubordination may be the protect the activity may be considered insubordination in response to a valid complaint of discrimination the fourth circuit agree resolution of a factual issues such as the true motivation behind the reprimand letter which reference protected activity was a jury function this is what this court found an eye on this is what this court upheld the magistrate's factual findings in the fisher  i think the key issue is that what evidence do you have that any of these coworkers went to complain about your client because she'd been and made reports of harassment evidence would be reasonable inferences from the fact that when this sent of all spoke with other dispatchers they said you were being watched be careful with what you do and there is also evidence in the same messages that belinda  affairs investigation that is what it says is that most of alaskans sought out this policy and asked her to basically complaint a jury could find thank you very much thank you that's the case is for