mr battle good morning your honor and may it please the court i'm in weighing evidence st of all i would like to reserve two minutes for rebuttal in weighing evidence in a discrimination case all evidence belongs in a single pile and must be evaluated as a whole that was the explicit instruction of this court in artie's instruction that has been repeated in barbera and most recently community schools yet the district court declined to fall that rule when it granted summary judgment to marion university in this title nine case indeed it flipped the summary judgment standard on its head when it drew inferences in favor of the moving party and found that former student trevor johnson had not produced sufficient evidence of sex based discrimination arising from the university's wrongful and biased germination that he was responsible for non consensual sexual conduct with another student as the ortiz court recognized some discrimination cases permit easy inferences such as the fabled employer who admits to firing an employee because of race but few discrimination cases are so straightforward indeed they're often factually complex in a car sifting through ambiguous pieces of evidence the university all but and show that marion university and its employees discriminated against him because he is a male the district court granted summary judgment only when it made factual findings and considered each piece of evidence a vacuum rather than wade together for instance while the district court and the university tacitly acknowledge the apparent bias of dr creek out who was the deputy title nine coordinator and the lead investigator in this case they argue that it was based on mr johnson status as a respondent rather than his status as a male but because a doctor creek house tweets because of the trainings and because of the other evidence that's in the summary judgment record mr johnson has satisfied his obligation to produce a particular used something more that the this court recognized in the dover says produce case in linking sex based discrimination to the university's other procedural failings incentives for discrimination and so i'm i'm not sure i understand the theory that creek house position about the kavanaugh nomination shows any kind of bi a district judge in sentencing one defendant believes victim's claim that she had been sexually assault would you argue that that prevents the judge from sentencing any other defendant ms ford that's fine but how does that show bias your honor the reason that it's biases and especially when you tag the tease test and wait together with all the other evidence is because of the timing and because of the gendered language that he uses in the tweets and specifically when you look at tweets that say that cavanagh didn't offer a word of sympathy or concern for the women who have been sexually harassed her views and district judges say that kind of thing about criminal defendants all the time without a do you think being subject to a contention that that shows they're biased and therefore have to stop here and that category of cases your honor that of course the biggest difference there is when a district court judge does that it's in the course of that district court judges duties it's not something that a district court judge would normally  just go out in put it on twitter and especially when it's something where what difference does it make whether the statement is made on the record in a court or twitter once you accept the  disqualify a person from bias in a future similar case i don't understand how dean creek out can be viewed to be universally biased your honor because this is something that action than that yes your honor and that certainly is an official act of a court in this case when you're title nine coordinator and you are the judge jury and an inquisit dr creek out was here then it's extremely important to maintain some impartiality something that district court judges what would of course always be encouraged to do with extrajudicial statements this would be the same as an extrajudicial statement that could bear on his bias and that's especially true when you look at the fact that the tweets bookend the the johnson proceedings on one end you have just days before the allegations are made against the student you have the kavanaugh tweets and then you have the tweet directly from dr creek out that comes right afterwards where he is addressing someone specifically who is making an allegation about a someone alleging harassment when he says a woman states she has to be selective in what harassment she speaks out about and this cat referring to the credit feels that he needs to speak up and tell her the issue take a seat between because a hit dog collars this is the specific gendered language that we look at in the cases right now that know i think that is something that certainly goes to the credibility of the complainant and the fact that she was so readily believed by the investigators and we have that rather difficult language from dr creek out in the initial investigation where it's very clear he's believing her one year after she makes the allegation so i think that is important in showing that the bias in this case and that the university's supposedly and johnson i guess had a pretty physical encounter and some point each of them holding your honor there's there's deposition testimony from that that i  think is not necessarily material and and it's contested probably not because it wasn't really right this is why this whole thing came along later on i mean i'll ask you whether side on that that and in any event were focus here strictly on whether or not happened and you're saying well it's you you're receiving what you have as he male because you as a male and i'm looking more at what the timing was and what really happened and interim relationships and oth that's right you know and there's a lot that intervenes in that in that one year that is ample reason for for doubting the account of the accuser in this case wouldn't which is why it's particularly troubling that in the initial intake interview dr creek out is so quick to show his support for the accuser and then of course the factual question is is that bias he has because of the response because against respondent or is it bias against a male and the record here shows ample evidence that it's simply because he the male not just the respondent and there's enough evidence to show that in two short circuit this litigation too had hit on the end there which is after looking at everything that's going to come together what this really boils down to is that both sides have an equal opportunity once the complaint wants me to present evidence about what happened to question the evidence that was in the record and there's simply no evidence that's been presented that the investigation was teaching in any way or changed in any way as a result of the sex of the complainant or the sex of the respondent and in fact  mr johnson actually admitted a number of things in his depositions including that the investigation was not conducted any differently because he was a male he admitted that the process was explained to him and applied to him in the same manner that it was applied to the plain without any distinction to sex he also admitted that he doesn't think he was posed any different questions or treated any i should say he wasn't posed any different questions are no different questions were asked of him simply because he was a male and so despite all of these admissions he now wants to cherry pick and go through and try and find something out there that suggests that his admissions aren't dispositive of the case and in fact there was ice and for that he points to  tweets which we've just just discussed and some comments made by dr creek out during the initial intake interview no with respect to the tweets i think jodi sobre perfectly pointed out that you know this doesn't really show anything that original authorship but i don't believe we're looking at the same gendered language that shows a predisposition that could be carried out or carried into the ongoing investigation to have trast the statement that was stated in this situation prior to the investigation and after the investigation he's not making a comment saying all men shouldn't be believed all victims should be believed he's not making a comment that men are the cause of sexual assault as was the  in this situation he was simply commenting on the ongoing situation with justice cavanagh and dr ford there isn't this sort of gendered language that i think carries the same weight as in the produ case now with respect to the intake interview i think once you again as much as the university has argued once the statements are taken in context and also looks at in the context of the investigation it becomes more apparent that there was no initial prejudgment dr creek how admitted in his deposition that the statements were perhaps in artfully worded when he went back and looked at them but his testimony unequivocally states that he was commenting on the jurisdiction ok he was looking at it similar to a district court looking at a motion to dismiss is there something they are for the university to investigate and then once you look at the statements beyond what was cited by m johnson it becomes clear that he says based on what you're telling us there's something there based on what you're telling us if what you're telling us is true there is something for us to investigate mr new york i never asked and i got a question about the  in mr but all may choose to comment on it as well in the discovery process in this case where there are efforts to develop compare it or evidence of the way comparative or matters were handled you guy you can approach proof in a case like this a bunch of different ways and i think that way maybe one of them there's some reference in the summary judgment papers to a comparative case involving student a that never surfaces in the briefs in our court and i'm what i was wondering about is what effort the plaintiff made if any to approach this from developing comparer evidence absolutely so in a district or proceedings there was information exchanged about overall the statistics at merion university with regards to what the outcomes were for various timeline complaints both for males and females respondents male and female complainants there was some discovery conducted about this student eight and the plaintiff had in fact somewhat addressed this of the district court but it was abandoned on appeal and that was one of the things that the university had pointed out with respect to an indirect method of proof which is that by abandoning this computer arguments the the plaintiff can in no way satisfy a prima fascia case on appeal for this court and present a full and complete case because they've abandoned their conspirator arguments and so i think that issue is kind of a moot point because the plaintiff has appeared to abandon that argument in its entirety but to answer your question there was some discovery conducted and i'm not entirely sure why that is she was abandoned but it  mr johnson filed suit as it relates to the course of the investigation as the university noted in walking through the procedure that it conducted during the course of the investigation there were there was one witness that was identified by mr johnson who was purportedly with the complainant and mr johnson the night of the party and that there were a few individuals including a friend a coworker and i think a roommate that mists rove had given to the investigators and during the course of the investigation dr creek i would miss herms and have the same question that you did judge which is there seems to be a delay or a disconnect as to why this was raised to here later and so those w c and then when they have discussed it she was encouraged and say she was encouraged she then went to the university and made a complaint after she had told our t c and so the university did look into why there was a  delay and whether or not there was any additional information with respect to the delay in the timing and then as it relates to this lawsuit after mr johnson filed suit mr johnson's attorneys did question ms rowe during her deposition  about the delay and about the relationship and you know raised issues about whether or not there was some issue with her raising at least but the fact of the matter is even with  st interview that the st thing that he said to the witness the complainant the next morning was what do you remember and the issue was not whether or not they had sexual relations and b if he did what he said what did she say i  don't believe there's anything in well i shouldn't say i don't believe i think i can recall off the top of my head what she said but i believe mr johnston has said in his interview after he asked that question that she expressed some indication that she didn't remember and  and that that's where we get to the point of the parties both agree that that the next morning they realize she was too drunk so we know that they had sexual relations and we know the next morning both parties realized that ms rose was  evidence that was brought up there was in the district court a discovery done on a comparative and quite frankly that's one of the things in litigation where it just doesn't after discovery turn out the way that maybe you think it did before hand it was not one of our stronger arguments the other evidence and that is a lot certainly circumstantial evidence but as this court ne evidence is evidence and it must all be weighed together and the fact that mr johnson said i don't remember it was because of his surprise and that's why we believe that was pretextual from the other evidence we asked the district court to