i'm sorry may please the court i'm john holley i'm representing the appellant arthur bell before this is a case where the real question is whether or not summary judgment could have should have been entered on the evidence that was presented in support and in opposition to the motion we believe that a significant issue of material fact exists in this case regarding the timeline for whether or not the ny county school district received prior not year as a substitute teacher during the one nine hundred ninety five ninety six school year he was let go as a substitute teacher for making offensive and crude remarks during class at middle ok anyway he wrote the letters to ms hard to miss hart incredibly testified that you know she just got sick of him essentially and she didn't investigate why he had been taken off the substitute list but she reinstated him for the ninety six ninety seven school year mr leslie would provide mr bell with slips to get out of class he would give them cigarettes to smoke he would write them with drugs and alcohol and he would do that with several other friends as well and the in the saturdays for the clark county i'm sorry that the community college of southern nevada was a computer classes on saturdays after one of those classes according to her testimony a student came up to her and said hey another student in her class fri lepley is a substitute at the high school and he's also having sex with students and i'm concerned mrs white testified that the following monday she reported this incident to the principal of the high school mr hill the question in this case is very simple it is when did mr hill get the notice that mr lepley was having sex with students at the thirty six question did mr wiberg ever tell you about mr lepley having inappropriate relationships with students answer yes he did question when did he do that answer i believe it was our i know exactly it was one week before mr leslie was arrested i do not remember the date it was on our saturday class he pulled me aside after everybody left and he told me that he was very concerned that he had heard this now mr  correct your honor and that was one of the or higher on your evidence she wasn't she was absent on that monday the nineteenth that's correct that's correct and that's where we are but on your evidence how far back do you push ms quite having told mr hill well we i take ms white at her word for telling mr hill the following monday the crump valley high schools had several rather high profile incidents and the last ten write your on your right your honor i take her word that she reported it to mr hill the following monday the question is when mr simmons testified that ms white missed the last two classes and possibly the the final exam we can push that back to a maximum you know the the earliest under that testimony that mr hill would have had notice of this inappropriate conduct was may third of one thousand nine hundred seven which is two weeks saturday it was but you do dispute her testimony that she told him a week before i left lee was arrested that's correct that's correct and i don't know how inconsistent that is she may i don't know what her motivations are a lot of people say things that are true and then they say things that aren't true and i guess the jury gets to decide what part of her story if any is true that's correct your honor and all we're asking for is a chance to present the evidence to a jury and let them decide who is credible you know that the district court is not there to weigh the credibility or the weight of the snow of the evidence they're not there to to on a motion for summary judgment certainly  copa road about to copa and and the question is how could he have reported something that hadn't occurred yet you know the only sexual intent that we know about is the one on road on may sixteenth there was a second one of the to copa hot springs on may twenty third we don't know where mr lepley was taking students beforehand but i would think that he is a creature of habit and again this can be brought up to a jury that he was the heart heartstrings but it is not necessarily referencing the incident that took place on the twenty third indeed on your evidence he could not have been at school because he talked to her at the latest on the tenth of may and would have talked to her on the third  bellamy i've been involved in those earlier incidents or something i'm not no no no what i'm saying is what mrs white testify to mrs white testified that leibert told her that left he was having sex with students and he also mentioned art bell not necessarily that he was having sex with art bell that time in fact art bell the first sexual incident that we know about is may sixteenth of one thousand nine hundred seventy which is the incident on the coper road and i ask you year and i was one day before the actual arrest that's correct approximately three thirty in the afternoon do you recall being contacted by gerry hill the principal yes and what was that regard to information you were to see the future crossly molesting students arrest date if he says that very hill talk to him on the twenty seventh and call them back ten days later that would be nine days after mr lepley was arrested well and that's what means of that's going to possibly inconsistent  no we didn't what happened it remains an open case mr leslie's case was on appeal during the discovery phase his case was reversed by the nevada supreme court intact as far as i know his second appeal is now at the nevada supreme court we've also aside he's convicted again yes ok and wasn't convicted i saw some of the stuff on the record and i didn't see was convicted for any of the behavior with mr bell i gather he was convicted for other things he was actually convicted for intentional county school district received notice of mr leslie's conduct ok i everything you've said so far makes perfect sense to me and her so hard part for me ok assuming that we're willing to go along with you that your evidence would support that ms white heard this on the third of may saturday she reports this on monday and she says although on a different date monday the fifth gerry hill does a school administrator a librarian even or a school bus driver to report within twenty four hours and he suspected of sexual or of abuse or neglect of a child and i think that would that would encompass sexual abuse your honor is a violation of  nevada statue requiring prompt behavior deliberate indifference i believe it is especially it's because there's an event a statute or just because anyway in any event it is deliberate indifference well i would say both i would say that you know one or two days can be forgiven and in a situation like this when you're going out ten days possibly you're looking at deliberate indifference what happened with mr hill mr hill testified that when mrs white talked to him and told him about her concerns he said well who's involved he said i didn't recognize any of the students names so i didn't think they were probably high school students which is inconsistent with a telephone call to share and also he testified that what happened afterwards if you want to turn upon for a meeting now the my county school district says they have this great sexual harassment policy they have their office are up and up in night up in tonopah to address concerns of sexual harassment he went to tonopah that he discussed it with the sexual harassment officer there's no evidence of anything that happened it's now it's a two hour drive to tone a four of three hour drive to tonopah your honor and if i had just gone to tonopah after receiving word that one of my top two teachers was molesting a student i would be thinking about that the entire way to tone upon the first stop that would make a good sexual harassment officer i would also tell the superintendent who claims that she didn't know about the problem with mr leslie until he was arrested actually if you look at the ny county school district pay records mr leslie worked on both the sixteenth of may one thousand nine hundred seven and the twenty third of may one thousand nine hundred seven the dates of the two instances involved i believe that he worked at the rosemary clark middle school on one of those dates i forgive me if i don't recall which one it was on your version of the evidence if he hears this on the fifth of may prompt action on his part would have kept lesley out of school has been he's the one with him in jail before either the sixteenth the first at incident or the twenty's or the second incident but he certainly could have made it known to the authority to would have made it known to leslie that we have a problem here and the assault on the sixteenth on the twenty third would have been avoided your honor and that's what we're interpreting nevada state law and it involved a suit against the school district where the court says here the discretionary function was the hiring of the teacher why doesn't that bar your claim for negligent hiring because in this case there was a specific statutory scription for getting the particular sexual or the particular criminal records of mr lepley and that clung hiring is the basis for immunity under nevada law what difference does it make that there was perhaps a breach by the nevada highway patrol in failing to forward the fingerprint card immunity hasn't been waived for the act of hiring then it applies and you have no claim well i wasn't familiar with that case but i'm not sure that that case was decided in the context of the statutory prescription for hiring teachers and case that comes to you following the grand summary judgment and this was a proper case for summary judgment to be granted the case is controlled by the united states supreme court of gaspar versus lot of this being the school district in which the united states supreme court addressed title nine claims of sexual harassment or discrimination and determine that there's a two part test that somebody making such a claim needs to show first of all it's actual notice must be given to an official who had a minimum has the authority to address the alleged discrimination and secondly that following that notice the district acted with deliberate indifference  computer classes she taught at the community college there's not inconsistency with respect to that testimony that i cut to the chase for me can you tell me why the plaintiff's evidence cannot support i don't have to can conclude from it but cannot support a finding that ms white was notified on saturday the third of may vary hill was notified on monday the fifth of may why why doesn't the plaintiff's evidence support that conclusion if the jury wants to come to that conclusion based on the evidence we have in front of us the reason it does not support that conclusion is because you have to in r completely from from that testimony you have to eliminate other testimony that mary white has already been on and i'm sorry it's inconsistency in the evidence don't matter on some range i don't really take the part of the evidence that's most favorable to the moving party so merely the fact that there's inconsistent evidence and there's a lot of inconsistent evidence present doesn't get me doesn't give me where you want to get yet ok ok if i may the testimony of mary white needs to be viewed in its entirety ok but i'm not fine not getting the date of may the third now from mary white i'm getting that date from the testimony of potter and simmons that's correct yeah that she reported to mr hill she knew exactly when stevie court and mr hill i believe those were her terms and we asked her when why sad and she indicated that was one week prior to mr let lisa rest but that can't be true because on the monday she says she did the report the nineteenth she was ask jury entitled to infer from or conclude from the testimony and potter and simmons they seem to me to say that that the last day she talked was saturday the maid made the third may or may not be taking my point mary weiss testimony is inconsistent least as we have it with the testimony of mr potter and mr summers that's correct but that in itself doesn't get you very far so long as the testimony sure but he says two weeks i'm sure they need me to read it you know i don't know perhaps that could create create an issue of fact but i don't believe that it does obtained actual notice that there was a problem with a substitute teacher involving sex well you may have that but the guess for court requires you to then go to the next point which would be delivered district did and again the testimony would be very inconsistent with respect to what actions were taken mr hill made it quite clear that he when he spoke with mary white he asked her  immediately to have this confidential informant come forward again i'm i'm taking evidence that's not most favorable to real i'm taking evident in the record that's most favorable to mr bell and i take that to be that  mr i'm not sure you said exactly what you mean to say you just said that could support a finding of deliberate indifference to that cell you lose for summary judgment on that issue till i think you have to say in order just in order to keep your  he did take that action and he also played with miss white to have this confidential informant come forward identify himself and come to mr hill with the information otherwise he was acting on nothing more than he you know you hear a rumor you immediately act on that rumor and take decisive action against an employee when in essence what you end up doing is violating the rights of that employee and then now you have that lawsuit as opposed to this so he acted reasonably he acted immediately acted swiftly with respect to the information which she had received and that information was that lepley was having some sort of improper contact with students after hours on a cold or road that might involve well i believe with the testimony was from mr hill is that miss white had told him that he was having that there was there action indicating to the office not to call this mr leslie as a substitute anymore and he was not called there's a few other points but he was called well he was called erroneous school on he was only in high school and at the middle he had been at the middle school earlier in the year he only substituted a total of four days in the spring semester at the high school i think which is why it's important for the court you cation in the record anywhere that any of this improper sexual contact or conduct by mr lapsley ever a cool occurred at the school district nine ever occurred during school hours  and you know what with the plaintiffs are basically asking is that this school district the you know the the somehow have have responsibility beyond even what it has today the school district have the sexual harassment prohibiting the school district from teachers to the school district good and then what does it matter whether the sex occurred on school property or during school well because the school district polices sexual harassment the purpose of the policy is to address sexual harassment in the schools but doesn't cover sex with students campuses on weekends during the evenings that sort of thing without obtaining her being able to obtain reliable information from from informants getting back to my point the school district under the facts which the district court had opted which were reasonable in my opinion properly found that the plaintiffs have failed to carry their burden with respect to the title nine claim under gasper that there was no actual notice to the school district and even if there was there certainly was no deliberate indifference by the school district in this particular case  again i think the court needs to look at the evidence from the standpoint of on on the actual notice issue what what makes consistent sense based on the testimony of white and is we have to view the evidence in the light most favorable to the plaintiff and if the evidence could plausibly for his version that the notice occurred earlier you may have a dynamite closing argument to convince the or stand with respect to the negligent hiring claim which is the only state like claiming i wanted to raise the point which i believe was was raised during mr holly's argument of yes this case in the discretionary in the unity statute which applies  in nevada in our eyes forty one point zero three two provides discretionary immunity to public entities and their employees with respect to decisions involving personal deliberation and judgment which the courts found in this case have not followed the statutes to their logical conclusion or follow them through under arest three ninety one point one hundred school district has a responsibility to obtain fingerprints from an apple for a position in this case mr leslie provided his fingerprints the school district has the duty at that point to send those fingerprints on to the central to sixty three days stablished mr leslie did indeed work at the school district the handwriting is as a substitute teacher for full days on both the sixteenth and the twenty third the date of the of the assault here the handwriting on those particular reports indicate that at least one of those days with the school district the other hand writing is a little ambiguous on that point the one thing that has been overlooked here is the testimony of kenny bar