know opening i want to remind this court that summary judgment under title seven is not supported because this court and many others have found that the elusive factual question you will see from the facts and if no doubt seen from the briefing has not been disciplined in a good career with the united states postal service over twenty years mr dale attest i was in senior management at the general get if he prevails in this case we hope that he ends up with a level twenty five for lack of promotions over the last ten years that  successfully defended himself against that allegation the postal service it investigated it six times the jury as you know is able to decide intentional that scrim a nation if what it is presented with by the employer doesn't make sense if the employer doesn't follow its own standards and practices when the employer story changes over and over again here that would mean missing documents such as mr kerry's initial management inquiry where the notes were lost such as what we call the second investigation where the investigator testified that it was supposed to remain forever and yet obviously on its face the copy we have is not the complete copy it has things after the date of the investigation and the jury is in the same hearing where the united states postal service attorney this lee attacked mr della toso for what she knew were unsubstantiated allegations the district court here chose one conflicting story over another major credibility to terminations weighed evidence bureau inferences in favor of the united states postal service fail to review the matter as a whole and found allegations could be used to put mr daley toso on leave for allegations in november of two thousand and two except that he wasn't put on leave for sexual harassment of two thousand and two at that point in time ms lopez is the protagonist at this point and mr de la toso has gone to mr kerry and said i can't take it anymore you've got to make her stop the postal service management was well aware of mr lopez this mental state mrs ms lopez's propensity for violence and that she had been continually took under an under took to stop this harassment none of them turned it in and none of them called ms lopez in to talk to her yet now we are told that the united states postal service thinks that mr della toso acted wrongly in not disciplining ms lopez himself for her continued harassing calls to him is that the most  unknown to mr taylor toso for a period of time mr garrison the head of human resources orders a second investigation and the investigation isn't he said she said that we see after protected activity in this line of cases  that he didn't receive because of their actions and they simply said that he didn't receive his bonus because he wasn't there although his group did extremely well and he had sat in place to start with anyway back to the back to the more retaliation the second investigation is closing out january ninth the investigators had called mr garrison and told them that they're ready to go home that ms lopez has absolutely recanted all of her invest all of her allegations that there's no sexual harassment that there's nothing to investigate mr garrison the head of human resources calls urgently that reported that she had attempted to attack him with a screwdriver so he was scared of her and your client well our position is this that the investigator says that he was never physically afraid of my client he says that my client if you read it looked at him funny the general mail facility your honor has aisles that are whiter than your bench and mr taylor toso supervises between five hundred eight hundred people on machines that are about as big as the panels behind your bench and mr least admitted in his deposition that until that day he had never spoken to mr della tessa there were two levels of he finally thought it was because loki has was a danger to herself and others he testifies that he is given a set of letters by mr harris they were originally set as for impeding a sexual harassment now the district court would have us believe that it was rational and reasonable based on an one thousand nine hundred six allegation that was unsubstantiated which the postal service settled which means nothing to  to investigate lopez a sexual harassment complaint for nine and a half months with mr delicto still on leave however from november first until january done nothing to harass mr least the postal service during the nine and a half months that mr della total was on leave during three investigations three of which were one incident of sexual a consensual sexual conduct with ms lo past that investigation goes on for the next eight months and it's here where the court weighed the credibility and didn't leave things open for the jury this lopez isn't credible ms lopez attack two romantic interests with screwdrivers and the postal service knew it ms lopez had been telling people that she was sleeping with the managers of distribution operations during the year two thousand and one kraft employees had complained and nothing was done m total look at me funny is after mr lopez a sexual harassment complaint it all predates it and the court also did not take into account saying he sent her to for a fitness for duty physical because she threatened to attack the medical unit in other words the united states postal service and the district court ignored all the credibility issues by the postal service weighed the credibility issues by the district court in deciding that supervisor drugged her and then raped her in the parking lot of a local bar and the case is not about whether he did this or did not do then we're not asserting that he did did he did that but we have it's the record is clear that this was alleged so stories about him as a star and whether or not you did these things that she claimed but i believe that you were engaged in improper relationships with your subordinates and it's come back to bite everybody put us on a very bad position and mr harris has consistently from ninety ninety five told to supervisors i don't want you dating your subordinates i can't tell you not to do it but if it blows up on you and if they later claim that you sexually harassed them or did something bad to them because of this you're on your own i'm going to come down on you and that was his view on this and that's just for ending up to the lopez problem that's right that's background there with actually three lawsuit involved in here it is related to the extent that some of the allegations in the second complaint and the second loss in the third lawsuit were no one hundred times she's used my wife's name when they're paging me and i just want to stop i don't want her disciplined i just want to stop so mr kerry called in mrs lopez she came in at the union representative and mrs lopez said i can't believe this he has sex with me he's coming after me and i'm the one that's being yelled at and she turned on claim that he's the one that's harassing me so mr kerry question her the record has statements from the universe presented who was there who any case she thought it was more cross claiming just as this this previous claim victim that this guy the supervisor mr dillon tesla has sex with her in the parking lot of a local phoenix bar there's no allocation of drugging or rape here there was no indication and ramana lopez never asserted that it was anything other than consensual but she did later claim and through the course of this that after this happened he took various actions against me in middle east fairly minor actions he wouldn't let me go on any one of these charitable i believe was one of the united way fundraisers those sorts of things these facts for a little bit complicated for give the factual question just clear in my own mind if we want to point in time the subordinate lopez accused mr d of consensual sexual relations with a subordinate right and and harassment by want to get to the other after that correct or arising out of this that's correct and position so he invited her to the bar she claims that he bought a couple drinks and after after there's makes no evidence whether she was drunk or not but her allegations we have sex in his car in the parking lot of this local bar so after mr kerry gators on this case and they did at the iau investigation began in november two thousand and two while this was going on her form ramona lopez's former boyfriend michael least came forward to the local human relations manager and so at the time that she was put on leave mr gill tells her put on leave they're both working at different facilities so they both went out only a problem with the fact finding that was conducted by the to the folks was at their instructions where we don't reach conclusions we take statements and we say this is what we've got here so they presented the postal service with a series of conflicting statements without determining who was right and who was wrong the whole packet went up to the pacific region several months before this the phoenix region had come under the coworkers which supported his view that he was being harassed and singled out by mr gillat telcel the investigators in the third investigation took a look at all this and took a look at all of the information and at the end of march of two thousand and three they  sent in their report at that point if if everything was working properly and as he would hope both of them would be brought back to work or at least some sort of conclusion would be made unfortunately as far as this case is concerned mr harris was winding on his career with the postal service and he was to go on detail to various parts of the country and no longer be in charge of the phoenix and tucson areas although i believe in economically kept the title they brought in a guy named mr perry he came from the seattle area a much smaller post office he was overwhelmed by the new responsibilities it was a much bigger region he was learning new procedures and new people new names mr harris told him before he left he said you've got two issues you need to deal with one of those is the deal  to get the matter children when he finally did look at his conclusion was that i don't think there's any sexual harassment of ramona lopez i don't see that here least allegations i don't think there's much of that but i do have a problem now that one of my senior managers may have been lying to us about the sexual relationship during the investigation the third investigation is focused came forth a t m receipts showing that she was a barber she claimed they had sex mr dillard during that their investigation originally said i've got evidence got proof that i was actually a dark tournaments in another part of town but he refused to turn that evidence over miss lopez also produced her telephone records which show that she had many phone calls to mr hill tells us number most of them are only one minute or two minutes thing and they concluded that there are a number of similarities we have two very low ranking employees female employees single mothers some performance issues basically on the bubble as far as their jobs are concerned and one of the big computer arguments  bars his home turf where he worked and had machines either ply them with alcohol or drugs and have sex with them and afterwards when things started turning out to take action against them again we're not saying that's what happened here but that was a picture that was painted b subordinates so the postal service a very cautious about this mr perry by september didn't know what to do he asked legal counsel for a few from san francisco for an opinion and they sent him one mr gillat toso claims that legal counsel encouraged them to sort of specific and substantial circumstantial evidence that he needs to establish his case i was out such evidence there is no issue for the jury to determine that he hasn't proven that it's more likely than not a retaliatory or discriminatory atomised motivated any and there are and therefore we said that there was a conflict that could be waived also i'd like to refer the court's to e r one thirty one please choose the a nakia list letter according to the postal service where was not published in only to garrison but it's part of the regional investigation also i want to make clear it's one one time of consensual sex it's not a relationship it's not an ongoing the woman has only ever not recanted one and the date the date came not in the management inquiry not in the second  investigation of mr phillips has harassment of her but in the further investigation of the regional investigator the a t m record i don't think it's authentic and i think that it i so you can't tell what it is and it's for the wrong damie the other thing that i would ask the court to look at as far as why hasn't this gone to a jury how many more disputed fast can there be are e r one fifty three through e r approximately one sixty three the united states postal service alleged in its summary judgment motion that mr dale atos of had listed eleven reasons that he'd been discriminated against or x the court narrowed those to eight we in responding to that question said look we answered in the tories and we listed sixty seven so we don't see that anybody has narrowed it the court said that those were vaguely written these were in iraq tories and the letter that was attached to them was written recess for the day