thank you judge good afternoon may it please the court i'm here on behalf of the appellant's james norris and nicole show all the court has jurisdiction to hear this appeal under the collateral order doctrine the appellant's qualified immunity defense is a legal issue that can be decided as a matter of law while accepting all the plaintiffs allegations the corp lho did not address qualified immunity the denial of summary judgment noted disputed facts but he did not address qualified immunity of the plaintiff's allegations were accepted as true analysis of the facts as the plaintiff alleges based upon the state of the law at the time of the alleged conduct indicates that qualified immunity applies the cork allowed the sex based discrimination and the hostile work environment claims to go forward against these two individual defendants specifically grouping sexual orientation into the is the basis for your saying that the law was sa clearly established with respect to sexual preference our court had kind of recognized what i'll call a section expectation basis for discrimination if you expect a man or woman to behave in a certain way and someone who doesn't is discriminated on that basis that was recognized as plain and as i understand it your adversary says that they were also pursuing that theory it wasn't discussed is that when the court below your honor and then you look at the circumstances of this case those aren't the same circumstances here in this case it involved rumors about an alleged relationship between the plaintiff and one of the student players and the allegations are that the university and my clients the individual defendants didn't do enough to stop these rumors coming from the parents of students that are beyond their control that's not the same as an expectation that the plaintiff behave in a certain manner because she's a woman there was no discussion of that and the decision below qualified immunity should only be defeated if the officials violated constitutional rights and acted with malicious intent to deprive constitutional rights here of the right to be free of sexual orientation discrimination which is essentially when you look at the facts what's been alleged was not clearly established years ago in two thousand and ten there's three factors that are supposed to be present in there not present here the right wasn't defined with specificity it wasn't supported by supreme court log more law from this court and there was a about the official actions at issue at the time they occurred perceived orientation as we talked about was only recognized last year as a protected category the appellants could not have maliciously intended to discriminate against the plaintive based upon a perception that she was gay back in two thousand and ten when it wasn't a recognized right all of these allegations center around these false rumors that she was gay and was having a relationship with the student the one statement that is alleged to be separate from that and that refers only to her gender and that's the statement that she was a single woman in her thirt and that therefore that's why these rumors were current the plaintiff says that my client mr norris said that he said she said it either way if you accept the plaintiff's version that mr norris said this it was still in the context of  to pull out of that isolated character category because of all these other and disha all of these other and disha involved the rumors that she was gay had nothing to do with her gender itself and her age and her single status also the sorry are also the conduct of the let's it's basically an allege that there was an omission here in addition to not renewing her contract in a mission the failure to stop these rumors of failure to stop the parents from complaining that one player was getting more playing time because of an alleged relationship this is in no way similar to the obvious and intentional  deprivations like beatings in police custody with regard to the motion for reconsideration if i may the appellant's were not seeking a mere nd try at the back here the qualified immunity defense needed decision relied on this arctic a case this arctic a scam out in the five years when the record was pending and it was inconsistent with the analysis of the rights at the time in two thousand and ten when the plaintiff contract was not renew qualified immunity re with that to the extent that the claim is discrimination based on sexual orientation that that was clearly established what's your theory for not allowing the claim to go forward as a priest or a sex discrimination case you are going to met think it's because the circumstances of all the allegations have to do with this alleged sexual relationship between the plaintiff was a female and one of her players there isn't anything else to tie this into just her general on in fact one of my clients m gay and his coach the students and the plaintiff herself testified that all three of the other female coaches had been accused of similar behavior at some adversary in this in the situation of an adult coach juvenile students this isn't something that would be discussed without regard to sex male female heterosexual homosexual a coach having sex with a student would be a concern but i didn't understand that clay help me out with what i just raised with your adversary so the rumors are a coach is in a sexual relationship with a student i would think that would be a matter of concern whether  whatever the sex or sexual orientation of the coach would be so how your client these may have been unwarranted rumors i understand that but how is that a sex discrimination claim if you if the and to point out that the defendants here have stated that judge her did not address the qualified immunity if you look at his decision especially appendix at page thirty nine he says plaintiff has offered evidence suggesting this was merely a pretext for her terminations and proffered evidence then when viewed as a whole is have to find a permit a rational finder of fact that defendant's decision to terminate her was more likely than not motivated in part by sex based discrimination so that's not as hard a claim don't you have to come forward with plausible claim that this would not have happened if it'd been a male coach which she did she she pointed out that she was told to stop touching the players she couldn't pat him on the butt male coaches were not told that you've got the direct evidence  of nora's saying you're an unmarried female in her thirty's when you know years ago they used to call a spinster that's sex dario typing suggests that there's something wrong with her sexually that there's something wrong with her as a woman because she's not married she's mid thirties a male coach would not be put under that similar scrutiny they would not have this this observation in the scrutiny at as her as her coaching continued and i think that the question about whether or not her gender would be if she was treated differently as her gender would be a fact based question which judged her death defying clearly in the decision decision citing dover says city of bellville nd th circuit in one thousand nine hundred and ninety seven case he said whether gender stereotyping notions about how men and women should appear and behave can sometimes be resolved considering whether the plaintiff's gender would have been a question if she were a man rather than a woman so so the right the direct question that was there or the direct statement rather that was made to her by the logic director is your problem is sure a single female in your thirty's that provides the anchor the temporal proximity of her terminations based upon an allegation that she is a c muncher also provided evidence that a reasonable fact finder could conclude that she was treated that way based in part motivated by her gender yet it gets you gets you correct and so to say that the judge he didn't use the magic words qualified immunity that may be so but his decision clearly sets forth in those two paragraphs on page thirty nine dollars of his decision that in a mosque proffered evidence when viewed as a whole is sufficient to permit a rational finder of fact to infer that defendant's decision to terminate her was more likely than not motivated in part by sex based discrimination therefore there is not a qualified immunity in the defendants of tried through there's motion for summary judgment and on this appeal to cast everything in the sexual perceived sexual orientation lens however it wasn't  way it wasn't the evidence wasn't per proffered that way and when defendants made their motion they're the ones that argued throughout their motion that this was discrimination based upon perceive sexual orientation clearly the change in the long under the title seven now applies and that claim may go forward with respect to that as found by judge h perceives sexual orientation was dismissed as to the him as to the individual employees but i think that his decision at page one of this is the decision that's appealed from and the extent you're you're trying to base a claim that we recognize until sarna they are i think there may be some qualified concern but you've just told us at the very start of your argument i thought that you weren't pursuing confuse this i just thought that in light of your concession that you weren't suing for sexual orientation but rather for perceived perceptions of what a woman should be like etc that we really didn't have a qualified immunity claim based on when the sergeant was decided but some of what you've said a moment ago makes me question whether you think that the judge that affirm and would allow you to raise a sexual orientation claim below to the defendants under the section one thousand nine hundred and three claim your honor so that's what we're addressing that was brought up by the defendants and their motion for reconsideration which was deemed untimely so that section one thousand nine hundred and three is where that qualified immunity comes in qualified immunity doesn't come in under title seven it's a statutory construction claim for discrimination on the basis of gender hostile work environment and and the  and the eight claim under the th amendment for the hostile work environment those are where the defendants schol and nora's continued to be held into the case all the other claims against them were dismissed under title seven so i'm sorry i confused for your honor but i also like to point out though that the claims that the defendants are saying is that this is only can only be perceived sexual orientation and that argument that they have made and pursued here is really fact based inquiry that cannot be resolved on a motion for summary judgment and once there is a question of fact perceived by the court and found to be material genuine issue of fact for trial then the question of the qualified immunity based upon the law falls out and the defendants are here just briefly three points there was a mention of an anti gay slur that did not and there's been no allegation that that came from my client was a letter from an anonymous person sent to a parent then there was also a i think i do here on a there's only two k claims left against my clients there was a discussion about title seven but that's not a political to the individual defendant so i think i agree that the two claims that were remaining from the district version what is the remedy you seek from us well let me put it another way if we reverse the district court's order with respect to the ninety three claims on those two remaining claims which we think is appropriate or potentially remanding it to have these issues disentangled from the sex discrimination claim and the sexual orientation claim because they were aggregated together in the district court's opinion this would be sufficient to raise a question of fact about whether her client was treated differently than it would have been treated in circumstances where the man was the subject of rumors want to tell us why we should be persuaded by that argument sure for two reasons it wasn't factually explored in the in the record below there is no indication about what  and so that's why we think it should be considered the coaches for women's basketball women there were at this time your honor i'm not sure about currently yes thank you