the jury was an ongoing pattern of behavior by a superior toward a very new young vulnerable subordinate conveying an implicit message of flirtation and sexual in that placed the point of a genuine fear for her future and her career at citizens bank the district court granted summary judgment i am asking is where to vacate remain for a trial district court committed to fundamental errors and those errors in fact the reasoning and they command the opposite result was that the two fundamental errors were the first of all the district court placed itself really in a role that belongs to the jury by assessing the conduct in light of how borish it felt the conduct was and making a determination that was a to determination that the long jury and second of all  retaliation claims with a properly led and properly raise in the district court let me begin with the sexual harassment claim there are two fundamental legal principles that inform the is not a case of or isolated incidents two of which were completely non sexual in nature this is an ongoing pattern in which all the conduct although some of it was indeed non sexual in nature was nevertheless based whether you are only arguing the hostile environment form of sexual harassment or whether you are also arguing that perhaps as an alternative quid pro quo harassment because at times in your briefing and looking at your client's arguments to this report it appears that both are being argued and yet you know that labeling quid pro quo never appears in the brief even your client appearing pro se doesn't use that language but it does seem to me that as you articulate in your brief a time you are arguing both forms and that could be very important in terms of how we evaluate whether this claim should survive summary judgment because that there are different forms of so could you the nationally clarify that point for me  it and the courts i think have wrecked we recognize that those labels may that there isn't necessarily a clear line behind between those labels i don't because i doesn't supply you with a clear definition that tells me precisely whether my claim belongs in one box or the other but i will say to the extent that quid pro quo might be understood as wiring an element of a rat you must do x or i will do y that is not  created and the in fact the anger of abuse and hostility far disproportionate to any actual performance issues that were under discussion that later result after she felt reciprocate those things all follow the pattern of quid pro quo type of thing but nevertheless can also constitute a hostile working environment so if you ask if i'm i'm compelled to tell you i it is one or the other then i would say hostile work environment that answers your question there is no question in my mind and i think in the case law that creating an environment in which a  walk through the evidence first of all i want to stress that although mr bangs evidence the records it's hard to parse i have now that i've done my best to assemble the evidence in a coherent manner for you but one thing that i think is easily lost in reading her evidence is the fact that she does assert and this fact is in the record that it was more than just the two episodes that i'll address in a moment suppose an interview in january and the suppose a performance needing in july there was ongoing honda infectuous the civically asked in her deposition between the performance meeting in july and the end of the calendar year two thousand and ten what else was there and she said he talked about his tight girls all the time how often do you talk frequently she says and this is very significant she says he stared at my body he came to her office she was located citizens bank on state street here he was his office was a home office and connecticut he came to the citizens bank office once or twice  but despite that then many months later in may she obviously decides to go forward in seeking the promotion and it may she in fact enters the working group that supervises so what are we supposed to do with the fact that despite her discomfort with that initial interview she pursues the job and the fact becomes a member of this group in may and then other  but what happened in january does this should that factor into the hostile environment plenty when she seemed by her own account to to not far to what happened in her decision to pursue the the new job so she supplies us with an answer to that very question and i was where i would disagree is to say she did not factor it in i think what she found what she tells us is that her hopes her career advancement outweighed her to the nation so what she tells us in her deposition is that first of all she did not know that she would be directly reporting to mr napoli she was two levels above her in the reporting relationship so she knew that her day to day report would be somebody different she also didn't know how often she was going to be encountering in my day to day basis she was principally concerned with advancing her career this was a dream job for her it was what she had trained for back in china it was an incredible opportunity and i think a jury could appreciate that a person a reasonable person in her position might look at that episode and say oh my god this was very shocking and frightening but i need to seize this opportunity and and do what i can and hope that things will work out in my favor i don't think that's at all an unreasonable conclusion for a jury to reach on those fa so we have the we have the let me tell you a little bit more about that episode because i think it's it's very significant and it sets the tone for what what ultimately despite her best hopes and wishes does turn out to be the tenor of thai girl conversation it does not know it's and that's a very significant point he does say that the discussion was entirely professional and he was principally concerned about what were her reasons for leaving her then current position and real estate but he does not do is is actually deny that he made any of these statements and i think that's very significant he had the opportunity to deny the asli her information was in the record  what then happened at that supposedly interview was that it was she was shocked when he engaged in no discussion of her qualifications or experience at all now i think the district judge may have viewed that conversation as consisting of from the small i don't deny that a reasonable juror might view it that way as well once years from parties but a reasonable juror could also look at  and say that that was a discussion that really crossed the line from borish into actionable the discussion he began by asking her if she was married he asked her if she had a boyfriend he talked to her about where she could find a boyfriend immediately in other words what i'm trying to say is you need only turned the conversation in a direction of intimate personal and sexual matters in a manner that was legally inappropriate to the setting they were  he then raised his interest in asian women talked about his thai girls talked about their immigration status and then he made an overtly sexual on that by talking about how the thai girls other bathing suits did not reveal enough of their bodies swimming pool and i cited a couple of cases one in particular two cases from other jurisdictions in which it involved that same concatenation of racial and sexual where it's clear that which the the supervisor referred to her as a china doll he made comments about your people and he made comments like asian women are supposed to be submissive identical to the comments   they had a severe quality to them what about pervasiveness which is a distinct an important element of a hostile environment where you there are two encounters that are described here there's the interview and then there's the performance evaluation which takes place about a month after she takes the job how do you get beyond it possible ongoing incidents leading repeated staring at her body comments about thai girls and importantly invitations to come learn golf from him and also very importantly invitations to his office mands for sex this tank supervisor mentions that he has two of pairs from thailand and miss telling takes that as an instruction to get with his program sacks apparently because how can you and i would just want to turn on to that our obligation at this point is to look at the evidence in the light most favorable absolutely and so it wasn't just her allegation is not simply that mention was whatever we have to accept the evidence that she puts forth that first point she's posed for two full days she has ample opportunity to say what happened at the lunch we hear nothing about revealing swimsuits and that this is something she comes up with later and incidentally what you see in the affidavit that comes in much later in the case is that apparently mr dashwood was so uncreative about his comments that he says exactly the same thing every time revealing swimsuit by the end of the case summary judgment because she created some genuine issue material fact you're suggesting that there was some inconsistency is perhaps in the deposition affidavit and on that basis you're arguing that  says with all aberration no other evidence just a bald statement this restaurant is known for dating it but that's the kids always what are we supposed to do with his they would kind of and not being asked to elaborate as to why she says that but really you're taking her deposition right there you're taking her deposition that's right you're asking or only what you're interested in knowing well your honor can the transcript is in the describes much more we've never seen that's not a problem we have no opportunity to challenge that the counsel the your opponent has said that it would be a mistake to view the  contact and in that situation that of ongoing contacts he would be or it or make comment some of those he made in those other two encounters is your position that there is nothing in the that's what we're saying and so here whether there were multiple incidents or only a few actually as this themselves were not terribly severe they don't rise to the level that a reasonable jury that a reasonable person once again it's the words of a company about which she's the it was sexual gesture and it still doesn't add up it's still talking about there's no indication there's no suggestion that there needs to be a sexual relationship i these is very it really innocuous commons are all she has to cite too and then everything else becomes a product of her interpretation her subjective interpretation but not something that an objective reasonable person find and why should she have an opportunity to describe what happened how she experienced it how she viewed it to a jury and then a jury can decide whether her reaction is abduction reason because why should the judge conclude that no reasonable jury of the servants could conclude that her reaction to what was happening to her was objective reason i mean her experience of it as a sexual advance what would what would prevent reasonable jury from drawing the conclusion that the comments that are alleged actually that they distinguish from her interpretation of them are extremely mr knightley asked her about a conflict of interest and she says i thought the close as we get to anything sexual is a woman which only gets converted into a demand for sex because of this but he has but she says he has had this unnatural interest in who she is dating and now his continued interest in that and the fact that it may be somebody who might pose a con with human interest is really not about a conflict of interest it's just a continuation of that unnatural increase the visitor who she's dating i mean that's this interest in who she was dating according to her comes up at the very first meeting in addition to a she's that will leave an inquiry as to whether she knows now what websites to use the find boyfriend again your honor that's not her testimony this website thing appears much later in the day much later in the case as a as a new invention that we've never heard anything else about anywhere in  what we have from her testimony when she's asked in person what did he say she she doesn't remember he made man made it made me a comment about a boyfriend or he may have asked the question about a boyfriend i really don't remember that's  having her deposition that's exactly what this law is about that you can't create genuine issues of fact by contradicting yourself you know she has a memory or she doesn't she didn't enter a deposition and months later she suddenly got  well supplementing is saying i have no memory of that and then say i do have that as a contradiction of something and the conflict of interest question not only was a gentleman but then actually resulted in some rules being established not his signed to certain accounts and she'd be kept away from this to ensure that there was no conflict of interest in her working on the account that her former boyfriend had been working there's no suggestion there's we knew about this for that's the extent of the specificity so what he may have known about we don't know how much longer before she doesn't say months and months before which is the representation of what he knew about it before but doesn't say that he knew the name doesn't say that he did the company and it's perfectly consistent with his own testimony about what he learned from a subordinate that required some further