by teleconference we were supposed to be and have lana georgia but obviously things have changed a little bit and we're doing this by telephone and we thank you all very much for participating valerie our court m deputy will give you a two minute warning during your arguments so you'll have an idea when your time is drawing to a close other than that we'll try not to talk over each other as best we can and get be and the result of that decision was a consideration of the free from any discrimination language which appears in both the eight which that case was about in title seven and the supreme court to make sure the supreme court applied them out healthy analytical they asked to apply mt healthy and rejected it because of the language of the private sector statute so in and so we believe that the surgeon changes the analytical and requires reversal in this case the nd overarching concern is that there is direct ever evidence from whatever could hospital directors in the chief of staff and the service chief of radiology relating to the darrelle ing of careers by preventing the tech not the ultrasound technologists from obtaining three separate supervisor positions that became open and to mean technologists positions in the p c a which became open t murder mongery one of the one of the things that the district court noted in its order was that for at least one of those positions i think the one involving the moema graphy position it was filled another way they decided to allocate resources differently what do you say about that position if they decided not just to not fill a position like happened with the other two but with that one the biggest allocated resources differently and decided to put the money for another position in another department that was not that was not a decision that was made at the time of the p c a leaves were open that was a decision that came up during the middle of litigation and i believe it was actually implemented in two thousand and seventeen whereas the p c a lead refusal figures to fill the now with regard to the people who made statements we've laid that out we've actually quoted them in our reply but we have the chief of the service making statements in which he's referring which he's not only talking but he's referring to what he's been told by the then director and the chief of staff and we we  also have when a rd position came up in two thousand and sixteen supervisory position we have director battle making a statement which clearly was based on in the decision was not to simply not resolve or decide and be investigation which both the district court and the secretary agree was an adverse personnel action and by not resolving it he prevented nicky davis from getting the position she was the only qualified applicant the  t it was covered up by then it in denver bennett ordered the supervisor to place those records on the on the public internet and we've discussed in our in our brief and i won't go through it again the fact that the factors all surrounding that what records what did those records consist of the ones that were publicly disclosed they consisted of those documents were actually disclosed and the next and that was by order of bennett the management instituted a id that was done by and that is what killed davis because as long as they were looking into it they had decided she couldn't get the job and no one would decide this because deciding it would have ended  guilty of bullying the rocky they found that based on the fact that she was addressing quality issues with geraci and that that wasn't part of her duties but fact it was part of her position description duties which she was the person the primary person because they didn't have an ultrasound shoestrings supervisor i believe that i argued about all those things in the argument section i'm also i believe that i argued about them in the in the in the replied read as well  think i talked about i have a thing in there about the railing careers and i mentioned all three positions in fact i criticize the the district court in the government for environment claims i think that would be fair to say we didn't raise the monic an issue in the lower court but i but i believe the we made the hostile work environment claims hostile work environment as well and that would be hernandez but land is also had a retailer dorie house the work environment and those were all made in the court down below didn't address those they didn't it didn't find that we did not make thirteen sexual harassment lawsuit but they fail to tie any of these remarks to decision makers or to allege adverse employment actions i want to take up on mr magri separately then this is not a direct evidence case under this court's precedent only the most blatant remarks made by a decision maker constitute direct evidence and i would submit your honor none of the gossip rumors that were discussed here were related to were tied plaintiff go to great lengths to assist as a decision maker and that's right and importantly they're not connected to any of the actions that were taken here rather where they claim that there is adoptive admission supposedly discussed their settlement seemed displeased with them but dr eastham who is there said well the few times he generally discussed the settlement i don't know whether or not dr sandler was there he was often there that's it the other people who are cited to support that are dr twining who said he had stopped going to those meetings in two thousand and eleven and heard nd or rd hand that dr priest had gotten into some trouble he assumed it was harassment and dr bailey who said that she had allowed to be supervisors and what the genesis of that contention is and what you think about it yes your honor i'd be happy to that's been december rd teen a couple of months after the settlement of the sexual harassment case and according to t euros testimony it's really important to go to the record here i know it's extensive but her testimony is she was talking about applying for a supervisory position stands or was supportive of that again he's the decision maker and she said oh gosh something to be effective then the directors left in two thousand and fourteen don't want me to be a supervisor he supposedly said i guess not that's it that's not in connection with any decisions that were made that's not saying i'm never going to let any of you their evidence from the stench would is not your honor that's that's right you're right i forgive me for that but let me talk about that as you said if it is preserved and we would argue that it isn't but which is a diagnostic radiology tech technician i believe is the acronym to supervise ultrasound an m r i and the claim is that was an additional requirement that was added as a scheme to prevent them from getting it because they were medical instrument technologist mit and they point to the handbook saying that it doesn't require it and st of all this is why generally courts don't get involved on this granular level of personnel decisions because they're not as personnel department but if you look at the hands of pages that are cited it discusses and medical instrument technologists and i think and it can be and someone can be an mit only if they're supervising exclusively ultrasound  she says when asked if an medical instrument technologist conceive provides both the ultrasound and m r i she said i don't see why not that's really all the evidence that there is which is not strong evidence even that that was not required to be a d r t can see proposals both supervise both of those modalities that's that's all that there is and so that's the evidence from which they want this court to reverse and say a jury could find based tell me about the plaintiff's claims that relevant decision makers and others at the v a were intentionally disclosing information having to do with the testimony shows again that the that there is no question that the radiology department was right with gossip and part of that gossip was about their settlement and there are they are not very wildly this is not  are saying hey everyone they settled these claims for whatever the amount to believe eight hundred and seventy thousand or some like that these are people saying i heard it was fifty thousand i heard it was a one million that's what they're talking about and so this is just rumors monkey doctors who don't have firsthand information no one says hensley told me that they settle these cases for this amount stands are told me they're troublemakers he's mad at them anything like that and doctor about it and direct a battle they claim that he knew all of these terrible things were happening he said i knew they had had a case and they they won the case you can look at this testimony sandler said i knew there was some gossip there was that were killed disclosures aside for what you refer to as claim is were i'm sure that there were discussions about what the claims were and but again there's i don't see anything in the record where we have a decision maker like stengel or or the director battle disclosing question whether or not it was a mistake so it seems to me it might be a jury question a unless you have some other reason your honor i says that a jury question and i agree that there is some conflicting evidence once that was discovered what happened who looked at it from the out that it seems from the testimony as the memory serves piece of that mr bennett said when the supervisor was leaving he told her and thirteen sexual harassment settlements have to be a material fact that the documents were there all of the employees documents were there and if there's any conflicting evidence it's not an interior fact and if you look at the cases in which something like a public disclosure is found to be actionable those are cases where for example and the name escapes me i can find it where the head of the union takes an e mail complaint from one employee posts it on the public drive someone downloads it post it on the bulletin board and this memo and he sent a memo to all of the union members and says this person filed an e t s we think it's privileged but it's going to cost me you know a lot of money we might have to raise your dues very different than some sloppy hey we need to transfer these files all of the employees nobody's targeted there's no evidence that this is widely spread there's no evidence at all that this was done to retaliate against them this is just sloppy recordkeeping for all employees the settlement agreements were not on there there's no evidence that that people found this new information and started reading it based on what was on the computer and once it was found it was immediately taken off they looked into how it happened and they moved on see what kind of process with the administration would have to undergo in order to get him out of the picture as it were your honor my understanding is that the v a has progressive discipline like with any other into removing someone i had a case yes your honor the raise the raise my mention that is that if you have somebody who can hardly be terminated and there basically is the same position they were in before and have to leave and i wish they had been and then was complaining supposedly that that was the case here and nothing of the times the anonymous i'm around and it was written by the two doctors with flexion what i'm concerned about media supervisor anyway even before that but when you keep them in the same position that sends a message to the employees i think i think there's an inference there and i put that together was it was the doctors anderson i believe there was a rd doctor use them if i'm not mistaken i might be wrong on that but i know for sure is dr bailey and dr andrew look at their testimony and dr bailey said well gosh i would think that they would be deterred she didn't know for sure anything about whether or clear that they did and again it's information i'm not saying it's good it's not but it's all of the employees in radiology is private information it's not clear the people in fact accessed it it was put on an act a drive that people in radiology could access but i don't i'm not aware of any money hand is really important to remember that under the supreme court's case in northern railroad a retaliation claim just like a discrimination claim is completely separate from a hostile work environment claim for the purpose of benefiting a plant because the purpose of whether it's discrimination or was just going to tory hostile work environment retaliation or retaliatory hostile work environment the point is those are two separate causes of action that has satisfied the adverse action to benefit the plan if we give them another way to satisfy the adverse employment action and that is why i doubt he correctly followed other circuits and applied the hostile work environment standard of merit or inherent to say well if we can't get there with a crude as sure so i want to go into if i may a little bit monahan and i think that the issue in monaghan if as i understand it is looking st of all the district court did a real disservice by analyzing retaliation playing a discrete retaliation claim by a hostile work environment standard that's wrong but that doesn't mean the hostile work environment standard is wrong and i understand if you look at the retaliatory hostile work environment standard articulate says what is in other hostile work environment causes of action that you move that ability of a plaintiff to use this group of things and you're actually raising the stakes for them so i think a way to why would i why in the world would a plaintive want to try you say it's an alternative way but why would a plaintive try to establish an alternative way that is much harder for him or her to satisfy if you if you apply as you put it to go ski stairs which you think was correct why would anyone want a benefit that supreme court tried to give in harris and so again if i could just i think a way to harmonize this and to take out the terms and conditions of employment language again for retaliation claim for anything or they got rid of this to say you can either show was a discrete action that's the answer to that depends on whether or not you are one of the people that are protected within within the v a in his case he was not punished and we put this in both the response to summary judgment question well then anybody higher up battle on down who are above him ever as are any evidence of the ever told him to keep his tongue quiet no there isn't one person who claimed that he started to say something was stands lerner thirty days before the september twenty seven team depo that where i asked him about what he did with her receipt at that point he that he knew he had heard about these rumors going around when i asked him about that during depo everybody knew this stuff was if you look at aaron doctorin erin andrews testimony it's amazing how fire all of this stuff spread but not really amazing because of who was was was the original sources of it i reasoned require a raven i'm concerned don't know i want to know what the procedures are that your honor they then i will in those up hire the procedures or they have to propose some action and then they have to take it and if someone's been involved in a sexual harassment claim they're supposed to be zero tolerance they can get anything where for a st offense terminations according to the v guidelines that none of that have been here not because the system is necessarily a problem but because the people running the system were protecting they were protecting stem cell or they were protecting each other and they they were and what they did to these i want to point out you know there's two things that are mentioned you've got about a minute left to go  do make that point and then wrap up yes i quoted the direct evidence in cited to it please look at that not counsel's descriptions of it is fire as page if you look at page forty six and i believe it's fifty two you will see that we mentioned in the argument portion of the briefs after extensively discussed in all three this issue about the hostile work environment that ends with it is remarkable that we would tell women who are victims of sexual harassment that they can complain about it and get paid a large amount of money but they have to thank you very much and thank you very much mr innes thank you