thank you please the court i'm ernest reynolds from fort worth here today represent amanda abel the plaintiff in this case and here before this court the a lot i think if the court would permit me i could probably outline in about two or three minutes but i believe the keys to the case are although i'm happy at any time to try to answer any question this is a case that was dismissed or as we would say in state court where i spent most of my time in texas dumped on summary judgment and there are two fundamental problems with what the trial judge did and i might say i've known him since he was in practice and i think very highly of him personally and professionally but this time i must respectfully say i do believe he erred st i think he applied the wrong standard to effort by the supreme court at that time to revisit rule fifty six the summary judgment rule and provide a little bit of corrective guidance to say a summary judgment is not a mini trial the judge is not a fact finder let's take a look at rule fifty six and the court should be limited to trying to see whether the burden has been met or is there a fact i moving party there is no issue for trial but we have also in our brief quoted the pertinent language from the supreme court in two thousand and fourteen and of course we've brought forward the rule and the rule requires a much more narrow and strict construction of the role of the trial court i could come back to that i've covered it in the brief in detail but i'd like to move to the nd fundamental problem  this case this is a case where i believe as the summary judgment motion was brought to the trial court the trial court experienced something fusion and this is a case involving it won't one who says i have a sexual harassment claim and then i have a retaliation that's what she said but for some reason the trial court spends a lot of time on the clay case which is much much different mcquire was a senior employee in a police department she was black and she was harassed but she was not sexually harassed as i recall the opinion there was actually a finding there was no adverse action because at some point she had had enough and she resigned and retired but there there clearly was conduct in that case that was troublesome however it was not a sexual harassment case and miss a boot is not bringing a case of racial discrimination so there are different issues and the  becomes a confusing preston to try to use as a template for the decision of this case where part of the reasoning of the trial court is well you know what someone else similarly situated was was this fellow who was to harass or the comparative or those are issues that might have been in the macwhich case but were not in this case so ultimately taking a look and a phrase about well it's too general or it's in consequential and i would respectfully was clear that the behavior was despicable that she suffered if it didn't appear for him any of our hostile work environment case law the court said that but if i might explain why i think that's not dispositive the court looked at this on a truncated statement of facts essentially borrowing and incorporating the truncated statement of fact that was brought forward by the state of texas i love the state of texas but i want to see the state of texas treat everyone fair and hear the state and it abused my client and then we brought forward a lot of evidence that the trial court simply disregarded which is something by the way that the supreme court in the said this employer did react promptly as what but we know they didn't what the district court did was to accept from the briefing provided to it by the summary judgment move that the proposition that there were two written complaints one in august and one in december of calendar year two thousand and sixteen but we brought forth evidence that even at the time when my client was employed in two thousand and fourteen she quickly learned that oughts the harasser had been harassing which was made at the request of the supervisors and ogust of two thousand and sixteen there had been numerous complaints made verbal only two supervisors one of the issues brought to the court is well the harasser wasn't exactly a true yes but it's not a very big office space and they didn't stop him from roaming at will and continuing to harass female employees including my client and you know and law from this court in recent years which i have summarized shows that it's not enough it's not enough to do a little once the supervisors become aware and this court has not required that they be notified and reading the supervisors have to effectively stop the misconduct and the supervisors did not effectively stop the misconduct when when they got the next compliant they do know they did not they continued to keep this fellow on the rolls until the following year if he was still on the rolls when they when they disemployed my client and that gets to the question of the pretextual disemployment situation i've listened with great interest as all of you have talked to people this morning about contracts and what does the language say well the ruling question as we've pointed out says that for someone to be fired for  for using this data system they have to get credit information my client not only didn't get credit information she was not capable of getting it provides years including this one both have testified and agreed she didn't get credit information she did not give the information to anyone in fact she was unable access any helpful information paul she was trying to find out a phone number at the district court made a finding that everyone  breached the system for private non business purposes was fine well if it made that finding i respectfully submit it's a hard thing for me to understand how it could make that finding when the record is crystal clear and i have testimony from his  supervisor of ms allen who is the direct supervisor of my clients that there was no information obtained by my client or given to him up but let me let me ask you this question on the you have evidence that there is someone who that private information who was then not fuck it's a strange yes and it's kind of a strain of yes it's a strange situation but what i did was i asked the supervisors this question is there anyone you know who did the very same thing that my client did and got fired for it and the answer was no there's no one we know of who did the same thing they're talking about a guy who tried to get personal information about a sitting u s president and he was fired up and they're talking about a woman who was helping her relatives to get funding through this it's a program that distributes federal and state funding to people in need who got fired my client didn't do we don't know of anyone who did that we don't know of anyone who got fired forward but what we do know your honor is rulz that is the only way that taking this information as a general rule is a st time firing office is if they get credit information and i have it proven crystal clear from her and from her supervisors that they did not she didn't get credit information in fact she used the standalone system as your mode of access she couldn't have gotten credit information but she also everyone agrees about this in retrospect she also did not have information which gave her a file number and so she didn't get any information so so rule is you can't use it for personal use but unless you get credit information there's no rule that says it's a st time firing all fits and there's detailed deposition testimony from the direct supervisor ms so the rule is to be used for personal significance of putting arch through the four step process that shows they knew how to do it even though there's a rule as i understand it and some of the testimony shows that there's a rule that if you commit sexual harassment that might be the st time firing office what happened here was these people got upset with my client they knew but all based of two thousand and sixteen that because she had been making verbal complaints and others had they would stop this fellow ots for h there and this is in the record it's in the affidavit it's in it's clear in the record ms allen began to harass my client and teller you can go to the see i'm watching you you might lose your job and follow around the office and make life difficult for her which was very very improper so as i said a few minutes ago we have two clients neither of them like the claim in the quite case we have a claim for sexual harassment and plenty of proof much beyond what the trial court could and then we have the claim that she was retaliated against now here it page twenty five under rule fifty six dollars and it says the court that the court cannot make findings of fact it just got to find out whether there's fact or not it's got to consider all of the evidence and that just simply didn't happen it didn't and i've analyzed this brief issue but he issued in section d not only the failure to follow that standard but how the court in its opinion makes fact findings and it makes fact findings on issues which are issues didn't become important to this case kid concludes that there's no evidence of sexual harassment it concludes that there's no evidence of hostile work much it concludes there's no evidence of retaliatory discharge let's say the district you aren't you the case concerned me more also because it seemed like throughout the record there was the suggestion that at the same time as she is title seven is that starting in august prior to august they knew she was complaining to the inspector general starting in august of two thousand and sixteen when they found out that she was seeking guidance from the e e o c then she was retaliated against specifically explicitly for that and that retaliation continued until we found a pretext to fire her and the pretext was to take a role that's why i served in this thing with interest as she talked about language and contracts to take a rule and just kind of modify and stretch it and misapply it no one can use this data if you get it she didn't even get any of it as it turned out for personal use but unless its credit information and everyone agreed she did not access credit information she did not get it she did not even use an avenue of access that could have gotten it unless it's credit information it's not referring often to the st time what happened to this woman was  was and she wasn't the only one there but she was harassed by a beast in the office in a way that's uncivil and shouldn't be permitted and definitely shouldn't be permitted in the state or federal office and wouldn't be permitted in a federal office and i think wouldn't be permitted in most people or says but in this particular one it was permitted and then when she was going to e o c they were unhappy about that and then when they had  pretext because of this incident tried to get information when the dog was chained out at the grocery store next door they cooked it up into more than it was sent or two letters in early february and did not give her the chance to go through the four step process and just pirate and that's what happened so she suffered an adverse employment action and we respectfully submit to this court that there is sufficient evidence and we've detailed it in sections of our brief especially sections five b c and d to show that there was evidence on these points we've got the section on the stand i don't know if you've noticed your time has expired but i'll give you a moment let me just close by saying we've given the court in our brief separate sections a lot recent good law for this court on these fact issues on retaliation and on harassment and we believe that there is sufficient evidence to meet the burden to permit the client to have her day in court to present her case and argue results in time for  is no evidence to support any of the appellant's claims this court must affirm the district court's dismissal of appellants retaliation gender discrimination and hostile work environment claims under clearly established supreme court and  precedent the appellant was terminated for a legitimate nondiscriminatory and non retaliatory business reason after she admitted to accessing h h s c's data broker database which contains highly sensitive and confidential client information to look up a phone number on a dog's tag that she found during going to go away what kind of information this is so this database is specifically used only to obtain medical eligibility medicaid eligibility status with respect to clients who come in to h h s see the data broker computer security agreement specifies that use for any and what kind of information is contained in it so this is like person also shared according to medical records a highly confidential and sensitive information pertaining to these medicaid clients and their medicaid eligibility in a phone number to find a donor sooner you are right immediately into where all of the sensitive information is not layered i am know it personally it from millionaire with the way that the database works by the computer security agreement which the appellant signed and which is signed by anybody at h h s see who's given access to this database provides that you may only access the bad database in order to obtain information regarding the medicaid eligibility over on the picture  concerning you know especially after dismissal stages i don't think it's disputed she was next an employee i don't remember how many how many years that she worked for this employer she was she worked for the employer for quite some time ago a long time excellent employee undisputed that she enters the database because she's trying to find the owner for a chain dog and fire her up at the same time it's not disputed no one's defending the conduct of the harasser despicable agree just but he doesn't get fired until after she is i don't necessarily agree with that the h s c actually took problem to remedial action as soon as it heard of her complaints the shoes she made her peretz work rules and policies took paul into remedial action in order to discipline ots that's what she's asking for she's saying i wish they'd taken prompt dismissal i made a mistake it was winter chain dog i got on they gave me no discipline at all i've been there forever and lo and behold i am complaining about a harasser who does end up getting fired because he's a roster and i'm also saying gosh this is taxpayer money and it's being spent to easily we're not meeting the eligibility requirements so so that would get people apprehensive this is a woman who's trying to hold us to high standards that's there's no none of the claims can go forward on that i don't believe any of her claims go forward your honor the appellant was aware that there is a strict policy in place and you can find the policy at our away for twenty to four hundred and twenty one and that it's factually is when he deposed people in the company they said well we never fired anyone who did what she did is that a pro the response is this is strictly prohibited with respect to any employee at h h s see and there's no evidence in the records showing that anybody who access the database for purposes other than obtaining client medical eligibility status was not terminated they have simply not put forth any evidence showing that he made the reference it was a little bit up to spoke what do you think he was referring to as he is trying to say that there is nobody who has gone and looked up a number of a dog tag and put it in the database and hasn't and has been terminated as his client has but the case is and the opponent was well aware of this is strictly prohibited this is a very strict liability standard with respect to each h s c it's a strict policy if you access the database for purposes other than obtaining a client's medicaid eligibility status no matter what it is you face disciplinary action up to and including dismissal and there d is no evidence in the record showing that anybody had anything less than dismissal with respect to accessing this database for personal  inappropriate use of data broker information is a work rule violation and will result in disciplinary d action up to and including dismissal and like i said there's no evidence in the record or anywhere else for the claim that this was a retaliation for going all the way the e e o c i'm not sure that they specifically say that this is in retaliation for going all the way to say but there is no evidence that there has been any is not good said oh well no we wanted to complain the way i did but there was she was told you can't take time off to do with respect to any affidavit submitted by miss simple everything in her af was conclusory and we moved to strike her affidavit based on the fact that there was no evidence cherry support for anything that was said the record evidence shows that there is absolutely no evidence of any retaliation or discriminatory evidence animists with respect to the actions that were taken her statement is extraordinarily detailed in terms of especially the harassment she suffered which the district would seem to have credited so i don't yes and was very but i but i this is an important point to me because in your brief you said well these were quote comments about her figure and clothing and you said it's never used in appropriate language that seems like quite a tortured that's far beyond figure including yes i am very your honor but also the appellant contradicts herself in several ways so she gave testimony in her deposition that art's never made any explicit comments to her never used a folder inappropriate or profane language never propositioned her for sexual favors and never touched her and that's at our own way three hundred and ninety two at page one hundred and twenty two lines undercuts other statements she attributed to him i'm saying that the appellant's testimony regarding what ots did under oath contradicts the what she said in her conclus regardless what it comes down to your honor it's for purposes of  comments an isolated incidents such as those in this case will not amount to discriminatory changes in the terms and conditions of employment moreover the supreme court in vance v ball state university which is five hundred and seventy dollars us for twenty one dollars teaches that each h s c can only be held liable for a hostile work environment claim when it's negligence leads to the creation or continuation of a at your honor is the evidence in the record she is only was confronted he didn't deny he said he just thought he was job right and we're not we're not saying that what happened did not happen we have never said baton actually h h a c took prompt remedial action in order to protect the appellant and to put a stop to the conduct that was occurring so st and foremost she made it made her st complaint she only made two complaints in total her st complaint was in august  sixteen immediately after she made her st complaint has c in accordance with its work rules and policies immediately disciplined ots removed him to the opposite side of the building and told him to limit any interactions that he had with the appellant and reassigned him to was completely separate unit there were no incidents after that oughts was on leave for two months afterwards and it wasn't until december of two thousand and sixteen which is four months later that appellant made her nd complaint and appellant testified under oath that there were no incidences in that four month period between when h s c disciplined him in august complaint is still before your own marriage breach right so she didn't complain pretextual ico she thought she was in trouble were in my room but the timeline is the nd complaint is only after she knows she's in trouble because of the computer breach which is is the  or breach of the data broker database but the two are completely unrelated so the nd complaint i mean there's no causal connection between her terminations and breach of the data broker security see immediately per its work rules and policies terminated ots changed the locks on the buildings and removed him from the building so i mean exact complaints that she did at the same exact times against the same exact harasser mrs leno was not clear on that that she gets to see and really causes trouble for the employer i promise and you know never got there because she was intimidated from going there at least that's the allegation that's the allegation but there is no evidence of intimidation the only difference here between miss nino d who would stick gratian was that the boss of her get her name went to mislead and said you're not going to get time off to go that's right but there's nothing supporting that it's a conclusory allegation and it's it's hearsay so if you look at the evidence in the record you can see that the only difference between miss abood and miss nino your honor is moving back to vance the ball state university it teaches that h s c can only be held liable for a hostile work environment claim when it's negligence leads to the creation or continuation of the hostile work record showing the h s c cause or in any way contributed to arts as a legit conduct in fact the record evidence shows that in accordance with its work rules and policies it took a problem to remedial action to protect the appellant after there's i do not personally know the timing though your honor but there is no evidence and the record showing any causal connection between her alleged complaints and the terminations of her employment nor is there any evidence of of pretext the record other than you know counsel's conclusory statements there's nothing in the record on and heal that supports her term a nation because of her complaints and addressing some of the arguments that counsel you know sometimes that's correct but even though we return to action that's correct but even though there may be some sort of presumption of timing and as being an indicator of retaliation we have put forth evidence rebutting that presumption if any exists therefore it turns to the  forth evidence showing pretext which she has not done in this case with respect to counsel's argument that the wrong summary judgment standard it was applied here there's st and foremost they fail to rai such arguments in the district court they didn't file a motion for reconsideration or otherwise raised it therefore d it's been waived even if it wasn't waived the court correctly cited the correct summary judgment standard and there is no evidence showing that they applied the wrong standard when conducting their analysis moreover there is no evidence in the record showing that the court it here to you can through the district order to stand independently on the fact that the employer took remedial action that footnote because it's sort of toward or it's a we don't need to i don't need to reach this but then goes on i do not i think it i think there are several bases upon which it it is that and focused its attention so that is one basis upon which to affirm another basis is that appellant was and able to meet the objective standard to show severe or pervasive conduct with respect to the conduct that oughts displayed  you think you put no parent pentacle is enough to make that as a separate ground independent graham you think the district court footnote observation starting with we don't need to decide this actually then did independently decide on the basis of the employer's proper reaction really action i think that it decided on multiple grounds that being one of them exists for example she says that the case law says the employer can be liable for being negligent in failing i don't personally i don't want the case and what i want his representatives i want to tell you what the facts are listeners because your this fellow lots was not only that whole time but nothing was done there is a statement in the record and i've got it quoted somewhere in in the brief for ms one bill who is the supervisor of ms allen the direct supervisor of my client where she admits well we gave him kind of a counseling but that's all we did we didn't do anything else they didn't check to make sure he stated his desk at a different place i know for a fact that the record shows and i believe it's in the affidavit of my client when she was fired the harasser was still at work judge begin suing us to question about what happened in december are they complaining that she was supposedly your mind that explains the difference and that's yes and that's in the affidavit of my client it's mentioned we were afraid to mention it too much for fear that they'd come back and further moves name no we know that because this is outside the record but we had an not only here but in your work every day but it pages twenty seven and thirty i've got standard to review case law discussed from this court and one is on the workplace sexual harassment and one is on retaliation and i respectfully which say it shows this court has held sometimes just one remark can be enough that's the quale our case this court has held that you don't have to have a touching you don't have to have a gross direct proposition about let me do something to you type of thing that the state raises these is red herring the standard is not up as they say it is i also want to point out to you st comment would be give me a call no it well there's a bunch of it in there and i'm not i'm very lucky it's in the affidavit i'm reluctant to say it here on something that's being recorded will be played out but it's the guy was a monster and he did terrible things and said terrible things and the supervisors were made aware of it not twice as the state contends but many times over a long period of time and the state didn't stop it they didn't stop it and the state has conceded just a few minutes ago their duty was to stop it but they didn't so the harassment claim is separate from the retaliation claim there harassed what is proven and time has expired i'll give you a moment to conclude and on retaliation we have shown conclusively that it's in our brief here that we got quotes from ms womble in her testimony in this part of the brief in sections five c and d what happened here was nobody else ever got fired for the same thing and this was not a firing off in the client didn't get in the information i do know counsel for the state from being at the depositions from the freestanding approached the vice even if information had better pertained it would have been the kind that was prohibited which is credit information only for a firing off and the st time tha