in the record below and i say that set forth rather than alleged because there was substantial evidence of the record in the proceedings below presented to the district court severe you have a lady who is white who is married to a hispanic who is subjected to a series of very very offensive racial and slash sexual some of the remarks describing the report reproductive organs of a particular ethnic or racial group were sexual slash re shawls and they did perching to her in so far as time well your honor in the end it really didn't stop because she continued to have to work under miss master and she continued at ms basters be hast to have to work with lieutenant ari who had grabbed her and who had kister and whom she had asked not to have to work with and whom miss baxter basically said too bad you have to work with this guy your problem with him is quote a personal one comments didn't stop however looking at the totality of circumstances they were the hostile work environment was not sure and this court in accordance with the supreme courts of opinions regarding this issue has that  district courts and the courts of appeals to look at the totality of circumstances and i know that your honor has said that you want to look at retaliation separately and i think that's a logical thing to do in reference to adverse employment actions however in reference to something quite different something called retaliatory harassment which once again is actionable under this court's opinion in rain versus henderson that you can't  separate the two adverse employment actions constitute retaliation on one hand but retaliatory harassment on the other hand also constitutes retaliation vio career with the federal government she received these minimally satisfactory entries in her performance log which unlike the district court has said were not temporary they were permanent they were never removed to no there is not and that's a that's a question of fact especially when ms baxter once again is of record saying that she is mad at miss salazar and moreover there's another after she complained about miss baxter that office was law and that prevented ms salazar from doing her job third of all because of the four minimally satisfactory injuries that ms baxter placed in question of retaliation she have got does she receive these exceeds that then she didn't get any promotions and even though some of the individuals who were promoted above her did have degrees and did have more case there we have someone who have less experience with the giro than miss alice or who is two grains below her who have never been and who had never served in that office anywhere and h to my knowledge no i think that they said that the other three individuals had more varied experience and had back to larry degrees but ms ms holmes didn't have that very inexperienced did not have an side and we'll give you the chance to respond yes thank you your honor i think you understand opposing counsel mentioned that there was substantial evidence in the record there's factual issues and and the last factual issue in the the biggest factual issue  fact that miss alice are did not get this last promotion and that was the position that mr baxter the alleged harasser she retired miss salazar apply for that position there's allegations that miss holmes who ultimately was selected for that position didn't have the experience in as as miss alice are and she wasn't qualified your honour's that's not the case and if i could just point to and this wasn't in our supplemental excerpt for the record but in the clerk's record document forty eight which was the defendant's statement of facts in support of our motion for summary judgment exhibit sixty nine that contained there were three applique cancer three three applicants that made the most qualified list for mr baxter's old position mr salazar was one of the three and and parent than a cli i think that defeats the argument that her poor value supposedly poor evaluation which was in exceeds costs not adverse action every time she applied she was selected for the most qualified west but in exhibit sixty nine your honor that also has miss holmes application and her last evaluation she worked in beaumont texas for another federal bureau of prisons facility she worked there and she worked in tennessee at another federal bureau complex so she had extensive experience in two facilities and in her last evaluation at belmont which was part of the records submitted to the court and which the selection miti used to rate the three finalists her supervisor in beaumont said on several occasions rosanne has served as the acting assistant and employe development manager that's what she was applying for that's what mr baxter was where she obtained excellent results she had performed in this position in beaumont and so when they found she had but but the allegations that mr holmes was unqualified she was completely qualified for this position at least as qualified as misalliance are there were legitimate non retaliatory reasons wanting one she had more experience she worked in at least two facilities she had worked in this position the employee development manager and as the assistant employee development manager position in beaumont texas she did an excellent job was i'm not sure what mrs holmes final evaluation is what i'm saying is that she was qualified for this position there's been representation that mr holmes was unqualified that's not the case but well if i qualify those are tricky words these salazar engaged and protected activity there was an adverse employment action which they're claiming she wasn't selected for these positions and there is a causal link for all these positions the people selecting had evaluations her earlier outstandings for later exceeds the final outstanding that she gets is only for mr holmes so that when they do not have because that's appointed that's done by the person that gets the job and they also have those minimal performance evaluations left i think you're sort of thing they have that in front of them as they're making their decision there's nothing in the record or out of my understanding and i think this is pretty much standard throughout the federal government is if you apply for a transfer you complete the down and mr montoya can disagree with you want to point me to something else years saying that there's nothing in the record that shows that the decision makers for this job that mr holmes family knew anything other than her final piece final overall evaluation or final exceeds that's correct all the decision makers earlier it seems they didn't know her earlier outstanding they didn't know all of these minimal evaluations they didn't know as you're saying there's nothing in the record that shows they knew any of that i don't know that you're out what i'm saying is know what the answers to that specific question at least with regard to the minimally satisfactory performance logs to the best of my knowledge that there was no evidence in the records and that would have not been presented to them because those were evaluations what's important also about the minimally satisfactory part that first and foremost they were in a room in underbrush this court held that in around actions are not sufficiently final to constitute an adverse action that might have been confined of the facts of the case because the overall pass the book was applying is the reverse as henderson which is to say reasonably calculated to determine so i can imagine a case and i'm not sure this is such a case but i can imagine a case where a person makes a protected complaint the supervisor immediately thereafter writes up that person for four nitpicky little violations and says these are not going to show up in the final thing but i'm doing this right now because i'm telling you if you continue that's what's going to happen to you now that sounds to me like something reasonably calculated to deter even though it doesn't in the end show up in the final evaluation now that may or may not be the case here i mean i'm making i'm making some stuff to make it a little cleaner theoretically that's possible but the again that's not what happens here and the fact of ray although this court in re said that  i believe the opinion said adverse action could be construed to be that which reasonably likely could deter others from engaging in protected activity but but the examples that this court gave in that case were things such as refusing to give a lateral transfers the negative references which here mr salazar received exceeds which is three levels of love and negative and i'm satisfactory capable qualified she had acted in this position before she was commended for acting in this position before and i i don't think there's any dispute about the t vacancies in georgia and there were a total of five vacancies two announcements that all those selectees had either undergraduate degrees and post graduate degrees and much more  about them but they they were not directed at me salazar they they do not rise to the level of other ninth circuit cases where they were directed at something and in fact they were i don't think the comments were directed at miss our stars gender and they were just comments by mr baxter about her sexual preferences about man and what she likes to do again offensive was that hostile not by this court standards and in other cases including in sanchez your honor thank you thank you very much and we are taking you over your time frame to be very first of all some of these comments were directed towards her smell like went dogs you're one of the few white people that i've ever met that i like my god if a white person told a black person that i would hope that that would violate the civil rights was under this course opinions so some of these clearly were directed towards her regarding her failure to complain the farragher defense your honor of the third offense is also predicated upon a good faith i discrimination policy and i think the record in this clase if you look at the totality of circumstances it's clear that you can basically do almost anything that you want at that particular prison and get away with it especially if your supervisor including watching pornographic movies having pornography on the desk asking a female employee what's the weirdest place you've ever had sex and mr aries grabbed ms salazar in chester and he was not punished because there was no cooperation evidence even though he had done that this same exact thing to another woman and got and and they found evidence in that case so the farragher defense only applies if there's some evidence that there is a good faith policy in place there's no such evidence in this case and they have the burden of proof in reference to that among them as been there you know however i think i think that it's that that they had access to the personnel file and those who were minimally satisfactory entries were in the personnel file because that's where i got a second of all ok and access to the personnel file moreover once again those who are minimally satisfactory marks were not in from they were constituent parts to the exceeds grain just like midterms are not in for on they're not your final grade but they're not interim grade either your final grade is based on interim performance and second of all that would deter and that's the question would a reasonable employee be deterred by these minimally to or any of those athletes which are now part of the record unless we agreed that they'd be submitted under seal because according to the united states attorney's office they were confidential under a federal regulation not wanting to get into a big dispute regarding that that was not related to the merits i agreed but because there were some perks because those are those affidavits and some of the other materials are part of federal personnel files they wanted them under seal well if we end up writing an opinion in this case that poses some difficulties with this court has done in some analogous situations is to call witness