confidentiality policy or which mr marshall were recommending discipline against mr storm so mr clever not me let me ask you what seems to me to be the central question i mean you're right about the timing of all of this i'm not sure whether i think eighteen months is a long time or a short time or average time given what one reads about but the important thing seems to be that when the salivation is made the department investigates it they  point some outside people to come in and in the end what evidence is there that they didn't genuinely believe that mr marshall had a problem with alcohol that he wasn't behaving in the way that they expect somebody department employee to behave you know in short what tells us that their reasons for letting him go were not genuine reasons having nothing to do with his sexual orientation right well as we believe that the investigation was so flawed as to be evidence of discrimination that there were no eyewitnesses to mr storm and allegedly mr marshall but the investigation into mr marshall's was flawed it was based solely on the fact that both warden around him mr marshall identified his home sexual mean males your honor i'm no female indianapolis conference issue me it if it were the case i'm not saying it is but if it were the case that mr marshall becomes just inhibited under the influence of alcohol he would be not the only person and certainly not that has nothing to do with sexual orientation it's a different problem altogether and it's an eighty a problem i don't know but it's but the allegations i understand that the allegations of the sexual harassment so mr marshall was not alleged to have been under the influence of alcohol in fact mr storm said that he was not and that these allegations were made when he was not under the influence of alcohol so i don't believe that that issue factors into this because the both the warden and mr rader store who investigated the long forced a conference issue both indicated that he would not have been fired for that so if you and so with the allegations into the sexual harassment that were significant and my coin about warren brown was interviewed but he was excluded from the decision making process by design because they personal investigators believed in mr marshall had an intimate relationship because both of them identified it as homosexual what it what it was just so i mean i think they said that they knew that warden brown had been friends with mr marshall for thirty years or for a long time and i could imagine you know an organization such  department of corrections saying you know we don't want somebody best friend never mind soon no sexual dimension to it but you know we don't don't want to be best friends sitting there in judgment we need to kick it up to the next level universities do that young sure but yet in their interviews your honor they asked each of them if they had a an intimate sexual relationship with each other so it shows that they believed that that was the  word brown couldn't be unbiased but orton brown pointed out that he had previously disciplined mr marshall thirty four years earlier when he had a dui so he was able to be impartial but they perceived that he could not be impartial because of his homosexuality and because of this issue i mean if there had been a female warden and a female making accusations against mr marshall the female would not have been excluded simply because she was female even if she were a friend so i think let me quickly say st of all i don't know that but now i'm going to come in from left field and ask you whether you think there's any reason we should  designing this case until the supreme court hands down and started a decision well that's very well may be possible obviously the existing case law is in this circuit is one block decision by this court y that decision will be made sometime next month i don't know with the use the pandemic if that's necessarily true but that's what we typically happen so it's it's possible that that would be  know an important and appropriate thing to do for the court to confirm that at least the u s supreme court agrees with this is applying at the time though i will tell you in this case the other side has not challenged whether that was a claim and the neither did the district court decision challenge that it is an existing claim at this point in time and so the case has moved forward because there was never an objection that such orientation was not a claim under title seven so again the investigation was also flawed because as i indicated all employees were interviewed and no penile employees were interviewed even though they the interviewees told the investigators that these individuals had rebuttal i'm having trouble understanding your retaliation claim given the certainty of events here and what you think he's being retaliated what behaviors causing this retaliation than action taken after the fact so in this case we learned after we filed our response to the motion for summary judgment in a hearing before the state employee feels condition one of the persons finally admitted that accident meeting where they  clear actually that they had not made that decision in the record is clear that at the time they had that meeting that is the same time that they discussed the him bringing a claim i believe that that's a very clear in the record that that's what happened and that's clear from what we filed we didn't filed a reply and supplemental designation of that testimony which the the district court allowed into the record and so it's clear that that meeting that is when they discuss that and there is at least issues of material fact as to what order they discussed them in with before that all the other persons had lied that they had even discussed it during that meeting and in fact mr rader store had previously testified that they had not discussed it at this hearing he came forth and said that they had discussed it at the same meeting so i think the record it's quite clear based on mr  testimony that they discussed mr marshall bringing a claim for sexual orientation at the same time that they discussed his terminations and for that reason alone we believe that this matter should be  reversed and the district court's quickly got it wrong when he said that mr martin at the time of the meeting mr marshall had engaged in protective activity to which the adverse action could run was a matter of fact that's the whole point of anticipat so we believe that the district court got that wrong clearly when it made that decision about the anticipatory retaliate and and we believe that that claim alone should  well what actually happened here though is that they did discuss it at the same meeting fineman are standing your question right your honor i'm i'm sorry your honor go ahead ok i  it's my understanding that what the district court was saying in that you had to have protected activity before they made the adverse decision to have a claim but that's not what interests before we tally in is it you need to support it they're going to make a claim and they make an adverse decision and that's what we briefly thank you for continuing your oral argument scheduled during a pandemic the department of corrections did not terminate mr marshall employment because of his sexual orientation and nor was the sexual orientation a motivating factor in that  in fact department correction terminated his employment because the two reasons is unprofessional conduct towards miami county sheriff tim miller and several of his deputies in a statewide law enforcement conference on september th two thousand and sixteen and a couple weeks later because the sexual harassment report made by robert storm against marshall storm was one of marshall subordinates by the way there just simply no evidence to infer that the department of corrections terminated him for any other reason nor that it did not honestly believe those stated reasons for his determination any evidence in this record though it is fishy is that the day after mr marshall uncovers the fact that mr storm is in appropriately sending these reports over to his wife for editing and he's caught me act basically and mr marshall is gone through the proper channels to have access to those e mails and the other evidence so mr storm is facing some very negative job consequences which in fact ensued he's moved away from this position so you know somebody could lash out at a person and create a bogus charge of sexual harassment in retaliation for the very negative thing is as mr storm would see it that mr marshall did to  him yes judge i agree with you in that point but i'd like to expand upon that in that mr mock mr storm explained to the investigators and in his statement why he waited until after  waited until marshall made those allegations against him he explained that he was he did not come forward sooner about the sexual harassment allegation because he was afraid for his job and once is  because he was getting in trouble by marshals investigation he felt free to come forward and make those allegations and then my nd point in that respect are there really both credibility could we stand the st point for a minute just me that there are factual issues there's no there's a lot of evidence in this record that shows that both mr and mrs storm had you know a pleasant social relationship with mr marshall and his partner and that they went play and they had all sorts of unco worst activity went on you don't have to go out and go to events with your coworkers if you don't want to and so it seems pretty convenient for him suddenly to say oh i've been afraid for eighteen months but now that mr marshall has found that i'm improperly revealing confidential information you know i don't know i have nothing to lose you know what what explains that well mr storm explained that in his statement that he felt coerced to continue a relationship with with mr marshall in order to maintain his job and in how much credibility that that is given is really up to the investigator it goes to the the how how well this investigation was performed credibility determinations based on witness statements and in the th circuit has said that those types of questions are typically insulated from court review because the court's not going to act as a super human resources personnel department and step  itself was tainted by bias against people with his sexual orientation then what do we do that that almost sounds like an infected kind of recommendation to stand made to the authorities in the department well this is not the case that that is riddled with comments about sexual orientation that you in other cases like your t v where supervisor is made derogatory comments towards individuals protected class and then a decision is made here all these comments related to the relationship between store and marshall and marshall and morgan were appropriate and proportional to the needs of the investigation for example one of the comments that they say it can infer discrimination is the investigators asking marshall about being in an intimate relationship with storm well i mean that the crux of the case is did marshall make sexual advances toward storm in if they were in an intimate relationship i mean that helps determine you know the context of the situation and the credibility of the situation similarly and any comment that the single comment that is alleged to have taken place where the investigator asked marshall if warren brown was in a relationship with marshall wharton brown had a thirty year friendship twenty two of those years were a working relationship and other friendships with people of the opposite sex without anything close to a sexually that's certainly true in those questions weren't asked during the law enforcement conference investigation that that investigation had nothing to do with sexual advances and no questions were asked about intimate relationships and and in between the parties that that that that's completely free of those  questions because they're not relevant to anything having to do with law enforcement conference but in the context of whether someone made sexual advances or a program proportional questions interview with bob storm not marshall and the evidence in the record from goldman says that that statement was not made by her it was a quote that rob storm storm i want to move on to this this removal of the order and brown from being the decision maker i think that's a hot point in this case that i want to address so you do that and also please say a word about the anticipat  you have to remember that weren't brown was the one who initiated s p d to come investigate the case and he did so because of the nature of the allegations and that's clear in the record an appearance of bias if he was the one making the  appear to be that there is a victim who has suffered some sort of harassment the employer knows about it then the employer takes action either they have an adverse employment action or they make a threat to the victim in order for the victim to decide to deter them from filing a charge or funding the lawsuit and that's that's not the speak with the vents that happened here the sequence of event here there was a meeting to discuss the terminations amongst the department of corrections leadership and their counsel a decision was made during that meeting to terminate  rob marshall based on the two incidents then in discussion with council they discuss preparation in the event that some sort of claim would be filed an athlete would be discrimination based on sexual orientation and that that's expected conversation between counsel and clients about what the potential ramifications are or the exposures to be related to an action that that they took i don't think that's evidence at all of trying to deter him from filing a claim so your your view is that there should have been some preexisting evidence of negative action based on sexual orientation that he was that they were then saying you know if you make a move then will fire you some sort of it's just there was no evidence prior to this series of events i think that's important and i also think it's important that that nothing was struck marshall didn't even know he was going to be terminated there's just no fact that would lead to an inference that the decision was made based on his sexual orientation to do anything then just lastly i i just want to follow up by saying in this case there hasn't been any shifting explanations about what the reasons were for marshall's terminations they orientation but there's really no evidence of that skin in the evidence that claim points to our credibility determinations that in cases like carry out is that this court said they're not going to sit as a super conference i wanted to point out that mr rader store who did the investigation said he did not believe from his experience that mr marshall would have been terminated solely for that offense so that's why we don't believe  forward and that's in the record a public ninety seven to six hundred and twelve so it's it's solely for this long court or spent conference if you we did all the leads and we think the record is clear that mr marshall would not have been terminated for e so there's something right there is it is something but it i again mr rader's dorf who said in his experience mr marshall would not have been terminated for this law enforcement conference issue that had come up and that's what he knew about the dui as well so mr writers or have been doing investigations of this kind for years and he said in his experience he did not believe that mr marshall would have been terminated but it never got to the point of investigation i wanted to point out that we also have pointed to the fact that both mr rader store and warren brown who really routinely conduct investigations testified that they believe the investigation by the state personnel into mr starr's allegations about mr marshall was not thorough and that's in the record five hundred and ninety seven to five hundred and ninety eight so it wasn't just mr marshall who thought that it was flawed it was also a long time career persons who had done these investigations themselves that believed that the investigation by the state personnel department was flawed and while mr warden brown did calling the state personnel department to do this investigation i believe that he expected that they would do a thorough investigation and he did not believe that they did so and that he thought the destination is flawed so it's not just mr marshall who thinks that it's othe persons significant persons involved with the investigation and the incidents that believe so in your honor i want to touch briefly only  and we believe that if there is at least an issue of fact because mr moore of it was citing information that was not in the record about counsel being there and doing having a legal conversation that is absolutely not in the record and so we believe