apply in the proceedings for a lower body yes your honor we would submit that he does and certainly if the record is supposed to be based on the substantial evidence this court gartside but having that a record of based on hearsay and rumor cannot support substantial evidence and we would submit that in this case that something witnesses who provided statements fall complaints against side lives none and in the case of francine baxter who was the alleged target of the sexy librarian comment she refused to cooperate with the union and did not file a complaint and only came forward with her remarks in a compelling interview now one of the things that stands out in this particular case is that prior to the here also here in this case the disciplinary review board heard the same  made did not actually file complaints there selves are you trying to suggest to me that these are appropriate workplace comments and that isn't it possible that a supervisor could conclude that these sort of comments are inappropriate in the workplace isolated do not rise to the level of be in violation of anti harassment and discrimination claims but could actually be a factor still environment well  is not continuous calmness we have our one time comments isolated comments that did not rise to the level that anybody complained about the  have we're not dating our dislike of black men certain evans was concerned that this woman cares a gun and if she dislikes black h one ship nothing happened to sergeant encounter nevertheless well what happened here no one complained about sergeant evidence yet not o everything proved to be unfounded he when looking for additional charges and by the court's attention to allegation number fifteen in the report of investigation allegation i'm fifteen was after they over with and had been investigated and none could prove to be found they were not looking for the charge that resulted and off the baxter being forced to give testimony   said which made the hearsay even more unreliable and finally put with regard to the report of investigation that was submitted that they relied on we were able to show at the  police and the officers and investigator the charges and believe them when they said that race or tell you should have nothing to do with the decisions that were made and when we look at the case at this stage prejudice i once had somebody who may tell you things story about my daughter my daughter's a second highest in her grade in their first ties as a little girl and when i told the story to a friend he said i didn't know she went to an all girls school and i said well goodness sake she does that suddenly it hit me he thought because the top two girls in the class talked to students in the class in math where both girls are all girls school he's not the least bit discriminatory he's a really nice person he's extremely open minded and he was horrified when he realized where his brain had gone and why so my question to you is you may think there may be testimony that these people didn't base their decision on race but how do you reconcile that with what seems to be very very very strong evidence that there was a white officer in the same unit the same capitol police unit who was making what appear to be consistent and far worse comments in the workplace on a regular basis and he was not disciplined in any fashion and how do you least the management of the capitol police were not aware of how severe those incidents were i mean they did not become aware until the testimony was offered during this period and what they heard from so let's go through and see alleged victim at the time they initially investigated that incident is that this was not a big deal i think that the two of them had been friends for ten years and that they were kind of they kind of had this behavior back and forth and but it's my understanding that the statements the record demonstrates undisputedly were made at the beginning of roll call when everyone was present and lots of people would have been hearing them and so whether the guy that the statements were made to was somehow ok with them and i find it hard to believe he truly was but even if he was ok with everyone else was hearing these statements being made and it was creating a work environment where i mean you know i'm i don't like the comments mr evans made and i can understand why you decided to look into them and investigate them but clearly this is a problematic workplace i'll tell you another story about my kids right if we have a rule at home you can eat cookies in you can take some cookie jar before dinner but if i never enforce that role and if everybody's allowed the cookies whenever they want and then all of a sudden i come down and i bring the hammer down on one child when i catch him eating cookies after he just watched me let fifteen people eat cookies without any consequences i think it starts to become a little bit problematic but this is i can understand why you want to clean up this unit because based on the evidence in this record there are some real problems in this workplace that need to be addressed but is it possible that this particular penalty is too harsh under the circumstances of this case given you know the entire record that was he was very limited i mean they're not going to second guess they're going to tell me my scope a review is like price extremely limited and that even even if i think that under the circumstances the penalty is harsh that that's not my standard of review that i don't get to make that decision don't think that you have to be a mind the evidence when we're talking about disparate treatment treatment for saying it can potentially create an inference of discrimination but it isn't an offense you know that sells when you still have to show that the reason behind the all sorts of different circumstances and the testimony was that there were multiple other officers well platen white who were disciplined and were demoted for similar circumstances so that it's not just you know the one officer you're looking at when you have a large police hard for my borderline representing for them to second guess what that fact find and sort of out there i understand the legal standard it's not just a disparate treatment standard right i have to i would have to conclude that there was no substantial evidence for a finding that his motion was not based on race that's correct as that's a really tough right and he has the burden of persuasion the burden of proof you know and basically the hearing officer said you know i believe what the the police said and you know there were actually seven areas of misconduct which were reduced to five charges of and it wasn't an isolated incident i mean one of them was that for a period of a year that he was commenting about that do you think that with sort of one of the sergeants and could have been removed and yet he was only demoted the script as and that likely is because they the deciding official took into account his his long and good service to the organization is that right precisely i mean if you read  clear when you're dealing with managers that you can hold them to ira standards that there's a that's a behavior that you just cannot tolerate because you know they don't alter ego of the company or of the department and still you know they they reflect directly on  of the direct testimony that she had regarding what the on a couple of things first of all the display in their review board returned this case was told by the disciplinary review officer that this case was one of first impression that there was never any case like this before  that you don't go looking for more charges and that is what happened in this case he started looking for more charges when they were unable to sustain any of the thirty charges that have been leveled against him again i invite the court's