because because the plate of was the gauge of protective that protected activity right that the trial ok what what practice of the employer was she complaining about she was complaining about the fact that she was harassed twice i know but by by the employer yes for complaining about the practice of the employer that the employer knew of the harassment not on donations what practice  she complained about but the employer was engaging what was the employer doing employment of the law the employer failed to take action on notice one which resulted in i was too and the way the law reads  the employer can be held liable for the obligation if they have prior knowledge that this person might have committed this type time before and they did nothing the problem we had here was she reported this in the beginning of the case it's in the pleadings it's in her testimony we had severe discovery problems and she elected not to pursue that issue but that's not pertinent what's pertinent is what was in her mind when she made that second report not whether or not she want to head and pursued it later in the case when she made that report she believed that she was presenting a case under their sacred heart policy which required them to cord them to report immediately the adenike claims that she  mark in a closed room she reported it to her supervisor the supervisor said we'll take your bit she was a new employee she brought nothing else up about it and that was the end of it then he comes back in april and propositions are again she's in a closed room he's fifty years senior to her different race she reported to the supervisor in the same manner then she was told to go to the doctor she went to the implying to him the doctor said we will take action against this may we will terminate him as a patient but they did him and his wife well it wasn't right away that he well does that constitute a disgrace discrimination on account of race sex or whatever yes a violation of title so i believe i believe the case law is if the employer had ology of a prior event and took no action asked to participate in an internal investigation by or employer and in actually e mailing the circumstances of what happened with the patient you know what put a little salt so much different in this case the facts o little little man the man waited eight months to even make a report about somebody making a remark and they said that is not the way they're supposed to be if the basics is basics are for this type of a claim if they have knowledge and they don't do anything and you let them turn around and ignore a serious complaint like the second one which is serious is the first you let them make nor that second one what does an employee do what was the system for when they had knowledge that this man was a problem why was he back in the closed room with her and that was what the employer did wrong under title when we thought it was complaint complaint number one was brought into complaint number two was brought out in the open with the complaint the initial disclosure is the employer never challenge it they never respond employer failed to take the action she expected with regard to patients her complaint about the patient transformed into a complaint about the employer employer's practice of discrimination you agree with that yes or ok so it became somehow a complaint about discrimination because the employers response was inadequate no that was the way  earlier that you didn't take it adequate action to correct the problem i am now complaining that your failure to do that was an act of discrimination in the of race or sex because they didn't adequately respond to complaints that have nothing to do with title seven and that's what the judge's ruling stated and she complained in the first case  the case came about because the judge said she didn't pursue it in the trial and the matter is what was her marring thought when she made that first complaint and then the second one you think it was harassment under the law and under the law it was and the judge explaining it well i don't think what's with our mind has a thing to do with it i think what has to do with it was the subject of her complaint when she complain i think the court understands the issue which is whether the appellant at the trial level a stablish that she engaged in protected activity i disagree with mr cunningham's recount of the facts of the case and i would point to the record where in the pre trial we had set out a series of motions in limine to which he agreed to one of them was not to mention anything about the december twenty   ledged encounter with the patient and if you look at the judge's colloquy between mr cunningham and the bench on our rule fifty two motion she points out that she was very surprised that mr cunningham with the drew that portion of his case that he had agreed in the motion and libby at the pretrial not to present any evidence regarding the earlier incidents so what the trial court was faced with was one incident involving the appellant and the patient and that was april seventeenth two thousand and thirteen there was no prior notice or evidence of prior notice on the part of sacred heart about this patient having any improper or inappropriate conduct based on an individual's gender or race the first time that they became aware of it was on april seventeenth and thirteen when he made the inappropriate comment on her weight on the appellant's way out of the exam room she mediately reports it to her supervisor her supervisor says that's not right go report it to the physician the physician says you do not have to go back in the room with the patient go tell the supervisor to draft a letter terminating the patient and any family immediate family members that were at the practice and that would be the the wife is the court has pointed out the letter was issued the patient was immediately terminated we took prompt remedial action to address a concern about an offense of conduct that did not rise to the level of unlawful employment practice which little requires little that i don't think is indistinguishable from this case so then you had a coworker there and here you have a third party but i think that the standards apply a single isolated incident that was addressed it's not unlawful employment practice under title seven whether it was addressed and i've played it would have to go back to the employer and say i'm complaining about your favor to correct this situation because i think it is discriminatory i absolutely agree and there's no evidence that she did that in this case there is nothing in this record no sir  where or the plaintiff is telling the employer your failure to do this that the other thing is discriminatory that i'm complaining about this practice of violation of the law you're absolutely correct and if you look at the trial transcript cross examination of the pilot she was specifically asked a series of questions along that line and she agreed she never made a complaint that she felt that what sacred heart was doing violated the law how they handled her complain when she and she doesn't even complain about her terminations she agrees that she violated hipaa the court found that she violated hipaa so even if she had engaged in protected activity which she did  not the court sacred heart advanced a legitimate nondiscriminatory reason for terminations which was the hipaa violation but it addressing the hipaa violation that leads to the comparative chart that was excluded by the by the court based on grounds of hearsay that chart was produced by your client in response to a specific interop atory correct but that still doesn't mean that it fell within the business records that action where the and even if it did if you look at the transcript but let me let me ask in terms of the objection that was that was sustained on grounds of hearsay if if the comparative chart had been embodied with an answer to an interactive tory could that have not been admissible as a a statement of a party opponent i don't necessarily agree with that proposition that in every case that automatically becomes an admission by the party opponent you still have to establish that it isn't a mission by the party opponent which he failed to do but what the court did do is she gave him every opportunity whether it was at the pretrial conference whether it was at the evidentiary hearing and even in his examination of miss hope which was one of the h r directors to get into it what she was requiring is that he alissa testimony from somebody that had personal knowledge regarding the information in the chart and if you look at the transcript at one point during that examination of miss hope the h r director that he called in his case in chief she said you can't reference  but i'm going to allow you to go through the names on the chart and ask her if she had any personal knowledge about the the incident involving the hipaa violation or alleged hipaa violation with that individual he elected not to do it he elected not to do it at the evidentiary hearing stage as as well so she gave him the opportunity to elicit other examples of hipaa violations she allowed to him one with leggett and the other one with miss royo and she was allowing him to go even further than that but he had elected not to do it why i don't know but that's his issue in not pursuing that line of questioning with the appropriate witnesses which the court instructed leamy could do there are no further questions that i think just to brief responses the first is we're dealing with a young lady who's in one of our first jobs in the medical profession who knows nothing about title seven other than what the employer tells her and we're sitting here now stating she has to cover her tracks the first time when a supervisor tells her we're going to take care of it that was enough for her that should be enough for any young lady and to sit and think that and that she should figure out the legal system and say oh i want to follow up honest she just want to keep her job she's brand new and looking at it through her eyes i think that's sufficient the second thing is about this discovery what we have all these opportunities in the end are opportunities came forth in the beginning in the initial disclosures no no one said anything about her not complaining in december in response to the written discovery bunch of it two years not one iota of evidence against the fact that she complained about that first time but didn't you concede to the motion in limine that was filed by sacred heart and that precluded any evidence of that december incident i don't think so because it was it was a point fifty two dismissal what i'm saying is i'm sorry so you believe that during the course of the bench evidence are not issue we've got no evidence and all the way until the bitter end we did a rule thirty six to school discovery which was a total failure and it's why we're here today we believe to come up now and say we didn't seek the evidence we didn't look for it he comes in with no evidence after all that thirty b six deposition that is for every one of these things just not right