the morning first of all we got an order late last week concerning the timing of the filing of the notice of appeal which of course looking back year nine months ago there does seem to be discrepancies between the date the notice was filed which was january second and the actual stamp file date of january fifth of course tried to as much research as we could upon receiving that notice so we could discuss that today  research focused on the calendar hours do yes january second was a friday and january fifth was a monday as best as we can reconstruct using our joint memories at the office between my secretary and i the document was signed on january second the friday right after the january first holiday factor was not a normal work day for us we had scheduled to take january second off to enjoy the fact that january first is following on a thursday both of our memories are that was simply came into the office to get this document signed and done turned it over to the runner to be filed that day ever since then having not noticed the file stand when it got returned we have assume it was filed on january second in our brief we actually cite the january fifth date of this filing obviously they stop the document itself many months later merits of the case and i'm going to suggest that that's where i'd like to spend the rest of my time obviously the issue of this notice is something i'm going to have to deal with but if i may difficulty with since been fired not for this reason obviously but yeah things have changed substantially since that period of time we've had a complete restructure of personality we're unable to even locate the runner who was at that time a paralegal work and so we were trying to be helpful i honestly can't explain what happened other than you know in the normal course of things it was it was signed on the right date it was turned over to the proper person on the right they could be filed that afternoon of the circumstances in the situation and would argue for the sake of using the proper terms that this creates a unique and unusual situation beyond just the ordinary staff issue in that we've come this far it's a year and nine months later and the matter has not been raised up until you know just the end of last week given that set of circumstances  but because everyone has prepared to be here today there is no injury there is no technical problem with one side not you know getting there just as it is an important matter there's a difference of opinion as to what the meaning of the facts are in this case and the difference in opinion is what the district court judge found when he valuated the facts and i think that's the essence of our argument obviously is the overstepped his bounds in determining what the facts and meant or substantiated certainly it's not about a crime if a share burden because that was well nat in this case what we really have is the district court judge stepping in the role of the jury and saying that these are insignificant or not important or not the kind of things that i as a prior a fact rather than a judge the testimony by my client is that on a daily basis we're talking over a period of months a daily basis that there is mail you're and on the toilet seat in the women only bathroom now let's just put that in perspective a little bit  interesting that it's and that's a pleasant thing to experience right on the other hand there's nothing to indicate that it was somehow intentional and i disagree i think it is intentional  this is this is where that this is where the district court stepped in as the trier of fact which i disagree with it's very common knowledge that men who use restrooms either at home or in some public place where women and men are going to use the toilet that's down on the floor not a urinal that's standard practice civilized practice is to is to raise up the toilet seat so that you don't have this kind of a problem i think that you have no male children these are not children they were acting like children sir but they are not children and that's the point of this year and doesn't end up on the toilet seat accidentally and i know this is a women aren't wanted this was all in the evidence and then you have to look at this particular situation what a crude and rude way to say you're not wanted this is a women's only bathroom men should even be going in there it has  on the door they go right the lock not accidentally the lock it's broken so they're invading the woman's only territory intentionally they're leaving your urn on the toilet seat which doesn't happen accidentally when i look at the record that's with respect to her but still at some point is that accurate there was on and off they would send out memos they would say it's women's only then it which it would start up again this this was constant it never actually went away but to show that the purpose of supervisors walked in the restrooms to try to catch up on my situation we don't know their statement was he went in on his routine inspection yeah and we don't know lobbyist like he can testified it at our client he testified that she what a coincidence obviously that's something not yours you're pretty much your argument looking you're looking at your case in the light most favorable to the factual allegations this was the situation version five firefighters think you can drive your client out of her now it's the same thing it was intended to drive her out it was crude and it was very male and it was very animalistic is very primitive it's a marking of territory you're a woman this is my toilet seat here sit please the court when it's katherine jordan so i'm here for our county the issue that was raised by this court and it's order last week stated that there was concern whether or not this appeal had been timely filed a  i don't recall that would have been an exceptional circumstance for the court to enclose that particular day since it was not a holiday and i would submit to that i that's something i would have been remembered and would have been aware of but intentional that is if the guys who were doing it knew that it was a women's only restroom and that that was one way that they knew they could just irritate the heck out  had women's on the front of that but her platoon was the only platoon where there was a woman in that particular building and there's two other petunias that their ships don't overlap overlap with the shi and there it's my understanding there were some men that use that restroom when the other one was just in the other one was being used and so that did occur it wasn't for the purpose of of harassing this nygaard was the purpose of firefighters hostile to drive a woman out of a place where they didn't think a woman ought to be what were the facts that were alleged on the other side that would sustain the jury finding to that effect the issue is and that the e e o c charge there isn't anything to indicate that she was being treated hostile the other than some general statement that she was being treated no i don't even believe that was put in that way and actually before the district court in support of these allegations to get there wasn't anything that was filed against an individual firefighter or individual supervisor and the plaintiff needs to show that there was a custom policy practice or something that was done by someone who was in a position to to the county to that position and all the allegations that were made in ms nygaard affidavit c complaint then she's felt with her ministry remedies as a poll in all those other things that are unrelated to use the bathroom not unrelated that's the whole point they also relate to the use of the bathroom well and reflect on the intent of the people who were leaving your and on the toilet seat the point there are a lot of the charges that might fall away but the only charge that remains is the one that was exhaustive in that first one and we look at the evidence that was presented to the district court to see what was enough to get past summary judgment in other words where there's enough whether there's enough to support a jury verdict or a factfinder verdict should that come back in her favor my saying we look at the affidavit there's not going to be enough there yes and again exactly what was submitted to the district court in support of your theory of the case that this was intentionally going to drive her out of the workplace as was indicated when we oppose the motion we supplied absolute of the talked about the various thing that's in our excerpt of record w nowhere in the district court but what what you're going to have is the opposition to the motion to dismiss which is in the after and there is no affidavit attached to it where can i find that i'm saying there may not be an affidavi because it was treated as a motion to dismiss rather than a motion for summary during the whole case depends on an affidavit that's not in the record of my hearing i'm saying that because it wasn't a motion for summary judgment there was not any there was no depositions there was no