reserve two minutes for rebuttal if i meant i have a lot of five minutes of my time to the sea and five minutes of my time to the naming rights commission to address two of the issues  then the e e o c is going to be talking about title seven standard for retaliation i'd like to just briefly give an overview of what the claims are because there's a lot going on in this case as the for the two defendants what they did is terminated her for her first amount of amendment protected activity i think that there is a factual dispute as to whether  was terminated for quote falsifying a report because of the what she said what the defendant's claim is that she said that  how clear does the pretext have to be in order for them not to get qualified immunity see the question i'm asking it was do we think of as just an ordinary is the title seven pretext issue because it's qualified immunity when they state here's why i did it and that's undisputed when we look at the question of pretext given the idea of reasonable mistake how are we supposed to think about the kind of clearly the shorter pretext would have to be in order to surmount qualified immunity yes i think the jury just i mean i think the court needs to decide whether there's a factual issue for the jury to decide as to protection or first could you answer yes if the determination were that they did not fire her for falsifying a report and they falsified her for first amendment protected activity then there is no could they have reasonably been mistaken in thinking that there was a false report that she had made and they could your honor reach that decision that they were on the fence on this then i would agree that you're in the caught immunity area but i don't think that this record conclusively establishe difference and i had some difficulty take from the record establishes that she does not establish that she said to anybody that it was fifteen minutes the report does say fifteen minutes i realize that they say that however the decision maker far gave three reasons for his decision one was the report that he got from the capt and which the captain reported that she had said fifteen minutes that the great right we have the benefit of a video of the clinic on that day the problem with the video is that it's not continuous it takes a snapshot snapshot snapshot you see people coming in an hour and the best i think that anybody could do was come up with six minutes that the officer actually showed up in the in the clinic you know you have a lot of time to people assisting here to talk about the title issue but on the battalion nation title seven issue since it really and some ways to what we were just discussing i just want to understand one point about it for the constitutional claim it's not the employer who's retaliating right constitutional claim it's the individual defendants retaliating but then also that they're failing to prevent the retaliation by the says well we were doing was acting on the fact that the security clearance had been taken away now you say you can prove it or a jury could find that the indios the actors took away the security clearance for pretextual reasons which was that they intended to retaliate because she had done protective contact when we got to see th right so they essentially adopted the the state defendants reasoned that they knew about the record here and what that means exactly because in fact there is no security clearance response to their response i have not seen them say any reason they didn't even explore whether they could move her to another facility so they're not offered one the only reason that they've offered her firing her that she right so they they but they don't have to fire her for that big it's like a temp agency that is placing somebody in one business and then that business says you can't come back here anymore the temp agency doesn't have to fire that employee harassment was based on both the real question here is what a malice and blower have been treated the same way in order to answer that question the court should look at the totality of circumstances it's true that out until later that it was sexual harassment what matters is that she felt that it was abusive at the time here there are a number of specifically sex based incidents from which a reasonable jury can fin the seriousness of the treatment of the actions that were taken that put her in danger by not being present leaving her alone and self in that type of thing  situation is that turner leaving her alone repeatedly in those situations is the kind of harassment that could really would rise to the levels that if it was because of sex th in that event are the other comments of any relevance to turner's conduct in leaving him alone in determining whether weaving room was because of sex to follow  but on that score i'm just not sure of the relevance of the comments by persons other than turner that would provide a basis for inferring it was because of sex i believe i understand what you're asking and i don't know pervasive in the crotch and not been looking at each separate incident separately and have terms of pervasiveness it would be relevant everybody else's comments and even the less severe more generalize hostility towards are shown by everybody with the relevant now it events generalized hostility existed even before any whistle blowing she testified that she was constantly being barraged with offensive comments and with  for her to perform more over the way where spending on rumors that she was sleeping with everybody in the person which is certainly got sacks just and there is evidence that when one officer was upset with somebody all the officers were upset with somebody so even without those particular comments given that you have to look under a rock you have to look at everything in context and the comments are part of the context and then they are spreading around  has not taken any position on the merits of the retaliation claim and i'm not authorized to do that here are the ears you can in on the retaliation claim so only because the court miss allies the protected activity question under retaliation morning it please the court i'm barbara are kurdish and i'm here for the main human rights commission specifically on the issue of non employer liability for retaliation and interference under the main human rights act  human rights commission has consistently interpreted it standalone retaliation and interference action as an compassing behavior by any person whether an entity or an individual and or and whether or not otherwise covered book protection act or the main human rights act definition of employer individual supervisors cannot be held liable as employers know there is no where friends in the garment to section forty six thank you so how does it work because you are fear would apply equally if this plane had brought been brought against the individual supervisors correct again i i don't know the record as far as what was done by any individual supervisor here in just the issue of law so whether or not there would be such a claim on this record i can't tell you what could you help me figure out why there might not be is that because of the word interfere where there might not be a claim against the individual supervisors i think that if the individual supervisors had taken some individual intentional action so not simply respond that superior liability which is what firm and talked about so if they had done something on their own say that was about not responding to complaints i don't think not responding to complaints is necessarily enough i think it's something that is outside what their usual scope third party entity and responding at superior it doesn't apply that logic of ferment is not a political here but yes the legislative history of forty six thirty three which came later specifically talks about holding persons an would it would mean nothing or there would be an implicit exception that is not in the statute you would be taking a remedial statute and writing in an exception that doesn't exist in the text or anywhere  thank you thank you where she'd lost the security clearance she had earlier requested to transfer your failure to consider transferring hair had to be motivated by something and if you look at it we think the motivation or motivation maybe it's a mix retaliation against her for causing a spouse or a she didn't have any case his case should have considered her for a transfer the admission doesn't go to the issue but he hasn't demonstrated that there were any other positions available there some obligation on your part to have said we had no place in all the various organizations that we supply people to where we could put you didn't have to be in the prison context or many other contexts i there is nothing in the record i know you're not conceding that for purposes of this will help you i think if you do just take it as an assumption is your position that if you just assume that there was evidence in the record  d well i was trying to isolate this issue if she thought there was no possibility of transfer presumably she wouldn't have gone through their requests right she makes  requests because she things can happen there is no response to the next thing she knows she's terminated and nobody has given serious consideration to t a legitimate not discriminatory reason for not transfer she never asked so if a jury concluded that since she had earlier asked for one the employer before just terminating her should have explained to her that there was no transfer of ariel if a jury could conclude that is there anything in the record to show what legitimate not a discriminatory reason the employer gave for not transferring her years or no human rights commission their contention is that it's a different claim under forty six thirty three might have different elements might require different proof some types of liability might suffice to show employers liable under the employer provision might not suffice to show an individual is liable under forty six thirty three cetera but certainly the nuts are perfectly coherent way to write a stance you're just different things that you're trying to prevent statute as a whole you cannot view specific provisions and isolation that's what the plaintiff and the commission are asking you to do they're asking you to require the six thirty three in isolation from and said we can't do that don't we traditionally view different there that implied that start to use the word person but the court said wait a second when you look at the policy underlying the statute when you look at the way these statutes work and you look at the statutes as a whole we do not see where the legislature six thirty three says that the reason it was tapped done by the legislature was to prevent the name human rights commission from losing federal funding because they didn't hand certain language that was required to be consistent with the federal housing act and the a anyone is going to create that kind of frankly chaos and this area of law it should be though are quick because they would have to either i think overrule their own decision for a member it was only six years old or they would have to find some way the cation of this in the employer situation which is what you've been arguing does not actually arise in this case and the main law court wanted in the future draw a distinction that you say actually is inherent here but i'm not sure why it's particular concern about extending employability to supervisors and respondents a period that was the concern in firm is simply not presented in this case because there's no possibility of was derived from a concern about respond via superior will ability not third parties well then you can speak to that issue but i think it does in the sense that what it's saying is that the purpose of the name human rights act was to hold employers to p dishful material facts which is on page eighty seven of the stipulated record indicates that lampson told roy that she could not work for the m b o c and most of the supervisor and she she tested that second one that i read is her testimony her deposition testimony that when she said that she had no knowledge whether there were any openings roy said she knowledge whether there were any openings thank you