Legal Case Summary

May it please the Court, Patricia Irkhardt for the plaintiff's appellate. Good morning. Good morning. The disciplinary actions of public employers are entitled to a great difference, but only when they reflect an strict compliance and observance of the constitutional statutory and contractual rights of the public employees. We believe that the plaintiffs have presented a very robust and abundant body of evidence here that the officials of the city of Pullman not only fail to meet these obligations following a little short that actually demonstrated outright disdain for these standards

. Well, okay, I know that we've got the appeal from there were certain things that you lost on certain counts. You lost on summary judgment. Were you the trial lawyer? Yes. And then you got a jury verdict in your favor on other things and then the judge set aside the jury verdict

. So looking at the jury verdict, which is the issue that concerns me the most here, to your your entitled to all inferences in your favor. So how did where did the district judge get that wrong? I mean, essentially there has to be no evidence as a matter of law to set that aside. So he got it wrong because he came back in after the verdict verdict was rendered. And he said that the affair was the only issue before the court essentially before the jury and that a complaints about the appearance of an improper sexual relationship in a workplace were inadequate as we're inadequate in vehicle

. Isn't the statute talking about unlawfulness? Yes. What was unlawful about the affair? There wasn't the affair wasn't an issue. I said, but that was what sort of precipitated the whole thing. It precipitated it

. And their concern, Reiber's concern and the one who supported him was that the way in which they the chief and the human, the human resources person conducted the investigation was in retaliation for their engaging in participating in opposing unlawful practices. But what was unlawful about the, the, the underlying. That's probably the single most important issue for us to resolve today. And that is the fact that it was not the affair that was put to the jury

. That was not the question that was put to the jury. And I have copies if I may approach or. Well, no, it's we have to look at all the evidence and we have to if, if what the jury found if there is some theory that whether even if you didn't argue it, if there was, because the jurors, the jurors are told what the attorney says not evidence. Listen to them, but that's their theory of the case

. So under the evidence that the jury's had is, you know, obviously when as if if you're a supervisor or a people come and complain to you and they say that I think that, you know, if you're they're concerned about. I've seen sexual harassment cases where people complain that someone's getting favorable treatment because they're having sex with someone that's a supervisor or other people feel concerned about they feel like they can't do certain things in the workplace because the person that's having a fair may be empowered to do other things about it. So what what could the jury have found that would have been. You know, obviously a supervisor, if if my staff comes in and says, well, you know, two of your law clerks are having an affair and where the other law clerks are really uncomfortable about that because they feel like they're loading it over us

. So we feel like someone's getting preferential treatment or maybe it's, you know, what your senior law clerk that you put more work with is having an affair with one of the junior ones and all of that. So I mean, there could be some unlawful conduct that isn't per se that two consenting adults are having an affair, but it can be unlawful in how it affects the workplace, right? And here's the straw man that we've been arguing against from the beginning and all the different forms in which the plaintiffs have presented this issue. They have always said they have consistently said and the City of Pullman has never been able to effectively rebut it. That our argument for protection and for protected class status under Ladd and Title VII was the fact that they opposed the corrupt investigation of Riber

. The investigation represented retaliation for earlier expression. So, say that again. So the theory was not part, it wasn't participation. So that, that, that, I thought so

. Participation. Yeah. I didn't think it was participation. No, no, no

. It's really opposition, right? Opposition. So to the corrupt investigation. To the corrupt. Say that to the corrupt investigation. To the corrupt investigation. And why, why was it corrupt? Because the City of Pullman knew very well that there had been concerns expressed about this fair and they had actually assigned Captain Riber to deal with the impact of the affair on Tatumas performance. Because even if you got evidence of an affair and even if Captain Riber has got, as, as, as got the green light to invent to talk about the affair and how it's affecting his staff. You have additional allegations that Captain Riber is himself engaging in sexual harassment

. To the corrupt investigation. And why, why was it corrupt? Because the City of Pullman knew very well that there had been concerns expressed about this fair and they had actually assigned Captain Riber to deal with the impact of the affair on Tatumas performance. Because even if you got evidence of an affair and even if Captain Riber has got, as, as, as got the green light to invent to talk about the affair and how it's affecting his staff. You have additional allegations that Captain Riber is himself engaging in sexual harassment. Doesn't the City have an obligation to investigate that? They do, but they do. There was more to the story and they willfully ignored the most single significant thing about these events. They had a public servant, a servant with 18 years experience with a blemish free record. And all of a sudden, after the affair is known to the City, and it was known to the City

. Doesn't the City have an obligation to investigate that? They do, but they do. There was more to the story and they willfully ignored the most single significant thing about these events. They had a public servant, a servant with 18 years experience with a blemish free record. And all of a sudden, after the affair is known to the City, and it was known to the City. Because Chief Wilkins was told about that October 2008 meeting as promptly as it occurred. Right. But even if the chief says, as, as, as God. Someone say is claiming that that that that that Riber is engaging in sexual harassment

. Because Chief Wilkins was told about that October 2008 meeting as promptly as it occurred. Right. But even if the chief says, as, as, as God. Someone say is claiming that that that that that Riber is engaging in sexual harassment. And somebody says well, what Riber was doing was in, in, in, in the effect on his true of, of an affair between two members of the crew, doesn't the chief have to resolve that in some way or that doesn't he have to investigate that? And if he's investigating it, what is it that you have to prove in order to show that it's retaliatory? They demonstrated to stain for the issue altogether. But that's because he didn't answer my question. What is it that you don't you have to prove that Chief Wilkins knew that all of the allegations against against driver were false and that he investigated it anyway even though he knew it was false. He knew that the most serious allegations were false because he received how would he have known that they were false? Because James Turpin came to him on April 28th and said this man's a sexual predator and has been asking for naked photos of his subordinates wives

. And somebody says well, what Riber was doing was in, in, in, in the effect on his true of, of an affair between two members of the crew, doesn't the chief have to resolve that in some way or that doesn't he have to investigate that? And if he's investigating it, what is it that you have to prove in order to show that it's retaliatory? They demonstrated to stain for the issue altogether. But that's because he didn't answer my question. What is it that you don't you have to prove that Chief Wilkins knew that all of the allegations against against driver were false and that he investigated it anyway even though he knew it was false. He knew that the most serious allegations were false because he received how would he have known that they were false? Because James Turpin came to him on April 28th and said this man's a sexual predator and has been asking for naked photos of his subordinates wives. Chief Wilkins called Eric Taylor again. He's the word sexual predator. He said that he had asked for sexual favors of the wives when he was on the telephone. Well I think part of the reason is I mean I'm feeling like I can articulate better what the jury could have thought than you can

. Chief Wilkins called Eric Taylor again. He's the word sexual predator. He said that he had asked for sexual favors of the wives when he was on the telephone. Well I think part of the reason is I mean I'm feeling like I can articulate better what the jury could have thought than you can. You're too close to this case in some ways and in terms of you have to look at there's there's there's causal there's when you look at discrimination cases a jury is entitled to they can look to temporal events how they happen here and the jury could have arguably believed that that the chief knew that it wasn't true or that someone else in the department had put that up to starting hey let's investigate Ryber because of this and could they could there's a lot of smoke here and the jury could have found fire in certain ways feeling like these people are unscrupulous that they only started this investigation they knew that there wasn't anything to it they only started it because he was being he was making comments this other way and they you know they could have put that's how they could have connected the dots they didn't have to follow your way to connect the dots and so you keep getting stuck with your way so is there enough evidence is there any theory that if the jury was there enough evidence there that the jury could have believed that the chief complete that knew that it wasn't true and entered it with the idea like I'm going to get him because I want to get rid of this other problem in terms of how the dates all line up and you put into evidence that this that Ryber had never been investigated before and I think the other officers that got investigated as well you put in evidence that all of them had unblemished careers right yes they did so isn't couldn't the jury have taken a different approach than even whatever you argued and found that it wasn't a matter of what I argued on the on behalf of these parties they had before them evidence that on April 28th James Turpin accused Ryber a very serious inappropriate conduct in the workplace very serious career ending and the chief knew that Turpin was lying yes because the the reports were attributed to Eric Taylor in except the director this is the is the Turpin and and he knows that Taylor is lying because of the sires investigation Taylor wasn't lying Taylor was called in before chief Wilkins on May 3rd or 4th of 2009 and ask whether it was accurate that he had told Lieutenant Turpin that he'd been asked for naked photos of his wife and he said that didn't occur the jury heard that and he said several times we ask and we didn't learn that because it was withheld from us by the city of Pomeranum for 16 months we had to wait until Eric Taylor appeared in the grievance arbitration at the end of September of 2010 16 months later because we had no other discovery device available under Peckba in Washington he took the stand and we said you know what what is your role in this case and he said I was called in by the judge there by chief Wilkins and he was he asked me whether this had occurred I said it did not occur and we ask it in a number of different ways in a couple of different proceedings so the jury so what you're so what you're saying is the jury could have believed that that's what Taylor told the chief and the chief just went ahead and instituted it anyway they did it with that how did you since chief Wilkins had died before this this trial how did you show what Wilkins knew or what Wilkins thought he testified under oath in both the grievance arbitration and the unfair labor practice proceeding and you were able to introduce that testimony from better to the jury and and he and Wilkins admitted that he knew about this affair and he wanted to take it a different direction for me tight this all the way back to the core of the statute that you were relying the state you know the Washington law against discrimination how does this all rise to an opposition claim the opposition and I should say as a preliminary matter it was good faith opposition to the sexual harassment investigation that appears all the way through our exhibits on pages 115, 119, and 108 if you take out the good faith participation is good faith opposition to the investigation and the investigation so good faith up good faith opposition to the investigation of right. It was a corrupt investigation because Wilkins knew full well that Taylor group beauty and that and that's the only thing that that Wilkins could have investigated this for he knew that it was a false allegation he had to answer my question okay it was there anything else that Wilkins could have investigated right or four other than the question of whether he had asked for naked photos of Taylor's wife not that meet the threshold of a title seven complaint there was there were no other serious allegations against him he can't investigate any of the other questions about harassment of the of Tadeema or or anything else he looked into it but in looking at Tatumas complaints against him they're they're they're species they're clearly on their face species there's nothing oh yeah no basis for investigating that no he did not oh he did not he just did not and it not only did he have no basis but he intentionally used and so and so by playing as a vehicle investigating Tatumas complaints that is retaliation against and that's and that's part of what and that's what that's what the jury had to base it on yes because in doing so he incires here incires the human resource officer used Turpin's memo of April 28th to frame 15 questions put to 22 members of the department the first two weeks of May of 2009 and all of them presumed that he had in fact asked for naked photos that it was and asking merely whether you two had been been asked for these same things they knew at the time those questions were asked that it never occurred because Taylor said that it never occurred they had no valid basis for believing that there was that there was any overture like that on the in this man's conduct at all and they went forward with it anyway demonstrating animus and demonstrating that they were going to use anything they had that they could and and also we need to account for the fact that they didn't go to operations chief testing who had been present when Riber was interacting with Tatumas he'd been present in the prior meeting of October 2008 he knew that there was something culminating in this workplace and concerns we do say it isn't you know we acknowledge the decision of law that that merely complaining about a workplace relationship is not adequate to support a claim but the instructions instructions 9 and 12 and the verdict forms say each plaintiff is asserting a claim that he engaged in or was engaging in activity protected under title 7 that in good that is good faith opposition to a sexual harassment investigation it's not to the affair it's to the investigation the affair was a precipitating event and it is the benchmark by which we established whether the investigation was corrupt in that they refused there's not a single word in scores and scores and scores of pages of interviews and findings there's not one single question put to anybody about that affair that might have established animus on the part of these people to bring these judges pretty much exhausted all your time over the juries the judges really know in the right 50b but you had a couple other issues that you have lots and the pretty I don't want you to go through all the other participation I think is is we think is presumed these people were ordered in to take part in this investigation they didn't have a choice I'm talking about your your appeal from the grant of some replacement oh the grant summary judgment we do we would like to observe that there's no provision of land protects uh that withholds protections from employees merely because they are refuting rather than supporting the validity of a claim and that's what we were essentially coming forward to do. I think that what the you had a first amendment claim and I think that the court found that it that wasn't as a matter of law there was no public concern right and uh and I think your point was that it's a small town and there were actually news the newspaper there were there was a lot of coverage on this yes there was sort of the patent place of Pullman sure and so it maybe if it weren't a small town and maybe if the newspaper hadn't written those there wouldn't have been something of public concern but that was enough to get back by summary judgment is that what it was and we believe that whether a mid-level manager in a fire department in the city of that size especially was engaged in that kind of conduct as alleged with a subordinates wise was clearly a matter of great public concern in consternation and that just all the focus on in the fire department excuse me why isn't that just nothing more than you know what's going on in the fire department when when when a mid-level manager is not a public concern in in public life in this day and age in public employment for mid-manager to be charged with demanding naked photos crotch shots of his subordinates wise I would think that the community would have some concerns about that you had one other clinic that I was curious about now you had an equal protection claim yes I just want to know what's your theory on that equal protection claim is it is it a straight equal protection a single you know one person claim or is it a selective prosecution claim no it is it is not a class of one claim so what kind what kind of claim what is it a selective prosecution claim essentially essentially but essentially not really excuse me just we had two different groups of employees in this workplace those that were accusing RIBER of very serious misconduct and we had a group of employees who were defending RIBER saying that those were inflammatory charges were false and they were assigned a corrupt investigation in every at every turn of events in this case the city of Pullman gave deference to the the group of employees who came in to go against RIBER because it pleased them to do that that's what they were about in going after RIBER and knocking him back and what kind of what kind of equal protection claim is that there is we have cited in our brief the fact that it seems like something that the city would have to do it have to investigate and somebody's going to somebody's going to win and somebody's going to lose it doesn't make a discrimination I think that we believe the record reflects that virtually everything that RIBER's accusers said against him were taking at face value without any meaningful investigation there was no interview of any women there were no specifics about what he said or did I saw this in any way protection claim you're going to try and get it on the basis of you know race religion gender what's the basis here that they had spoken out that they that sounds like now that sounds like a selective prosecution claim that you yes or retaliation claim it doesn't look like an equal protection claim they were all treated less favorably than all of RIBER's accusers they were they were run through the ringer of this canar investigation for a full six eight-month period and that was held over their head for a long period of time they were all branded with that wolf pack allegation and that can give me I've given you some extra time but I've got to move on to the other side okay thank you very much thank you very much morning your honors my name is Mike Bolassina and I'm here on behalf of the appellate the city opulment I think the overarching issue the phrase that people have been using is basically what what constitutes protected activity under title seven and the Washington law against discrimination well and I've got real concern about setting aside this jury verdict I'm just going to tell you that right out and that and and I'm not sure I don't really care so much what the parties argued I care what the jurors could have is there any could the jurors have found with the evidence who was presented any legitimate support for the verdicts and actually judge rice found and we strongly support the answer is no obviously well he thought it should go to a jury and then he kind of went back and said oh shouldn't have but there's a lot of smoke here and there's a lot of things that the jury could have concluded that not necessarily either of you argued and that really concerns me here after and when you set aside a jury verdict if there's any way that it can be you can pull together a theory that could be supported it doesn't have to be the one you argued doesn't have to be the one they argued I agree this and the jury was free to believe or disbelieve things you argue them different ways the jury was you know free to completely believe that the chief was motivated and orchestrated that whole thing and I don't know there was discussions about causation but in employment cases you can there's a there's some bad temporal evidence for your position I actually I disagree with that your honor I think that the judge rice actually looked at what was what was the testimony before before the court what the what the evidence was in the document if you had a court trial I would agree with you but when you have a jury trial and the jury doesn't look at it the same way that judge rice you know it seems to me that judge rice was not considering every inference that the jury could have taken from that I think he considered every reasonable inference from the evidence but he did not consider what he considered unreasonable so it's unreasonable to think that the the city had to investigate this even if the jury thought after hearing everything that it was basically trumped up that the chief knew they didn't have to that the chief had somehow you know this was a patent place here somehow that that the chief had somehow just run the investigation in a certain way to make it look like he was doing something legitimately and dragging everyone in actually the thing is that that judge rice did not find as part of his order nor nor did we argue that that the chief Wilkins' motives were pristine but the key for these causes of actions is not did the chief the chief knew that they weren't that he knew he was he was doing the investigation for the only reason that these people spoke out and he knew that the things he was investigating were not true is that a legitimate exercise of the chiefs power actually I think that that question is irrelevant the question is was the chief initiating a disciplinary matter because of ribers protected activity that's the question that judge rice thought was answered no there is no evidence to support that that no reasonable jury could conclude that chief Wilkins' motivation for doing anything well let's talk about temporal did it did the investigation happen before cheap before riber and into made these wasn't happy about the affair what it had happened temporarily I mean I would agree if it had happened if the investigation of riber was before all of this that's a lot better for you but what what judge rice found was that that there was no there was insufficient evidence for reasonable jury to even conclude that riber engaged in oppositional activity with regard to this affair the evidence was that riber participated in a with other supervisors where where lieutenant Fisher said there is an appearance here of an affair and it makes us uncomfortable and we'd like to know how to handle it and chief Heston said that I will handle it and riber thought agreed that that was a good way to deal with the situation then when Chelsea Tatumma rotates on to Captain riber's shift he says both in his testimony and in the documentation that he didn't have an issue with Chelsea Tatumma and Andrew howl when they were on his shift and that he did counsel her about issues related to her probationary status but he did not actually ever raise the issue of an affair with Chelsea Tatumma that he was counseling her about other issues related to her doing chores and and going out to to get food for the rest of the and things like that but he never raised the issue of the affair and then when he submits his rubot it written rubot when he is being investigated for a hostile work environment he says that he did not credit the rumors about an affair because he did not believe that they were romantically involved so when and when you look when you look at this and what this is what judge rice concluded this does not constitute oppositional activity under either title seven or the Washington law against discrimination this is not forcefully you know opposing something that you think is unlawful under under either of these statutes so that's and that's that that I think is key is not was chief Wilkins and I think that that this is perhaps what confused the jury as well chief Wilkins the pristineness of his motives and doing this were not an issue for purpose of these two statutory causes of action that a reasonable jury had to conclude that chief Wilkins disciplined riber initiated this investigation because of riber's oppositional activity not because of any personal animus that he had against riber and there was evidence of that not any animus he had against riber in his role as a union president and there was evidence of that well it wasn't the union he had never been disciplined before there were all of those issues that were before the jury and what if the jury just thought that that's what the chief and and judge judge rice concluded in granting our motion that no reasonable jury based on the evidence before them except how people did I don't think they were 12 however many there were six six six six day yeah no no yeah but but the thing is is that if there was automatic deference to whatever a jury did there would be no federal rule of civil procedure 50 so what so where does the claim about from your perspective and I'm not quite sure I follow the plaintiff's argument where does the opposition come into play and what what forms the basis of the opposition claim from the plaintiff's perspective well those those three things captain riber's participation at this meeting in October of 2008 with chief heston captain of the of the affair no though actually though that meeting was about that that she is visiting the station on her day off and bringing him coffee and joining them for lunch and it makes people uncomfortable because there's these rumors that there may be an affair the second issue is is that captain riber when she rotated onto his shift counsel counsel her about performance and attitude issues and then third when captain riber was being investigated he submitted a written rubat all and all these are documents in the record where he says that there were rumors that they were having an affair he did not believe them but that's you know that either that there was this appearance of this this uncomfortable closeness between them and that's for for captain riber that is the protected at the alleged protected activity or the alleged oppositional activity and what judge price found was that that based on the testimony that was in that was introduced in trial and the and the documentation that came in as evidence that does not rise to the level of oppositional activity as protected under either statute and was kept in riber the only statute made a claim under was wall at title seven the issue a the issue for the other five plaintiffs is actually is actually quite different because what what judge rise found in his order was when they submitted the louder mill statements that that could qualify as protected activity but what judge rise found was is given the content of the the louder mill statements and the testimony and other evidence that came in on that issue no reasonable juror could conclude that what they did was protected under either title seven or or or the Washington Law against discrimination and that that with with with regard to that issue he first took a look at these louder mill statements and in his decision granting the renewed motion as a matter of judgment as a matter of law he quoted extensively from one of them where he said this goes well beyond what was should be considered protected activity and and is really sort of character assassination against only those people who who the plaintiffs knew had participated in the investigation against Captain Riber and had provided a secret information. But the district court seems to say that the defendants were legally required to investigate Turpin and House sexual harassment claims and that such that their legal requirement to do that precludes finding an unlawful retaliatory animus how can that be right if the chief knew they weren't true what why are you legally required to investigate things that you know are not true

. You're too close to this case in some ways and in terms of you have to look at there's there's there's causal there's when you look at discrimination cases a jury is entitled to they can look to temporal events how they happen here and the jury could have arguably believed that that the chief knew that it wasn't true or that someone else in the department had put that up to starting hey let's investigate Ryber because of this and could they could there's a lot of smoke here and the jury could have found fire in certain ways feeling like these people are unscrupulous that they only started this investigation they knew that there wasn't anything to it they only started it because he was being he was making comments this other way and they you know they could have put that's how they could have connected the dots they didn't have to follow your way to connect the dots and so you keep getting stuck with your way so is there enough evidence is there any theory that if the jury was there enough evidence there that the jury could have believed that the chief complete that knew that it wasn't true and entered it with the idea like I'm going to get him because I want to get rid of this other problem in terms of how the dates all line up and you put into evidence that this that Ryber had never been investigated before and I think the other officers that got investigated as well you put in evidence that all of them had unblemished careers right yes they did so isn't couldn't the jury have taken a different approach than even whatever you argued and found that it wasn't a matter of what I argued on the on behalf of these parties they had before them evidence that on April 28th James Turpin accused Ryber a very serious inappropriate conduct in the workplace very serious career ending and the chief knew that Turpin was lying yes because the the reports were attributed to Eric Taylor in except the director this is the is the Turpin and and he knows that Taylor is lying because of the sires investigation Taylor wasn't lying Taylor was called in before chief Wilkins on May 3rd or 4th of 2009 and ask whether it was accurate that he had told Lieutenant Turpin that he'd been asked for naked photos of his wife and he said that didn't occur the jury heard that and he said several times we ask and we didn't learn that because it was withheld from us by the city of Pomeranum for 16 months we had to wait until Eric Taylor appeared in the grievance arbitration at the end of September of 2010 16 months later because we had no other discovery device available under Peckba in Washington he took the stand and we said you know what what is your role in this case and he said I was called in by the judge there by chief Wilkins and he was he asked me whether this had occurred I said it did not occur and we ask it in a number of different ways in a couple of different proceedings so the jury so what you're so what you're saying is the jury could have believed that that's what Taylor told the chief and the chief just went ahead and instituted it anyway they did it with that how did you since chief Wilkins had died before this this trial how did you show what Wilkins knew or what Wilkins thought he testified under oath in both the grievance arbitration and the unfair labor practice proceeding and you were able to introduce that testimony from better to the jury and and he and Wilkins admitted that he knew about this affair and he wanted to take it a different direction for me tight this all the way back to the core of the statute that you were relying the state you know the Washington law against discrimination how does this all rise to an opposition claim the opposition and I should say as a preliminary matter it was good faith opposition to the sexual harassment investigation that appears all the way through our exhibits on pages 115, 119, and 108 if you take out the good faith participation is good faith opposition to the investigation and the investigation so good faith up good faith opposition to the investigation of right. It was a corrupt investigation because Wilkins knew full well that Taylor group beauty and that and that's the only thing that that Wilkins could have investigated this for he knew that it was a false allegation he had to answer my question okay it was there anything else that Wilkins could have investigated right or four other than the question of whether he had asked for naked photos of Taylor's wife not that meet the threshold of a title seven complaint there was there were no other serious allegations against him he can't investigate any of the other questions about harassment of the of Tadeema or or anything else he looked into it but in looking at Tatumas complaints against him they're they're they're species they're clearly on their face species there's nothing oh yeah no basis for investigating that no he did not oh he did not he just did not and it not only did he have no basis but he intentionally used and so and so by playing as a vehicle investigating Tatumas complaints that is retaliation against and that's and that's part of what and that's what that's what the jury had to base it on yes because in doing so he incires here incires the human resource officer used Turpin's memo of April 28th to frame 15 questions put to 22 members of the department the first two weeks of May of 2009 and all of them presumed that he had in fact asked for naked photos that it was and asking merely whether you two had been been asked for these same things they knew at the time those questions were asked that it never occurred because Taylor said that it never occurred they had no valid basis for believing that there was that there was any overture like that on the in this man's conduct at all and they went forward with it anyway demonstrating animus and demonstrating that they were going to use anything they had that they could and and also we need to account for the fact that they didn't go to operations chief testing who had been present when Riber was interacting with Tatumas he'd been present in the prior meeting of October 2008 he knew that there was something culminating in this workplace and concerns we do say it isn't you know we acknowledge the decision of law that that merely complaining about a workplace relationship is not adequate to support a claim but the instructions instructions 9 and 12 and the verdict forms say each plaintiff is asserting a claim that he engaged in or was engaging in activity protected under title 7 that in good that is good faith opposition to a sexual harassment investigation it's not to the affair it's to the investigation the affair was a precipitating event and it is the benchmark by which we established whether the investigation was corrupt in that they refused there's not a single word in scores and scores and scores of pages of interviews and findings there's not one single question put to anybody about that affair that might have established animus on the part of these people to bring these judges pretty much exhausted all your time over the juries the judges really know in the right 50b but you had a couple other issues that you have lots and the pretty I don't want you to go through all the other participation I think is is we think is presumed these people were ordered in to take part in this investigation they didn't have a choice I'm talking about your your appeal from the grant of some replacement oh the grant summary judgment we do we would like to observe that there's no provision of land protects uh that withholds protections from employees merely because they are refuting rather than supporting the validity of a claim and that's what we were essentially coming forward to do. I think that what the you had a first amendment claim and I think that the court found that it that wasn't as a matter of law there was no public concern right and uh and I think your point was that it's a small town and there were actually news the newspaper there were there was a lot of coverage on this yes there was sort of the patent place of Pullman sure and so it maybe if it weren't a small town and maybe if the newspaper hadn't written those there wouldn't have been something of public concern but that was enough to get back by summary judgment is that what it was and we believe that whether a mid-level manager in a fire department in the city of that size especially was engaged in that kind of conduct as alleged with a subordinates wise was clearly a matter of great public concern in consternation and that just all the focus on in the fire department excuse me why isn't that just nothing more than you know what's going on in the fire department when when when a mid-level manager is not a public concern in in public life in this day and age in public employment for mid-manager to be charged with demanding naked photos crotch shots of his subordinates wise I would think that the community would have some concerns about that you had one other clinic that I was curious about now you had an equal protection claim yes I just want to know what's your theory on that equal protection claim is it is it a straight equal protection a single you know one person claim or is it a selective prosecution claim no it is it is not a class of one claim so what kind what kind of claim what is it a selective prosecution claim essentially essentially but essentially not really excuse me just we had two different groups of employees in this workplace those that were accusing RIBER of very serious misconduct and we had a group of employees who were defending RIBER saying that those were inflammatory charges were false and they were assigned a corrupt investigation in every at every turn of events in this case the city of Pullman gave deference to the the group of employees who came in to go against RIBER because it pleased them to do that that's what they were about in going after RIBER and knocking him back and what kind of what kind of equal protection claim is that there is we have cited in our brief the fact that it seems like something that the city would have to do it have to investigate and somebody's going to somebody's going to win and somebody's going to lose it doesn't make a discrimination I think that we believe the record reflects that virtually everything that RIBER's accusers said against him were taking at face value without any meaningful investigation there was no interview of any women there were no specifics about what he said or did I saw this in any way protection claim you're going to try and get it on the basis of you know race religion gender what's the basis here that they had spoken out that they that sounds like now that sounds like a selective prosecution claim that you yes or retaliation claim it doesn't look like an equal protection claim they were all treated less favorably than all of RIBER's accusers they were they were run through the ringer of this canar investigation for a full six eight-month period and that was held over their head for a long period of time they were all branded with that wolf pack allegation and that can give me I've given you some extra time but I've got to move on to the other side okay thank you very much thank you very much morning your honors my name is Mike Bolassina and I'm here on behalf of the appellate the city opulment I think the overarching issue the phrase that people have been using is basically what what constitutes protected activity under title seven and the Washington law against discrimination well and I've got real concern about setting aside this jury verdict I'm just going to tell you that right out and that and and I'm not sure I don't really care so much what the parties argued I care what the jurors could have is there any could the jurors have found with the evidence who was presented any legitimate support for the verdicts and actually judge rice found and we strongly support the answer is no obviously well he thought it should go to a jury and then he kind of went back and said oh shouldn't have but there's a lot of smoke here and there's a lot of things that the jury could have concluded that not necessarily either of you argued and that really concerns me here after and when you set aside a jury verdict if there's any way that it can be you can pull together a theory that could be supported it doesn't have to be the one you argued doesn't have to be the one they argued I agree this and the jury was free to believe or disbelieve things you argue them different ways the jury was you know free to completely believe that the chief was motivated and orchestrated that whole thing and I don't know there was discussions about causation but in employment cases you can there's a there's some bad temporal evidence for your position I actually I disagree with that your honor I think that the judge rice actually looked at what was what was the testimony before before the court what the what the evidence was in the document if you had a court trial I would agree with you but when you have a jury trial and the jury doesn't look at it the same way that judge rice you know it seems to me that judge rice was not considering every inference that the jury could have taken from that I think he considered every reasonable inference from the evidence but he did not consider what he considered unreasonable so it's unreasonable to think that the the city had to investigate this even if the jury thought after hearing everything that it was basically trumped up that the chief knew they didn't have to that the chief had somehow you know this was a patent place here somehow that that the chief had somehow just run the investigation in a certain way to make it look like he was doing something legitimately and dragging everyone in actually the thing is that that judge rice did not find as part of his order nor nor did we argue that that the chief Wilkins' motives were pristine but the key for these causes of actions is not did the chief the chief knew that they weren't that he knew he was he was doing the investigation for the only reason that these people spoke out and he knew that the things he was investigating were not true is that a legitimate exercise of the chiefs power actually I think that that question is irrelevant the question is was the chief initiating a disciplinary matter because of ribers protected activity that's the question that judge rice thought was answered no there is no evidence to support that that no reasonable jury could conclude that chief Wilkins' motivation for doing anything well let's talk about temporal did it did the investigation happen before cheap before riber and into made these wasn't happy about the affair what it had happened temporarily I mean I would agree if it had happened if the investigation of riber was before all of this that's a lot better for you but what what judge rice found was that that there was no there was insufficient evidence for reasonable jury to even conclude that riber engaged in oppositional activity with regard to this affair the evidence was that riber participated in a with other supervisors where where lieutenant Fisher said there is an appearance here of an affair and it makes us uncomfortable and we'd like to know how to handle it and chief Heston said that I will handle it and riber thought agreed that that was a good way to deal with the situation then when Chelsea Tatumma rotates on to Captain riber's shift he says both in his testimony and in the documentation that he didn't have an issue with Chelsea Tatumma and Andrew howl when they were on his shift and that he did counsel her about issues related to her probationary status but he did not actually ever raise the issue of an affair with Chelsea Tatumma that he was counseling her about other issues related to her doing chores and and going out to to get food for the rest of the and things like that but he never raised the issue of the affair and then when he submits his rubot it written rubot when he is being investigated for a hostile work environment he says that he did not credit the rumors about an affair because he did not believe that they were romantically involved so when and when you look when you look at this and what this is what judge rice concluded this does not constitute oppositional activity under either title seven or the Washington law against discrimination this is not forcefully you know opposing something that you think is unlawful under under either of these statutes so that's and that's that that I think is key is not was chief Wilkins and I think that that this is perhaps what confused the jury as well chief Wilkins the pristineness of his motives and doing this were not an issue for purpose of these two statutory causes of action that a reasonable jury had to conclude that chief Wilkins disciplined riber initiated this investigation because of riber's oppositional activity not because of any personal animus that he had against riber and there was evidence of that not any animus he had against riber in his role as a union president and there was evidence of that well it wasn't the union he had never been disciplined before there were all of those issues that were before the jury and what if the jury just thought that that's what the chief and and judge judge rice concluded in granting our motion that no reasonable jury based on the evidence before them except how people did I don't think they were 12 however many there were six six six six day yeah no no yeah but but the thing is is that if there was automatic deference to whatever a jury did there would be no federal rule of civil procedure 50 so what so where does the claim about from your perspective and I'm not quite sure I follow the plaintiff's argument where does the opposition come into play and what what forms the basis of the opposition claim from the plaintiff's perspective well those those three things captain riber's participation at this meeting in October of 2008 with chief heston captain of the of the affair no though actually though that meeting was about that that she is visiting the station on her day off and bringing him coffee and joining them for lunch and it makes people uncomfortable because there's these rumors that there may be an affair the second issue is is that captain riber when she rotated onto his shift counsel counsel her about performance and attitude issues and then third when captain riber was being investigated he submitted a written rubat all and all these are documents in the record where he says that there were rumors that they were having an affair he did not believe them but that's you know that either that there was this appearance of this this uncomfortable closeness between them and that's for for captain riber that is the protected at the alleged protected activity or the alleged oppositional activity and what judge price found was that that based on the testimony that was in that was introduced in trial and the and the documentation that came in as evidence that does not rise to the level of oppositional activity as protected under either statute and was kept in riber the only statute made a claim under was wall at title seven the issue a the issue for the other five plaintiffs is actually is actually quite different because what what judge rise found in his order was when they submitted the louder mill statements that that could qualify as protected activity but what judge rise found was is given the content of the the louder mill statements and the testimony and other evidence that came in on that issue no reasonable juror could conclude that what they did was protected under either title seven or or or the Washington Law against discrimination and that that with with with regard to that issue he first took a look at these louder mill statements and in his decision granting the renewed motion as a matter of judgment as a matter of law he quoted extensively from one of them where he said this goes well beyond what was should be considered protected activity and and is really sort of character assassination against only those people who who the plaintiffs knew had participated in the investigation against Captain Riber and had provided a secret information. But the district court seems to say that the defendants were legally required to investigate Turpin and House sexual harassment claims and that such that their legal requirement to do that precludes finding an unlawful retaliatory animus how can that be right if the chief knew they weren't true what why are you legally required to investigate things that you know are not true. Actually I you know I I don't agree that there is there is some statute that legally requires a party to initiate an internal investigation I think that that given but didn't the district report say that yes but it's it's it's it's prudent in the modern era that if a complaint is made alleging a violation of the discrimination retaliation or anti-harassment laws that the employer actually look into it because the risk of being held liable for the conduct goes way up if you actually it's okay that's how ignore the complaint you know if you do nothing if you if you if you disregard it and and so so the the fact that a formal complaint was served on the city alleging retaliation is what basically motivated the city to do it but it is it's inconceivable that the chief and others could have been involved in some way to get this thing is it conceivable that when you have a duty to investigate you could also do so in a way that would run a foul of title seven or I don't know how you said double well that well I'll add yes are you just saying because someone files a complaint you just have to do it I well if some if somebody files a complaint you you are going you're going to have to have a very you're going to have to be able to articulate a very good reason not to and could you do the investigation in a way that would run a foul of title seven or well add if like I think a balanced council was alleging that the chief knew in fact about the the new photo allegation that it wasn't true and still went ahead and asked all sorts of people what forward with that if he knew that was not true I don't you know I don't I don't believe that that would run a foul of either title seven or well add although there could be other causes of action that somebody could bring was there evidence before the jury that this individual the chief had spoken to this individual and that he denied that the chief had asked that that that Briber had asked him for photos Eric Eric Taylor and the person you're speaking right said said various things at at various times well I know but but and then jury's got to decide what they believe you know there's all sorts of things floating around here and the jury can pick what they believe and and the thing is is that yet there there was evidence that with respect to whether Eric Taylor was asked for photos there was evidence that went in every different direction so if the jury had to make a credibility determined nation they could have concluded any one of many things however that they did conclude that he told the chief that it had never happened if they concluded that was the truth could they would the chief have been appropriate and going ahead with that what actually the thing is is that that James Turpin also came forward and said that that captain river had asked for naked photos of his wife and and and that that test that testimony was credited but again it's it's you're you're you're pointing to I mean how do we know what the better we know what the jury did credit well we don't because that's what I'm saying better record so you have to look at it from the perspective of of based on the evidence that did come in you know what could a reasonable jury have concluded this and the way that judge dries dealt with that and I agree with it is saying that the naked photos was one aspect of several allegations against captain river there were allegations against captain river that when speaking to other other firefighters wise he asked them how are my children doing suggesting that that he was the father of their child or he would ask other firefighters can you leave the back door open for me I'm going to go in and and and it's service your wife tonight so so it wasn't it wasn't just the naked photo allegation that the city was looking into when it initially looked into the complaint against captain river there were many allegations that it looked into some of them were found not to have any merit others were and and the the the fact is is that that that Karen sires you know asked people if they've heard about allegations on all the issues that were raised and then and then when once she got you know a final answer she did she did her report coming to her own conclusions and she was actually found not liable by the jury for any kind of retaliation and the discipline of captain river was based on her investigation and her investigation report so I there's the the the cases the fact that they did not find her liable for what she did she somewhat removed from some of the other things is it possible they still could have found that other people did things wrong and gave her wrong information they well they could have found yeah they could have found that that that certain people gave Karen sires inaccurate information but again that that doesn't that doesn't you it's a big leap to go from there to actually holding the city liable for violations of either title seven or the Washington log against discrimination and and I think that you're pointing out the real challenge in this case is it is it's so factually complex with so many issues involved I think it was probably difficult for the jury to focus on just what is protected activity and whether there was any retaliation for engaging in it and and that's and that I think judge rice saw that that that for you to prevail there have there has to be no way the jury could have seen the evidence to come to that conclusion no way yeah a reasonable jury could not have found in the plaintiff's favor on these causes of action based on the evidence the evidence the testimony and how they resolve the credibility question there was no dispute here over the the jury instructions is that correct that's correct okay so did you did you want to respond to any of the issues that we discussed on the summary actually with respect to summary judgment I think on the on the first amendment claim that the law is not you know what is of interest to the community whether it's a matter of public concern or not because I represent cities and I know that anything that happens in municipal government becomes of interest to the public from everything from you know affairs that city employees are having all the way to things that do affect operational safety and and what the ninth circuit has that what they've interpreted is that that in order for something to be a matter of public concern it has to it has to to affect department safety or the efficient operation of of the fire department and allegations regarding an affair between two co-workers just does not rise to that level even though the public might what if what if disciplinary actions were handled in you know a malicious fashion not based you know if if if they were doing investigations to sort of further their own purposes or whatever could that be an issue of public concern I I don't believe it can because I don't think that that satisfies the test for for you know the operational of efficiency of government I think that that is if it is if it is personally if it's for investigating all of his or her personal enemies or people that oppose him you're not saying that the public couldn't be concerned about that I'm saying that the public could be concerned about that but I also don't think that that meets the test for a matter of public concern that that triggers first amendment protections I think that when you look at what is it issue here there are you know allegations and counter allegations regarding affairs and the like and and and and altogether it is not a matter of public concern as has been defined by the court what do you understand the the equal protection claim to be is it a selective process I believe it is a selective prosecution claim and I also believe that that that what's the basis for the selected prosecution in plaintiffs view yeah that that the people that accused captain riber were treated better than the people who who submitted statements and support of him and I don't I don't have something missing there there's no I agree with that that there's no there's no protected class status that's implicated in that and I think or conduct I mean I guess it has been like a fundamental right to the state court the Supreme Court I think also also said that these you know these classes of one or selective enforcement are not they're not a cause of action that can arise with respect to government employment I don't know about that but in any of it okay thank you thank you thank you wait let me just did you folks try to take advantage of our of our mediation service we we did the preliminarily we did yes but then when you got the verdict set aside you changed your mind no it was actually after after the verdict you said well after the verdict set aside are you tried to mediate after the verdict was set aside correct did you meet with the mediators no we had telephone conferences with the mediators but there was no no no actual meetings I mean this I mean this dispute has been going on for so long it has I mean it must be awfully costly for both sides uh financially and emotionally yes well and attorneys fees are at stake as well correct uh yes it is the the title seven and while out actually are both fee fee shifting statutes have you I mean I would just you know I'm I don't know my I don't can't speak for my colleagues but you know this case just prize out for some sort of mediated settlement really does okay if any interest in mediation let us know hey thank you you got one minute that's it no more if the court wants to know why extra time okay if the court wants to know why this case wasn't settled it was resolved in not two minutes ago in this courtroom when mr. Bolassina stood up here before this court and said that there was evidence on this record that riber had talked to his subordinates wives about or who is subordinates about leaving the back door open so we could come in and service them there is not a single entry on this record that suggests that that occurred and this is the kind of allegation that captain riber and those who supported him have been fighting since the beginning of this case and they persist to this date that is absolutely untrue mr. Bolassina also said here a moment ago that there is a risk to the public employer in not looking into matters in the workplace that may implicate title seven and lab he is absolutely correct and that's exactly why riber should have been protected when he was assigned to supervise tathema after the first of the year when she rotated onto his shift he'd already heard that there have been concerns about an inappropriate relationship between a young woman and a senior married firefighter he was assigned to look at her performance and to protect her to make sure that it was not going to impact her performance when it began to impact her performance because of her aloofness and her refusal to dine or to train or to socialize with her co-workers unless howell was present he was subjected to anger a manifestation both fisher and in riber were subjected to a manifestation of anger by howell howell approached both of them and said back off my relationship with this little honey in the workplace all right and you're over you're over at a time 41 41 seconds so you're already thank you very much we appreciate your arguments counsel we really do thank you matter submitted

. Actually I you know I I don't agree that there is there is some statute that legally requires a party to initiate an internal investigation I think that that given but didn't the district report say that yes but it's it's it's it's prudent in the modern era that if a complaint is made alleging a violation of the discrimination retaliation or anti-harassment laws that the employer actually look into it because the risk of being held liable for the conduct goes way up if you actually it's okay that's how ignore the complaint you know if you do nothing if you if you if you disregard it and and so so the the fact that a formal complaint was served on the city alleging retaliation is what basically motivated the city to do it but it is it's inconceivable that the chief and others could have been involved in some way to get this thing is it conceivable that when you have a duty to investigate you could also do so in a way that would run a foul of title seven or I don't know how you said double well that well I'll add yes are you just saying because someone files a complaint you just have to do it I well if some if somebody files a complaint you you are going you're going to have to have a very you're going to have to be able to articulate a very good reason not to and could you do the investigation in a way that would run a foul of title seven or well add if like I think a balanced council was alleging that the chief knew in fact about the the new photo allegation that it wasn't true and still went ahead and asked all sorts of people what forward with that if he knew that was not true I don't you know I don't I don't believe that that would run a foul of either title seven or well add although there could be other causes of action that somebody could bring was there evidence before the jury that this individual the chief had spoken to this individual and that he denied that the chief had asked that that that Briber had asked him for photos Eric Eric Taylor and the person you're speaking right said said various things at at various times well I know but but and then jury's got to decide what they believe you know there's all sorts of things floating around here and the jury can pick what they believe and and the thing is is that yet there there was evidence that with respect to whether Eric Taylor was asked for photos there was evidence that went in every different direction so if the jury had to make a credibility determined nation they could have concluded any one of many things however that they did conclude that he told the chief that it had never happened if they concluded that was the truth could they would the chief have been appropriate and going ahead with that what actually the thing is is that that James Turpin also came forward and said that that captain river had asked for naked photos of his wife and and and that that test that testimony was credited but again it's it's you're you're you're pointing to I mean how do we know what the better we know what the jury did credit well we don't because that's what I'm saying better record so you have to look at it from the perspective of of based on the evidence that did come in you know what could a reasonable jury have concluded this and the way that judge dries dealt with that and I agree with it is saying that the naked photos was one aspect of several allegations against captain river there were allegations against captain river that when speaking to other other firefighters wise he asked them how are my children doing suggesting that that he was the father of their child or he would ask other firefighters can you leave the back door open for me I'm going to go in and and and it's service your wife tonight so so it wasn't it wasn't just the naked photo allegation that the city was looking into when it initially looked into the complaint against captain river there were many allegations that it looked into some of them were found not to have any merit others were and and the the the fact is is that that that Karen sires you know asked people if they've heard about allegations on all the issues that were raised and then and then when once she got you know a final answer she did she did her report coming to her own conclusions and she was actually found not liable by the jury for any kind of retaliation and the discipline of captain river was based on her investigation and her investigation report so I there's the the the cases the fact that they did not find her liable for what she did she somewhat removed from some of the other things is it possible they still could have found that other people did things wrong and gave her wrong information they well they could have found yeah they could have found that that that certain people gave Karen sires inaccurate information but again that that doesn't that doesn't you it's a big leap to go from there to actually holding the city liable for violations of either title seven or the Washington log against discrimination and and I think that you're pointing out the real challenge in this case is it is it's so factually complex with so many issues involved I think it was probably difficult for the jury to focus on just what is protected activity and whether there was any retaliation for engaging in it and and that's and that I think judge rice saw that that that for you to prevail there have there has to be no way the jury could have seen the evidence to come to that conclusion no way yeah a reasonable jury could not have found in the plaintiff's favor on these causes of action based on the evidence the evidence the testimony and how they resolve the credibility question there was no dispute here over the the jury instructions is that correct that's correct okay so did you did you want to respond to any of the issues that we discussed on the summary actually with respect to summary judgment I think on the on the first amendment claim that the law is not you know what is of interest to the community whether it's a matter of public concern or not because I represent cities and I know that anything that happens in municipal government becomes of interest to the public from everything from you know affairs that city employees are having all the way to things that do affect operational safety and and what the ninth circuit has that what they've interpreted is that that in order for something to be a matter of public concern it has to it has to to affect department safety or the efficient operation of of the fire department and allegations regarding an affair between two co-workers just does not rise to that level even though the public might what if what if disciplinary actions were handled in you know a malicious fashion not based you know if if if they were doing investigations to sort of further their own purposes or whatever could that be an issue of public concern I I don't believe it can because I don't think that that satisfies the test for for you know the operational of efficiency of government I think that that is if it is if it is personally if it's for investigating all of his or her personal enemies or people that oppose him you're not saying that the public couldn't be concerned about that I'm saying that the public could be concerned about that but I also don't think that that meets the test for a matter of public concern that that triggers first amendment protections I think that when you look at what is it issue here there are you know allegations and counter allegations regarding affairs and the like and and and and altogether it is not a matter of public concern as has been defined by the court what do you understand the the equal protection claim to be is it a selective process I believe it is a selective prosecution claim and I also believe that that that what's the basis for the selected prosecution in plaintiffs view yeah that that the people that accused captain riber were treated better than the people who who submitted statements and support of him and I don't I don't have something missing there there's no I agree with that that there's no there's no protected class status that's implicated in that and I think or conduct I mean I guess it has been like a fundamental right to the state court the Supreme Court I think also also said that these you know these classes of one or selective enforcement are not they're not a cause of action that can arise with respect to government employment I don't know about that but in any of it okay thank you thank you thank you wait let me just did you folks try to take advantage of our of our mediation service we we did the preliminarily we did yes but then when you got the verdict set aside you changed your mind no it was actually after after the verdict you said well after the verdict set aside are you tried to mediate after the verdict was set aside correct did you meet with the mediators no we had telephone conferences with the mediators but there was no no no actual meetings I mean this I mean this dispute has been going on for so long it has I mean it must be awfully costly for both sides uh financially and emotionally yes well and attorneys fees are at stake as well correct uh yes it is the the title seven and while out actually are both fee fee shifting statutes have you I mean I would just you know I'm I don't know my I don't can't speak for my colleagues but you know this case just prize out for some sort of mediated settlement really does okay if any interest in mediation let us know hey thank you you got one minute that's it no more if the court wants to know why extra time okay if the court wants to know why this case wasn't settled it was resolved in not two minutes ago in this courtroom when mr. Bolassina stood up here before this court and said that there was evidence on this record that riber had talked to his subordinates wives about or who is subordinates about leaving the back door open so we could come in and service them there is not a single entry on this record that suggests that that occurred and this is the kind of allegation that captain riber and those who supported him have been fighting since the beginning of this case and they persist to this date that is absolutely untrue mr. Bolassina also said here a moment ago that there is a risk to the public employer in not looking into matters in the workplace that may implicate title seven and lab he is absolutely correct and that's exactly why riber should have been protected when he was assigned to supervise tathema after the first of the year when she rotated onto his shift he'd already heard that there have been concerns about an inappropriate relationship between a young woman and a senior married firefighter he was assigned to look at her performance and to protect her to make sure that it was not going to impact her performance when it began to impact her performance because of her aloofness and her refusal to dine or to train or to socialize with her co-workers unless howell was present he was subjected to anger a manifestation both fisher and in riber were subjected to a manifestation of anger by howell howell approached both of them and said back off my relationship with this little honey in the workplace all right and you're over you're over at a time 41 41 seconds so you're already thank you very much we appreciate your arguments counsel we really do thank you matter submitted

May it please the Court, Patricia Irkhardt for the plaintiff's appellate. Good morning. Good morning. The disciplinary actions of public employers are entitled to a great difference, but only when they reflect an strict compliance and observance of the constitutional statutory and contractual rights of the public employees. We believe that the plaintiffs have presented a very robust and abundant body of evidence here that the officials of the city of Pullman not only fail to meet these obligations following a little short that actually demonstrated outright disdain for these standards. Well, okay, I know that we've got the appeal from there were certain things that you lost on certain counts. You lost on summary judgment. Were you the trial lawyer? Yes. And then you got a jury verdict in your favor on other things and then the judge set aside the jury verdict. So looking at the jury verdict, which is the issue that concerns me the most here, to your your entitled to all inferences in your favor. So how did where did the district judge get that wrong? I mean, essentially there has to be no evidence as a matter of law to set that aside. So he got it wrong because he came back in after the verdict verdict was rendered. And he said that the affair was the only issue before the court essentially before the jury and that a complaints about the appearance of an improper sexual relationship in a workplace were inadequate as we're inadequate in vehicle. Isn't the statute talking about unlawfulness? Yes. What was unlawful about the affair? There wasn't the affair wasn't an issue. I said, but that was what sort of precipitated the whole thing. It precipitated it. And their concern, Reiber's concern and the one who supported him was that the way in which they the chief and the human, the human resources person conducted the investigation was in retaliation for their engaging in participating in opposing unlawful practices. But what was unlawful about the, the, the underlying. That's probably the single most important issue for us to resolve today. And that is the fact that it was not the affair that was put to the jury. That was not the question that was put to the jury. And I have copies if I may approach or. Well, no, it's we have to look at all the evidence and we have to if, if what the jury found if there is some theory that whether even if you didn't argue it, if there was, because the jurors, the jurors are told what the attorney says not evidence. Listen to them, but that's their theory of the case. So under the evidence that the jury's had is, you know, obviously when as if if you're a supervisor or a people come and complain to you and they say that I think that, you know, if you're they're concerned about. I've seen sexual harassment cases where people complain that someone's getting favorable treatment because they're having sex with someone that's a supervisor or other people feel concerned about they feel like they can't do certain things in the workplace because the person that's having a fair may be empowered to do other things about it. So what what could the jury have found that would have been. You know, obviously a supervisor, if if my staff comes in and says, well, you know, two of your law clerks are having an affair and where the other law clerks are really uncomfortable about that because they feel like they're loading it over us. So we feel like someone's getting preferential treatment or maybe it's, you know, what your senior law clerk that you put more work with is having an affair with one of the junior ones and all of that. So I mean, there could be some unlawful conduct that isn't per se that two consenting adults are having an affair, but it can be unlawful in how it affects the workplace, right? And here's the straw man that we've been arguing against from the beginning and all the different forms in which the plaintiffs have presented this issue. They have always said they have consistently said and the City of Pullman has never been able to effectively rebut it. That our argument for protection and for protected class status under Ladd and Title VII was the fact that they opposed the corrupt investigation of Riber. The investigation represented retaliation for earlier expression. So, say that again. So the theory was not part, it wasn't participation. So that, that, that, I thought so. Participation. Yeah. I didn't think it was participation. No, no, no. It's really opposition, right? Opposition. So to the corrupt investigation. To the corrupt. Say that to the corrupt investigation. To the corrupt investigation. And why, why was it corrupt? Because the City of Pullman knew very well that there had been concerns expressed about this fair and they had actually assigned Captain Riber to deal with the impact of the affair on Tatumas performance. Because even if you got evidence of an affair and even if Captain Riber has got, as, as, as got the green light to invent to talk about the affair and how it's affecting his staff. You have additional allegations that Captain Riber is himself engaging in sexual harassment. Doesn't the City have an obligation to investigate that? They do, but they do. There was more to the story and they willfully ignored the most single significant thing about these events. They had a public servant, a servant with 18 years experience with a blemish free record. And all of a sudden, after the affair is known to the City, and it was known to the City. Because Chief Wilkins was told about that October 2008 meeting as promptly as it occurred. Right. But even if the chief says, as, as, as God. Someone say is claiming that that that that that Riber is engaging in sexual harassment. And somebody says well, what Riber was doing was in, in, in, in the effect on his true of, of an affair between two members of the crew, doesn't the chief have to resolve that in some way or that doesn't he have to investigate that? And if he's investigating it, what is it that you have to prove in order to show that it's retaliatory? They demonstrated to stain for the issue altogether. But that's because he didn't answer my question. What is it that you don't you have to prove that Chief Wilkins knew that all of the allegations against against driver were false and that he investigated it anyway even though he knew it was false. He knew that the most serious allegations were false because he received how would he have known that they were false? Because James Turpin came to him on April 28th and said this man's a sexual predator and has been asking for naked photos of his subordinates wives. Chief Wilkins called Eric Taylor again. He's the word sexual predator. He said that he had asked for sexual favors of the wives when he was on the telephone. Well I think part of the reason is I mean I'm feeling like I can articulate better what the jury could have thought than you can. You're too close to this case in some ways and in terms of you have to look at there's there's there's causal there's when you look at discrimination cases a jury is entitled to they can look to temporal events how they happen here and the jury could have arguably believed that that the chief knew that it wasn't true or that someone else in the department had put that up to starting hey let's investigate Ryber because of this and could they could there's a lot of smoke here and the jury could have found fire in certain ways feeling like these people are unscrupulous that they only started this investigation they knew that there wasn't anything to it they only started it because he was being he was making comments this other way and they you know they could have put that's how they could have connected the dots they didn't have to follow your way to connect the dots and so you keep getting stuck with your way so is there enough evidence is there any theory that if the jury was there enough evidence there that the jury could have believed that the chief complete that knew that it wasn't true and entered it with the idea like I'm going to get him because I want to get rid of this other problem in terms of how the dates all line up and you put into evidence that this that Ryber had never been investigated before and I think the other officers that got investigated as well you put in evidence that all of them had unblemished careers right yes they did so isn't couldn't the jury have taken a different approach than even whatever you argued and found that it wasn't a matter of what I argued on the on behalf of these parties they had before them evidence that on April 28th James Turpin accused Ryber a very serious inappropriate conduct in the workplace very serious career ending and the chief knew that Turpin was lying yes because the the reports were attributed to Eric Taylor in except the director this is the is the Turpin and and he knows that Taylor is lying because of the sires investigation Taylor wasn't lying Taylor was called in before chief Wilkins on May 3rd or 4th of 2009 and ask whether it was accurate that he had told Lieutenant Turpin that he'd been asked for naked photos of his wife and he said that didn't occur the jury heard that and he said several times we ask and we didn't learn that because it was withheld from us by the city of Pomeranum for 16 months we had to wait until Eric Taylor appeared in the grievance arbitration at the end of September of 2010 16 months later because we had no other discovery device available under Peckba in Washington he took the stand and we said you know what what is your role in this case and he said I was called in by the judge there by chief Wilkins and he was he asked me whether this had occurred I said it did not occur and we ask it in a number of different ways in a couple of different proceedings so the jury so what you're so what you're saying is the jury could have believed that that's what Taylor told the chief and the chief just went ahead and instituted it anyway they did it with that how did you since chief Wilkins had died before this this trial how did you show what Wilkins knew or what Wilkins thought he testified under oath in both the grievance arbitration and the unfair labor practice proceeding and you were able to introduce that testimony from better to the jury and and he and Wilkins admitted that he knew about this affair and he wanted to take it a different direction for me tight this all the way back to the core of the statute that you were relying the state you know the Washington law against discrimination how does this all rise to an opposition claim the opposition and I should say as a preliminary matter it was good faith opposition to the sexual harassment investigation that appears all the way through our exhibits on pages 115, 119, and 108 if you take out the good faith participation is good faith opposition to the investigation and the investigation so good faith up good faith opposition to the investigation of right. It was a corrupt investigation because Wilkins knew full well that Taylor group beauty and that and that's the only thing that that Wilkins could have investigated this for he knew that it was a false allegation he had to answer my question okay it was there anything else that Wilkins could have investigated right or four other than the question of whether he had asked for naked photos of Taylor's wife not that meet the threshold of a title seven complaint there was there were no other serious allegations against him he can't investigate any of the other questions about harassment of the of Tadeema or or anything else he looked into it but in looking at Tatumas complaints against him they're they're they're species they're clearly on their face species there's nothing oh yeah no basis for investigating that no he did not oh he did not he just did not and it not only did he have no basis but he intentionally used and so and so by playing as a vehicle investigating Tatumas complaints that is retaliation against and that's and that's part of what and that's what that's what the jury had to base it on yes because in doing so he incires here incires the human resource officer used Turpin's memo of April 28th to frame 15 questions put to 22 members of the department the first two weeks of May of 2009 and all of them presumed that he had in fact asked for naked photos that it was and asking merely whether you two had been been asked for these same things they knew at the time those questions were asked that it never occurred because Taylor said that it never occurred they had no valid basis for believing that there was that there was any overture like that on the in this man's conduct at all and they went forward with it anyway demonstrating animus and demonstrating that they were going to use anything they had that they could and and also we need to account for the fact that they didn't go to operations chief testing who had been present when Riber was interacting with Tatumas he'd been present in the prior meeting of October 2008 he knew that there was something culminating in this workplace and concerns we do say it isn't you know we acknowledge the decision of law that that merely complaining about a workplace relationship is not adequate to support a claim but the instructions instructions 9 and 12 and the verdict forms say each plaintiff is asserting a claim that he engaged in or was engaging in activity protected under title 7 that in good that is good faith opposition to a sexual harassment investigation it's not to the affair it's to the investigation the affair was a precipitating event and it is the benchmark by which we established whether the investigation was corrupt in that they refused there's not a single word in scores and scores and scores of pages of interviews and findings there's not one single question put to anybody about that affair that might have established animus on the part of these people to bring these judges pretty much exhausted all your time over the juries the judges really know in the right 50b but you had a couple other issues that you have lots and the pretty I don't want you to go through all the other participation I think is is we think is presumed these people were ordered in to take part in this investigation they didn't have a choice I'm talking about your your appeal from the grant of some replacement oh the grant summary judgment we do we would like to observe that there's no provision of land protects uh that withholds protections from employees merely because they are refuting rather than supporting the validity of a claim and that's what we were essentially coming forward to do. I think that what the you had a first amendment claim and I think that the court found that it that wasn't as a matter of law there was no public concern right and uh and I think your point was that it's a small town and there were actually news the newspaper there were there was a lot of coverage on this yes there was sort of the patent place of Pullman sure and so it maybe if it weren't a small town and maybe if the newspaper hadn't written those there wouldn't have been something of public concern but that was enough to get back by summary judgment is that what it was and we believe that whether a mid-level manager in a fire department in the city of that size especially was engaged in that kind of conduct as alleged with a subordinates wise was clearly a matter of great public concern in consternation and that just all the focus on in the fire department excuse me why isn't that just nothing more than you know what's going on in the fire department when when when a mid-level manager is not a public concern in in public life in this day and age in public employment for mid-manager to be charged with demanding naked photos crotch shots of his subordinates wise I would think that the community would have some concerns about that you had one other clinic that I was curious about now you had an equal protection claim yes I just want to know what's your theory on that equal protection claim is it is it a straight equal protection a single you know one person claim or is it a selective prosecution claim no it is it is not a class of one claim so what kind what kind of claim what is it a selective prosecution claim essentially essentially but essentially not really excuse me just we had two different groups of employees in this workplace those that were accusing RIBER of very serious misconduct and we had a group of employees who were defending RIBER saying that those were inflammatory charges were false and they were assigned a corrupt investigation in every at every turn of events in this case the city of Pullman gave deference to the the group of employees who came in to go against RIBER because it pleased them to do that that's what they were about in going after RIBER and knocking him back and what kind of what kind of equal protection claim is that there is we have cited in our brief the fact that it seems like something that the city would have to do it have to investigate and somebody's going to somebody's going to win and somebody's going to lose it doesn't make a discrimination I think that we believe the record reflects that virtually everything that RIBER's accusers said against him were taking at face value without any meaningful investigation there was no interview of any women there were no specifics about what he said or did I saw this in any way protection claim you're going to try and get it on the basis of you know race religion gender what's the basis here that they had spoken out that they that sounds like now that sounds like a selective prosecution claim that you yes or retaliation claim it doesn't look like an equal protection claim they were all treated less favorably than all of RIBER's accusers they were they were run through the ringer of this canar investigation for a full six eight-month period and that was held over their head for a long period of time they were all branded with that wolf pack allegation and that can give me I've given you some extra time but I've got to move on to the other side okay thank you very much thank you very much morning your honors my name is Mike Bolassina and I'm here on behalf of the appellate the city opulment I think the overarching issue the phrase that people have been using is basically what what constitutes protected activity under title seven and the Washington law against discrimination well and I've got real concern about setting aside this jury verdict I'm just going to tell you that right out and that and and I'm not sure I don't really care so much what the parties argued I care what the jurors could have is there any could the jurors have found with the evidence who was presented any legitimate support for the verdicts and actually judge rice found and we strongly support the answer is no obviously well he thought it should go to a jury and then he kind of went back and said oh shouldn't have but there's a lot of smoke here and there's a lot of things that the jury could have concluded that not necessarily either of you argued and that really concerns me here after and when you set aside a jury verdict if there's any way that it can be you can pull together a theory that could be supported it doesn't have to be the one you argued doesn't have to be the one they argued I agree this and the jury was free to believe or disbelieve things you argue them different ways the jury was you know free to completely believe that the chief was motivated and orchestrated that whole thing and I don't know there was discussions about causation but in employment cases you can there's a there's some bad temporal evidence for your position I actually I disagree with that your honor I think that the judge rice actually looked at what was what was the testimony before before the court what the what the evidence was in the document if you had a court trial I would agree with you but when you have a jury trial and the jury doesn't look at it the same way that judge rice you know it seems to me that judge rice was not considering every inference that the jury could have taken from that I think he considered every reasonable inference from the evidence but he did not consider what he considered unreasonable so it's unreasonable to think that the the city had to investigate this even if the jury thought after hearing everything that it was basically trumped up that the chief knew they didn't have to that the chief had somehow you know this was a patent place here somehow that that the chief had somehow just run the investigation in a certain way to make it look like he was doing something legitimately and dragging everyone in actually the thing is that that judge rice did not find as part of his order nor nor did we argue that that the chief Wilkins' motives were pristine but the key for these causes of actions is not did the chief the chief knew that they weren't that he knew he was he was doing the investigation for the only reason that these people spoke out and he knew that the things he was investigating were not true is that a legitimate exercise of the chiefs power actually I think that that question is irrelevant the question is was the chief initiating a disciplinary matter because of ribers protected activity that's the question that judge rice thought was answered no there is no evidence to support that that no reasonable jury could conclude that chief Wilkins' motivation for doing anything well let's talk about temporal did it did the investigation happen before cheap before riber and into made these wasn't happy about the affair what it had happened temporarily I mean I would agree if it had happened if the investigation of riber was before all of this that's a lot better for you but what what judge rice found was that that there was no there was insufficient evidence for reasonable jury to even conclude that riber engaged in oppositional activity with regard to this affair the evidence was that riber participated in a with other supervisors where where lieutenant Fisher said there is an appearance here of an affair and it makes us uncomfortable and we'd like to know how to handle it and chief Heston said that I will handle it and riber thought agreed that that was a good way to deal with the situation then when Chelsea Tatumma rotates on to Captain riber's shift he says both in his testimony and in the documentation that he didn't have an issue with Chelsea Tatumma and Andrew howl when they were on his shift and that he did counsel her about issues related to her probationary status but he did not actually ever raise the issue of an affair with Chelsea Tatumma that he was counseling her about other issues related to her doing chores and and going out to to get food for the rest of the and things like that but he never raised the issue of the affair and then when he submits his rubot it written rubot when he is being investigated for a hostile work environment he says that he did not credit the rumors about an affair because he did not believe that they were romantically involved so when and when you look when you look at this and what this is what judge rice concluded this does not constitute oppositional activity under either title seven or the Washington law against discrimination this is not forcefully you know opposing something that you think is unlawful under under either of these statutes so that's and that's that that I think is key is not was chief Wilkins and I think that that this is perhaps what confused the jury as well chief Wilkins the pristineness of his motives and doing this were not an issue for purpose of these two statutory causes of action that a reasonable jury had to conclude that chief Wilkins disciplined riber initiated this investigation because of riber's oppositional activity not because of any personal animus that he had against riber and there was evidence of that not any animus he had against riber in his role as a union president and there was evidence of that well it wasn't the union he had never been disciplined before there were all of those issues that were before the jury and what if the jury just thought that that's what the chief and and judge judge rice concluded in granting our motion that no reasonable jury based on the evidence before them except how people did I don't think they were 12 however many there were six six six six day yeah no no yeah but but the thing is is that if there was automatic deference to whatever a jury did there would be no federal rule of civil procedure 50 so what so where does the claim about from your perspective and I'm not quite sure I follow the plaintiff's argument where does the opposition come into play and what what forms the basis of the opposition claim from the plaintiff's perspective well those those three things captain riber's participation at this meeting in October of 2008 with chief heston captain of the of the affair no though actually though that meeting was about that that she is visiting the station on her day off and bringing him coffee and joining them for lunch and it makes people uncomfortable because there's these rumors that there may be an affair the second issue is is that captain riber when she rotated onto his shift counsel counsel her about performance and attitude issues and then third when captain riber was being investigated he submitted a written rubat all and all these are documents in the record where he says that there were rumors that they were having an affair he did not believe them but that's you know that either that there was this appearance of this this uncomfortable closeness between them and that's for for captain riber that is the protected at the alleged protected activity or the alleged oppositional activity and what judge price found was that that based on the testimony that was in that was introduced in trial and the and the documentation that came in as evidence that does not rise to the level of oppositional activity as protected under either statute and was kept in riber the only statute made a claim under was wall at title seven the issue a the issue for the other five plaintiffs is actually is actually quite different because what what judge rise found in his order was when they submitted the louder mill statements that that could qualify as protected activity but what judge rise found was is given the content of the the louder mill statements and the testimony and other evidence that came in on that issue no reasonable juror could conclude that what they did was protected under either title seven or or or the Washington Law against discrimination and that that with with with regard to that issue he first took a look at these louder mill statements and in his decision granting the renewed motion as a matter of judgment as a matter of law he quoted extensively from one of them where he said this goes well beyond what was should be considered protected activity and and is really sort of character assassination against only those people who who the plaintiffs knew had participated in the investigation against Captain Riber and had provided a secret information. But the district court seems to say that the defendants were legally required to investigate Turpin and House sexual harassment claims and that such that their legal requirement to do that precludes finding an unlawful retaliatory animus how can that be right if the chief knew they weren't true what why are you legally required to investigate things that you know are not true. Actually I you know I I don't agree that there is there is some statute that legally requires a party to initiate an internal investigation I think that that given but didn't the district report say that yes but it's it's it's it's prudent in the modern era that if a complaint is made alleging a violation of the discrimination retaliation or anti-harassment laws that the employer actually look into it because the risk of being held liable for the conduct goes way up if you actually it's okay that's how ignore the complaint you know if you do nothing if you if you if you disregard it and and so so the the fact that a formal complaint was served on the city alleging retaliation is what basically motivated the city to do it but it is it's inconceivable that the chief and others could have been involved in some way to get this thing is it conceivable that when you have a duty to investigate you could also do so in a way that would run a foul of title seven or I don't know how you said double well that well I'll add yes are you just saying because someone files a complaint you just have to do it I well if some if somebody files a complaint you you are going you're going to have to have a very you're going to have to be able to articulate a very good reason not to and could you do the investigation in a way that would run a foul of title seven or well add if like I think a balanced council was alleging that the chief knew in fact about the the new photo allegation that it wasn't true and still went ahead and asked all sorts of people what forward with that if he knew that was not true I don't you know I don't I don't believe that that would run a foul of either title seven or well add although there could be other causes of action that somebody could bring was there evidence before the jury that this individual the chief had spoken to this individual and that he denied that the chief had asked that that that Briber had asked him for photos Eric Eric Taylor and the person you're speaking right said said various things at at various times well I know but but and then jury's got to decide what they believe you know there's all sorts of things floating around here and the jury can pick what they believe and and the thing is is that yet there there was evidence that with respect to whether Eric Taylor was asked for photos there was evidence that went in every different direction so if the jury had to make a credibility determined nation they could have concluded any one of many things however that they did conclude that he told the chief that it had never happened if they concluded that was the truth could they would the chief have been appropriate and going ahead with that what actually the thing is is that that James Turpin also came forward and said that that captain river had asked for naked photos of his wife and and and that that test that testimony was credited but again it's it's you're you're you're pointing to I mean how do we know what the better we know what the jury did credit well we don't because that's what I'm saying better record so you have to look at it from the perspective of of based on the evidence that did come in you know what could a reasonable jury have concluded this and the way that judge dries dealt with that and I agree with it is saying that the naked photos was one aspect of several allegations against captain river there were allegations against captain river that when speaking to other other firefighters wise he asked them how are my children doing suggesting that that he was the father of their child or he would ask other firefighters can you leave the back door open for me I'm going to go in and and and it's service your wife tonight so so it wasn't it wasn't just the naked photo allegation that the city was looking into when it initially looked into the complaint against captain river there were many allegations that it looked into some of them were found not to have any merit others were and and the the the fact is is that that that Karen sires you know asked people if they've heard about allegations on all the issues that were raised and then and then when once she got you know a final answer she did she did her report coming to her own conclusions and she was actually found not liable by the jury for any kind of retaliation and the discipline of captain river was based on her investigation and her investigation report so I there's the the the cases the fact that they did not find her liable for what she did she somewhat removed from some of the other things is it possible they still could have found that other people did things wrong and gave her wrong information they well they could have found yeah they could have found that that that certain people gave Karen sires inaccurate information but again that that doesn't that doesn't you it's a big leap to go from there to actually holding the city liable for violations of either title seven or the Washington log against discrimination and and I think that you're pointing out the real challenge in this case is it is it's so factually complex with so many issues involved I think it was probably difficult for the jury to focus on just what is protected activity and whether there was any retaliation for engaging in it and and that's and that I think judge rice saw that that that for you to prevail there have there has to be no way the jury could have seen the evidence to come to that conclusion no way yeah a reasonable jury could not have found in the plaintiff's favor on these causes of action based on the evidence the evidence the testimony and how they resolve the credibility question there was no dispute here over the the jury instructions is that correct that's correct okay so did you did you want to respond to any of the issues that we discussed on the summary actually with respect to summary judgment I think on the on the first amendment claim that the law is not you know what is of interest to the community whether it's a matter of public concern or not because I represent cities and I know that anything that happens in municipal government becomes of interest to the public from everything from you know affairs that city employees are having all the way to things that do affect operational safety and and what the ninth circuit has that what they've interpreted is that that in order for something to be a matter of public concern it has to it has to to affect department safety or the efficient operation of of the fire department and allegations regarding an affair between two co-workers just does not rise to that level even though the public might what if what if disciplinary actions were handled in you know a malicious fashion not based you know if if if they were doing investigations to sort of further their own purposes or whatever could that be an issue of public concern I I don't believe it can because I don't think that that satisfies the test for for you know the operational of efficiency of government I think that that is if it is if it is personally if it's for investigating all of his or her personal enemies or people that oppose him you're not saying that the public couldn't be concerned about that I'm saying that the public could be concerned about that but I also don't think that that meets the test for a matter of public concern that that triggers first amendment protections I think that when you look at what is it issue here there are you know allegations and counter allegations regarding affairs and the like and and and and altogether it is not a matter of public concern as has been defined by the court what do you understand the the equal protection claim to be is it a selective process I believe it is a selective prosecution claim and I also believe that that that what's the basis for the selected prosecution in plaintiffs view yeah that that the people that accused captain riber were treated better than the people who who submitted statements and support of him and I don't I don't have something missing there there's no I agree with that that there's no there's no protected class status that's implicated in that and I think or conduct I mean I guess it has been like a fundamental right to the state court the Supreme Court I think also also said that these you know these classes of one or selective enforcement are not they're not a cause of action that can arise with respect to government employment I don't know about that but in any of it okay thank you thank you thank you wait let me just did you folks try to take advantage of our of our mediation service we we did the preliminarily we did yes but then when you got the verdict set aside you changed your mind no it was actually after after the verdict you said well after the verdict set aside are you tried to mediate after the verdict was set aside correct did you meet with the mediators no we had telephone conferences with the mediators but there was no no no actual meetings I mean this I mean this dispute has been going on for so long it has I mean it must be awfully costly for both sides uh financially and emotionally yes well and attorneys fees are at stake as well correct uh yes it is the the title seven and while out actually are both fee fee shifting statutes have you I mean I would just you know I'm I don't know my I don't can't speak for my colleagues but you know this case just prize out for some sort of mediated settlement really does okay if any interest in mediation let us know hey thank you you got one minute that's it no more if the court wants to know why extra time okay if the court wants to know why this case wasn't settled it was resolved in not two minutes ago in this courtroom when mr. Bolassina stood up here before this court and said that there was evidence on this record that riber had talked to his subordinates wives about or who is subordinates about leaving the back door open so we could come in and service them there is not a single entry on this record that suggests that that occurred and this is the kind of allegation that captain riber and those who supported him have been fighting since the beginning of this case and they persist to this date that is absolutely untrue mr. Bolassina also said here a moment ago that there is a risk to the public employer in not looking into matters in the workplace that may implicate title seven and lab he is absolutely correct and that's exactly why riber should have been protected when he was assigned to supervise tathema after the first of the year when she rotated onto his shift he'd already heard that there have been concerns about an inappropriate relationship between a young woman and a senior married firefighter he was assigned to look at her performance and to protect her to make sure that it was not going to impact her performance when it began to impact her performance because of her aloofness and her refusal to dine or to train or to socialize with her co-workers unless howell was present he was subjected to anger a manifestation both fisher and in riber were subjected to a manifestation of anger by howell howell approached both of them and said back off my relationship with this little honey in the workplace all right and you're over you're over at a time 41 41 seconds so you're already thank you very much we appreciate your arguments counsel we really do thank you matter submitted

May it please the Court, Patricia Irkhardt for the plaintiff's appellate. Good morning. Good morning. The disciplinary actions of public employers are entitled to a great difference, but only when they reflect an strict compliance and observance of the constitutional statutory and contractual rights of the public employees. We believe that the plaintiffs have presented a very robust and abundant body of evidence here that the officials of the city of Pullman not only fail to meet these obligations following a little short that actually demonstrated outright disdain for these standards. Well, okay, I know that we've got the appeal from there were certain things that you lost on certain counts. You lost on summary judgment. Were you the trial lawyer? Yes. And then you got a jury verdict in your favor on other things and then the judge set aside the jury verdict. So looking at the jury verdict, which is the issue that concerns me the most here, to your your entitled to all inferences in your favor. So how did where did the district judge get that wrong? I mean, essentially there has to be no evidence as a matter of law to set that aside. So he got it wrong because he came back in after the verdict verdict was rendered. And he said that the affair was the only issue before the court essentially before the jury and that a complaints about the appearance of an improper sexual relationship in a workplace were inadequate as we're inadequate in vehicle. Isn't the statute talking about unlawfulness? Yes. What was unlawful about the affair? There wasn't the affair wasn't an issue. I said, but that was what sort of precipitated the whole thing. It precipitated it. And their concern, Reiber's concern and the one who supported him was that the way in which they the chief and the human, the human resources person conducted the investigation was in retaliation for their engaging in participating in opposing unlawful practices. But what was unlawful about the, the, the underlying. That's probably the single most important issue for us to resolve today. And that is the fact that it was not the affair that was put to the jury. That was not the question that was put to the jury. And I have copies if I may approach or. Well, no, it's we have to look at all the evidence and we have to if, if what the jury found if there is some theory that whether even if you didn't argue it, if there was, because the jurors, the jurors are told what the attorney says not evidence. Listen to them, but that's their theory of the case. So under the evidence that the jury's had is, you know, obviously when as if if you're a supervisor or a people come and complain to you and they say that I think that, you know, if you're they're concerned about. I've seen sexual harassment cases where people complain that someone's getting favorable treatment because they're having sex with someone that's a supervisor or other people feel concerned about they feel like they can't do certain things in the workplace because the person that's having a fair may be empowered to do other things about it. So what what could the jury have found that would have been. You know, obviously a supervisor, if if my staff comes in and says, well, you know, two of your law clerks are having an affair and where the other law clerks are really uncomfortable about that because they feel like they're loading it over us. So we feel like someone's getting preferential treatment or maybe it's, you know, what your senior law clerk that you put more work with is having an affair with one of the junior ones and all of that. So I mean, there could be some unlawful conduct that isn't per se that two consenting adults are having an affair, but it can be unlawful in how it affects the workplace, right? And here's the straw man that we've been arguing against from the beginning and all the different forms in which the plaintiffs have presented this issue. They have always said they have consistently said and the City of Pullman has never been able to effectively rebut it. That our argument for protection and for protected class status under Ladd and Title VII was the fact that they opposed the corrupt investigation of Riber. The investigation represented retaliation for earlier expression. So, say that again. So the theory was not part, it wasn't participation. So that, that, that, I thought so. Participation. Yeah. I didn't think it was participation. No, no, no. It's really opposition, right? Opposition. So to the corrupt investigation. To the corrupt. Say that to the corrupt investigation. To the corrupt investigation. And why, why was it corrupt? Because the City of Pullman knew very well that there had been concerns expressed about this fair and they had actually assigned Captain Riber to deal with the impact of the affair on Tatumas performance. Because even if you got evidence of an affair and even if Captain Riber has got, as, as, as got the green light to invent to talk about the affair and how it's affecting his staff. You have additional allegations that Captain Riber is himself engaging in sexual harassment. Doesn't the City have an obligation to investigate that? They do, but they do. There was more to the story and they willfully ignored the most single significant thing about these events. They had a public servant, a servant with 18 years experience with a blemish free record. And all of a sudden, after the affair is known to the City, and it was known to the City. Because Chief Wilkins was told about that October 2008 meeting as promptly as it occurred. Right. But even if the chief says, as, as, as God. Someone say is claiming that that that that that Riber is engaging in sexual harassment. And somebody says well, what Riber was doing was in, in, in, in the effect on his true of, of an affair between two members of the crew, doesn't the chief have to resolve that in some way or that doesn't he have to investigate that? And if he's investigating it, what is it that you have to prove in order to show that it's retaliatory? They demonstrated to stain for the issue altogether. But that's because he didn't answer my question. What is it that you don't you have to prove that Chief Wilkins knew that all of the allegations against against driver were false and that he investigated it anyway even though he knew it was false. He knew that the most serious allegations were false because he received how would he have known that they were false? Because James Turpin came to him on April 28th and said this man's a sexual predator and has been asking for naked photos of his subordinates wives. Chief Wilkins called Eric Taylor again. He's the word sexual predator. He said that he had asked for sexual favors of the wives when he was on the telephone. Well I think part of the reason is I mean I'm feeling like I can articulate better what the jury could have thought than you can. You're too close to this case in some ways and in terms of you have to look at there's there's there's causal there's when you look at discrimination cases a jury is entitled to they can look to temporal events how they happen here and the jury could have arguably believed that that the chief knew that it wasn't true or that someone else in the department had put that up to starting hey let's investigate Ryber because of this and could they could there's a lot of smoke here and the jury could have found fire in certain ways feeling like these people are unscrupulous that they only started this investigation they knew that there wasn't anything to it they only started it because he was being he was making comments this other way and they you know they could have put that's how they could have connected the dots they didn't have to follow your way to connect the dots and so you keep getting stuck with your way so is there enough evidence is there any theory that if the jury was there enough evidence there that the jury could have believed that the chief complete that knew that it wasn't true and entered it with the idea like I'm going to get him because I want to get rid of this other problem in terms of how the dates all line up and you put into evidence that this that Ryber had never been investigated before and I think the other officers that got investigated as well you put in evidence that all of them had unblemished careers right yes they did so isn't couldn't the jury have taken a different approach than even whatever you argued and found that it wasn't a matter of what I argued on the on behalf of these parties they had before them evidence that on April 28th James Turpin accused Ryber a very serious inappropriate conduct in the workplace very serious career ending and the chief knew that Turpin was lying yes because the the reports were attributed to Eric Taylor in except the director this is the is the Turpin and and he knows that Taylor is lying because of the sires investigation Taylor wasn't lying Taylor was called in before chief Wilkins on May 3rd or 4th of 2009 and ask whether it was accurate that he had told Lieutenant Turpin that he'd been asked for naked photos of his wife and he said that didn't occur the jury heard that and he said several times we ask and we didn't learn that because it was withheld from us by the city of Pomeranum for 16 months we had to wait until Eric Taylor appeared in the grievance arbitration at the end of September of 2010 16 months later because we had no other discovery device available under Peckba in Washington he took the stand and we said you know what what is your role in this case and he said I was called in by the judge there by chief Wilkins and he was he asked me whether this had occurred I said it did not occur and we ask it in a number of different ways in a couple of different proceedings so the jury so what you're so what you're saying is the jury could have believed that that's what Taylor told the chief and the chief just went ahead and instituted it anyway they did it with that how did you since chief Wilkins had died before this this trial how did you show what Wilkins knew or what Wilkins thought he testified under oath in both the grievance arbitration and the unfair labor practice proceeding and you were able to introduce that testimony from better to the jury and and he and Wilkins admitted that he knew about this affair and he wanted to take it a different direction for me tight this all the way back to the core of the statute that you were relying the state you know the Washington law against discrimination how does this all rise to an opposition claim the opposition and I should say as a preliminary matter it was good faith opposition to the sexual harassment investigation that appears all the way through our exhibits on pages 115, 119, and 108 if you take out the good faith participation is good faith opposition to the investigation and the investigation so good faith up good faith opposition to the investigation of right. It was a corrupt investigation because Wilkins knew full well that Taylor group beauty and that and that's the only thing that that Wilkins could have investigated this for he knew that it was a false allegation he had to answer my question okay it was there anything else that Wilkins could have investigated right or four other than the question of whether he had asked for naked photos of Taylor's wife not that meet the threshold of a title seven complaint there was there were no other serious allegations against him he can't investigate any of the other questions about harassment of the of Tadeema or or anything else he looked into it but in looking at Tatumas complaints against him they're they're they're species they're clearly on their face species there's nothing oh yeah no basis for investigating that no he did not oh he did not he just did not and it not only did he have no basis but he intentionally used and so and so by playing as a vehicle investigating Tatumas complaints that is retaliation against and that's and that's part of what and that's what that's what the jury had to base it on yes because in doing so he incires here incires the human resource officer used Turpin's memo of April 28th to frame 15 questions put to 22 members of the department the first two weeks of May of 2009 and all of them presumed that he had in fact asked for naked photos that it was and asking merely whether you two had been been asked for these same things they knew at the time those questions were asked that it never occurred because Taylor said that it never occurred they had no valid basis for believing that there was that there was any overture like that on the in this man's conduct at all and they went forward with it anyway demonstrating animus and demonstrating that they were going to use anything they had that they could and and also we need to account for the fact that they didn't go to operations chief testing who had been present when Riber was interacting with Tatumas he'd been present in the prior meeting of October 2008 he knew that there was something culminating in this workplace and concerns we do say it isn't you know we acknowledge the decision of law that that merely complaining about a workplace relationship is not adequate to support a claim but the instructions instructions 9 and 12 and the verdict forms say each plaintiff is asserting a claim that he engaged in or was engaging in activity protected under title 7 that in good that is good faith opposition to a sexual harassment investigation it's not to the affair it's to the investigation the affair was a precipitating event and it is the benchmark by which we established whether the investigation was corrupt in that they refused there's not a single word in scores and scores and scores of pages of interviews and findings there's not one single question put to anybody about that affair that might have established animus on the part of these people to bring these judges pretty much exhausted all your time over the juries the judges really know in the right 50b but you had a couple other issues that you have lots and the pretty I don't want you to go through all the other participation I think is is we think is presumed these people were ordered in to take part in this investigation they didn't have a choice I'm talking about your your appeal from the grant of some replacement oh the grant summary judgment we do we would like to observe that there's no provision of land protects uh that withholds protections from employees merely because they are refuting rather than supporting the validity of a claim and that's what we were essentially coming forward to do. I think that what the you had a first amendment claim and I think that the court found that it that wasn't as a matter of law there was no public concern right and uh and I think your point was that it's a small town and there were actually news the newspaper there were there was a lot of coverage on this yes there was sort of the patent place of Pullman sure and so it maybe if it weren't a small town and maybe if the newspaper hadn't written those there wouldn't have been something of public concern but that was enough to get back by summary judgment is that what it was and we believe that whether a mid-level manager in a fire department in the city of that size especially was engaged in that kind of conduct as alleged with a subordinates wise was clearly a matter of great public concern in consternation and that just all the focus on in the fire department excuse me why isn't that just nothing more than you know what's going on in the fire department when when when a mid-level manager is not a public concern in in public life in this day and age in public employment for mid-manager to be charged with demanding naked photos crotch shots of his subordinates wise I would think that the community would have some concerns about that you had one other clinic that I was curious about now you had an equal protection claim yes I just want to know what's your theory on that equal protection claim is it is it a straight equal protection a single you know one person claim or is it a selective prosecution claim no it is it is not a class of one claim so what kind what kind of claim what is it a selective prosecution claim essentially essentially but essentially not really excuse me just we had two different groups of employees in this workplace those that were accusing RIBER of very serious misconduct and we had a group of employees who were defending RIBER saying that those were inflammatory charges were false and they were assigned a corrupt investigation in every at every turn of events in this case the city of Pullman gave deference to the the group of employees who came in to go against RIBER because it pleased them to do that that's what they were about in going after RIBER and knocking him back and what kind of what kind of equal protection claim is that there is we have cited in our brief the fact that it seems like something that the city would have to do it have to investigate and somebody's going to somebody's going to win and somebody's going to lose it doesn't make a discrimination I think that we believe the record reflects that virtually everything that RIBER's accusers said against him were taking at face value without any meaningful investigation there was no interview of any women there were no specifics about what he said or did I saw this in any way protection claim you're going to try and get it on the basis of you know race religion gender what's the basis here that they had spoken out that they that sounds like now that sounds like a selective prosecution claim that you yes or retaliation claim it doesn't look like an equal protection claim they were all treated less favorably than all of RIBER's accusers they were they were run through the ringer of this canar investigation for a full six eight-month period and that was held over their head for a long period of time they were all branded with that wolf pack allegation and that can give me I've given you some extra time but I've got to move on to the other side okay thank you very much thank you very much morning your honors my name is Mike Bolassina and I'm here on behalf of the appellate the city opulment I think the overarching issue the phrase that people have been using is basically what what constitutes protected activity under title seven and the Washington law against discrimination well and I've got real concern about setting aside this jury verdict I'm just going to tell you that right out and that and and I'm not sure I don't really care so much what the parties argued I care what the jurors could have is there any could the jurors have found with the evidence who was presented any legitimate support for the verdicts and actually judge rice found and we strongly support the answer is no obviously well he thought it should go to a jury and then he kind of went back and said oh shouldn't have but there's a lot of smoke here and there's a lot of things that the jury could have concluded that not necessarily either of you argued and that really concerns me here after and when you set aside a jury verdict if there's any way that it can be you can pull together a theory that could be supported it doesn't have to be the one you argued doesn't have to be the one they argued I agree this and the jury was free to believe or disbelieve things you argue them different ways the jury was you know free to completely believe that the chief was motivated and orchestrated that whole thing and I don't know there was discussions about causation but in employment cases you can there's a there's some bad temporal evidence for your position I actually I disagree with that your honor I think that the judge rice actually looked at what was what was the testimony before before the court what the what the evidence was in the document if you had a court trial I would agree with you but when you have a jury trial and the jury doesn't look at it the same way that judge rice you know it seems to me that judge rice was not considering every inference that the jury could have taken from that I think he considered every reasonable inference from the evidence but he did not consider what he considered unreasonable so it's unreasonable to think that the the city had to investigate this even if the jury thought after hearing everything that it was basically trumped up that the chief knew they didn't have to that the chief had somehow you know this was a patent place here somehow that that the chief had somehow just run the investigation in a certain way to make it look like he was doing something legitimately and dragging everyone in actually the thing is that that judge rice did not find as part of his order nor nor did we argue that that the chief Wilkins' motives were pristine but the key for these causes of actions is not did the chief the chief knew that they weren't that he knew he was he was doing the investigation for the only reason that these people spoke out and he knew that the things he was investigating were not true is that a legitimate exercise of the chiefs power actually I think that that question is irrelevant the question is was the chief initiating a disciplinary matter because of ribers protected activity that's the question that judge rice thought was answered no there is no evidence to support that that no reasonable jury could conclude that chief Wilkins' motivation for doing anything well let's talk about temporal did it did the investigation happen before cheap before riber and into made these wasn't happy about the affair what it had happened temporarily I mean I would agree if it had happened if the investigation of riber was before all of this that's a lot better for you but what what judge rice found was that that there was no there was insufficient evidence for reasonable jury to even conclude that riber engaged in oppositional activity with regard to this affair the evidence was that riber participated in a with other supervisors where where lieutenant Fisher said there is an appearance here of an affair and it makes us uncomfortable and we'd like to know how to handle it and chief Heston said that I will handle it and riber thought agreed that that was a good way to deal with the situation then when Chelsea Tatumma rotates on to Captain riber's shift he says both in his testimony and in the documentation that he didn't have an issue with Chelsea Tatumma and Andrew howl when they were on his shift and that he did counsel her about issues related to her probationary status but he did not actually ever raise the issue of an affair with Chelsea Tatumma that he was counseling her about other issues related to her doing chores and and going out to to get food for the rest of the and things like that but he never raised the issue of the affair and then when he submits his rubot it written rubot when he is being investigated for a hostile work environment he says that he did not credit the rumors about an affair because he did not believe that they were romantically involved so when and when you look when you look at this and what this is what judge rice concluded this does not constitute oppositional activity under either title seven or the Washington law against discrimination this is not forcefully you know opposing something that you think is unlawful under under either of these statutes so that's and that's that that I think is key is not was chief Wilkins and I think that that this is perhaps what confused the jury as well chief Wilkins the pristineness of his motives and doing this were not an issue for purpose of these two statutory causes of action that a reasonable jury had to conclude that chief Wilkins disciplined riber initiated this investigation because of riber's oppositional activity not because of any personal animus that he had against riber and there was evidence of that not any animus he had against riber in his role as a union president and there was evidence of that well it wasn't the union he had never been disciplined before there were all of those issues that were before the jury and what if the jury just thought that that's what the chief and and judge judge rice concluded in granting our motion that no reasonable jury based on the evidence before them except how people did I don't think they were 12 however many there were six six six six day yeah no no yeah but but the thing is is that if there was automatic deference to whatever a jury did there would be no federal rule of civil procedure 50 so what so where does the claim about from your perspective and I'm not quite sure I follow the plaintiff's argument where does the opposition come into play and what what forms the basis of the opposition claim from the plaintiff's perspective well those those three things captain riber's participation at this meeting in October of 2008 with chief heston captain of the of the affair no though actually though that meeting was about that that she is visiting the station on her day off and bringing him coffee and joining them for lunch and it makes people uncomfortable because there's these rumors that there may be an affair the second issue is is that captain riber when she rotated onto his shift counsel counsel her about performance and attitude issues and then third when captain riber was being investigated he submitted a written rubat all and all these are documents in the record where he says that there were rumors that they were having an affair he did not believe them but that's you know that either that there was this appearance of this this uncomfortable closeness between them and that's for for captain riber that is the protected at the alleged protected activity or the alleged oppositional activity and what judge price found was that that based on the testimony that was in that was introduced in trial and the and the documentation that came in as evidence that does not rise to the level of oppositional activity as protected under either statute and was kept in riber the only statute made a claim under was wall at title seven the issue a the issue for the other five plaintiffs is actually is actually quite different because what what judge rise found in his order was when they submitted the louder mill statements that that could qualify as protected activity but what judge rise found was is given the content of the the louder mill statements and the testimony and other evidence that came in on that issue no reasonable juror could conclude that what they did was protected under either title seven or or or the Washington Law against discrimination and that that with with with regard to that issue he first took a look at these louder mill statements and in his decision granting the renewed motion as a matter of judgment as a matter of law he quoted extensively from one of them where he said this goes well beyond what was should be considered protected activity and and is really sort of character assassination against only those people who who the plaintiffs knew had participated in the investigation against Captain Riber and had provided a secret information. But the district court seems to say that the defendants were legally required to investigate Turpin and House sexual harassment claims and that such that their legal requirement to do that precludes finding an unlawful retaliatory animus how can that be right if the chief knew they weren't true what why are you legally required to investigate things that you know are not true. Actually I you know I I don't agree that there is there is some statute that legally requires a party to initiate an internal investigation I think that that given but didn't the district report say that yes but it's it's it's it's prudent in the modern era that if a complaint is made alleging a violation of the discrimination retaliation or anti-harassment laws that the employer actually look into it because the risk of being held liable for the conduct goes way up if you actually it's okay that's how ignore the complaint you know if you do nothing if you if you if you disregard it and and so so the the fact that a formal complaint was served on the city alleging retaliation is what basically motivated the city to do it but it is it's inconceivable that the chief and others could have been involved in some way to get this thing is it conceivable that when you have a duty to investigate you could also do so in a way that would run a foul of title seven or I don't know how you said double well that well I'll add yes are you just saying because someone files a complaint you just have to do it I well if some if somebody files a complaint you you are going you're going to have to have a very you're going to have to be able to articulate a very good reason not to and could you do the investigation in a way that would run a foul of title seven or well add if like I think a balanced council was alleging that the chief knew in fact about the the new photo allegation that it wasn't true and still went ahead and asked all sorts of people what forward with that if he knew that was not true I don't you know I don't I don't believe that that would run a foul of either title seven or well add although there could be other causes of action that somebody could bring was there evidence before the jury that this individual the chief had spoken to this individual and that he denied that the chief had asked that that that Briber had asked him for photos Eric Eric Taylor and the person you're speaking right said said various things at at various times well I know but but and then jury's got to decide what they believe you know there's all sorts of things floating around here and the jury can pick what they believe and and the thing is is that yet there there was evidence that with respect to whether Eric Taylor was asked for photos there was evidence that went in every different direction so if the jury had to make a credibility determined nation they could have concluded any one of many things however that they did conclude that he told the chief that it had never happened if they concluded that was the truth could they would the chief have been appropriate and going ahead with that what actually the thing is is that that James Turpin also came forward and said that that captain river had asked for naked photos of his wife and and and that that test that testimony was credited but again it's it's you're you're you're pointing to I mean how do we know what the better we know what the jury did credit well we don't because that's what I'm saying better record so you have to look at it from the perspective of of based on the evidence that did come in you know what could a reasonable jury have concluded this and the way that judge dries dealt with that and I agree with it is saying that the naked photos was one aspect of several allegations against captain river there were allegations against captain river that when speaking to other other firefighters wise he asked them how are my children doing suggesting that that he was the father of their child or he would ask other firefighters can you leave the back door open for me I'm going to go in and and and it's service your wife tonight so so it wasn't it wasn't just the naked photo allegation that the city was looking into when it initially looked into the complaint against captain river there were many allegations that it looked into some of them were found not to have any merit others were and and the the the fact is is that that that Karen sires you know asked people if they've heard about allegations on all the issues that were raised and then and then when once she got you know a final answer she did she did her report coming to her own conclusions and she was actually found not liable by the jury for any kind of retaliation and the discipline of captain river was based on her investigation and her investigation report so I there's the the the cases the fact that they did not find her liable for what she did she somewhat removed from some of the other things is it possible they still could have found that other people did things wrong and gave her wrong information they well they could have found yeah they could have found that that that certain people gave Karen sires inaccurate information but again that that doesn't that doesn't you it's a big leap to go from there to actually holding the city liable for violations of either title seven or the Washington log against discrimination and and I think that you're pointing out the real challenge in this case is it is it's so factually complex with so many issues involved I think it was probably difficult for the jury to focus on just what is protected activity and whether there was any retaliation for engaging in it and and that's and that I think judge rice saw that that that for you to prevail there have there has to be no way the jury could have seen the evidence to come to that conclusion no way yeah a reasonable jury could not have found in the plaintiff's favor on these causes of action based on the evidence the evidence the testimony and how they resolve the credibility question there was no dispute here over the the jury instructions is that correct that's correct okay so did you did you want to respond to any of the issues that we discussed on the summary actually with respect to summary judgment I think on the on the first amendment claim that the law is not you know what is of interest to the community whether it's a matter of public concern or not because I represent cities and I know that anything that happens in municipal government becomes of interest to the public from everything from you know affairs that city employees are having all the way to things that do affect operational safety and and what the ninth circuit has that what they've interpreted is that that in order for something to be a matter of public concern it has to it has to to affect department safety or the efficient operation of of the fire department and allegations regarding an affair between two co-workers just does not rise to that level even though the public might what if what if disciplinary actions were handled in you know a malicious fashion not based you know if if if they were doing investigations to sort of further their own purposes or whatever could that be an issue of public concern I I don't believe it can because I don't think that that satisfies the test for for you know the operational of efficiency of government I think that that is if it is if it is personally if it's for investigating all of his or her personal enemies or people that oppose him you're not saying that the public couldn't be concerned about that I'm saying that the public could be concerned about that but I also don't think that that meets the test for a matter of public concern that that triggers first amendment protections I think that when you look at what is it issue here there are you know allegations and counter allegations regarding affairs and the like and and and and altogether it is not a matter of public concern as has been defined by the court what do you understand the the equal protection claim to be is it a selective process I believe it is a selective prosecution claim and I also believe that that that what's the basis for the selected prosecution in plaintiffs view yeah that that the people that accused captain riber were treated better than the people who who submitted statements and support of him and I don't I don't have something missing there there's no I agree with that that there's no there's no protected class status that's implicated in that and I think or conduct I mean I guess it has been like a fundamental right to the state court the Supreme Court I think also also said that these you know these classes of one or selective enforcement are not they're not a cause of action that can arise with respect to government employment I don't know about that but in any of it okay thank you thank you thank you wait let me just did you folks try to take advantage of our of our mediation service we we did the preliminarily we did yes but then when you got the verdict set aside you changed your mind no it was actually after after the verdict you said well after the verdict set aside are you tried to mediate after the verdict was set aside correct did you meet with the mediators no we had telephone conferences with the mediators but there was no no no actual meetings I mean this I mean this dispute has been going on for so long it has I mean it must be awfully costly for both sides uh financially and emotionally yes well and attorneys fees are at stake as well correct uh yes it is the the title seven and while out actually are both fee fee shifting statutes have you I mean I would just you know I'm I don't know my I don't can't speak for my colleagues but you know this case just prize out for some sort of mediated settlement really does okay if any interest in mediation let us know hey thank you you got one minute that's it no more if the court wants to know why extra time okay if the court wants to know why this case wasn't settled it was resolved in not two minutes ago in this courtroom when mr. Bolassina stood up here before this court and said that there was evidence on this record that riber had talked to his subordinates wives about or who is subordinates about leaving the back door open so we could come in and service them there is not a single entry on this record that suggests that that occurred and this is the kind of allegation that captain riber and those who supported him have been fighting since the beginning of this case and they persist to this date that is absolutely untrue mr. Bolassina also said here a moment ago that there is a risk to the public employer in not looking into matters in the workplace that may implicate title seven and lab he is absolutely correct and that's exactly why riber should have been protected when he was assigned to supervise tathema after the first of the year when she rotated onto his shift he'd already heard that there have been concerns about an inappropriate relationship between a young woman and a senior married firefighter he was assigned to look at her performance and to protect her to make sure that it was not going to impact her performance when it began to impact her performance because of her aloofness and her refusal to dine or to train or to socialize with her co-workers unless howell was present he was subjected to anger a manifestation both fisher and in riber were subjected to a manifestation of anger by howell howell approached both of them and said back off my relationship with this little honey in the workplace all right and you're over you're over at a time 41 41 seconds so you're already thank you very much we appreciate your arguments counsel we really do thank you matter submitte