morning your honor so first let me thank you for your time and i would like to request three minutes reservation for rebuttal and place pay attention to the clock thank you appellants lawsuit claim that he was subject to discrimination based on his ancestry by supervisors and that he was later subject to retaliation what makes this case procedurally unusual is the fact that the district court initially granted apple or initially denied abilene motion for summary judgment and then directed the government file a new motion for summary judgment close to three years later during which time expended significant resources in terms of time and expense in preparation for trial when the st motion for summary judgment was denied the court specifically stated was the supervisor although that fact is also in dispute made numerous disparaging remarks regarding asians around the same time that she was removing plaintiff appellant from his job duties three years elapsed after the court made that ruling and the parties spent significant time and resources on discovery and trial preparation until the court on its own initiative directed the government to file a nd summary judgment as to whether harassment and discrimination claims were time barred and whether there was sufficient evidence to prove the retaliation cause of action critically for this panel there are several points at ar the question is when did mr fair and when did the appellant st learn that he was removed from the hawaii is silent that fact is in dispute mr stated repeatedly that he was told on january st two thousand and eleven by webb one of his other supervisors at the direction of hable that he was being replaced with the reason being explained by webb that the decision was made this was the barking sands inspection mr ferrand's appellant also submitted a memorandum on that issue i would also invite the court's attention to the record on appeal claimed that the decision was made earlier and that mr farron was also informed earlier however in addition to the question of whether or not or pardoning that time at which appellate st learned of this decision we have also raised the issue of waiver this is a point that is in dispute what has happened in this case was appellant raised the issue of his removal from the barking sands assignment as part of his administrative complaint further after that the agency conducted a accept of the complaint conducted an investigation and then issued a final agency decision on that matter council doesn't the void case squarely  suggest that you don't have a waiver claim here i would disagree your honor respectfully with respect to the boyd case the circumstances are different in that in this matter in that in this manner the agency specifically released a final agency decision find did not result in finding a discrimination it did not result in a finding of discrimination however your honor there it's did not address the issue of timeliness and the complaint was accepted if we end up disagreeing with you on the statute of limitations issue one of the points your opponent makes in response is that the hawaii reassignment wasn't enough adverse action by itself to  amount of going away from you there's a certain amount of proceeds associated with this ok given the fact that this was the culmination of other assignments and other actions that had been systematically stripped of mr fer this ultimately led him to at that point resign and we would argue that it was further although the court did not address this this was the culminating event that led to his constructive terminations that led him to believe that he had no other option your three minutes do you want to reserve your time yes your honor i would reserve three minutes for rebuttal all right thank you morning your honors may it please the court assistant united states attorney jessica cherry on behalf of the secretary of defense the granted summary judgment in this case should be affirmed for three primary reasons first the vast majority of mr ferentz disparate treatment claims are in fact time barred there was one claim to address the arguments made by counsel that the district court deemed timely and that being the reassignment of the two hawaii inspections but even assuming the existence of a prime   is it is it the law that the adverse conduct has to be racially i guess in this case ethnically tinge itself to give eyes i really have it your honor in the case that i'm so if you had a case for example i mean the pattern instructions and i know those don't have the force a law the th circuit pattern instructions don't say that just says for for racial or ethnic or gender reasons so if you had a case for example supervisor you know puts the puts the desk in the hall puts the guy's desk in the hallway doesn't let him talk at staff meetings you know has somebody follow him around writes him up for everything none of which would by itself give rise to a disparate treatment claim and was just comes out and says i'm doing this to you because i hate asian americans that wouldn't be enough well we do take the position that this court at least has held that the conduct must be racially disparaging nature or whatever protected class is an issue so the only racially and the case that i would refer the court to is them in that case here the all of the racially directed comments allegedly made by we were able were in two thousand and ten even if we assume that the harassment extends to the one claim that the court deemed to be timely that being the reassignment in hawaii the conduct of the racially charged conduct was not sufficiently severe or pervasive to give rise to an abusive working environment to mr ferr he was neither the subject of those comments nor even present when those comments were made moreover there's no tether to the from the me there's no connection between the racially disparaging comments and actual action to the extent that those comments were made sixteen months prior to the reassignment being made or this record characterized as straight or mark spar they really stray remarks these warrant an off special ambiguous or maybe said in jest but we are not taking the position that those comments would be acceptable appropriate or at minimum their tactless and offensive however the question is whether or not they are sufficiently the jury even even assuming as mr sharon's contends that miss hable was the one who made that decision her comments were made six to eight months before that decision was made so i would take the position that at most it is weak circumstantial evidence of discriminatory animus but that's not what this one just a straight relevance issue i'm sorry i mean people use these for terms like street remarks isn't just a plain old relevance issue i gree that it could be and so if somebody if somebody says something a  year earlier two years earlier that indicates that they're basically bigoted against somebody in the in the person is the assumption that that goes away a year later i mean why would that be relevant i don't think well if it's relevant that's one thing but i don't think that we can pr every employment action that is taken substantive subsequent to those comments no matter how remote in time are because of discriminatory animists as opposed to direction or other things that were happening even if you can't state a claim that even though they might be time barred as the basis for a claim they're still evidence i tend to agree with judge conelly that that even though they can't you can't evidence that animosity that a decision maker had against mr ferrand's well my response to that is even if relevant the question is whether that circumstantial evidence is sufficiently specific and substantial to constitute that's a question on summary judgment though and i mean it is helping to drill strange that's not the question summary judgments the question is substantiality it's whether or not there's a genuine issue issue disputed fact well under the burden shifting your analysis your honor once the agency has per proffered a stated legitimate business reason for taking the actions that issue the burden shifts back to the plaintiff to provide specific and substantial evidence that the agency's reasons for i think that's a question bottom of proof but if they come up with disputed questions of fact that need to be resolved by a jury the jury decides whether that was evidence of legitimate employment decision making i would respectfully disagree your honor because i believe that the question of whether or not particular circumstantial evidence that is offered by the plaintive is specific and substantial is a question of law for the court and i would point the court to the miriam oks that just in terms of since your honor brought up the the retracking of the assignment one point of clarification i would inspections in his complaint that indicates that he was not able to complete track of two of the systems which was why mr hutton was ultimately brought in not to track his work but to complete the inspections that he was unable to do  and the last point i would just make is is with respect to mr cameron's retaliation claim which we obviously believe is foreclosed as a matter of law for the simple fact that with regard to his complaint and at that time mr parents had already left the agency so because this court has held that a in acting officials knowledge of the project activity is crucial to a finding of retaliation that claim fails as a matter of law and unless the court has any further questions for me we would submit that the grant summary judgment should be affirmed all right thank you  evidence this is one of the rare cases in this subject matter where we have direct evidence of discrimination we have hable specifically stating numerous times as the lower court stated as part of the drilling on the st m s j that he made numerous disparaging remarks against asians around the same time this rises to the level of direct evidence while we do not have a direct statement from a table saying i don't like asians and therefore i am making these decisions to hold that that is a requirement for something to be considered direct evidence raises an almost insurmountable barrier simply put there is sufficient evidence before the court that the motion for summary judgment should not have been granted furthermore the are substantial factual issues in dispute we have whether the stated reasons were pretext or not with respect to that that fact is also critically in dispute there have been shifting reasons that were set forth by the government in response to mr ferrand's complaint as to the basis for it as to one of the critical justifications set forth was that there was a rotational policy however this fact is in dispute no written policy was put forth by the government as evidence furthermore mr founds specifically testified that he was not aware of any rotational policy that took place that was in place while he was at the office in los angeles nor was he ever trained during any of the trainings that he attended as part of his position on the existence of a rotational policy under these circumstances given the shifting reasons there is further sufficient factual dispute such this is matter should have proceeded to the jury furthermore as to the issue of the animists again not while there are matters that were time barred the court should have also considered the prior statements and prior actions as