who was injured while working at the time of evansville he took medical leave to recover from his injury and when he returned from work he was harassed and retaliated against by his supervisor dale brown just a few background facts mr messed this is a probationary employee for the town of evansville they had an employee handbook with a general grievance policy that was not available to probationary employees he slipped on the ice at work injured his back informed his supervisor supervisor knew he was injured he filed their workers compensation report of injury he went to the doctor immediately and gave the town of evansville a note from dr that he was unable to work until further notice under discords cases that noted in his discussion with his employer about  accommodating his injury which it did by putting him on unpaid medical leave for approximately six weeks he was as a probationary employee he was not eligible for leave under allowed him that leaves and held his job open for him so that when he came back to work in january in mid january he resumed his duties he was able to perform his job duties  without any further accommodation but and that point of returning to work after his leave he was immediately confronted by his supervisor and threatened with losing his job if was well i think it was if you look at the employee manual i think it's it's the the supervisor it was discretionary with the supervisor whether that probationary period  discrimination but she was i think the supervisor told the coco employee wrong amun that he's going to make my client's life so miserable that he's just going to quit he isolated him from other employees he made him do jobs for other employees alone where typically the employees would work together he says ninety's work more harshly than other employees so it was kind of a steady three months if you will of harassing hostile conduct and you laid that out nicely in the briefest far as what the co employees and that he had been a number of that they thought of mr brown treated him worse after him back from his injury but here's my question the recorder this is the secretly back or whatever the injury but the way i read that it's not you took days off and i'm mad about that or you fell down on the ice you slipped on the ice and i'm mad about that instead  concerning what is anger stems from is that mr masters had not come in and done some things around the shop that he could have done because he was fit enough to be seen at the mall and be out he wasn't bedridden that's not based on national origin that's based on a supervisor's view that someone should be doing everything they can even if they've fallen and injured themselves if that is a correct reading if that's the way that you i'm sorry i'm not sure because it was legitimate for the supervisor to question why he didn't come back into line that it wasn't based on national origin mr brown in other words what the transcript what i would expect you to do with the short transcript that says i can't stand people who have mexican heritage or something like that or that's the last time that i ever hire someone with mexican heritage all all these awful reasons but that's not what this transcript shows that shows that he's concerned not about national origin but that this employee should have been doing everything he could he wasn't the reason why that transcript was important for this court went because it was mr mathis's attempt to complain about the hostile work about the retaliation that he felt he was being subjected to by his supervisor so that i believe that that conversation that he recorded documented in his effort documented his engaging in protected activity which is complaining about retaliation after he has been that you never complain in the most in the summary judgment pleadings are very clear that the only protected activity your cla is based on was his taking the lead so right but also yes but all those other all those other all that other information is there in the record all that reall that i'm sorry you're not using that to show another later case of protected activity it's got to be to show that he was retaliated for protected activity to retaliate because you didn't try to put in some work when you were on your leave on your medical leave is that very thing contrary to the if what brown the supervisor was doing was retaliating against vestas because maestas didn't even try to work during his medical leave would that be no i don't believe in february when he said i think you should have come in it's not my job to motivate you but i think that mr mathis understood because he was receiving temporary total disability benefits under workers comp his medical benefits were being paid under workers comp he had been told and the town had been informed by his doctor no you cannot work until further notice so he let's just assume he went into work he went into the town hall and did something and lean over and pick something up and or injured his back so he could be precluded from any future medical benefits under work and i it wouldn't be the first time in my life that i do think it is i do think it is retaliation for someone who's on protected need who hasn't given a specific time that you know they have outlined a definite time when they cannot work so he said from the end of november to mid january was they yanked us of the specific time when he would be back to work and he was i think for his supervisor to chastise him for not coming in when he has indicated this is that this is the time that my doctor has certified that i have to be off work i do think it's retaliatory i do think that it would deter somebody from trying to engage in protected activity particularly when they're on medical leave and receiving treatment for that injury so yes i i i i do think it is it is a form of retaliation for taking protected act hit for for taking medical leave to recover from an injury and then being chastised that while you're on that medical leave and your doctor has certified that you should not return to  work to chastise the employee for not returning to work when his own physician told him don't return to work but i haven't had an mr maestas volunteered to work at the town hall as opposed in public works that sounds that was that contrary to the doctor's advice i don't know i don't think the record is clear on the sequence of exactly when he had that conversation  and it isn't in the record but i believe what happened is he went to a doctor he turned in the form a town hall came to talk to the supervisor he offered to do something at the town hall that was light duty and was told by his supervisor you don't work for the town hall so i don't think the record is clear on the precise sequence if it if he offered that day or if but i do think he offered after he knew that he he couldn't return to work in job as a garbage truck driver i'll just briefly touch on my title seven claim i don't have much time for rebuttal on the title seven hostile work environment claim i agree judge phillips that the recorded conversation doesn't document racial hostility but your cases have said over and over again that the pervasiveness inquiry is not we're not here counting the times but you do count the times this court over and over again counts the number of times and the number of times that someone has been subjected to racially charged jokes insults you know herrera was four to five times in four years others it was twelve times in fourteen months that the point is here it was a mixture of very hostile harsh treatment him being targeted after taking protectively and a mixture of joe infrequently reste referring to subordinates as stupid being or xho or to my own client beaner and those are very harsh racial epithets that are insulting and demeaning and actionable under title seven located outside of casper wyoming and the appellant's amended complaint in this matter second or it three causes of action the first cause of action was discrimination based on national origin hostile work environment based on disability in violation of the eighty a which does not appear to be challenged or before the court in regards to the district court's order granting summary judgment on that claim and retaliation in employment for taking protective protected medical leave for disability the appellant has changed their argument in regards to the a claim from one which was based upon a record of disability which relates to mr mast as taking off time as a result of his injury to one now and which mr mast as argues to the court that he had a reasonable good faith belie that in fact he was disabled the facts in this case are significant for this court to hear mest as was employed with evansville on september twelfth two thousand twelve and he was employed as a sanitation truck driver although he had other responsibilities in his capacity as an employee he injured his back on set or excuse me november twenty sixth two thousand and twelve and he filed a work comp claim in which he was found to have a work related injury he was off of work until january fourteenth two thousand and thirteen when he was actually returned to where his doctor dockery agle who indicated that he could return without any restrictions or limitations whatsoever in fact the no that is part of the record in this case from dr gago indicates that his prognosis was rated is excellent at the time that he returned to work on january fourteenth when he came back to work he came back without any restrictions or limitations whatsoever he had no adverse employment action taken against them when he returned to work where you're headed it's  belief that he was disabled and that is contrary to what the evidence is in this case that's for retaliation claim he could be totally illegal so i don't see if the claim is that after he got his lead that he was retaliation again and if he's fully recover and not disable they retaliate against him for protected activity he has that claim whether he's disabled or not palin asserts your honor that that medical leave that was taken from november until i believe that it has been raised on appeal first of all we've argued that there has been forfeiture in regards to that specific portion of the eighty eight point because that was never brought before the district court when the summary judgment argued our summary judgment motion was opposed by the appellant the are you talking about a reasonable belief that disability when you  honor the young you move through summary judgment correct was one of the arguments that he had not engaged in in protected activity because he was not disabled at the time couple of different arguments but one of them was that he was when mr mast as made his claim for so security disability that in there were questions from the district court judge in regards to whether or not that leave was protected protected activity in the argument was it was not because there was no engagement from the from the palin with the town of evansville in regards to i'm taking this leave pursuant to the eighty a because i have this disability post come in and say eighty am reasonable accommodation and all of that there isn't at all implied i slipped on some heard account where if a doctor says that i need some time off when you please allow this yes according to the cleveland case it is honor that conversation and notification to the employer has to happen furthermore mr master does did not at least by one account and perform the essential functions of his job and so depending on whether or not you take the argument from the appellant that he had a reasonable good faith belief that he was disabled or that the filings that he made in this case that or the facts which would suggest that he could perform these functions of this job and the other important part of the facts in this case mr mashed as when he returned to w in january of two thousand and thirteen he never brought back any other doctor's note or medical records or anything which would inform the employer that he was having problems with his back i'm really confused this point because whether he was able or not when he returned to work in january is totally irrelevant to the retaliation  as far as i can see you don't have to be a disabled person to bring retaliation but you still have to have a reasonable good faith belief in what at what time it is any time your honor from the time t returned to work no no he does that with the recent good faith belief relates to whether it was protected activity and if you make a complaint of discrimination  against you because of your disability and that complaint has to be a reasonable reasonable good faith belief for you to be able to then complain that you retaliated against for making that complaint but here is his abilities at the time of the retaliation are irrelevant to that claim your honor and in retaliation state actually said nothing about having to be a qualified individual anybody can bring retaliation your honor my understanding is that when the plaintiffs originally  brought the complaint in this case and what was argued at the district court there were two different arguments made under the eighty eight one was discrimination which is not being argued on appeal here and the second requires showing your disabled person correct your honor and the second was in regards to retaliation and part of the requirements under review the retaliation is that mr ma to january was in fact the protected activity that they're using as they are showing that best fits a retaliation plan and i'm arguing to the court that that was not a protected activity but i think i get that i thought that's what you were saying here but i didn't see that being argued in the green light i believe it was on or i believe that there was possibly be protected activity under the a b a when there was certainly no discussion with the employer whatsoever in regards to the employee's intent to i understood or dancer differently too but the second time she said if this were protected activity and he returned certainly he is treated poorly by mr brown and if the district court found that and there's all kinds of testimony about how if the mistreatment are different treatment was based on his having not come into work in other words his having fully used time off that he was given after the doctor report all of that why isn't that good enough for him to prevail because your honor to be part of that retaliation claim that the plaintiff as the for not showing and demonstrating to the court the causation requirement which is the third element of that claim well she she gave this transcript and it and in that transcript mr brown was saying i'm still frustrated you could have come in here you were seen at the mall and that's what leads me to think that's what was motivating him and so it's directly tied to the time that he was gone on there i say a disability and a district court found that there was no evidence which would support that call the connection between is protected activity if in fact  e would concede to that point that that levy was protected activity in the actual germination of employment and april and so plaintiff is required to prove each and every element of that retaliation claim and there was simply no evidence in the case which would suggest that that was the reason for terminating this since really the point that i'm time make is really direct which is he hot he's high or he does suitably well he's injured he comes back he's treated poorly there's certainly plenty of evidence of that and the reason is they did right out of mr brown mouth on the recording because you didn't come in here you coulda come in here they're not at all and so why what's the missing link you say no causation he just said why well i don't i don't believe that the employer that statement alone by mr brown during this secretive reporting rises to the level of an actionable claim under the e t a and i further believe that the evidence in this case is very clear  that there was no showing that the back injury that he sustained in which he was released for and returned to work without any limitations or restriction was the cause for his  seven clain we have a number of different documents in this case very quickly the c filing that mr mast as file under oath with his charge of discrimination indicating that on two different occasions after he had returned to work that mr brown used derogatory comments about him concerning him being a hispanic we have the request for admissions also under oath subject to the penalty of perjury where mr massed as states that it happened on three different occasions the third incident occurring when he asked to go home to get a snow plow or snow blower for purposes of shoveling the the sidewalk a town hall and then in the in tori's we have mr mast as indicating that now it happened on six occasions and judge present all the district court judge considered not only those documents and those assertions by mr mas as she also considered the snippets from the different deposition testimonies concerning what mr brown said when he said it in front of different employees and given all of that previously given to create an issue a material fact which certainly seemed the direction that is case was moving based upon the progression of the sea filing the in iraq the tories and request missions but furthermore the the just noted just court judge noted that mr mast as never took any formal action never spoke to a supervisor mr brown's never went to town hall never filed a grievance never filed in formal complaint never took a missionary and police couldn't agree i don't believe there's anything in the employee manual which says they can't file a grievance your honor i think you give certain rights to non provisionary employees or procedures but certainly mr masters was free to go talk to whoever he wanted to and there was no prohibition in the in employee manual regarding hostile work environment is the environment mr masters has not changed his testimony he was deposed his entire deposition transcript as well as the entire deposition transcripts of cole employees who also heard offensive jokes who heard his supervisor refer to him as a stupid being or another cone ploy who was called a being or who was later apologized to i mean it is the environment and the environment was racially charged with both racially hostile racial epithets as well a think all of those employees were trying to get along with mr brown does it matter that there were racially charged comments about the french yes it absolutely matters it's a hostile work environment to anybody who is not you know your anglo american white employee so yes it it's it's an environment where racially charged comments are tolerated and encouraged and