event the that there were several days really disputed strongly disputed issues of fact that were sufficient to create a jury question  mr martin's locker when he was a white coworker whose locker was five feet away from mr rain august was called hit and told that dogs had alerted or hit on or stopped at his locker the terminology by different witnesses various witnesses was different and that's in the record at e r s seventy eight and it s e r forty five and his locker was record that's what mr martin selfserving lee testified to but coworkers testified that they heard that his locker had been alerted on or hit on why does that help your argument because his locker was not opened well i mean i think the testimony is the fact that dogs didn't alert his locker that we was told that in it and it turns out that wasn't true and so maybe there would be an inference if the dogs had alerted and that on the lock wasn't open  i think the testimonies uncontested that the the dogs did not alert on martin's locker is that right the management testified that the dogs did not alert on his locker but other spheres me for interrupting did anyone testif that the dogs did alert or just martin saying that he got a call that he was told there was a he did he may testify the dog alerted yes i can't remember his name there was a coworker and i believe it's either you are seventy eight or s t r forty five i don't have it right in front of me but one of those pages is a coworker talking about that and the management testified that they were advised to call police tell us with a coworker who said the page in the and i believe it's either at our seventy eight or s e r forty five furthermore i believe the jury would be entitled to an inference to have an inference that if three people are saying that mr martin was called and given a heads up that dogs had stopped at his locker or alerted or hit on that even if management now says that didn't happen that the dogs didn't stop the fact there was a phone call made to mr martin which is undisputed saying his dogs stopped at your locker the jury of the entitled to believe that the dogs did alert and that the the at his locker in the locker was not the pages they cited say that workers were told by other workers or by management that the dogs had alerted or hit on and then mr martin himself says stop the fact that mr martin who is white and his locker wasn't searched is now helping management by saying oh no they didn't say alerted but other people are saying they did alert certainly creates a jury question as to who is telling the truth what actually happened what the dogs did the police officers would testify because they were present during part of the search management testified that they were advised that if the dogs alerted at a specific spot they couldn't limit the search that didn't narrow down the area that was being indicated that they would have to look at two or three lockers in the vicinity mr martin's locker was five feet away from august locker and the other workers dogs alerted mr locke but thought the only alerting that management admits to is in front of mr raine august locker much at all and it did take place quite a while before the trial but to go back to the prior point with was that management admitted that they were told if there's an alert you're supposed to search the entire area this finity of two or three lockers and that they did not open mr brown on the locker and be nor mr martin's locker i would like to turn to the issue of the defendant's motion regarding the lock cutting and regarding the the dirty jobs that were given to plaintiff on the lock cutting this is a still not a standalone if the directed verdict is upheld we  acknowledge this is not a standalone claim for discrimination but it certainly goes to the pattern of hostile work environment as the supreme court addressed a national railroad passenger  morgan the jury instruction for hostile work environment which is a model number ten point seven would require the plaintiffs to demonstrate not only that he was subjected to a hostile work environment but that the management failed to take prompt effective remedial action that was reasonably calculated to end the harassment this so showing the jury these other events would help them understand the pattern of hostile work environment that was allowed to continue throughout mr a nugget his tenure at this company the pattern is relevant to that and that's also relevant to arias are sixty issue which was the exclusion of evidence racial statements racist statements that were not known to mr a naga because the jury would be required to find the plaintiff would be required to demonstrate to the jury that the management failed to address a hostile work environment the fact that there are other costs sorry racist statements and events going on even if mr ray not go with not aware of them is relevant to that  nd jury issue on hostile work environment and in the make mcginest case in c g i and e s d this court did not state that all statements have to be made in front of or known the plaintiffs to the country that this court explained that the plaintiff must demonstrate both objective and subjective hostile work environment so there's this huge burden on the plaintiffs these cases are very difficult  to get to trial much less when part of what the plaintiff must do is show a pervasive pattern it can't be just isolated events so to exclude that entire incident where only mr if a jury  on but they were there the evidence the jury would would be allowed to believe the evidence which said that none of the other lockers near his were even opened even though they were locked furthermore there is the cutting of the lock itself which you or i might think was as a minor event but these are their personal locks their very his had his name on it he took it as an affront that his son who was standing there who shared his locker was not allowed to get his key and unlocked the locker where other workers were allowed to go get their key it's it's it's a little thing it made me these days we'd call it a micro aggression but it adds to the the picture of a hostile work environment was there evidence to that last fact i thought that got wobbly about whether or not the son i forgive me i some of this there are things that are not in the record and there are things that have not been said in the briefs before that were just said for the st time and some of them just aren't true i'm going to try to response on the things that were just said one is the deposition transcripts that did not come into evidence at trial which are not part of this record and that those facts are not in the record and should be disregarded opposing counsel mentioned that that that management knew or had been instructed that that that the practice was open surrounding rock lockers is that in the record yes that was that's i don't know if that's in the trial record but that's a true statement that my recollection is that the procedure was if a dog alerted and there was a group of lockers there all the lockers in that group would be searched but there's no evidence record of that mystery in august was and it was in a group of lockers or that some of those weren't searches is not in there so you know  this stuff about whether there was an alert or there where there was a stop by force i should have written down the pages but i i went through the reply brief where is where this was st site and i went through each of them and i sort of categorize what i saw and what i saw was there were a few statements where witnesses referred to the word alerts that they were all referring to gossip or hearsay you were not that silas a single witness in the record who had personal knowledge of this is that he says i saw the dog workplace yes so that issue i'm trying to recall the testimony and i think the question was richard  have you seen brown or actually was generally of a recall it was have you seen employees with firearms in the workplace and so i have jackets of that because one of the themes throughout this trial from an evidence standpoint kept coming up was there was an effort to bring in evidence about some employee heard some random racist thing or saw some threatening action but there was there was in the connecting the dots there was no evidence to show this was communicated to effort right now  forgive me for interrupting but i think that's why the district court excluded this under for a one rule for one and thought it was irrelevant this was this was testimony it would have been testimony from the diff plaintiffs son yes right that he saw  the way the question where the question was heading what i can't tell is what your response is on this on relevance is it really your test by the hostile work environment requires that the plaintiffs have personally experienced all of the i anyway the but the district court was reeling on a different objection and it was richard on the stand and you just told me that you've agreed that the hostile work environment could be established without a friend necessarily seeing that directly so if it's not a for a one problem what was the problem with the i think it's a relevance issue i mean that particular question had to deal with whether his son knew brown ah packing a firearm but there's no connection to that for  relevant so you are relying on for a while and it sounds like you are taking the position that he the plaintiff has to have personally experienced these things in order for this to establish a hawk a hostile work environment or are missing a distinction you're making it depends what you mean by personal experience i mean this guy communicated to him while he was employed there ok but even still isn't even allowed to say that he had seen it i maybe didn't even get that far right in this testimony right was there any attempt by the plaintiff's counsel to make an offer of proof regarding th testimony richard you know there was an offer proof of the entire st trial and i can't recall right now if he testified in the st trial if he has a lot of testifies i think he was by this a little bit speculation so so when i was i guess i'll get back to the lockers locker issue because that's i think with the standard we're dealing with the most important for me and and what i saw in the descriptions of this alert testimony i think  said you know we had people it was it was all hearsay and so the other thing about the locker issue is to show discrimination here st of all there were some inaccurate statements about how no other locker was alerted on that's not true at all there was testimony by the main guy running the search mr mckay miss that there were numerous white employees lockers that were alerted on and they were search and to show discrimination here you have to show that a similarly situated employee was treated differently and that they had a difference of race at least the very outset that's the threshold and here there's not evidence of a single why employee you had a locker on a lock is where the dogs alerted on it and the lock was not removed and that's what they have to show that would be discrimination if you can show me one at least it would be disparate treatment whether it's the next level legal discrimination the argument is that hard human is a little different right it's that they knew that if there was an alert they needed to search the surrounding lockers and they didn't search them surrounding lockers they only searched fms that's that's not supported by the record all there is there is no evidence that there were surrounding lockers around his locker that were that were there were surrounding lockers that weren't searched it's not in the record all we know is the dogs alerted on his locker and that locker was searched and we also know that management was actually hasn't it to search his locker because of his he was a stellar employee and asked throughout the trial record they value the town and they didn't think it was possible he had dropped that locker and they but they they wanted to be uniform they wanted to make sure they treat every the same so they searched the locker so i just don't think there's evidence that he was treated differently than any white employees who are similarly situated i guess i'll get to some i'm happy to talk about  court precedent i've cited the perry case it talks about how there had been this longstanding practice and it's very it's very common for there to be a sequestration of a witness even over night to stop or because she didn't bring it up because unless you want to open up that issue i'm happy to pass on the issue i'm happy to do whatever the court would rather hear  about one of the reasons i'm hitting out some of these issues is is because the opening brief did not cite evidence in the record and the reply but if dad is so i'm kind of trying to address some things i didn't really have the opportunity to do in their response  so if the court does not reverse a directed verdict on the law cutting claim then that the court has as a matter of law already ruled and this court is upheld that that was not discrimination if that is not discrimination it is actually prejudicial to the defendant to let it in as some form of it some sort of evidence that bolsters her hostile work environment claim or her retaliation plan because it's not discrimination i was a helper clan as upper case as discrimination on the locker have said all you have to say about that yes i think that i think the only witnesses you'll see there i think the court clerks should look very carefully at everything outside it and read what said he didn't know whether whether he'd been told the dog stopped or alerted he couldn't recall the mayor he wasn't there he just had received a phone call the only percipient witnesses to testify all say that dog stops at the lo in the except to record and i don't know if the court would allow me to submit that as a one page supplemental but i could do that this afternoon if the court will allow me it is cited in the brief the page number in the transcript but not that it's not in the excerpt so i don't know if i can submit that today to complete the record thank you regarding these stopped versus  alerted i think a jury would question why would management call mr martin to tell him dog stop there and not call mr a naga and tell him dogs alerted at his locker that alone that that action by management that benefits mr martin arguably is suspect regarding the firearm issue i was not allowed to proceed with my questioning of mr richard did not your honor in the brief i in the reply i cited case law that i believe would indicate that there's not enough for a proof needed for that type of abuse you don't make an offer proof every time the court sustains  when he wasn't supposed to be working with them and they left and that helps explain to the jury why why they left thank you