mr sanders retaliation claim in order to establish a prima facia case of retaliation under the direct method an employee must show at summary judgment that he engaged in protected activity the defendant committed and adverse employment action against him and a causal nexus exists between the protected activity and the adverse employment action the relevant facts in this matter are march fourteenth two thousand and twelve officer robinson submitted a union grievance and complain to the u s c office of access and equity regarding a supervisor's use of a racial slur toward him less than a week later on march twenty second lieutenant paralysis called  into his office and encouraged mr spangler to begin to engage in retaliatory actions toward officer rank of robinson including following him keeping an eye on him to get any information that he could and to use a heightened scrutiny toward officer robinson's actions when mr spangler refused to engage in retaliatory conduct toward officer robinson and  eventually a couple months later in july two thousand and twelve he was removed from the watch commander position in favor of sergeant todd edwards who was measurably less qualified and  at the summary judgment the district court did not consider testimony from mr spangler that lieutenant paralysing had informed him that he made the decision to demote him from the third watch commander position  this statement should have been considered by the district court the district court decided not to consider the statement because it considered it to be inadmissible hearsay however this statement constitutes an admission by a party opponent that is else not to my knowledge your honor i think that that was the placement in the brief that it was mentioned at summary judgment find that mr pearl is influenced commander capital his decision if it was in fact commander capital his decision i think that that's an issue for the jury to decide but if it was that he influenced commander capital d and that says a statement is not hearsay if it is offered against a party and is a statement by his agent or servant concerning a matter within the scope of his agency or employment in this case  prelates was acting within the scope of his employment because he was in a supervisory role and he told spangler that it was his decision to remove him from the third watch commander post so in this instance this is also an admission by a party opponent apparently the defendants have conceded this point because they did not mention it in their brief they did address the argument  supervisor engaged in retaliation the employer did what it could to alleviate the problem in good faith and should not be held separate lilly liable  supervisor conduct to request jury instructions regarding supervisor conduct yeah and poor liability for supervisor conduct i do not believe that we did request specific jury instructions on that issue  honor but at the same time the jury verdicts were inconsistent there were two claims that went to the jury there was the claim for retaliation against the board and there was the claim for retaliation against mr pearl is that went to the jury as you know the jury found for the board and against mr paralysis which is inconsistent because the elements for titles in retaliation claim question and you will agree that the judge should answer yes that they could split on those issues and the regional during the trial during jury deliberations or in the jury deliberations yes that's correct at the time we did say that that was about this issue and so they're finding was inconsistent because counsel let me ask you no matter why is this a reversible error when you all agreed to the instructions and to the response to the jury's question in deliberations the judge said yes why should we have a new trial i think that we should have a new trial because after the jury rendered their verdict it was clear that they were confused by this issue and core pointed out i recall that liability against the board would not change robertson's recovery because the jury did not believe that robinson suffered anything other than nominal to amaj do you want to respond to that point yes your honor it's our position that the special jury  verdict form was confusing to the jury and sick just of because of the language in the verdict form which said that if the jury found that there was no monetary damages that they awarded one dollar i think that language was suggestive and it allowed the jury who may have found calculating mr robinson's emotional distress and mental anguish damages to be a complex considering that there were no medical bills just testimony from his witnesses i believe that it gave them an easy alternative to working together to try and come up with an amount for emotional distress damages and mental anguish damages and the suggest of language allowed them to take the easier alternative and just awarded one dollar in this case you know when the court said it was going to use the defendant's verdict forms the court appears from the record  mediately asked anything further anyone anyone wants to put on the record why wasn't that an adequate opportunity for the plaintiffs to object to the verdict for i believe that the plaintiff thought that there would be an additional alternative to put their objections on the record and it wasn't clear that this was the opportunity to make that objection my god if that's not the opportunity there will never be won it was the jury instructed that it could award damages for emotional distress loss of enjoyment of life and the other things that the plaintiff lifted on his fur sure enough the verdict form the jury was instructed that they could award emotional distress damages as well as punit damages in the closing argument but the jury was not instructed to provide a specific amount they were told that that was not up to counsel that that was up to the jury to determine an appropriate amount for those  i think that at the time it wasn't clear that the jury instruction form would be confusing to the jury and counsel thought that there would be an opportunity to make an objection to the specials verdict form and that opportunity never rose why would you assume there would be another opportunity i think i don't have the record in front of me but i think at the time that the jury instructions were read there were other things going on in the courtroom and so counsel thought that there would be an opportunity to make objections before the jury was called world be clear or or if you were asked anything further regarding the jury and you said no that everything was fine i mean please don't argue this it harms your case chris if there are no further questions i would like to river to preserve the remainder of my time y case the district court twice misquoted the scandal for hostile environment claims saying that the conduct to be severe and hervey siv that it is not the standard it has to be only severe or or pervasive why shouldn't we send that claim back for the court to consider the evidence under the correct standard the court appears to have also failed to consider other evidence of harassment on the use of racial epithets i see big problems here judge ruled and let me address all three of those issues for you first with regard to the correctly notes is the standard to be applied when one looks at the lucky first as ameritech case that was quoted by the district court lookee does not apply a severe and pervasive standard it applies a severe or pervasive standard and all of the other cases thorny that was cited by the district court including ellis ciro us and smith all applying the correct standard additionally when we look at what the court actually did with regard to the analysis there was no indication that officer robinson was put to an undue bur suggesting that he had to produce evidence above and beyond that which would be required here it's also with regard to your second question very important to note what was argued in the plaintiff's summary judgment briefs as opposed to what they argue and there are public briefs in the summary judgment brief the only argument with respect to hostile work environment where the two comments that is the entirety of the argument on the summary judgment briefing with respect to what constituted a hostile work environment everything else that's been added in and now was not argued at summary judgment the other at following and so forth exactly those were all attributed to alleged retaliation your honor with regard to the hostile work environment claim that officer robinson asserted the entire argument was based on the two comments that were attributed to lieutenant paralysis moreover your honor when you look at the standard here it's important to note that there is an absolute admission by the plaintiffs that the underlying comments had absolutely no impact on his ability to do his job which was ultimately where the district court looked at in terms of granting the summary judgment here officer robinson had repeatedly indicated that he was the best officer in the department that his performance grew better each and every day his own brief indicates that he was an exceptional officer during this time period the  theory counsel seems to be that a strong victim doesn't have a claim no one has to put up with the violinist racial epithet in our culture that i would say not your honor what i would say is that where there is no impact on me individual's ability to do their job which has been resp repeated written by this court numerous times as the key indicator then you do not have a hostile work environment it is does additional stress from the fact that your commander uses this language at you count even if you're able to resist some of the damage that might be inflicted on a weaker plaintiff what you have here is a situation where the courts have indicated that mere stress in the workplace is not enough to satisfy the press in response to this language what happens here is we have individual who indicated in his grievance that he was taken aback by the conduct by the the staff and the university immediately took actions to protect him it removed lieutenant promise from his chain of command he testified that he had very little interaction with lieutenant paralysis to begin with because there are difference in rank lieutenant hersey was put in his stead he acknowledged that there were no issues or problems between the time that he reported the conduct in march of two thousand and twelve and till september of two thousand and twelve and then the issues were alleged retaliation there were no further comments that were made officer robinson testified that there were no other slurs that were ever made or heard or any actions that he attributed to his race and here we have yes  would be telling him that crazy story to begin with and the record does in fact explain that your honor what had happened was is that in january of two thousand and twelve officer robinson appeared at a roll call during never will call he was not shaven in accordance with grooming policies of the police department and senate grounds inquired about why he had not shaved officer robinson this story i'm talking about i'm  first story well that then was it your honor and let me get to that in response to the inquiry about the shaving lieutenant prelates had heard through the grapevine that officer robinson believed that the inquiry had been made because of his race and officer lieutenant prelates went to him to assure him that it wasn't an inquiry that was due to race indicated that he had faced racism his self as a hispanic officer and shared the story about racist officers who he had objected to albeit in an indelicate manner he was trying to ram why did he say about the shade thing whenever who knows when that's the end in new that was the comment that was alleged to have been made in march of two thousand and and that was an entirely different context lieutenant prowess it indicated that that statement was not made we assume that it was made for purposes of the summary judgment argument and here again we have a situation where the individual indicated that it had no impact on his ability to do his work and that is the standard we're just it's like i mean i could not agree with my  theory those people the strong people could could never hope to win a case well the suggestion here is that that is the standard that has been applied by our supreme court court and here the university took prompt remedial efforts in order to immediately take care of this issue with regard to the alleged racial harassment there was the comment and then they acted promptly and they issue of the of the yellers affirmative defense was raised in the summary judgment briefing it was your honor we had pointed all of these facts out to the court with respect to the actions that the university had promptly taken to circumstances what we have is an inappropriate comment that was dealt with immediately and promptly by the university and after that it would no indications at any point of any conduct or comments were statements that were racial in their nature i know one thing ill may think that paralysis was punished i myself think he was rewarded he was moved to another division the other division is internal affairs where pirelli said the chance to review complaints made against supervisors like himself who committed harassment so i don't know where  and even putting aside that issue i don't think that there's and material question of fact here that was an issue that the district court had found with regard to that particular statement the undisputed evidence on the selection here with regard to this matter is that commander kappa tele who was in charge of their field services division was the individual who selects people for that position well you say that undisputed but why isn't spangler's testimony about what paralysis toll them no evidence to dispute this let me let me explain it your honor if you if you look carefully at the statement of facts that was submitted under rule fifty six there are numerous places he is the person who makes these decisions he indicated the capital he made a decision in two thousand and eight he indicated the capital he made these decisions in two thousand and eleven he had made a race claim which he has since abandoned with regard to that same decision and in his additional statement of facts he said when capital we made this decision so he doesn't even believe that what had occurred is you're looking at the paramilitary organization in a police department it's got a command structure when somebody at the top makes a decision those below them are expected to follow that here what happened was that capitally made this decision for i was adopted his boss made the decision it became his decision to he didn't want to pass the buck on an unpopular decision to spangler and told him that it's his decision but i think that we need to go further than that that big sounds a lot like a jury are going to get a say on that i think i would say not your honor and here's why because there's a critical failure of proof that exists with regard to the remainder of sergeant spa 's retaliation claim if you got that all that you would have was that a decision was made and even if one were to assume that it was paralysis decision no evidence was offered at summary judgment to suggest that it was because of the prior protected conduct none whatsoever the undisputed evidence was that and september of december of two thousand and eleven some four months prior to any protected conduct that lieutenant perella said advocated to commander kappa tele removing sergeant spangler from this position because he didn't think that he was doing a particularly effective job as his officers were running amok he had made that recommendation capital he rejected it at that time because he he only had two other potential people he could put into that role and the people that he could put into that role were a brand new sergeant and somebody was going through a very difficult family divorce so he continued to use in bangalore in that position even though he wasn't enthused about doing so there was no evidence that was put forth that there were concerns about how  spangler was actually doing his job he had his officers congregating he had his officers missing court had his officers not in uniform and his officers not following policy and this was the reason why a very well credentialed sergeant edwards who had already been a watch commander on the second watch was selected in his stead that was undisputed surgeon spangler does not contest the credentials of sergeant edwards they both pointed up on the same watch as a result of the labor agreement shift picking responsibilities and you had two people who had been the watch commanders in a prior period and have to tell we thought that the at least nominal damages judgment against mr burrell as yes right in particular the jury would you agree was properly instructed on the standard to apply for materially adverse employment action for retaliation claim and would i would agree with that and the jury had the whole picture in front of it right and if i recall correctly judge wine and whatever in dealing with this question said look the evidence in response to your motion said look the evidence here shows that regardless of the particular methods the paralysis use there was evidence that his response to mr robinson's grievance and complaint was to try to end his career and that seems sufficiently severe to intimidate a reasonable and clearly what's on the reasonable about that analysis the part that's one reasonable bought that is that nothing happened to officer robinson the notion that he was trying to end his career is simply not corroborated by any evidence whatsoever what about  testimony was he was told to watch these individuals he also testified that he wasn't told to watch them or to write them up for something that they didn't do the evidence was that neither one of them ever got written up robinson never was written up for anything didn't suffer any discipline didn't have any just when at all he's still employed gainfully there today so that combined with the many protections that you have in a civil service position with the state of illinois made it very clear that there was nothing lieutenant for alice who had no disciplinary ability he couldn't just let anybody that he couldn't do anything to him you had was what spangler told to quote get some i don't want to use that word it's an s word oh on robinson and hall like and write them up and not to give robinson  impolitic anything they asked for such as time off for special assignment that was sergeant spangler's testimony both lieutenant paralysis and lieutenant who were present in the room say that that was not at all said what was being done at that point was to advise sergeant spangler about the fact that lieutenant paralysis was being taken out of the chain of command and that he needed to watch his people he needed to take care make sure that they were doing their job remember just the week before that and a whole group of officers were caught congregating in a restaurant instead of protecting campus officer robinson had missed two court calls and he's be premises out of the picture it's your job now to make sure that your officers are doing what they should i'm running short on time and there is one point that i wish to address the judge roving or i think this is a very important point the evidence was clear at trial that lieutenant parentless did not get put into internal affairs that's not at all that was the plaintiff's position there was no evidence to that whatsoever he was moved to the protective services division the protective services division does far more than deal with internal affairs and he did not do any internal affairs work he didn't supervise anybody he worked on training audits and policy audits the testimony from the chief of police was clear he did no internal affairs the testimony from the commander of of protective services was clear problems did no internal affairs nobody could point to any internal affairs work that he did and that's because he did not he was put on a desk job where he was auditing policies and training materials he was not going to affect are you saying that the br lie about that is that what you're saying i'm saying that there was no evidence presented at trial to suggest that lieutenant pros ever did any internal affairs i think it's through out through the trial testimony it's in chief richardson's trial testimony it's in commander peterson trial testimony tenet paralysis trial testimony the only witness that they offered was a police officer who had no direct knowledge who said that there was a memo indicating that he was being put in internal affairs they never presented it when we presented the e mail addressing the issue it showed that he was in protective services not internal affairs thank you and well thank you for that  in our brief we mentioned that he was as reassigned to internal affairs lieutenant in your i c's protective services division this was from lieutenant paralysis deposition and robinson's belief mr robinson continued to feel retaliated against by lieutenant burrell as but felt that further complaints would have been ineffective because lieutenant burrell is new r mistaken about his new role i'm not certain about that your honor the testimony is that he was placed in protective services and protective services covers internal affairs so it's possible that lieutenant perales would have in the summary judgment briefing we cited mr spangler's deposition testimony where he was asked a question you don't know how the selection was made he answered oh i do they said  were you there answer no so you don't know who actually made the decision he said lieutenant paralysing told me it was his decision no no no i don't understand that comes in but i thought that the argument that i thought i heard from the defense counsel was that even with that testimony you don't have a causation link between a retaliatory motive and any adverse action taken against spain your honor it's our fact demote him from his third watch commander position because he wasn't a supervisory role he did advise commander capitally so he had recently did believe that it's not a question of reasonable belief it's what a read reasonable jury pretty suspicious about the reasons for that what evidence would support a finding by a jury that the motive was in fact retelling atory the evidence that it was in fact retaliatory is that lieutenant paralysis spangler to go out and follow officer robinson and get information on him that they could use to punish officer robinson mr spengler refused and shortly after that this occurred in march of two thousand and twelve when he was asked to go and find information that they could use against officer robinson and lieutenant sorry mr spangler was removed from the third watch commander position in july of two thousand and twelve so a matter of a couple  months you're relying primarily on timing yes thank you your honor i believe my time is up if there are no further questions i respectfully request that this court reversed a lower court's