the next case on our calendars norman l j ames vs and others vs paul j block and others officers employed at the ulster county jail in the holster county we appeal before you your honour's judge said to be of the northern districts granting of summary judgment in our claim for a hostile work environment based on race that is continuing to this day and has been going on for decades over at the ulster county jail in alister county i want to speak about and i believe that this was really extensively briefed to the facts were set out in detail and i am going to try to not repeat what's in the briefing and i just want to offer some highlights and some argument and i want to draw your attention to officer pam lancaster's experience she's one of the plaintiffs she joined the ulster county  corrections officer a group in the ulster county jail in two thousand and seven within a year she was granted the nickname buckwheat now by the way she's one of the our plaintiffs other than one other person there the only black officers at the jail she was nicknamed buckwheat in two thousand and eighteen she was subject to nazi salutes routinely while she worked there in two thousand and fourteen she was told a joke by one of her colleagues about what what it means when a black man is jogging it means that they stole something well when it's a white person it means that they're just going for a jog she was called shoe there was a reference to a man dingo hunter which is a blatantly racist term this is all over a series of years and in two thousand and fifteen she was told to go retrieve her gat or an inmate was referred to as that colored girl now the person who called the inmate that colored girl to officer it was i would i would dare say your honor that it was more than not a handicap it actually excel or indeed his promotion within the department now officer lancaster also in the record and i'm only doing this by example because all of the plaintiffs have the same stories to tell but officer lancaster was routinely assigned to the polyps which is the worst disarm and that's working within the cell facility she was never assigned to intake even though she kept requesting it white officers address the statue of limitations issue you need to prove a continuing resolution is a right yes or no and to do that there has to be a continuous policy or practice which i think what you're getting to his is something like that but i'd like you to articulate for us if you could what policy your practice that you're getting at is i understand that you you know described a bunch of unsavory conduct but what is the policy or the policy is the subordination of black officers through routine practice of calling them names of keeping them out of rich assignments of keeping them from the opportunities to themselves express promotional  efforts to move on but if i may respectfully i think the standards a little bit different are continuing violation and showing a practice or policy the standard is do we have on of the and that is a component of the hostile work environment that occurred within the statute of limitations period and under john the judge justice thomas decision i don't remember the case but it was a long time ago it was the it was the leading case that said it so long as you have one of those events in the time period you can look and we have way more than we need within the statute of limitations period to get that h thirteen and look at the st thirty four pages of our reply brief we list them there are ten things that happened in the timeframe i want before i run out of time i'm sorry church or is that sufficient i'm just trying to understand  to connect those incidents through the continuing violation there has to be some common thread to them and still trying to understand if you can articulate for me what that a common thread is that management at the jail promoted and condoned a race based hostile work environment they allowed some of these incidents that you referred to i believe there were reprimands noted there were specific believe he got written up or something but then he was promoted to sergeant so this is what to the extent there was any disciplinary action or any adverse action taken against the white officers as they rose to prominence within the jail it was  didn't inhibit their success at all and then and it subjugated the black officers all of whom with the single exception the only black officer is not a plaintiff in this case is the only black officer that was recently promoted after we brought the lawsuit thirty years ago or something but mr reading i'm sure will point that out but other than that nothing zero nada i want to point out before my time runs out the trial court did something i believe is remarkable and respectfully i take great issue with it on behalf of my clients at page forty two footnote forty of the trial court's decision he engages in explicit fact finding and what he does is he says the use of the word colored in the workplace is not racist it's not racism this is judge said to be saying this in the supreme court decision page forty two dollars not forty footnote forty says without more just because he said the word he identified african american inmate as that colored girl says without more that's not racist well st of all we have more we have thirty years of blatant racism within the facility and nd of all what does he cite for this proposition he cites his own case he decided a couple years earlier when he said the use of the word woman of color is not racist so i take great issue with that ok so let me tell about norman james if i may just to round this out in my last minute before mr redding goes the judge said to be also engages in fact finding regarding officer james officer james is a very esteemed accomplished member of the of the or correction officers group over there and norman change was in it's in a deputy role on the circuit on a prestigious team but he was routinely excluded from meetings from knowing what was going on if there were drugs sweeps they would tell him they footnote seven determines well i don't think that that's a fact dispute because mr bakker said to norman chambers you can come up to my office and see me if you ever want to find out what's going on and but the fact of the matter is he never found out was going on because there were these secret meetings that he wasn't invited to and only the white officers were invited so i take issue with that will say one more thing before and i'll save the rest for rebuttal the judge sort of gets the standard  view wrong at page forty four dollars of the decision and i do believe this is very very material judge sort of the sites the standard few for a hostile work environment as requiring severe and pervasive that's not the standard  court is well aware the standard is severe or pervasive so the judge got it wrong and other than his belief that calling somebody that colored girl is not racism this may very well be the reason why judge sort of be came to the wrong decision here determining hostile work environment but he also said severe and from other places did he not he did say at the bottom of page your honor we do but if you look through the decision the decision is clear that  we have here and what you heard is a lot of facts by the plaintiffs trying to tie in this all overall theme which i'll get to your honor's continuing violation question in  a nd is what is the high end here throughout and the judge had to go through the statement of material facts that were submitted by us as the movements and then the what was responded to just as you here there are a lot of facts that the judge seen in the decision or in the brief by the plaintiffs is clearly not within the record there are things that are not within the time allowed which would what if they're in the brief they're in the record so plaintiff makes a claim as he does here today and that a statement was made to officer lang castor was made after well the statement wasn't made at her if you look at the record of what she says in terms of the colored girl with the blonde hair or the so arjan placa comes in to where she that was it so how do we know that we know about it through officer lang castors owned up position that's why i say that if you look through what it's part of the record right that is part of the record your honor corrected why did you say it's now part of the record although i just i didn't say i didn't think i saw it said that your honor if i did i apologize it is part of the record what i'm saying is that what counsel has said here today he's misquoting parts of the record to try and get at a  material fact to get to trial that's what he's trying to do and what i and imploring upon you is that john sutton be got to correct he had to go through what plaintiff was saying in the brief that's not supported by the record that's not politically correct it does not appear without more to be evidence of racial animus he's not making a findings of fact he's making a determination based upon the law of fact to me he says it's not have to look at some of your pervasive you have to look at also you know was it something and the record is clear that mr lang pastor at the time that it was made she didn't think it was  something that there rose to a level that she needed to report until the next day and which she didn't even reported somebody else reported it when she told them another of african american many offensive are racist comments does it take to become permanent record doesn't have a bright line as to what you have to look at the totality of the circumstances you have to look at the whole work environment and here if we look at the work environments of those claims which fall within the statute of limitations we're looking at only a handful of claims by this lancastrian those claims being the claim but you do have to look at the whole environment here and whether or not it rises to his words it is what this case is about what was it like to be a black officer in the aisles to county jail that's correct and where you also have to look at when you're looking at this case is did it alter her terms and conditions and absolutely not there is no evidence whatsoever that any of these statements altered officer lancaster's terms and conditions of asked if you look at the record though she asked not to be there before any of the well after the book when statement but before any of these other statements that fall within the statute of limitations she asked to be there she was placed there and after two days as you look through the record you can see it says that she she had it wasn't something that was for her and after that time she never asked if you look at the record she after that time that she was there she opposing counsel on the snatch limitations issue i asked your friend if the continuing violation doctrine and whether there was a continuing what the continuing the alleged continuing policy practice was could you speak to that and whether plaintiffs are satisfied that here yes your honor i don't believe that he's satisfied that if you look none of the named defendants were decision makers at the time that any of these alleged acts the defendants that are that are that are the name defendants not are not the sheriff vamp larkham he was not the sheriff at the time nor what are the promotion are different sheriff and it was not if he got if you take that were the pot what the county did one ever heard heard that he had said that word and went to discipline him it went to a full blown hearing after that hearing he was found not guilty as a result of that and once they had once arisen the finding made that his statement in the presence of of officer lancaster of the colored girl with the blonde hair he was correct reaction for that statement as well  if you use through the record you can obviously see that it was investigated i know that the plaintiffs a question with the st investigation and it was investigated also by personnel person personnel hired a lawyer to investigate that matter there is no customs here in which the policy of the jail is to discriminate against the black officers i will also point out that they've  abandoned if you look at this they have abandoned that portion where only looking at the hostile work environment claims they would like to bootstrap these claims in which they were under reachable under civil service it would be great if it could be if officers could be reachable the the officer that mr czerny referenced he was reachable scored ninety five and was promoted he had previously been who's actually or use a corporal  previously been a corporal he last fall and terribly was demoted based upon a misconduct and then when he became reachable again after a period of time this sheriff that's the defendant  standard is whether the context that these black officers the plaintiffs were living under in their employment altered the conditions of employment for the worse that's the standard it seems evident that that certainly is sufficient there is sufficient evidence for a jury to conclude that and you look at the totality of the circumstances which is what we're doing in this discussion but i take great issue with mr repartee mr reading's representation to the court that that the black officers the plaintiffs did not challenge or complain about the colored girl comment that's totally not true they went to the personnel director sherry cross st pam lance lancaster goes to her her ranking officer and she complains then she goes to sherry krause who's the h r director the personnel director and she complained and you gotta read this part this it's unbelievable what sherri cross does she forces pam black pastor to sit in a room with  why the use of the word colored girl is not racist and i'm not a racist and by the way a year after we filed this lawsuit sergeant polanco posted a blog lately racist post facebook that's in the record where he starts talking about black people like being like dogs on welfare it's just remarkable but anyway this sherry cross investigation that resulted whose pam last trip compl concludes that there was no racism everything's fine nothing to see here move on we've been filed a lawsuit in the county does presumably what they understand they had to do they hired an independent attorney this is mary roach mary roach investigating mary roach refuses to investigate thirty years of racism in the jail she won't do it probably because the client didn't want her to she just limits our investigation to the colored girl comment and she concludes this is their independent investigator attorney concludes we are again traditionally close to a race based hostile work environment especially given the context in this jail that's their own private investigator that they hire concludes we are dangerously close to a hostile work environment in this jail so it was complained about he was investigated by sherry cross in the most absurd way which in an up itself is more hostile work environment activity and then the neutral comes in and concludes were dangerously close i want to try the court's attention if i meant to a recent case in april coming out of this court which is right on point it's david's st is garrett i apologize i don't have the outfitters and and the counties on the hook because under well established law in this circuit when you find a pattern of misconduct when you come to know of it which they did when sherry crossed by the way shirley cross knew about the  comment she knew about all the use of the n word she knew about the buckwheat comment she knew about the black man jogging she knew about the unfair assignments she knew about the disparity discipline we have fifteen pages in our brief of proof that white officers can shoot somebody on th avenue and get away with it while the black officers get removed from the search if they're if they do the tiniest little thing the disparate discipline she knew about the colored girl comment and shelley cross not only did nothing she issued a decision that said nothing to see here there is no racism in our department and it's only mary roach who comes in and says we are dangerously close this deserves to go to a fact finder respectfully judge saw to be got it wrong he's denied my clients two of whom are in the room with us today he did not write them the opportunity to have a fact finder decide these questions of thank you very much thank you thank you another interesting