the plaintiffs from the perspective of a reasonable african american woman in the circumstances that plaintive donna rae onto out found herself as the record report she was the first african american female to be employed as a firefighter with the contra costa county fire protection district and from that time until the point at which she essentially filed the lawsuit she was the victim of a hostile work environment she she finally got the inspectors yesterday and i'm i could certainly be pleased to report to you that she's promoted as well i'm optimistic that she'll be the first female firefighter in contra costa county monthly basis that when she went to where there was this hostile environment and i think you have to show that it was sort of constant or at least semi constant not just that has to go well i'm not really asking about whether she was really two parts whether objectively there was this hostile work environment and number two whether she perceives the size of putting just the part that she perceived that i mean one one information that we do have that there was every port and it's i believe that in the evidence that the captain garcia reported to the supervisor that he thought that morton was constantly criticizing her and she criticizing her performance for i don't necessarily and it appeared to him that it could be perhaps because she was a female certainly it's if you look at them i think you have to look over the scope of the record here that caused them to think of a specific report where third parties there were there was evidence from other firefighters that they had heard and i'm thinking of captain gets and testimony where he said that he had heard people referring to her as a stupid b and that he had heard derogatory comments being made about her performance by other captains and that he found no difficulty he found no trouble with her performance so i think that i understand the court's can sorry but i think that overall the district court needed to look at the evidence and to draw the inference is from the evidence that was there in a manner that was favorable to the plaintiff and not to essentially spend forty five pages saying well this is not evidence  district court didn't address which i don't fault the district court for that because there's less evidence and so i don't think that it's incumbent on the court to like go through each thing but if i do it you know like there's a lot of stuff early but let's just take a period and i you know i maybe i've missed some too but let's assume there's just a series of things that happened in the early years like up to one thousand nine hundred two but then you go for two years and there's one or two things that happen and then the next three years there's three or four things that happened that what i'm having some trouble with this figuring out under the  how do we benchmark ongoing hostility in other words you have such a long period of time then with in different time periods there's sometimes more there's sometimes less but sometimes there's only a handful of things two or three things that happened over say two or three year period so what do we do with that as a legal matter well i'm not sure that that's the record but i understand i think what you have one of the pieces of evidence that the district court did not consider that we think is really critical is the declaration of el incursion and who is an expert who has studied women in firefighting professions and who brought  perspective to this and was able to to point out or attempted to point out and to demonstrate how these incidents while they may seem small or innocuous that they reflect a larger problem for plain rail she has to be able to function as a member of the team she has to be respected as much and as her fellow male firefighters and she has to be that environment where she knows she can rely upon them you know throughout this period of time she knows that they're calling her names behind her back or they're saying that she's not competent and she continues to be exposed to the same persons over and over i mean it's she worked with garcia price and morton from one thousand nine hundred to the one nine hundred ninety seven and you know things did not improve during that time price is the the atmosphere is so charged you know that that in a way that just the circumstances excuse her from trying to document each little thing you have and i'm thinking of the racial cases where the court talks about a racially laden environment essentially you had an environment for officer for captain to round that was both racially laden and sexually laden and there's no evidence that this environment ever changed it didn't change in fact when she was sixty worked with she complained about garcia and morton in one thousand nine hundred four you know was garcia was documented as having made this comment in september of ninety four she transferred but then she started to work with garcia and she still had to work with morton and she still had to work with pride in ninety six she complained about morton price and then she had another intern then i got with garcia in september of ninety six and then use them and she complained about morton and you know finally she leaves station seventy then and frank i mean there's just there's no i don't believe but i can back could i direct that's not in the record what is in the record is that she her understanding is that that was not appropriate for her to have to fight that fire by herself and you know we do not have that level of specificity in the were i guess what the court is looking for corroboration in the record but there's also not a contrary statement or is there not to not have something by the fire other people in the  this employee that's not think they are not making that contention and even at the point that she went to the chief in two thousand and two she told him this is what my experience has been and there's been firefighters she should not be forced to work in that environment and there is no basis in a law that's to allow the county or one of its employees to exclude her from the environment from the fire house treating the person you know hostile way here we have four different stations with different people and i'm just wondering if that really fits with in the hostile work environment cases that we have generally had i think it does you look at the cumulative effect of the riaa the of actions that constitute and creates a hostile work environment in county is still responsible for the employment and the the vironment in which her employment takes place i think one of the critical points that i do want to make it as well about how this case has been mis viewed is that the evidence of discrete acts should also has to also be included in the consideration of the totality of the circumstances of the district court's position is that because the analysis is different that therefore you cannot consider discrete acts as creating a hostile work environment that runs contrary to the teaching of mcginest into the teaching of morgan there is no morgan vs national passenger railroad corporation the court pointed out that attempting to separate out these acts for purposes of determining what's discrimination what's hostile environment is an artificial task and the court in this case has elevated that artificial task to a rule of law which does not find support in the decisions of this court in mcguinness if you look at the court's announcement of the promotion decision the court considered the evidence of the hostile work environment so eviden however it is viewed whether it's a discreet act or whether it is use of a racial slur for instance all of that has to be considered in determining the totality of the circumstances both from the objective perspective as well as from the subjective perspective so if there is a denial of a benefit or privilege in this case we're saying it's a denial of her right to go and work at that station in some other case it could be did not have that case in or didn't our family medical case our burden is not to persuade the district court that everything is as we say our burden is one of production we produced evidence of both active hertha objective perspective as well as objective conduct of the name calling the rumors all of that is evidence that the district court was required to consider in the light most favorable to the plaintiff and we weren't required to show court's focus here today on the  radek the isolated and the relatively mild nature of all of the incidents that the district court considers is correct and i think that the real problem with the plaintiff's case here is that although the print plaintiffs presented a mound of evidence a long list of events occurring over thirteen year period that none of them first of all amounted to severe severe vent that would under this court's cases be by itself enough to that the court's observation about that i think and the evidence what the evidence shows is that firefighter trail was left behind in a fire station because she was  there and there's no evidence that i'm aware of in the record that would compare that to some other event which is a non african american one the male firefighter was left behind were picked up under similar circumstances  an alarm bell that goes off outside the station that can be heard and that apparently for reasons that aren't clear from the record the fire engine came out of the fire house without firefighter on it and they say hop on their own or you know form or her protective gear would have been on the truck i don't know the answer to that your honor it wouldn't be in the record i don't i don't think it would be on the truck but i don't think that's in the record she into i believe that's what the record reflect on is that she got into what's called the power way and then drove to the scene of the fire and that was that afternoon that captain price also became upset with her about u like one or two and we've had in an other cases we've had one or two comments but we haven't really had a case like this where she has to live and work in an environment that's kind of all encompassing and the alleged hostility is continuous over such a period of time so it seems to me that the evidence amassed however one evaluates it doesn't really fit in that legal framework of the one or two things where we've rejected and said so my judgment was appropriate case involves a thirteen year period and i think that you know order to create a continuously hostile work environment over a period of thirteen years you simply have to have more than what this record shows this record shows periods in which the plaintiff experienced discreet incidents that might or might not be characterized as harassment because of her race and gender but they come swells phased out in time even within the individual periods of the record shows this is hostile environment or not it's just a question of fact at this point not a judgment well i think there is a point at which it does become a matter of law i would agree with your honor that there might be a case in which something over a thirteen year period would amount to a thirty year long hostile work environment but i think it would have to have more in it than the the record shows it requires more than a conclusory statement that i was constantly harassed or the other guys looked like they didn't want to work with me you'd  more specific incidents you need them occurring closer together in time you would need to have them not being separated by gaps of years as is the record in this case you would also need to have i think some continuity in the kinds of events that were occurring in there and the people that were doing them and i think captain price is a very good example in this regard because captain price as far as the record shows i don't think that it's incorrect has happened price had nothing to do with the point money every day is a spear during that period and every day she comes to work the prices they're superior isn't that atmosphere knowing that price is treating her differently arguably because she's a woman or african american isn't that that sense where she comes every day wondering what the price is going to say next whether it's going to ridicule or from the troops or whatever oh i think that first one is that no i think it would take more than that i mean i think it takes more than that single piece of evidence that the supervisor said you have to have a captain price to establish that just being in the room with captain price and the other things the price fact the plaintiff at that point had no great to be in that station when a good situation and there was no expectation either on the part of captain price the fire district or the plaintiff that she would be assigned there any longer than the day she was there but she was assigned there for the day as a rover so she liked it but then he woke and rover might have to come back there and he says no i'm on my watch that's correct your honor i don't think she was assigned as a rover to that station again case is the length of time passes between the first time she has an interaction with captain crisis which is an ambiguous under action and the second time she has any interaction with captain price which is more than ten years later i think that the case is established that there's got again i think that the criticism of the district court is that the district court failed to take into consideration as specific events or or wasn't focusing on the right in the right way on is misplaced i think the district court made two alternative findings in its opinion one was that there were a number of incidents that were not of which as to which there was insufficient evidence that they occurred because of the plaintiff's race or gender i think that's a an accurate observation most of these incidents that did not involve some overt connection to gender and there is no evidence that other firefighters were second point i'd make about the district court's opinion is that the district court did say and i think it was correct that even if all of those incidents were counted that it still those incidents are too far apart in time my not sufficient to establish a pervasive environment under the cases and another observation the district court made i think is cogent in this regard which is that it is in a sense the plaintiff's decision think that that creates its own problem from the point of view of harassment law that that if you're talking about a period that big you have to have more in the record than  f is actually demonstrate i would like to talk a little bit about the fire inspector position the record is clear in this case that the plaintiff lack qualification for the position when she was when her application was rejected that essential qualification was that she had completed post a thirty two training the competing candidate fire inspector had in fact put on her application form that she did deal with the plaintiff could not do it and that was the reason that she was rejected for the  is not an adverse personal action number one and number two there's no evidence that she fricker had the power to do that or that he did it for anyone else under similar circumstances i don't finally i would like to address  e provenza argument i think that's the way you pronounce the case and plaintiff has suggested that it's just a court opinion should be reversed because we submitted factual material with the reply papers and the district court could not afford the plaintiff an opportunity to respond if you echo the briefing which is it simply first of all i think it's a fairness issue that judgment should not be prevented from putting in the tiriel that demonstrates that that a declaration submitted in opposition to a motion is incomplete or contains misleading statements or in fact contains something that's contradicted by deposition testimony sort of relying on rule one all for the i think the evidence that you have the right to put in something to make it completely right and i don't think the president's case really considered that it also exactly right your honor and that's i think the essence of it is he really has to have that opportunity to respond and i don't think that there's i don't think it would be fair to the district court to put a suicide funny duty on the court to say every time they got something with a reply brief i'm going to reopen the proceedings to allow the opposing party to respond to this i think it's up to the opposing party to say that they have something that they want to say about it and i have a little time left that unless the court has any further questions we've submitted an request in would just like to clarify for the record that there was not a ten year gap between her contact with price and there's evidence in the record is that the excerpt at three forty four and three forty five that she complain is the appropriate case for a hostile environment analysis the hostile environment in houses depends upon the cumulative effect of a variety of different actions and events that's exactly why and how the doctrine was developed and conceived in morgan and the united states supreme court said as long as you have one act within the period of time you can consider the entire period of time for purposes of li the court recognized that would allow potentially this type of case where you have a period of years and to say that captain ran into i should be penalized because she didn't sue them every time they did something to her is really unfair to her she has continued to be employed there she's continued to try to do her job and she should not be held responsible or held she should not be penalized for trying to make it work in the face of these kinds ultimately the district court and this court needs to look at the totality of the circumstances and i think that it is important to look at her experience from her perspective as well as there is evidence of the active denigration of her it's in the the deposition testimony of the other firefighters that people were aware that she was viewed differently and that the inference is then have to be drawn from that have to be drawn on her behalf thank you i think both counts of the arguments it's been helpful on both sides and the case