does contain some evidence that a jury could conclude that mr english was discriminated against and was subject to a hostile work environment now specifically i'd like to get to the cut to the chase as well  issue when mr english went to work for general dynamics right out of the gun he started having trouble with the co co worker named jim rogers he asked to meet with his supervisor they did in fact mat e met on three occasions he started in december they met in january the met in february they met march nothing from the record says that anything was successful from those meetings and none of those meetings cutting up with other white employees we think the record reflects that one of the cutting up joking joking for example like there was more by kiss my a and things like that and they would laugh after that was done now that's reflected in mr english deposition the thing that really gets me i think the thing that disturbs me most about it and mr inglis goes into fourteen pages in his deposition about an assault that occurred and the end of march of that first year whereby he was in there and six feet four to six feet away from his supervisor mr dotson and mr english is there they're breaking down boxes cardboard box now the the boxes that they're that they're breaking down or several inches thick mr english makes a comparison to some papers that are on the counsel table during the deposition mr rogers knew that mr anglish had had surgery on his kidneys right before that mr rogers intentionally according to mr english in his deposition takes these boxes and strikes mr rogers strikes mr anguish across the back where he said this surgery mr english gather some self back up looks across the way it is supervisor mr dotson and it's taking in his deposition he says that why didn't he acting why isn't he doing something about this nothing rachel said at this point you know so there's not i mean the problem isn't and we're familiar with the box incident the key is i think it was and then and the mouse but and nobody is seeking to excuse that behavior by rogers but how do what is the connection between that behavior and mr english is race aside from the fact that rogers is white and and in english is african american we are the district judge goes to some length and says he treated everybody like that he didn't he didn't assault anybody else he didn't hit anybody else becomes racial because of this because of the nature of that conduct yes indeed are there any cases that say that well or time we quoted a third circuit case law on one case where the face of it may not be racial but there are code words for race and they gave me disputes that that didn't happen here right that's right now they're you know little who are not claiming that that these assaultive conduct that probably  violated state law you're not claiming they were a code for race are you your honor i think that there are people like mr rogers who understand i mean the defendant says they were providing information about discrimination what you should do about discrimination i think that there are people out there that that get it and know that i came use words like that and so they do other things like what mr rogers has done here although he didn't use any code words he assaulted him he didn't assault any white employees he cut up with the other white employees by using curse words and things like that but what he intimidated he tried to intimidate mr english oftentimes at this court were interested not only at that in connection with the case at hand but we're interested in where our opinion how it might be used in other cases so let me suggest to you that if we were to hold the way you are asking that it could be used to say that any time a white worker assaults a black worker or anytime a black worker celt a white worker for that matter that because there's an assault and because they're of different races therefore the assault is racial what would be wrong with somebody extending what you're asking us to do to represent that proposition as a matter of law or you are i don't think we're asking that i think you take the totality of the circumstances the assault is key i think the assault is a big thing but it's also the way that he was treated in the workplace and that the white workers were treated that way when he was treated poorly nobody disputes that this conduct is inexcusable but does it matter that for whatever reason the white worker seemed to have laughed it off and and this worker did not does that make it racial i think that it can your honor it coupled with the totality of the circumstances with an assault i mean these these clearly so if if the if the white workers say ah that's just rogers guy's a jerk and we're going to laugh it off and hope he goes away but the african american worker for whatever reason isn't going to laugh it off he takes this seriously that then turns what seems to be equal conduct into something based upon race that he and yes or no and you have any authority for that  instances kept escalating and kept getting worse after the assault mr rogers i mean mr english finally gives up and says i don't know that my employer is going to do anything with any of these things and so he kind of lets it go but that shows that he was having to look behind his back and and worry about what mr rogers was going to do to him he had assaulted him he was afraid he might come after him again look i don't think there's anybody on this panel it's not offended by mr rogers conduct all right  he was removed before mr english left the company correct yes sir but it took some time for that to happen i mean in the brief it appears that that that occurred in december and just immediately they let him go within a month later there was six months that occurred after mister english brought this to the company's attention th mr rogers was let go and then he was let go simply because of downsizing it wasn't as a result of any of these things as a matter of fact mr green the second level supervisor never believed mr english and some of these things at w we did complain about that and they retaliation claim but you dropped that on us you know it's right that the corporation here makes a point correctly or incorrectly that mr english testified that notwithstanding this borscht behavior worse on the part of rogers that it it did not interfere with is job and forgot the couple other things that he that he said which seemed to also undercut the claim that this was what we define to be a hostile work environment how do you address that yes your honor he goes back and he does say that i suffered some injury i had problems with that injury he goes back and he says i had to watch my back i was worried that mr rogers was going to come after me later that did impact him i think  a lot of workers what he meant by that taken this in the light most favorable to mr english is that that he still worked hard to do his portion even after they were divided apart given separate duties that he still had to watch as back and get his job done get his portion of the job done so you think he clarified his testimony in the latter part of the deposition that yes or i think  one twenty seven he discusses having to go to the doctor as a result of that's where we would find it one thirteen to one twenty seven on the assault yes  it please the court my name is sarah bell john i represent appellee general dynamics information technology summary judgment was properly entered in this case because mr english failed to show a disputed material fact on his claim for racial harassment on three separate elements first he failed to show that the alleged harassment which was by a coworker mr rogers another janitor that the harassment that he suffered was based on his race and i think the panel has has raised that during earlier arguments that it was based on his race rather than a garden variety personality conflict in the workplace and as this panel is aware garden variety personality conflicts are not things that are governed by title seven the sixth circuit has ruled on that in perkins worse as harvey and also in michael versus caterpillar second this is more personal work wouldn't you agree i think it's a personality conflict your honor but it has to be based on race that's what the standard is in williams versus c s x and only conduct that is based on race the court this court said two years ago can be considered as part of a hostile work environment claim so if you go to the facts of williams versus c s x in that case summary judgment was affirmed in favor of the defendant and you had multiple instances of race based comments by a supervisor specifically a supervisor told plaintiff that she was a democrat only because she was a black woman the supervisor said that jesse jackson and al sharpton were monkeys they told her they wouldn't pay for her education because she was a single black mom they said why can't black people name their kids something people can't pronounce and finally they said black people should go back where they came from there were several those were all said by supervisors then a different supervisor said to the plaintiff who is also a janitor by the way that she had to do certain tasks that she found that she didn't like to do such as cleaning a bathroom when it with an improper tool not getting reimbursed with her when damage to her vehicle occurred or having to clean feces off the wall the court very clearly stated in that case that only harassment based on the plaintiff's race could be considered as part of this hostile work environment the court said those other things those those duties that she had to do could not be considered and it went back to the comments made by supervisors and very instructive on the issue of both what is race based conduct and also what can be considered and also what is severe and pervasive basically this whole case is about conduct it's not explicitly race based and the plaintiffs trying to say are mr rogers trying to say that general dynamics knew that that was race based or should have known that it was race based even though there was no explicit conduct to that effect so you know the court has asked where do we draw the line and i think that's very interesting here basically what mr english is claiming and trying to get this court to rule is anytime you have a disagreement between people of different races or you could extend it further a disagreement between people of different religions or disagreement between people of different genders that that automatically signals to an employer that it has to be based on that protected category it has to be based on race and therefore triggers an investigation requirement triggers the requirement by the by the employer to take corrective action and do what it can to to end the harassment and i don't think that is what the case law states and i don't think that's what title seven was meant to protect here general dynamics one mr english sure your honor your honor they did when mr english working in december two thousand and seven he and mr rogers worked together for two and a half years there's no dispute that he did complain but he didn't complain for a year that it had anything to do with his race and after he complained there were three january february march there were three meetings between mr rogers mr english and their white supervisor mr dodson where they talked about how do we get you guys to get along better in the workplace and when mister english finally in december second two thousand and nine mention the word discrimination to an h r representative at general dynamics the h r representative performed an investigation she went back to mr rogers mr english mr  dodson supervisor mr green she talked to all of them who said yes there is there are disagreements between these two men they don't like each other we feel we have already counseled mr rogers about being gruff and not treating people well in the workplace mr dodson told her look we are now going to separate these two gentlemen they obviously can't work together very well we're going to make them have their same job duties in entirely different parts of the building so that they don't have to interact very much and then and december fourteenth they had a team meeting where all the supervisors and mr dodson and mr rogers in english sat down and said how do we get you guys to work together moving forward so when the employer was put on notice they performed an investigation under their policies and they acted appropriately in order to minimize any interaction between the two men also in for sure that they would have kept rogers as an employee forget nine february two thousand and ten they counseled him they gave him a final written warning in april two thousand and ten and then finally laid him off rather than laying off mr english in late may early june two thousand and ten but why did they keep him while there's undisputed testimony by his supervisors that actually he was a great janitor he had suffered a stroke it was in the record that he had suffered a stroke they were trying to help him you know move forward from that stroke they hired mr english to to you know lessen his job duties so he didn't have to clean the whole building this was an army base there was a huge facility that one person really couldn't deal with and so they hired mr english to try to help with the job duties so eventually th up with this activity or actions for about five months as they're working with well they can i mean they and there's no dispute your honor that there were multiple meetings between mr english or mr rogers supervisors and mr english and mr rogers saying how can we deal with each other you need to be less gruff in the workplace you need to treat people better i mean there's multiple meanings in the record on that and eventually after multiple steps of discipline they did let him go happened before mr english was hired before to december two thousand and seven the comment that your honor is mentioning was never reported it's undisputed that it was never reported to anybody at general dynamics so you've got a single racially tinge comment that was never reported construed sure your honor but it goes within the context of there is one race based comment that was never reported so how is general dynamics supposed to know this is a race issue when mr english admits that he never told anybody about that one single comment if we go to look at let's look at the allegations that are specifically in the record i mean the undisputed evidence shows that mr rogers was rude to everybody not just mr english mr rogers told mr english two kisses a on multiple times that's undisputed but he also testified that he heard mr rogers say kiss my a to a white employee now  there was nothing in the record but the mr mr english testified that he said that once so it was one instance of get over here i am off but there is evidence in the record that mr rogers raised his voice to his own supervisor told his own supervisor in a meeting with in front of mr english that he didn't like his supervisor i don't like you is basically what he said that he vented his anger and raised his voice that another he was net reacted negative to live negative to l to two other at least two other white employees that the way he said kiss my a to another white employee triggered an employee to say what's wrong with that guy he's really got an attitude so there's evidence all over the record that he was treating all employees badly not just mr english and it really indicates that there's nothing to do with race here there only race base comments or conduct can be considered as part of a hostile work environment claim so we're left with one comment here kill any black or mexican who gets with my daughter that was never ever reported so your honors you've got that and then you've got there's no evidence that that one comment was severe or pervasive enough to trigger a hostile work environment claim mr english testified at is right at the at his deposition it's page one thirty nine and one forty he said although he had to watch his back so to speak he never had a problem getting his work done he still got all of his work done that comment is fatal to his argument that any harassment altered the terms and conditions of his employment which is what is required here finally he failed to show that general dynamics knew about or should have known about the alleged quote racial harassment and failed to take corrective action if your owners have no other questions time you know one time this occurred and so mr english was trying to get across that there was just one instance that that happened and that's what he was quoting from so he didn't say that there was just one he just says a one time that that this as an example that this happened one time i recall and so his intent was that there were several instances but he remembered one time and that's to twenty six of of the deposition when the comment was made about there was another employee that observed the kiss my comment to the other employee and what is mr rogers problem that was another black employee commenting to to mr english about what is roger's problem  was the comparative evidence about how this harasser treated other employees versus mr english it's clear in the light most favorable to mr english