mister bell for you ten minutes set aside we may not use all of that is likely no worse probably is going to go significantly beyond five minutes with you there your honor having done this for many years there's always that surprise moment with the appellate court where you find out why they thought your case was interesting enough for  case on the retaliation and discrimination claims but our principal concern speaking only for myself and i think my two colleagues can i agree  were actually in dispute where for example the the court below seemed not to focus on the near constant use makes more specific how frequently we're talking about i could not find it i found them cut just saying that it was used all the time or constantly is there anything more specific than that well there using racial epithets were coworkers and not supervisors to supervisors use of appropriate language to do whatever it is that you would call it that was merely to use the categor what you will or who are or those who know what i was also looking i mean the district court put a lot of weight on not just frequency in general but but whether this was directed at of trenton said it can be severe pervasive generally but for it to affect the terms and conditions of his employment because of his race you've got a causation issue that but for his race would he have been hearing it and a lot of the stuff you're describing like you know some very offensive stuff that sent to customers about customers sounds like from his own deposition it would have been said to the customers whether your client had been white or black it was he wasn't discriminated against on account of being black so what's your response to have you don't have anything in the summary judgment record that because of his race that was directed probably along the lines what i what i'm thinking with respect to the case that came case my my colleague from the e e o c years pointed out two cases from  there were bound by that i don't know how to get around that now you're either the world has changed quite a bit since capers the race relations of the world are not what they were twenty it's your right it is the right thing to do but as of today's date november the problem that you have is that you have a seasonal restaurant you've got people that are laid off in late august september fifty five of them here most of them white and this person's mother is still one of the people this retained it just doesn't look like a good set of facts for any type of claim of discrimination or racial discrimination in terms of of firing or retaliation because the d firing appears to be the last the last fired st fired you are i would certainly agreed the case of discrimination is weaker than the case of retaliation but i believe that there are enough problems with the idea that this was just an ordinary end of season terminations that whether or not mister colin prevails it was certainly the kinds of issues that it jury were other employees who were hired only a month or two or three before him who continued working longer and in in into the into the here but there also there are also problems with this particular individual's performance and we even have that there's a tape of that right yes your honor there was a problem with performance but the defendants are i'm sorry the  have not claimed that that was the reason for the terminations they had focused almost entirely on the idea that this was because it was an end of season germination because he had what they thought to be difficult hours to schedule around and because he was one of the last hired with wrist with respect to that i think i think the fact that my client is testifying he wasn't told any of that at the time to destroy medication at the time of his germination he was told that he was being fired for a lack of performance the fact that they've come into court and senator entirely different thing your honor i believe puts us in the well situation or for some of those other situations where you've said at that final meeting a jury could certainly conclude that the police have told a false or that regarding what happened at the termination beginning and if they conclude that the terminations meeting differed in kind from what my client has described they might scratch their heads and wonder why that story changed just as they might wonder why the story changed for purposes of litigation mister barack i have a couple two more record questions before we let you go one of them is early in the case there were some allegations about surfing the more ashley whispering th there is cross testimony not that my client did not take that position yet probably have to but you can't but but we can hold that against it as part of a summary judgment record that's not a ground to defeat summary judgment if your client has said it hasn't wrestling the other record question i've got is the black music incident this is not irish bar you would expect an irish bar might just be playing irish music is there anything in the record about whether  ordinarily played irish music if the if the black music was this in contradistinction that we just don't play other kinds of music your honor the only thing i have really not i'm sorry i never thought to ask that question during the course of the case the only thing that i know about that is that of different kinds of music on it and i i believe that much of the music was supplied by the choices of the clientele ok is there anything in the record i would look at to understand  the only thing i recollect you are not and i don't remember exactly where it is i didn't i didn't recognize its importance is that one of one of the complaints that my client nate was that in turning down or off the black music they were sometimes or what was referred to as it were sometimes forced to stop clients music from from continuing music that the client asked for a district court as having said that it's never relevant or not relevant the district court just seems to have taken the line of decay but that says you need something directed at the plaintiff and then you might interpret other facially neutral things as really being motivated by discrimination that said to him they don't have race on their face but they're really racist underneath you can draw an inference from the racist comment that was made to him and so like what's the racist comment that was made to him i mean the seven him you're in a restaurant so when you're picking up drinks and i like that because that means that better use the n word in a conversation base to base which is to distinguish it from other places where the plane is just overheard to be to coerce arrest or in a coworker using reading a great weight that way but the you know he's asked point blank if it was used and him in the district court understands it is no you know he he's asked repeatedly and he never says yes it was directed at him as required by cheever and i think that's the problem here is that you can't just jump from she is african american to she is directed at her the target as required by cambridge so what i want to know as you've pointed to to all  a hypothetical when i started out practicing low in delaware nine hundred and sixty five there were a number of occasions in those st few years where male attorneys in my presence  talk derogatorily about women and about the inability of women to think clearly and the inability of women to be logical all the comments were directed at me as you can't think clearly you are not logical but at the same time i thought those comments were directed absolutely at me because without saying so they were saying ha ha you're part of this quest and you're just as bad as these about me because i'm part of that protected category of people when the person is talking to you about in my case other women being illogical or frivolous i thought that the comments were directed judge roberts asking about comments that were said to her about someone else which of these comments counts of something said to mister coleman the st the bartender comment qualified what else was said to him i think about the music you said oh it was to the staff generally we could talk about whether that was to him or just in his hearing the comments to the customers those were in response to customers they were not made to him directed at mister clement so that's that's what you say about eight to ten so we should look at the book the st a bartender comment i can't remember the record cite for that we should look at eight hundred and ten and those are the ones you have that are better than are said to him or mister cole she was talking about the customers because their phone obviously heard it and it was in his presence where does it say that that was said not just in his hearing but but it in the way judge robert was talking about being said to him about the customers i don't and what evidence is there that the restaurant itself or the entity that owns the restaurant is liable under etc there was a complaint made and supposedly the head of the restaurant said we're going to have a sit down make sure people understand that there is to be done discrimination here so in that context how is the employer liable under respond the experience i'm happy to answer that i actually think the liability piece is a much easier lift for the plaintiff in this case as you know the standard for coworker avenue for complaints would be appropriate for a seasonal employee i think that they can but i think if it's not too much to expect in the player's hand i would tell employees to be that harass mister hit to get some idea of what harassment is what we're talking about some specificity about how often i can't find anything in this record setting aside that st day comment that really pins down a timeframe a frequency anything else what do we do with death on summary judgment is not a problem now it's not a so when i read the transcript of the hearing in the district court i think it was sixty eight days is the number range is the truth so the jury could consider what does that mean frequently in all the time you were there only eleven weeks or sixty eight day  in fact they did have some other black bartenders but so that's that specific it's it directly to him it could very easily be taken personally on account of his race why isn't that demanding legal standard that you must meet it cannot be based on isolated sporadic comments in fact words alone usually are not enough there must be there has to be something more than just an occasional comment that's offensive there are many decisions that  wait a minute you say words alone are not enough i mean if it was probation that you were using pejorative terms with respect african americans wouldn't that be enough it can be your honor  argument saying well you know the gist according to put it this is it wasn't really to him but he's asked directly was he saying it directly to you personally question answer if you're having a conversation he would say it in us talking or if i'm like right next to him you're in a restaurant so when you're picking up drinks or anything else and you say you still said it it doesn't matter so the st part of that response she interpreted as being in a conversation with him and then the nd part is maybe i overheard it was some other people why isn't his reference to well maybe this means better said it in conversation with me why isn't that enough to connect up to the st day comment because number one your honor it's not specific enough it doesn't say when it was said the but perhaps that's cos i think there is in my case there certainly is cause there's no doubt about it we will be back with mister brown i'm sorry but we left off just beepers was asking you a question and he froze on you know at eight dollars to ten dollars eric beder is saying when he's asked about whether it's directly to you mister coleman says if we're having a conversation he would say it in us talking but then there's a more general reference when you're picking up drinks you've you might over hear someone still said it doesn't matter so you've got that i don't know how you think the district court should interpret that but you've also got his uncle enos point he worked there only for eleven weeks sixty eight days whatever and so all the time must have meant more than weekly in that context where maybe we wouldn't know if it was years long employment but let you say that those two arguments she made with some force last  argument i would say that the allegation about mister bed are who i understand was only working in their eyes for a few days during the summer and was not there the entire time but in any event that that is an isolated comment it doesn't the person who violated language protocols the most often but you're out of the testimony is that he said in a lot too frequently heist i personally don't know what that what that means i don't know how a jury off the table if it doesn't rise to castleberry as level why isn't it a jury question about whether this is her face while a lot i don't you lie do you reject mystical enos argument that you know a jury ought to decide what all the time a lot of frequently means you know it's not to get summary judgment and then especially in the context of an eleven we complain because your are that those allegations don't happen again because they're not specific they are we supposed to dispute his allegation that something happens a lot i don't know that that's a disputed that's he says it how do we just prove it without knowing when and where it happened in what context he said we were having a conversation he would sa that does not create a question that can be decided to try because how do we disprove that it did we can get at this issue a different way can her says if you have some racist comments it's not that you can add on all the racist comments that would have been said whether or not you're black you could take some facially neutral comments that were negative and then understand that they were really motivated by racism underneath it's because it's really because you 're minority or some other protected group what do we have here in the way of things that mister coleman had to suffer and why shouldn't we understand them collectively as as as as  really coming at him because he's he's black i mean he he's prosecuting this lawsuit he says he suffered you know we have to credit all of that summary judgment why isn't a jury question to decide whether collectively all the stuff that happened to him explicitly racist or not was really on account of his being black sure and of course even the court has to consider the totality of the circumstances that is that is the law but if you take the evidence and distill it down here to what it really is it's not it is really happened here i was asking what do you suggest to do we don't even really know we know he he claims the n word was said all the time and by the way i think we all agree the n word is a terrible word and should never be said in any workplace but you cannot be if a plant of his is permitted to say something in using racist language d and yet both coleman and his cousin who also worked at the restaurant said that such meeting never took place he denied that the meeting took place because my understanding is that it is that he did but he may not have been present for it you may have been in a shift when cloyd's i can see why there is no aren't any formal procedures but this restaurant during high season during the summer has over one hundred employees but even during it sounds like it still has about forty five so this seems that you go significantly beyond the argument that we were too small to would deal with for more procedures  one hundred employees is would seem to be well past the threshold for where you need things covered in your handbook have to make complaints personal email that i never look at or for two or three weeks where she can't say she never saw it because at some point it shows up in the email personally email she looks at a personal e mail so there's a lot here that seems that needs to be all but furthermore she also testified that she did discuss justin coleman with mister slowing at any time she had no role in personnel decisions around staffing for the summer and so there is undisputed the wheels were already in motion on that long before he said that you know and the letter the fact is it's undisputed that management didn't know about those two britain complaints it couldn't possibly form the basis of retaliation claim because there is no knowledge of any complaint question of fact i don't believe it is your honor respectfully because as to the letter i mean i can talk about both the letter and you know the letter was sent on a saturday censored if i could now there's no return receipt mister coleman was unable to show when it was received typically takes three dollars to five dollars business days we're talking about one business day here that that trip that elapsed between the sending of a letter and the date that he was like oh as to the you know there is there's no knowledge of the complaint there's no connection between the complaint and the decision and so i don't believe there are any fact questions to sort out there i think the record is the undisputed record evidence is very clear on that any further questions my colleagues physicality and words that make us so sure that they're different if the frequency with which a woman was complaining about sexual harassment where for example someone touched her ux was all the time or too frequently i don't think we'd be having this discussion about the same way that we're having this discussion about the n word and i'm not sure why that is  new jersey always claims in writing to be broader and more forgiving and generous than the title seven law but i'm i'm not sure i can think of any particular example of the way in which title seven is more go black are you not not don't go black on me or the customer was going to go black on me but rather i was so upset by the customer don't make me go black on you get we're in the record is that said i didn't i don't i don't remember where it is i but i do know that it was black on you as opposed to the comment that that was being discussed with council which is don't go word i'm not sure what that context has to do with anything do you know the how often which we've talked about extensively today certainly does matter and if it's all the time that matters offensive there's no there's no there's no situation in which the way that it was said it was said it's going to make it not the most appropriate racial epithet in the language decision says while you are president or internal operating procedures say you have to follow the st until the it is overturned and vote if the matter is on all fours and  why don't you send something that would be ok if we asked you to send something no more than five double spaced pages by a week from today of course and you by four o'clock  week from today on the twenty well today i'm sorry what is the wednesday before thanksgiving let's make it the tuesday before thanksgiving four pm on the tuesday before thanksgiving five double spaced pages on whether  about the racial slur but there was no need to look into it i didn't research that who the what the why or the when they get to the liability a little bit easier here in the brafman piece but i think it's pretty clear that a jury could find that the restaurant not doing not  yeah i would not mind you are all right thank you thank you very much thank you to all counsel for well presented arguments and will take the matter under advisement and again the supplemental filing should be by next tuesday for no more than