may please the court your honour's plaintiff robert collyer appeals to this court not to create new title seven law in the circuit but to simply enforce created a reversible error in deciding that summary judgment was appropriate for plan of collier's retaliation claim and secondly the district court created or committed reversible error when it relied on an opposite case and on bad law for finding that a hostile work environment claimed could be severely adjudicated in the colors case turning to the hostile work environment claim st the court relied specifically on the hudson opinion in finding that a hostile work environment was appropriately adjudicated on summary judgment the court stated on page thirty one of its opinion that the graffiti the racial graffiti that collier experienced at parkland hospital and that he  witnessed does not rise to the level of creating a hostile work environment even though the court assume for the purposes of deciding defendant's summary judgment motion that the graffiti depicting swastikas could be interpreted as offensive to kali or based on his african american race nonetheless the court noted the collyer has not produced any evidence that any of the graffiti at parkland was directed towards him using that language directed towards him they were in a some kind of closet no your honor they were actually in an operating room that was not being there was not functioning as an operating room at the time and so was being used for storage story and because mr collyer was an operating room aide it was part of his job to go into that operating room when he was assigned to that unit multiple times per day see the only african american employee he was not the only african american employee no he was not going else can did he ever complain about this before the events in court and that led to its termination absolutely he did up he did it he did as part of the parkland code of conduct he is allowed to make a complaint through numerous channels and he complained specifically to the director of the operating room who was in charge of one hundred and fifty dollars employees stats mr stetson and he complained to mr stats all directly about the swastikas but more importantly your honor beyond the complaint process is the th circuit has long held that harassment does not have to be directed toward the plaintiff to be considered for a hostile work environment claim but that's not what the district court did here doesn't make it more severe though when it is directed at some that just seems it is basic it is appropriate your honor for a district court to consider the different weights to be given to different factors and absolutely if the swastika was written saying mr collyer this is for you it would be considered to directed towards him and more significant but in this case your honor it can also be teen deems to be directed at mr collier because after reporting the swastika mr stats will continued to require that mr collyer work in that same operating room for over six months and that swastika remained up for over one and one half years before parkland hospital did anything to address it and there the operating room director for parkland hospital in addition to those photos testified that he saw the swastikas himself he saw and described them in the record as two feet by two feet square and that when he saw those he decided at that moment that when the operating room was remodeled he said in about six months that he would take care of it through the remodeling process what operating room director stats all apartment hospital did not do did on behalf of parkland hospital was require the appellant mr collyer to continue to work in that room for six months so to answer your question your honor because management required mr collyer to continue to work in that environment they did in fact direct that swastika and racial her feet to him how and how long was the n word kept after his complaint was the timing on that roughly three months your honor and it was only removed by how mr collyer described as a rough scratching it was the n word was written into the elevator in the hospital so you magine the metal plate on an elevator it was written into that it was never removed it was never painted over ultimately somebody took a sharp object and just scratched through it and that's how it was removed from the staff elevator there are mail you could have done that himself couldn't be i suppose could have your honor but according to parkman's own requirements it was not on the employee to do that it was on the employee to report it further the court relied on hudson vs clio which is a decision from two thousand and thirteen a panel judge king in which you sat and there the summary judgment was up held in a case involving a noose but importantly in that case the hudson plaintiff never saw the noose never reported the noose and wasn't even at work the day the noose was found that's the case testify an overarching concern of being repeatedly told even though he complained to management to human resources to the one thousand eight hundred number that parkland hospital provided even though he complained time and time and time  again and none of his complaints were investigated yes your honor that did lead to his frustration i assume that this screaming incident and punching in the wall of occurred in front of patients there's no evidence in the record to suggest that it  off a small corridor not unlike the small hallways down the corridor of this courtroom and so there is no evidence in the record that this was done in front of patients that that i'm aware of but importantly your honor what was found is that  the district court relied on cases that are in opposite from the case here and as importantly relied on a one thousand nine hundred and eighty two opinion of this court of on case that has been expressly disapproved of by the supreme court  court in this case expressly set that summary judgment was granted because even if mr collier was exposed graffiti while at work and this is on page thirty one of the opinion for the severity and pervasive condition or privilege to indicate a hostile work environment the work environment must he so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers the district court cited that one thousand nine hundred and two opinion but ignored the precedent set by the supreme court in a unanimous decision eleven years later in harrisburg says forklift and their justice o'connor writing for the court stated that the district court and in that case erred in relying on whether the conduct seriously affected plane of psychological wellbeing or lead her to suffer injury such an inquiry may needlessly focus the fact finders attention on concrete psychological harm an element title seven does not require so long as the environment would reasonably perceived and is perceived as hostile or abusive there is no need for it to also be psychologically injurious the district court in this case ignored that supreme court precedent and instead required that mr collyer express that psychological harm of the supreme court expressly disavowed and for that reason committed reversible error on that point the district court also ignored the fact that there is evidence in the record even if the court is to assume that psychological injury is required there is evidence in the record that mr collier did experience psychological injury and the court ignored that turning your attention to record cites three hundred and sixteen thousand three hundred and seventeen mr collyer testified that he sought medical treatment for anguish and pain and suffering from the pastoral counseling center that he had his mental state affected that he had headaches and suffered from lack of sleep and that it was constantly in his thoughts and missed work as a result of the racial discrimination that he suffered in parkland hospital all of that was ignored by the district court and instead they focused on an outdated and over rule test the problem with doing so was also outlined by justice o'connor and that's that when the as she wrote the visitor court did not conclude that the work environment was not intimidating or abusive to harris it did so only after finding that the conduct was not so severe as to be expected to seriously affect plan of psychological well being the district court application of these incorrect standards may well have influenced its ultimate conclusion so it just arse o'connor was pointing out the harris case is that once you go down this road of assessing the plaintiff's psychological wellbeing it regarding the hostile work environment claim that also colored the district court's analysis of the retaliation clade here the district court committed reversible error when he granted a summary judgment as to parchman hospital's claim or excuse me as to mr collier's claim of retaliation because an improperly weighed evidence that should have been more properly weighed by the jury specifically parklane hospital thought that robert collyer was a troublemaker there is testimony in the record that  operating room director stats all said that he thought that human resources must have talked to him twenty or thirty times about robert collyer during his seven years working for parkland hospital so the fact that there were so many complaints of racial discrimination instead of leading to investigations by parkland hospital led them to believe that mr collyer was a troublemaker there was no discussion in the district court summary judgement opinion of these facts in the record which a jury should have been did not escalate plaintiff's complaints of racism to human resources even though their own policies required it the supervisors testified that they were tired of plaintive complaining about racial discrimination his supervisors testified and admitted that they called the police on the day that he was terminated because of his complaints of discrimination the plaintiff repeatedly explained that on the day of the termination that the defendant and the plaintiff had completely different viewpoints of what in fact happen and what we do know and what director stats will testify to himself is that plaintive complained about swastikas and graffiti to him directly so that is the pre testified that both times he was disciplined for not answering his radio they didn't work and there is in fact evidence in the record as for any staged on one of the at least one of those incidents though they also paged him over the intercom that is defendant's testimony occurred when mr collier was written up when his supervisors testified over and over again that they were tired of his complaining of racial discrimination instead the district court weighed the evidence and appropriately discounted evidence in favor of the non of mr collyer and ruled instead that there was no pretext when the record is replete with examples that a jury should have been allowed to consider and so for those reasons and also because the court relied on the in opposite authority we considered all the evidence that was before it in the record and properly granted summary judgment against mr caller's hostile work environment claim he popularly found that mr collyer failed to show the th element necessary to establish a hostile work environment claim as a matter of law which is that the harassment he complains of affected a term condition or privilege of employment now as in assessing whether or not he established that element judge fitzwater properly considered the totality of the circumstances including each context frequency each context severity whether it was physically threatening or humiliating to mr collyer or a mere offensive utterance and also whether it unreasonably interfered with do we but then he complains it's not removed how do we evaluate the frequency of that type of conduct yes your honor and i would i would like to talk about those two graffiti incidents so the n word that he claims w several locations like k k k i hate and words were carved into something that was a stall in the locker room that the employees saw on a daily basis that even management saw on a daily basis that there was also evidence of the word n word written into the employee's lockers themselves there was evidence in the bathroom stalls not just saying the n word but threatening language hang an n word today kill the n word you say just saying the n word you know just as has an opinion it's not our law when he's on the d c circuit that said since the standard is a very pervasive and that's the most racially inflammatory word in the english language that it's pretty much defacto severe you have that coupled here with the this is the most inflammatory racial slur with probably the most hateful racial symbol how is that not severe and i would just also remind the court that there's affected him they cite to the harris vs forklift case and they say that the district court required him to show that he was psychologically unstable that's simply not true the fact that judge fitzwater considered how it affected him out at work and whether it's psychologically affected him does not mean that he required mr collyer to show that or that that was somehow dispositive and even the supreme court in the harris case said it reaffirmed that we do not require if the employee and genders offensive feelings is not sufficient to affect the conditions of employment it has to be both objective we hostile or abusive and subjectively perceived to be an abusive in order to actually alter the conditions of employment which turning over the operating rooms cleaning them getting them ready for the next surgical medical procedure making sure supplies are staffed delivering laboratory specimens from those rooms and at the point in time that's relevant twenty  sixteen operating rooms were assigned by working in certain pots and those pods handle different kinds of medical procedures and so but the pot so pod d was st i can't remember what specifically did your honor apologized but he was responsible for doing all those things delivering the laboratory specimen and helping the patients go from from the procedure to a hospital room if they were not missed me is there any favorable to mr collyer his testimony was that he saw it for six months once a week when he was assigned to work in potsie which was allegedly the pod that unused room was you had to access that room to get the supplies to do what you needed to the sheet rock there was no wall there and that's in his testimony at age fifty one where he says he saw it once a week when he was assigned to work in posses at eight hundred and fifty six dollars in the record and he also testified that seeing it only affected him by one percent and that is fatal in his requirement in show him being able to show that it an recently interfered with his work something that mr fisk apologists that judge this water also properly considered none of the cases they cited to in their brief or their reply brief with support even if you assume all these facts are true that he was called a boy by a nurse coworker one time  the n word in the elevator for three months that he saw the swastika graffiti as we've just scribe there are no cases that would support that that is sufficient to create a fact issue as to a hostile work environment in and certainly heap they did not found racial slurs and black face drawings in the bathroom and the employer's delay in painting over those about them stalls along with he there was evidence that the manager said as long as he was in charge there would be no blacks in the control room the court found while offensive and reprehensible these were isolated as incidents offhand remarks and they considered the fact that none of these allegations involved physical threats they were not addressed directly to the plaintive and  on getting ready so i think it's just completely improper to say that the lower court applied the wrong standard the opinion shows judge fitzwater carefully considered all the evidence so  circumstance there's there's just no case law and it's simply not sufficient here that he's established fact issue as to whether or not the harassment affected a term or condition of employment moving issues separately st mr collyer received the final warning on august th two thousand and fifteen for incidents that occurred on august th where he failed to respond to his supervisor javier raises calls on the radio and was seen punching the wall punching the wall was inappropriate in the an acceptable can be found in the record at age eighty three and there are numerous places where he admits punching the wall but they also admit that in their brief now given all of this it's  very well that an employee's failure to follow the employer's policies the employer disciplining the employee pursuant to its policies is a legitimate nonmetallic reason com colors admissions to all of this is fatal now here's what he tries to say knowledge of these complaints now at the time of the final warning which was august th it's undisputed mr ray as had just been his supervisor for one day he had just been appointed to the supervisor position on august  parkland at this point in time it's also undisputed i believe this absolutely needs to be corrected for the court opposing counsel it said that we never investigated any of these complaints and that's simply not true in fact of the investigations are actually attached to exhibits to their appendix to their summary judgment response each of these complaints was really investigated by employee relations advisor cassandra henderson and at times employee relations director  arthur farah when it came to the final warning and terminations and it's undisputed that human resources investigated this punching of the wall incident not answering the phone and recommended up on a warning be issued mr steptoe made that decision not not a decision maker for the final warning so all these allegations about mr ray as i complained about him and he knew that's simply not true and not relevant for the final warning consider now you also mention that he had hard concrete proof that the radios were not working when he got the final warning and that's not true either what he saw you in his brief in support of that allegation is testimony that director's death still made when he was asked about a complaint m as employees are allowed to do because mr stubbs still had asked him to provide a written statement explaining why he did not respond to his radio at the end of october and when human worst resources investigated this mr said well i ultimately did not disappear discipline mr collyer for this because i found out that other employees when i asked them to write statements as well their radios were not working either so mr kohler was not disciplined for this at all testimony about the radios not working at the end of october two thousand and fifteen has nothing to do with the radios not with him not respond to his radio and on aug th of two thousand and fifteen so he has no he has no evidence supporting that so then what are you left with on the final morning it's that he disputes that he got called on the radio that's it but he does not certainly does not dispute that he punched the wall that i was in violation of parkman's policies and parkland has sufficient evidence in the upon human resources investigation in issuing him upon a warning consistently with its policies moving on to determination and i think it's also important to note for the court that there are two different police reports because there have been times where different ones have been cited for different purposes there was a police report involved with the punching of the wall incident because the police were called by  caller himself voluntarily and affirmatively went to the police department after punching the wall and then there's also the police report involved with the insubordination incident now judge fitzwater correctly found that mr co leaders germination pretext for retaliation mr collyer was terminated because he was insubordinate and fail to work in an assigned work area as directed by not only his supervisor mr reyes but also to other perry operative leaders now i want to go into into detail about what happened this day because i do believe it's relevant in assessing whether or not there's a fact issue human resources once again investigated the terminations incident the incident occurred on june th of two thousand and sixteen they looked at mr simply did not want to work there and so also know he's not able to get mr calder to work there so then they decide let's go talk to the next level of management director richard spertzel when they go to director richard office he's not there fact he couldn't even sit down he was pacing in her office he was angry he would not listen she had to repeatedly calm him down remind him of the colleague behavior expectations policy remind him all and most importantly that the patients need you to be there so you need to go there at some point he gave his radio to her and he took it back once she was able to calm him down and it appeared that he had gone finally to his party later on the day mr is that mr caller is nonparty he socializing with another can't be here you need to go to potty words are exchanged and from what mr ray as stated was that this is when he became threatening he clenched fist he started walking towards him cursing at him all of this is happening in the taking it back all of this evidence provided parklane with a sufficient basis to determine that this employee was insubordinate and given the fact that he had already had a final warning and also that our corrective action policy provide for media terminations for insubordination the term a nation was appropriate they recommended that to the interim vice president brandon bennett and to mr settle and they made the decision to terminate him now that the following evidence supports his germination was somehow a pretext for retaliation but again they all fail again he cites to the a police report but it's not the police report related to the termination it's a police report related to the panel warning and trying to say what the police found no crime had been committed but one that's immaterial what happened with the police because that was a completely separate track and not relevant to what h r investigated and determined but to that police report he cites who had to do with the final warning the termination and he also tries to make it seem like this could be a direct evidence of retaliation case by citing to mr ray's testimony but again mr ayers was asked about the testimony the statements he provided to the police who came after the punch in the wall incident with the final warning and what mr what's also important to know is that when the police came after they were notified that this employee had punched a wall two other employees had reported to the police that they had heard  management something about snapping their necks and they were scared and so when the police asked miss ray as have you heard of him making him any kinds of threats like this his answer was no i have not have just become this person supervisor but i have heard him make complaints about being treated unfairly and about it being based upon race now he tries to take that statement from mr ray is to somehow show that that definitely establishes he got at the terminations he would not have been terminated but for engaging in predict activity but that just does not follow the record cites the evidence just not support that at all it's a complete misstatement of the record and again mr ayers was not the decision maker for the term or nation the decision maker for the termination was m bennett the interim vice president and mr stossel so then what is he left with it's his subjective belief in this persistence that he wasn't insubordinate but that is not sufficient and the courts are not here to nd guess and guess business decisions and he has not those pictures were also part of plaintiff's summary judgment response briefing in this case the district court absolutely saw those pictures but disregarded them and what's important about how the district court disregarded them in this case and finding that summary judgment was appropriate for the hostile work environment claim lodged by mr collyer is the district court ignored what i think this court has begun to ask questions about specifically its cost which is that the ongoing effect of having racial graffiti in the workplace that is not immediately covered up has a an increasingly burdening effect on an employer what do you do with miss with the pla concession that seeing these things only affected him by one percent the error day that i did the not that he did say that as part of a four page discussion in his deposition where the district court cited those particular lines but failed to cite the other four pages of discussion that mr collyer said to give context to that statement specifically what mr collyer said in that same area of the deposition which is our way to sixty four dollars after saying that it was maybe just one percent that affected him he also said this i pride myself on being able to not worry about stuff or i can go on and off on this or that but as i went through this i found out i wasn't as tough as i thought i was as you know what i wanted to believe absolutely he did say as part of a four page part of his deposition that maybe it just affected him one percent but the rest of his testimony that was disregarded by the trial court talks about seeing a counselor losing sleep having it affect him every day and as the northern district of texas  sister court to the court that issued this opinion stated in the e e o c vs rock ten services case if the graffiti remains over an extended period of time or the employer's response is repeatedly ineffective in eliminating the racist graffiti a fact question arises as to the reasonableness of the employer's response and whether additional investigative and ameliorative actions were warranted that's important in this case your honor because there were no investigations or miller to the actions taken by parkland hospital when it comes to the graffiti and i do want to clarify something that was raised in the last argument regarding the frequency that mr collier was required to view the specifically on page one hundred and twenty one dollars of his deposition which is record site two hundred and sixty three dollars mr collier stated that at least once a week i would be in there three or four times per day at least continuing on that he would be there regularly maybe once or twice per week yeah we definitely that was the way our rotation went around so there is testimony in the record that it once or twice per week four dollars to five dollars times per day for over unstable right they i believe there are more are greyscale but the this the swastika was actually carved into it where it could be very easily seen in a review of the record it will show that these pictures are not subtle it's not a drape nazi flag your honor will absolutely admit to that but they were noticeable they were two feet by two feet square and more importantly to the analysis of this court director stats all of parkland hospital testified that he saw them that he knew they were offensive that they parkland hospital policy and that knowing all of that he still chose to do nothing and that is what implicates a severe and pervasive hostile work environment that we have here specifically and again just as to the retaliation claims what is important to note is that although the radios may or may not have been working mr collyer said they were not and so a subsequent investigation that proved they were not where the hospital again try to write them up is instructive and that a jury should be allowed to consider that evidence in determining the retaliation claim finally honors again mr color comes here not seeking an extension of the circuit authority but merely the application of existing th circuit thore and in so doing his case should be reversed