good morning your honor steven montoya here on behalf of the appellant robert christopher as your honour's are aware this case involves a racial harassment case specifically an individual of asian descent robert christopher was employed as a foreman at a commercial electrical contractor in phoenix arizona name spectra electrical and the his boss my client's boss a guy named eric white who is the general foreman of the project he was in charge of all the other foreman's called my client a series of racial slurs a coke not a pineapple  would know about this yes your honor into in two ways and i have to ask that question chronologically first of all management knew about it your honor because a manager a general foreman was the perpetrator of the harassment second of all the general foreman's boss his name was wes off strand are also heard mr white make discriminatory comments at work not to my client but in reference to other racial minorities and instead of doing anything about it he just laughed second of all i have to answer that question chronologically judd so verman because unquestionably no one can deny specter admits that spectra knew about it just a few days after my client was hired by mr white on october twenty ninth of two thousand and eight it's e r one sixty nine it's the union complaint on november fo of two thousand and just after he was determined after he was terminated however judge fisher was only just a few days sewing and we'll talk about the significance of that our view is that it's insignificant supervisor theory if eric white was a supervisor then the employer is vicariously matter is a matter of law unless there is no tangible employment action if there is a tangible employment action there is the affirmative defense under eller and farragher however suppose mr white was not a supervisor suppose he was a non supervisory manager would still be liable because in reference to cull employee harassment once the employee knows or should know of the harassment still has the same duty under under the law to take prompt and effective remedial measures let's assume that mr white was not a supervisor specter still  nov fourth of two thousand and eight just a few days after was fired because he complained about it in writing and the union gave spectra a copy of the complaint with specter of meds and after after spect learned of the discriminatory harassment specter had a duty to investigate now the mere fact and this is really what this case is all about what are employers duties to a former employee in the context of a complaint of discrimination and our response is there the same as there are the same duties that a employer always has for example suppose you're a does that mean the plaintiff in essence a private attorney general to enforce that title principals in the workplace even though whatever remedial action might be taken at that point will not benefit him but might make working conditions at that particular company better i would answer that question judge tolman yes and no he's not totally he's not totally an attorney general because he's also complaining from self because as you know one of the remedies under title seven is reinstatement like but are we talking about taking effect of remedial measures to in essence stop the name calling to stop the name calling but also to toss to stop discrimination directed at third parties and this court's case law has really been uniform in reference to the two pronged purpose of title seven and the other civil rights laws one purpose is to make the victim whole hey if you've been fired because you're mexican american and it was discriminatory you get your job back the other one is deterrence yes judge fisher are we talking about punitive damages what we are bu not equivocated from that ruling in the fifteen years since it was issued sixteen years now that intentional discrimination is enough to establish punitive damages and moreover this court's opinion in swinton versus potomac two seventy fed third at eight o seven recognizes that racial harassment is a form of intentional discrimination in once an employer has knowledge of that intentional discrimination has a duty to act in this court has uniformly held that if it doesn't act then the employer is liable and actually let's talk about reckless disregard if an employer gets notice in writing from a union from the e e o c from a state law enforcement agency that one of its good employees is being discriminatory harassed and in fact his crew has quit or been fired as a result of that harassment that employer has a duty to investigate and if that employer fails in that duty that is a reckless disregard of a federally protected right that subjects that employer to live billing for punitive damages in fact and then i'd like to reserve the rest of my time for you to down that yes judge tom and have a problem with the procedural process with regard to the punitive damages yes trauma stricken and i'm referring specifically to the fact ruling without looking at the subsequent testimony motion was never renewed following the trial that test and based upon that fact we're not going to press that argument this morning because of course if we prevail on our appeal from the summary judgment that becomes moot similar similarly we didn't brief the failure to ask for a jury instruction regarding punitive damages because if you look at the final pretrial order we know that had already i please the court my name is charles work and i represent the apple e spectra electrical services i think it's important to set the procedural stage here accurately and first of all let me say the issue here is whether there was a basis for the award of punitive damages this is a summary judgment case this is not an appeal from a jury verdict the spectrum moved for summary judgment on three basis two of which concern punitive damages and only one of which is at issue here today and that is whether there was any basis for an award of punitive damages the basis that was offered by plaintiff was that spector had failed to investigate and to interview witnesses and to discipline mr white after mister christopher had quit his employment and had complained to a third party his union that was it the basis was not that mr white had been calling mr christopher names over a period of time and that there your honor alternately we argued that in the motion for summary judgment first first of all we argued that there was no hostile work environment going to the the merits of the of the claim itself and secondly we argued that there was no basis for an award  punitive damages based on the alleged failure to investigate interview and discipline and thirdly alternately we argued that there should be summary judgment on the punitive damage claim because there was no vicarious liability because this employer had in good faith adopted and implemented in enforced a programs within its company to prevent discrimination not you but let me ask you about it do i understand correctly that there was in iraq a tory answer to the effect that after your folks learned about the complaint to it was propounded to you yes your side that says what it would you investigate and the answer was to the effect that after you got the investigation tom campbell talked to those who would have knowledge of the incident yes and then it turns out specter learned of the complaint are true that answer is true campbell did investigate he did investigate what happened it and first of all i'm going to say as you already know that the review of this summary judgment  limited to the record that was before judge campbell at the time he granted the motion for summary judgment we are not to be considering this court should not be considering testimony that was offered a trial so i think the  this court is clear on that the leading case cited it it was an issue until a couple minutes ago it was too little is that he didn't want to press the point i'm trying to make sure i understand what the facts are i understood the facts to be that campbell that there was he interviewed mr white when was that how far after the event that was within i believe the complaint to the union was made three or four days post quit and the union began its own investigation and provided the complaint form to spectra and then spectra conducted its investigation and so it would be in the neighborhood of a week seven days after quick give or take i don't know precisely it was that after the e e o c issue it was before it was well before that because the the complaint to the e e o c wasn't made until still later and the determination by them very much later there there is in the record a witness statement from eric white there would be a date on that that would fix it in point of time relative to the date of quit by mr christopher i'm going to say as a bout a week after but in any event it it was not i know it wasn't a day or two later and i know it wasn't a month later and mr campbell test testified that he interviewed mr white had mr white complete one of the company's witness statement forms  reach mr christopher by phone and was unsuccessful and the the other witness that was named in in mr christopher's complaint form a mr salt was someone who didn't work on the job at all he was a cad computer aided drafting person who worked in the office and he didn't know anything about name calling and the person that was later said to have been someone that should have been interviewed jason atkinson no longer work for the company he had left months before but yet were criticized for not contacting mr adkins here your honor i'm a little confused because  specter knew before let's get the and i want to interrupt but let's get the facts straight mr white was a general foreman but he is the one that was doing the name calling and the issue here is whether spectra knew of the name calling and so white is the one doing the name calling and he's not telling specter that he's engaged in any name calling and he didn't engage in any name calling in front of other supervisors or he didn't engage in the name calling at at meetings of the supervisors and mr o's tranter who was referenced who was mr white's boss the facts are that the name calling didn't occur in front of mr o's tranter instead that nancy are the questions so therefore there's a arguably a tribal issue about whether the company actually was acting in good faith to implement and force title seven any corrective measures against mr white spector those failed to reasonably implement its alleged then a discrimination policy and so therefore is liable for  employee that is not how the issue was framed in argued by both sides at the time of the summary judgment and in fact in the response to the motion which which  the motion clearly distinguish between direct liability and vicarious liability and pointed out that they won't were arguing a vicarious liability basis in the response of the motion it simply said because fact specter failed to investigate and discipline christoffersen title to present his claim for punitive damages it did not argue that the basis was by charisse liability it did not argue that the basis was not a form of direct liability simply for not investigating and specter had no legal obligation to investigate after mr christopher quit and even if it failed in some measure to him investigate after he quit there is no evidence at the time of the summary judgment motion or later that its actions were reckless or with with malice or malicious i should say so when properly framed when the issue there was no investigation i think even a keystone cop would interview the victim of purported misconduct how can you have a good faith investigation if the victim is not interviewed the original well yeah but when you look at the record they do work trying to reach him to find out what happened on on day one mike eric why call my guy a pineapple mike i got sick of it and left the workplace without telling anyone he just walked out they tried to call him a bunch of times because they didn't know where he was he finally answered at the end of the day when  called them in eric white called them begging him to come back to work he came back to work the next day and eric white fired him that's why they were calling him because he had walked off the job without any explanation the record is clear mr workin asked him he had the same cellphone number they did not try to communicate with him and as a matter of fact you are one ninety one the president of the company who was also there thirty six deponent in reference to discriminatory practices and or and i discrimination practices and procedures page one ninety one i asked him would you want when you want to interview the victim and he said no because he didn't work there innocent is there is there a case that we can put our finger on that says if the employers learn about discrimination after the employee has already left the well that the horse is out of the barn if the guy's already left there's nothing you can do about it now i have your honor our fuller versus city of oakland dawson verse it in tack and swinton versus porter cited on page eight of our reply brief because in those cases this court maintains it's uniformity of insane once an employer learns of discrimination whether it's by a supervisor or by a coworker it has a duty to act and that's why all of this argument well he wasn't a supervisor was there vicarious liability whether he was a supervisor or not whether it was a coworker or supervisor once the employer had to do learned of the discrimination it had a duty to act former employees are not exempt from title seven's force they are subject to  protections just like anyone else and then all be quiet in fact a former some in former employers have been injured worse because suppose you fire someone based upon their race and then they complain oh well he's no longer employed here i don't have a duty to investigate i don't have a duty to do anything in fact that would actually encourage employers to churman eight employees to alleviate them of their duty to investigate and discipline thank you thank you in his w