pretty good morning i'm peter also represent charles james may please the court first of all i would like to reserve approximately ten minutes for rebuttal i'm going to speak for probably five or seven minutes and then i'd like to take your questions or obviously you cut in and ask me questions i want to start by pointing out the judge was basically made my case already in the previous case regarding the northwest airlines employee because this is a summary judgment dismissal case and the the argument basically is that there were material facts and evidence there needs to be very little evidence to establish the prime of his case i'm going to go to the jury each of mr james the issues in the case there was ample evidence in the record that c train had an unofficial policy which required its bus drivers to endure racial epithets and other racial hostility from their customers this is evidence consistent for example the former director mr heartly telling the st james when he was first hired that you should expect to be called racial names as a driver and again at a later time telling him didn't i tell you that you should expect this and you need to learn to live with it it also occurred when supervisor combs told mr james and his his coworker another black bus driver all over jeffries that they would be fired if they continued to complain about the racial hostility from the customers and then of course the incident that mr mr james in trouble was when supervisor and graham both told him that he complained too much about racial hostility from customers that if he didn't enjoy it he should go and get another job and that when he did complain he shouldn't sound angry that people were calling him as he called it the n word which this court has recognized is highly offensive word to use to african americans  support you and you shouldn't have to put up with racial hostility from customers but the mr james made a case that there was an unofficial policy that in fact he was required to endure in tolerate racial hostility from customers  during the course of his career now as i said we probably didn't articulate the policy or custom aspect of that as clearly as we should have in the trial court but we didn't have the burden because the authorizing or condone discriminatory employment practices but they presented no evidence to support the argument that this informal policy did not exist and  say there is no evidence that the police and we were in conspiracy and the supreme court said the defendant has the responsibility to produce evidence that neg ates any possibility evidence do we have based upon both the employer and the him and the union including it's a work improvement program that somehow there is a retaliation going well first of all i disagree with the it's characterization of the unions response to the the unions did conclude that it was a training program and therefore could not be aggrieved under the collective bargaining agreement but that doesn't make it conclusively so that it was merely a training program in fact i think it was more like a probation somewhat like in the last case i think it stretched alderman raise raise the issue that they put specific conditions on him that he had to meet in order to retain his job and one of the indicators of that for example is that he was subjected to more stringent requirements under the p i p then he was under the collective bargaining agreement for example under their normal policy regarding customer it's an employee could have up to eight customer comments on the scene nature that w just one act of insubordination whereas the collective bargaining agreement had to have granted the union managed to get that one changed but it shows that the nature of it was retaliatory in that they try t charge it was not at that time this was a very difficult thing because there was a meeting that i represent mr james and they brought in evidence about what i allegedly said and i didn't want to be a witness in the case so i tried not to address spring of two thousand and two by fining him insubordinate because he would not go along with the p r p so that's the connection we're not saying he was discharged because of the ip itself but because with ongoing position to the p r which went along for that entire period of time it was only supposed to last ninety days but they made it last for a much longer time another incident shows that the he was an not addressed whatsoever in the opposition to the summary judgment according to mr fels the reason is because our summers as motion wasn't strong enough on that point if that is his argument he should have at least put in the opposition so that we were on notice that we had a burden that he felt was not sustain tape and if you look at the record which i urge you to do mr hartley did not mention anything about race means his testimony was you are a bus driver you may be called names in this job there is no linkage t dispute that as the district court found what he's that is that we need to do something else that the test is that we prevented one hundred percent that is not the test the test is was the agency's response reasonably likely to deter and in this case it certainly was they have a complaint policy they affirmatively and repeal it encourage mr james to use that complaint policy when you use it to send a supervisor out there to investigate and they counseled in school passengers where appropriate cameras and they hardly different security to ensure that yet you are dealing with the public but where we can we will do everything to deter this behavior from happening again and control it where we can and that's why there is a different standard when we're talking about third parties as distinguished from supervisors certainly an employee is in particular when you can go to the workplace you know where the employee is you can discipline you can control their behavior see transit what it could to control the parties behaviors t the agency can't take any action in this case a bus driver if there's a conflict i can't give you change you don't have to change the fare box i can't give you change that that's against our policy a conflict arises is the agency to that because the race know if the operator tells them they take action and that's what they did here common tools used in the workplace to ensure that the individual is given the tools to resolve whatever the issue is or at least identify with the issue of it and that's what happened here but he hasn't even had to comply with the pm he had to because again if you know if you were why there he there wasn't any mechanism say ok if you don't approve this is going to happen this is let's talk about what's going on in your workplace and let's give you the tools to ensure that whatever the issue  over a three year period of time and precedence seven times more than the average twenty six more than the next highest number of an operator having a concern so only there was a legitimate reason to say let's sit down and find out what the cons i think you just might only thirty five judge was an answer to your question in my grief which was of the experts record ph to seventeen and the next couple pages after that we addressed the retaliatory aspects but they were very little efforts made to the overall number of hostile remarks made by passengers and this was what mr james was complaining about all of the time  or all along he was saying look i'm still continuously subjected to customers calling me nigger or other offensive words or spitting at me or threatening  me just because i do something simple like ass and pay the fare this is not right i shouldn't have to put up with it and while she tran may have made some efforts to contact offending passengers there's very little other than the record shows that there was one poster that was on the bus that said there was a prohibited bus contact conduct but there is no evidence in the record about what that what conduct was needed to take some more affirmative steps now obviously i don't have an expert i'm not an expert on that and i think it's the employers burden the employer is required by case law to figure out what they can do what is reasonably likely to d example one of the things you could have done was hire an expert told the expert look we've got this problem our drivers are complaining that they're being harassed by the customers the female drivers were also complaining that they were being called testified that a number of supervisors just told him don't call in so much and that was in fact the issue when he had this meeting with supervisors olsen and graham and that obviously that that evidence has to be taken as a very for purposes summary judgment getting back to the policy and what they did they also had a policy that the driver was supposed to open the doors and let people saw that although the driver report passenger million propre a comment they said will send a supervisor out to check it out by the time the supervisor got there most of the time all the witnesses were gone and the the offending passenger w gone one of the things that they could have done now and then then then they would say well we can't do anything about it because we can't find the person and there are no witnesses one of the things they could have done they could have come on the same bus the next day at the same time talk to some of the passengers who were regular writers of the bus and said did you witness this incident yesterday there's no evidence that they ever tried to do that if they couldn't find witnesses on that day they said sorry there's nothing we can do that is another type of thing that they could have done exact facts of what happened i think sometimes they were able to contact the offending passengers and sometimes they work there are two incidents in the record one incident is they contacted an offending passenger they gave him a ride to the bus station incident where he complained about a passenger supervisor golson came to investigate went to talk to the passenger the passenger denied having done it and colson came to mr james and said well he didn't do it there's nothing else i can do didn't talk to any witnesses didn't investigate any further and this was after this crew james complained his grief the said we're going to end we want you to report we're going to do something about it we we don't take this sort of thing lightly  nothing so their own official policy really was different from their official policy and that's why there's a one nine hundred eighty one case and that's why the rest of the case should not have been