you have just wait for second crowd is leaving selling high end shoes for almost a decade he was very successful he earned commissions around a hundred thousand a year he was compelled to leave jeffrey after became painfully obvious that his coworker slurs and threats of violence would not be stopped by management all rather felt physically threatened he was stopped was rated because he is hispanic and gay well he saw the differential treatment between hispanics and african americans it became clear why he was targeted his primary tormentor a straight african american woman suggested after following him around the store in the hopes of provoking him to fight with her that she should cook him a roast com you clearly a lot and she also posted messages on facebook one read i wish i could smack the shit out of some coworkers the other said hash tag stressful want to kill my coworkers kind of all right i was told that she was looking to provoke him so that he would hit her and get fire with any meaningful response in fact even more than the arrests come polio we have evidence in the record that mr siri the head of the store said to people i am concerned and i have problems disciplining african americans because i'm afraid they're going to sue me so what he did with mr overall though a ten year employee was to show him that with respect to what was going on in the store despite reprimands despite being told to stop it didn't and there was incident after incident and the incident where the district court you say incident after incident after incident one other incident incidents are you   here were the district court in the defendants said that there were three there were substantially more than there were mr omer out of being called a miserable motherfucker after there had been an issue on the floor the trace the two facebook comments and mr overawed it was told that they couldn't tell her not to put them because of the first amendment she was he was called a little bit she was called  he was told that somebody somebody was told that they had to choose between the real girls and queens the other thing is these are just the ones that he told the employer in the iraq war you incident  he made of fried chicken and sweet potato fries response that's correct neither party was disciplined right and neither would mr all rather said about that was it wasn't the other scum ploy that was a slur although it can be perceived as one for him it showed him why he was being treated by her and others with a kind of reaction and which is that there is bias against mr there were a couple of people who resigned who when they did they said that they had to leave before they became to better their worst in one of the first conferences with the torch the mr brock yes and then he said goodbye to mr siri he kept open some lines of communication but he made it very clear to mr al because there was hostility by some of the african american employees that the store would do without the actual the store would do nothing ross the actual evidence i mean i suppose mr robert could be mistaken that's just his opinion is there any evidence in the record other than the rose can point to comment where anybody said anything about mister  know dead also he was concerned and it's in the record already that if he found that a hispanic should not be written up for the same answers and that he would be accused of favoritism so that he decided that the way to do whatever the potential writing up was was to not favor or in make it look like he was not favoring anybody who was hispanic and he would do the opposite with an african american and it is the people who are concerned about some of the comments who tried to break up fights aligned along racial lines and i think one of the things that happened with the district court in the defendant is that if reaction was that there were three comments there may have been three explicit comments that were reported to management but there were not only others and some in the record in the areas on com please correct me if i got this wrong that comment doesn't appear to be in the written complaint to nordstrom in the interview with that's i think in terms of a concern what happened here and it happens in other cases as well is that you know if somebody is treating you badly you may not know why for him and  the discovery shows that he almost come paul your way it's more of an aha now i understand why you've been treating me badly and he reacted with the fried chicken which is you know not a great thing for him to have done but they were each essentially saying through the food ok this is a lot and i get it i understand that but i guess my question is why wasn't  it in his written complaint i think in that room or in the interview with the investigator away because he was not saying well first of all the initial complaint about the food was by tami right and so she is the one who brought it to management mr over others said that he said what he said but he didn't officially complain about that  other than to say that this was the beginning of what was happening and ahmed links right to the discriminatory alleged discriminatory conduct she was actually i think in his mind the aggressor is the one who told people that she wanted to start a fight so he would hit her and provoke he would provoke she would provoke him and that happened and that was one of the incidents that the the district court did not see as harassment the defendant called squabbling where the mr alvarado was told over and over and over again something until he said leave me alone you told me so your argument as i understand it is that this working on the floor selling these shoes became so hostile such a  not you know it just all of a sudden his life changed and management not only did nothing they used the reprimands in such a way that people were told that they would be written and then they were told if you do this again you'll be written up again to the point where mr neale and another person said they're never going to fire us we know it the  other thing i think about the rest comply is that it was something that made it clear in some ways that there was a division in the on the floor and rather than do anything to try and heal that and to try and do something to make it better management would say to mr over rado if you don't like it you can  guy was accused of having raised his hand and he said he didn't and he went to mr serry and said look at the tape look at the tape that said there was in his mind a tape it was the selling floor he was accused of raising a hand which he said he didn't and his answer was look at the tape and then it was gone and  a jump right he said look at the tape and it was gone it may know he this is there any is there any evidence that there was a taping system that would have captured this it was his understanding at that time that there was when he said keep the tape when he asked to have mr siri watch the tape he did not get it take so whether it was there or not there were cameras so over they said they had one in the jewelry department they had one in the break room where they watched mr heat and we did asked defendant and there we didn't get it and then we were told that that part is not with the tape but it was definitely mr overwrought it was understanding after a very long time of working there that there was no there i think with respect to the problem with what was going on was there was not only no attempt to try and resolve the complaints or to make the environment better it became one where more people became involved on either side more people left because they felt that there was  the potential for harm and the potential for violence and the constructive discharge when when an employer after ten years says to you if you don't like it in response to the fact that the complaints weren't being dealt with if you don't like it you can quit if you're not happy you can leave and he did and other people did and i think when the court reviewed the evidence it was not in the light most favorable to mr alvarado the entrances were not drawn in his favor there in fact  is it is not unusual to have a case where you have the actors the heads of the company saying we're afraid to do anything about african americans and he's afraid that will look as if they're favoring the hispanic that to me is something that at least would be a ticket to a jury at least a jury should just saw it is that what motivated this did they manage him and do the right thing and the only issue one that is the district court made it very clear that in the courts three year progressive discipline was mandated by law and had to be followed and not only is that not correct but contrary to the opinion if a review or a warning please the court my name is james weller i'm here on behalf of jeffrey and nordstrom the fact of the matter is that there were two incidences by non supervisory employees that report to management and more church and june of two thousand and eleven that involved a discriminatory overtone to them the fact is also that in response to those comments fried chicken both of the individuals involved missed daniels and mr alvarado were verbally reprimanded for that and that conduct never occurred again when you had  relation there's no question that these two people didn't like each other but i think that what this court has been consistent in saying in any number of cases is that there has to be some demonstration that the hostility is based on hostility towards a protected characteristic and you don't have that here so compile you have one comment in march of two thousand and eleven and from that they extrapolated everything else that followed was my baseline information about why they were such as telling  but the court has said over and over again that when you consider facially neutral events subsequent events such as the encounter in january of two thousand and twelve there has to be some evidence to show that those ongoing confrontations have some type of an animist generated and based on a protected characteristic you don't have that you have one comment by ms daniels in more choice of two thousand and eleven there's no indication in any of the other exchanges any of the other encounters that she's targeting mr alvarado because she doesn't like hispanic gay individuals  he said to him to his face you know belong here i'll leave that second part of that he said to him in the break room you know belong here those all occurred on on one day in more chip two that and i'm quoting told by john seery that is difficult to deal with allegations of misconduct against african american employees because he feared it might appear racially motivated  this evidence that management thought that or felt that there that it had to treat african american employees differently from no african and i think it indicated that there may have been a pause a mr serious part but his actual conduct demonstrates even handedness discipline to the african american employees kishi daniels was is an expansive definition of unlawful retaliation says to prevent a retaliation claim under the n y c h r l the plaintiff my show that she took an action opposing her employer discrimination and that as a result the employee engagement conduct that was reasonably likely deter him from engaging in such action why isn't that possibly this case here at least why isn't there a least a jury question judge i think that my client did everything right here they brought in outside individuals to analyze what was going on there they brought in kelly lane she worked closely with a fellow named jersey romanoff ski they interviewed everybody you have mr siri the store manager who ultimately prevail but the question is this stage why isn't that because he really didn't play material role in the investigation he was interviewed kelley and interviewed everybody she spoke with m about what happened they determined based upon the ask siri whether he told plaintiff that he was uncomfortable at disciplining african american employees that i don't remember if she did or not i know she did very nfairly favoring african american employees no i take it mr omer out of claimed that he was discriminated against on the basis of ethnicity and sexual orientation is not a claim of racial discrimination and if this is a disc case of unfair favoritism towards african americans as against everybody else is that different than a claim of discrimination on the basis of hispanic and the city i think it's sort of the flip side of the issue that the problem that i have which you have you also highlighted in your questioning of the bravo is interviewed by kelly wayne as part of an investigation which he's trying to determine if there is a hostile work environment and he talks about the fact that he had had a couple of encounters with teacher daniels but they had worked it out he has specifically asked does john syrie discriminate and he says no on the way out the door several months later when he's leaving the company in his exit interview and this is in this a series notes he talks about how he hopes that they'll work together again in the future and he hugs him as he's leaving so to me that that point in and of itself would seem to undermine an objective basis the idea that this is a hostile work environment think i think part of the problem here is the appellant's i mean the defendant's belief that they did everything right it is hard to say we're dealing with a problem when your not changing in any way the environment you're not doing anything so that people feel that they have to change the end and people to try and find out what was wrong with the environment and they got no guidance as to what to do to change well i think it was the nordstrom it's more that they are part of the ownership of the company dared to scotians with the jeffrey talking about whether to favor or whether it would look like favoring one group or the other and i think with respect to mr brough not only did he say that he was leaving he was picked before he became better and that is in the record there was a concern about health and other issues he said he was leaving before he became bitter about being discriminated against on the basis of being wit you know he did not say so before he was better so why is that any evidence even if we were to just credit his opinion whatever it is why is that any evidence that he believed that he the hispanics including mr alvarado i think when he was talking about what was going on generally that is when he said i have to leave before i become better he saw what happened to mr alvarado with the anxiety attacks and the like and i just think my concern about what jeffrey is saying here is that in order to have a hostile environment you would have to say each time and use any of the words there you are a such and such because you are hispanic isn't the real problem here with what the employer did if if keesha daniel is bigoted or he should daniel misbehaves that's a fellow employee so what we have to find is that a reasonable jury could conclude that there was a hostile environment that was attributable to the employer i think the employer yes that's correct we don't have an individual claim against mr daniel we do not have any specific claim against her i do think there are issues with respect to the violence or the potential violence that we talk about escalating situations mr own runner was accused of raising his hand which he denies was there somebody else that was that fight that missed daniel was taken out of the store yes there were also home and s was taken off the floor and she was given a written reprimand after that that's correct and i think the issue on that was also that mr alvarado was given a reprimand and it was that one reprimand that the district court said could be an adverse action but did not this court did not feel that it was strong enough but that there was a potential reprimand for something that was done earlier in the intervening event was a formal complaint to management and nordstrom about the harassment