ant makes a number of arguments in support of his appeal i'm primarily focusing on the district court ronis decision regarding his hostile work environment claim on summary judgment opponent's position that the district court made a number of errors and basically dismissing the hostile work environment claim specifically starting with whether or not it here to federal rule fifty six c of weighing the evidence or considering the evidence in the light most favorable to appellant for example the district court determined that the investigation that that the post that mr hammer hand listed throughout the school in january th of two thousand and eleven saying that racial slurs were you know i guess against the policy of this of of his staff or of his unit should be prohibited there were conflicting evidence as far as whether or not that actually occurred mr  account and appellant argues that basically that was contrary to the fifty six c another instance the court decided to look at the various instances of i'm sorry just making sure i understand what you were referring to earlier correctly or furring to the evidence that mr hanrahan sent out an e mail instructing employees not to engage in conduct in your and your counter to that is that there was also no evidence that  your client sent that e mail wasn't received and there were other employees at least one other employee you said he never received it well actually there were that it was a memo the mr hammer hand generated there custodial cleaner so they don't really have access to coworkers that were provided affidavit saying that they never received this memo and then you have mr hammer hand providing a self serving affidavit saying that he did and the the trial court found that hammer had actually had distributed this memo and that that was in effect a remedial measure we tend to disagree on that whether or not it was effective and whether or not it actually even curt we also argue other times once in april once in june the district court cited a stipulation of settlement agreement at the at the culmination of a grievance hearing in december argument is that even though he couldn't he wouldn't be able to necessarily cover from that that at least context matters and that at least it was show evidence of intent it would also show that there was a pervasive hostile work environment including the incident where my client had been poisoned by his coworkers that district court said that because of the settlement agreement that that was not permissible in terms of bringing that to the attention of the jury it's appellate position that this was an context is particularly demanding so you have to show that the defendant's actions were about for cause of the hostile work environment some of the evidence you pointed to certainly not all but some i had some difficulty  finding evidence that the defendant was aware of the of the actions of other employees because some were not there was not evidence that was directly reported to him by anyone could you address that there there were conflicting question of whether or not he he was told by two coworkers that there was a physical altercation between my client and two of his coworkers during the course of his deposition he testified for example m that he was told by of the two employees and during the course of the trial he said that he saw the incident on v on videotape so then there were the other incidents where there were questions as to whether or not mr heron he was put on notice based on an incident report for example with the poisoning my client was hospitalized there was testimony that he claimed that he some of the coworkers had seen him being taken out in the ambulance my client also testified to actually having told hanrahan about various incidents and whether or not you know you credit the side of the of mr han versus my client is also a question of fact for jury to determine and we  that wasn't raised before the district court until after the jury had returned its verdict and your adversary argues that that's that is a basis for us not to consider it here well there seems to be some i guess confusion to some degree selection process that that constituted a valid objection and even the language that the magistrate used during the course of that discussion where she where she there's a question of whether or not she abdicated her  responsibility in making a determination as to whether or not to permit three strikes were racially motivated is propellent a position that the city articulated its view pretty clearly that it was based on one of the one of the jurors i guess i guess predisposition of watching in c i s law and order and on the other end having a guess a relative that worked for the innocence project and another i guess having a relative was a cleaner not a cleaner but just one who worked for the innocence project and a relative but in united states v thomas right casket that if you fail to raise a complaint about the ma judges failure to recognize the error if you fail to raise in the district court before the jury was sworn we might few it is wafer and so the questions why shouldn't we i mean the the the caution went out the air and the whole point of raising it in the district court is that if the argument is meritorious the jury won't be sworn until the errors corrected and you didn't do that here about thomas well i mean i also looked at the galarza case and it did not require that the attorney raised it multiple times that the fact that they raised it at least once and then on top of that we didn't receive an instruction from the district judge telling us warning us that you know if we don't raise this issue that it would we don't raise issues about the jury that it would constitute way where there was no clear instruction it is after an adverse verdict been returned against your client i would necessarily say it was the most appropriate time your honor i felt that it was adequate that we raised it on the record that the ma e addressed the issue on the record that she expressed concerned about the used of of the perm three challenge and even mentioned that it could possibly be a point of appeal should the case being controversy at some later point at that point i would say that even though it probably wasn't best practice to raise it again again we were not cautioned by the district court and all before the jury's impaneled that we had an opportunity even object we just went into trial and good morning dan you mustn't run from the police the point of appellate mr wilson had his day in court in fact had four days in court where he was able to present essentially all the evidence he wanted of every alleged negative incident that occurred to him throughout the time he worked for the appellee mr henry han after hearing all this evidence and sure unanimously rejected his entire theory of the case which was that the allegedly negative incidents that occurred were the result of mr henry hands retaliatory or discriminatory animus interest the argument that your adversary started with that district court erred in not submitting hostile work environment claim to the jury is that the jury was not instructed on that theory because it was decided summary judgment yes your honor i think at the threshold as we argue in our papers the opponent's case on summary judgment before this court is wholly deficient under section one hundred and three the critical question is what involvement the employer the defendant mr hanrahan has in these incidents many of which are anonymous right for some of the worst kind of  it's anonymous vandalism we don't know whether it was a coworker a students in the school we have no idea who did some of these awful things right and so when an apple and seeking summary judgment from this court does not cite even one iota of evidence of much weight they're given might be debatable but there for instance by the employer hanrahan himself or others by other persons that were tolerated by the employer who are not adequately corrected by the employer and the question i have is that record how can we conclude that it's insufficient as a matter of law to allow this hostile work environment we're in i think part of it is that a large amount in fact by plaintiff's own account the by far most egregious incidence the ones where the perpetrator was known right where there was something  facially racially charged about the incident all of that was subject to settlement agreements right and so what we can see what settlement agreements right did all of that all of that kind of to is settled and so if you look at what happens after the resulted in a lessening of the severity of any of the internet stock complained about this is very different that settlement renders those incidents irrelevant what you argue i think that even even appellant urges that they should be considered for intent and so that's exactly what the court did when it came to the trial that's where all of that evidence came in a trial with respect to discrimination retaliation but now we're talking about whether or not the employer is possibly liable for a hostile work environment right and i think that the court's focus when there are settlement agreements needs to be on what happened settlement and whether those incidents are sufficiently severe and pervasive and what we have post settlement in this case is we have a couple anonymous incidents which then stopped as soon as mr henry had testified he responded and then we have after that one neutral comment from a co some saying you know i'm going to get you or something like that and then we have at the time of terminations to henry when making a comment about a bug infestation and that's and that's it that's it your honor it's before the settlement right yes yes why i ask yes but there was there was nothing about the settlement that dealt with culpability or anything like that that's that's right you're on that's why i asked you if you point was that they are relevant they basically dropped out of the case and i thought you said that that was not what you were arguing your honor i think that i think it's fair to say that yes especially for the purposes of intent which is the plaintiff argues one can consider that but to the that there is an allegation of a hostile work environment and there have been settlements in place already i think the focus needs to be as the district court found on what happened after the settlements i think the court also held alternatively that even if you look at what happened before the settlement you cannot especially under section one hundred and eighty three find that there is personal involvement by mr hanrahan that can lead to liability in this case i want to turn briefly  also in the alternative the magistrate properly weighed the reasons given by counsel i think it's notable that although there were two african american jurors who were struck there was a white jurors well and in the case here the appellant argues that you know watching and c i s is not an appropriate justification this court farhang found exactly the opposite and i think in this case what's important to remember is that mr wilson was terminated for playing basketball when you supposedly working in and lying about it and the only reason that that was known was because there is videotape and there was a dispute before trial about whether it was him on the videotape or not and so when we have in c i s and you have the proof police dramas where they you know say enhanced video and all of a sudden they're all the pixels clear up and you can see who it is right that's not how these things work and so it was clearly troubled by the explanation i think that she was not confident at the outset that that was standing alone a reason that persuaded her i think ultimately she based on all of the evidence she position of bias as to the case of the home i think some of the other trial arguments are similarly merit less the notion that there was any evidence improperly kept from the jury i think falls entirely flat the appellant argues like many of their arguments for their st i want to appeal our news that d or suggest that the jury didn't see evidence about de la cook slur about the chemicals in the sink all of that went to the jury if you look at page footnote five of our brief we go through the record cites for all of the incidents that mr wilson complains about all of that went to the jury the jury heard every single piece of  considered his theory of the case and they squarely rejected it and i just returned to the hostile work environment claim again for a moment yes the district court determined that looking at mr han aransas own actions they were not severe pervasive enough be applying that the title seven standard and we're looking at a different one but i didn't find any place maybe i missed it where the district court considered the allegations of undesirable work assignments as part of the hostile work environment which your honor what i think is really important to note on that point is that mr wilson's work assignments were negotiated and settled with him in his union rep and he signed off on tho in the record and i think it has to be deemed undisputed is that those were negotiated by the parties and so those can't knows cannot be a basis for hostile work environment like i'll turn briefly to the final issue which is the question of  the court's granting of a motion to dismiss by the department education i think that what's important again to realize is the narrowest of appellants arguments especially in his opening brief on that point and  court did was it looked at the complaint as pled at the time and said you have not alleged any basis under which deal he could be found to be an employer the argument the appellant urges that pages fifteen to sixteen of his brief is that argues for the st time reply a single employer theory which again funds no basis at all in the actual allegations of the complaint and therefore this court should follow it up with the department of education with the city identified as the employer their employees of the independent contractor so is this court explained in the brennan decision and is undisputed here the the the city provides the city engages the employer mr henry has sort of a hybrid independent contractor slash civil servant and he's given a lump sum of money to do whatever he wants west there's a cap on how much you can pay him self but everything else is up to him and so under every test for an employer is the yes or yes but then why are you identify yourself to the internal revenue service as the employer i would think you would wash your hands of it altogether i think your honor that it's simply for administrative ease for the custodian engineers who i think as as we can infer that if they don't have e mail they're also not running a payroll database so that one aspect of how this is done is that  system by the city withholding is not being done correctly it's not the city that's responsible it's independent contractors but the way you're doing this the internal revenue service if it identifies a flaw in the withholding will come to the city why are you in this at all i don't know your honor but what i do know is that the law from this court is one hundred percent  tax treatment is not in any way and was a factor but i can't i cannot answer and have this issue because the only reason there's a colorable or any kind of a claim is because you are identifying yourselves as the employer to the internal revenue service i think that the fact of the matter is is that you are right the only argument on appeal especially if looking at the opening brief is that the district court erred in printing a motion to dismiss it was not presented on reconsideration below it was never presented timely or properly to the district court thank you personal involvement there were all to cases that he physically had with with mr wilson as far as one incident where he had to be physically restrained by mr wilson's colleagues where he cursed him out there was another incident where he cursed out my client again with a racially tinge to a comment about you know how you people like to play basketball and the district court ignored the affidavits of the student and the teacher who witnessed it it's a parent's position that there were i guess incidents of i guess arguments and also adverse employment actions that took place from the time that he made the complaint discrimination in march of two thousand and ten to when he was terminated in june of two thousand and eleven the agreement that was executed by the by appellant and i guess at the grievance hearing took place in december th two thousand and ten and what the city's position would be was that any incident that predated that so that the incentives that took place between march of two thousand and ten and december of two thousand and ten would not be considered that  position but in that instant and the incidents that they would basically eliminate in those and it was instances would be the cation that mr hammer hand had in front of the student in the teacher that would be in march and that would be april there was an incident where m wilson was shot by his employer that took place in april he was terminated april at that time that was the st time he was terminated he was terminated again in june of two thousand and ten after he had been harassed and pushed again and  referred to and said that he stipulated there was a question as to whether or not he stipulated to the work assignments in the december nd stipulation agreement it's appellants position that he did not that there at some point there was th was not an agreement according to a pellet as to what he was actually required to do appellant testified that he was assigned to clean all the bathrooms in the school and that he was assigned to clean the stairwell there's disputed question of fact as to whether or not that was actually appellant testified that there were forty bathrooms for example in the school and that these were probably the worst parts of the school to clean it that the stairwells were so big in the school that they were particularly burdensome so there's a question as to whether or not and herion played a role  all those things he assigned the work assignments he played a role as far as failing to investigate the complaints at one point he appellant you know when he complained to him you know to take so there's a question as to whether an appe was basically cavalier as to whether or not he was going to deal with it and that it's proper for this court to consider the pre settlement evidence as well if you have the evidence post the settlements that would go to a hostile work environment yes judge magic's magistrates bloom's statement that she really was reluctant to actually i guess take a position is really reflective of whether or not she actually looked at their intent in exercising those print three strikes appellants argument that the fact that she provided them with additional explanations as to why those jurors should have been excluded acted in a form of innocence in a fashion of abdication because she's not looking at their intent they told her that they were excluded because they looked at you know in c n n c i s law and order they didn't say that you know because of the woman being a woman having a mother who was a studio cleaner they did say that judge bloom did that but i believe that the judge role and that instance is to determine the intent of the attorneys not to provide that would necessarily additional grounds for excluding those jurors i also wanted to get into the issue against whether or not the motion to dismiss one or two senates yes and we have a very lengthy calendaring i'm sorry about that firstly there and appellant argued in her in her in his brief that very centralization of the labor and employment the labor and work again in any other school so again there's a question as to whether or not the two should be considered a single employee a single and a single employer for purposes of liability thank you both