marie miller and behalf of defendant susan checkups who is the only defendant remaining in this clay case were here because the district court was wrong when it found it on the record presented in this case that there was a question of fact as to whether or not defendant checkup shot was entitled to qualified immunity the facts as presented as alleged and presented when taken in the light most favorable to the plaintiff sonya bradley simply do not do not demonstrate a constitutional violation in fact the district court was correct when it granted our motion to dismiss ms bradley's racial discrimination claims when it found that she fails to demonstrate the actions of the defendants were racially premised even that was true of the allegations in the complaint and even after full discovery there is still no evidence to support any sort of racial anim or bias on the part of mischievous shah the only claim that is left is the one thousand nine hundred three claim that ms bradley was subjected to a racially hostile work environment in violation of the fourteenth amendment the evidence in this case is clear in fact i believe it's an rebutted that there is no evidence of racial animus on the part of missed checkups  this court in morris versus oldham county made it very clear that you must establish bias on the part of bias or animus on the basis of a protected class occasion in this case it would be race here miss bradley herself has admitted that mr check upshaw treated all employees under her supervision the same the most she has alleged is that mr check of shah was and i believe her word ms bradley's words was  bully she's a strict supervisor but that she was a strict supervisor to everyone critical in this case and we've alleged in the facts and in fact even quoted the deposition testimony  when i asked her explained to me how you believe you were treated differently in of offensive environment was created on the basis of your race she pointed to a number of facts the first fact was she said well she treated me poorly and she treated some other employees poorly too when i asked her to name those employees interestingly the only employee she named were called kazan employees she then said to my surprise the miss checkups are treats everybody the same and when i said everybody her response was white and black asian mexican and puerto rican that does not well the only discrepancy in treatment and there is one incident that she alleges where the two officers were treated differently that was were relative to a holiday party where she claims that the folks in lansing were given a longer all the folks in detroit were not given a longer watch that's one incident even if it's true it's one incident in this checkups i denies that but even if it's true it's one incident that certainly doesn't arise to the level of severe and pervasive the other thing that she alleges is what amy gave me and the other secretaries supervisor was not treated the way i was she wasn't given negative performance appraisal she wasn't given work deadlines she wasn't told she was not meeting h performance objectives go back and ask your hypothetical because let's assume hypothetically that the statement that she made about the difference in the two offices let's l a claim under title seven jurisprudence hypothetically hypothetically yes we don't have that here though and that's what i mean hypothetically i do believe i do believe that all of the thinks she alleges could form the basis of a racially hostile work environment which is what she's alleged here if we had evidence of racial bias or animus or that individual she was being treated differently than anyone else the facts are clear she says i'm treated differently like everyone else she claimed i was denied leave time and then when i say she says other people were too white employees she says other employees were given comp time and i wasn't i said who was given comp time she pointed to an employee by the name of pier king who was african american as she was so that she couldn't point to anyone the only thing she points to is this holiday party is that only one holiday party it's one holiday party that's only because they want to get lunch extended than other hour so i was correct she also invited the white employees to her house are all the lance employees go caucasian  yes and all the all the detroit employees are african american no no no there are there are caucasian employees in the detroit office ok now you say all right even if there this were a wrongful discharge case and the argument was that i had to quit my job because of the hostile work environment the standard at least in michigan would be an objective standard that a reasonable person could not tolerate the working conditions the way they are and therefore they are so hostile that it forces forced a reasonable person to quit what is the standard in the the hundred three law for hostile work environment you say severe and pervasive but is it an objective standard and it is or is it a standard that no one could know objective person could tolerate it it is it is an objective standard it's the same standard under ninety three as it would be under title seven that would have raised did can you wonder these facts determine that a reasonable will first of all whether or not the work environment was severe and pervasive impression isn't evidence under whether it be michigan law or title seven one thousand nine hundred three and also this is a single incident that is correct like this holiday launch was a policy year after year after year that was just is subjected to unwelcome harassment that the harassment was based upon race and that it was a severe pervasive and when you get to severe and curve a so the court is clear that one incident standing alone is not enough and that the court this this circuit has found in a number of cases the negative performance appraisals being told you're not doing a good job even though you subjectively feel that it's severe  pervasive is not enough to show severe and pervasive there has to be a pattern in practice of conduct directed on the basis of race which we do not have here what we have here is a strict supervisor or i mean it seems i could be inconvenient for one thing she has now as far as i know she has not and there's nothing you're quite also based in lansing goes on the detroit office of the cadillac place one wonder why she ever she like to average one day a week depending upon she had actually only there in person one day a week allegedly critique is hostile work environment correct which is why midway through this time period we have involved in this case miss checkup shot at the department of attorney general in the department of labor who she was actually employed by ms bradley gave her an onsite supervisor peter could two of the court has dismissed the claims and the other allegation i have is regarding mr locke the her complaint may have been in her personnel file i don't know but supervisors of the attorney general's office i am one do not have access to that h r personnel files when they took your client's deposition that they asked her if she reviewed them well  possibility of a hostile work environment oh i don't assert that i think it is a factor that goes into the analysis of severe and pervasive a person could be many miles away and in fact i mean affect policies and procedures that could  foster or create a further particular work environment correct if they're directed towards that person cry i would agree with that ok and then only the issue of the holiday party and the distance between land thing in detroit what  fact of convenience or inconvenience be one that should be made by the person invited you know in that the get the pact that it might be an hour and a half away  and might be inconvenient for the detroit people it meant something that the staff in detroit would a decision that they would make were them the party host if the party was during off work hours i would agree but when it comes to having staff drive three hours round trip and state time to attend to how many a party holiday parties were always there work hours they were during work hours they were holiday luncheons and miss miss check off didn't go to detroit and host a holiday party for the people there she did in years past this particular year she did not go to the destroyed party the supervising sapphire's she had gone to the detroit party but this particular party when ms bradley is back there the party was organized by the supervisors and the staff in the detroit office ok but the limping part of this check up show host at that party she will she should she chose the apartment actually the division in what the work that she was given when she was scheduled to go on a leave was work that she should have been completing over the many days weeks and months beforehand she was repeatedly reminded in under the policies and i believe ms bradley agree during deposition leave is granted according to the needs of the department and if you have work that is due to be completed in the sign to you and you don't have it done you may not be able to go on leave in they needed to ensure that her leave that her work was being done because as we pointed out one of her mistakes cost the department the ability to challenge a claim which resulted in several hundred thousand dollars for support the loss to the taxpayers right before the questions to stop the story or you'll still have your about time thank you good morning probably that is why the district court judge denied their motion for a qualified immunity because certainly when you look at the facts in this particular matter it is subject to this particular case we failed there certainly the hostile work environment was was the strongest argument here as well and so looking ahead it's it's all right and so looking at this particular area we looked at it was it a hostile work environment focused on clearly established rights of the plaintiff and we were pleased to work and so when we looked at that we looked at the issue related to  and in the fact from our perspective that the defendant knew about those comments in fact i mentioned them to the plaintiff when she first transferred under control each at two occasions that the defended communicated i'm going to bring mr lockman back here that doesn't show that she has knowledge of a lot of this doesn't it does not directly our position is of course is of circumstantial evidence that we can provide at trial that we can demonstrate whether in fact that's a credible statement that she did not know given the fact what circumstantial evidence do you have given the fact that the person who elevated this issue that requires an investigation mr lockley was the subordinate of the defendant so it wasn't and it was another attorney in the defendant's office who elevated it attorney elevated it to the singer's senior level at the a g s office there's certainly that that the finn also knew about that issue so yours but so you're saying that when she said on two occasions i'm going to bring lockman over here i think defendants are saying well that was because he had a particular expertise that she thought the office could use and you're saying that that's  what's a person's name do you know in fact i don't know the name right offhand but we did get some information and it was still being investigated when they found a motion for qualified immunity to take his deposition  had that might have been useful do you concede that he had some expertise whatever was lacking no your honor in fact we look at the timing of the statement the timing of the statement it was two occasion agency and because she was still assigned to another agency and reported still to the defendant even though she was in another agency when she first started to ask the division head particular time secondly she said it when you have said don't do that because he's harassed me before i mean she didn't say she didn't say anything that you say anything i mean the most logical inference from course that there was a primary issue between mr lockman and the plane and use it to intimidate based on race just because the defendant did not argue or did not allow the district court to dismiss the race discrimination and that's that's i find it kind of contradictory that you claim that her conduct is all based on race but the district judge judge drains you have no evidence of racial discrimination by the defendant that she didn't know intentional discrimination circumstantial discrimination that you have no evidence of discrimination based upon race senate but nevertheless you persist with the hostile work which is theoretically possible but you normally need more than the lack of evidence of discrimination by the defendant i don't one incident and said that that could create a jury issue of hostile work environment my question is is that severe and persuasive enough one incident like that i don't think so and we would argue that in addition to the holiday party certainly we looked at all the other things that occurred as well we looked at the denial leave pienaar denial of vacation the sheet and we did see that they were accurate meaning that they didn't try all the time but we do know that the african american secretary did every day when they  you introduced evidence or you supported your response to the motion with some evidence that it really wasn't required in lansing was that was that deposition testimony or sheets or what there was do about her testimony that the defendant was just awful to everyone yes certainly your honour's in relationship to that i don't disagree that she probably was mean to everyone the fact of the matter is that does not give her the right addition have a shield a protection with qualified immunity just because she discriminates against every certainly is not i description to do that it's not in relationship to the normal course of her job to do that so she should not then say you know i'm a mean person i discriminate against asians whites blacks i don't care so i have i should be shielded because that's who i am well i mean i guess i guess that would work as long as there was some indication that what she was doing was had a racial component to the right in this particular case we believe it  is and tell me again that's because of a lot in common thread and what else and that's because a lot didn't comment we believe it is then because the plaintiff refused to obey the defendant based on that intimidation she started getting counseling statements there was a reprimand lower ratings even denial of sick now come time  when she went on medical leave came back with it's a pain would not allow her to assign her work to her staff so be quiet her to get up every day and walk across the way with a cane when she said i got staff to do that i so you're on it in relationship to those arguments we believe that qualified immunity is not appropriate here that they have not met the burden we would ask her to affirm just a court decision i mean for the question thank you mr williams briefly i don't believe i will take my entire five minutes it's not discrimination to treat everyone the same the fourteenth amendment or title seven do not require well is and it doesn't matter that you also abuse other people but here there is we have the plane of subjective belief that she believes it was because of her race there is nothing objective well let's talk point to that all of the sudden she suggests that she's going to bring this lawyer in to help this head secretary do her job i mean what's the basis of  she was bringing this check up shot denies that discomfort was made so to say what's the basis for it i can't give a basis because my client denies that it was made so i can't my client has never offered  explanation for something she says she didn't do so then that's a problem no because ms checked ms bradley still has to show that let's assume it was made the missed check up shaw knew what the underlying conflict was between her and mr lachman for all she knew from israeli could or miss check i'm sure could have known is mr lachman told ms bradley you know you bring in tuna for lunch and i don't like the smell and there was a conflict over something they were eating for hinges that even i miss bradley's own testimony hinges on race mr lachman was investigated for making the statement it was alleged but there's even ms bradley hasn't complied with any evidence in the check of sean knew what that was in that's one incident it's one incident it doesn't arise to severe and pervasive and it's interesting for the first time today i heard that an allegation that miss check of shaw somehow supervised the person who brought this to the department's  attention miss check up there was a supervisor but she didn't supervise every attorney and she was not mr laughlin was never in her division so i don't know how she could have supervised the person who made this but we don't have facts in the record regarding that just like and i want to point out we do not have anything in the record regarding the signing in and out sheets the plaintiffs or ms bradley's counsel admitted i got the sign in and out sheets he didn't use them in court he didn't introduce them he didn't put them on record to say see lancing didn't have to do this he failed to present that evidence when he had the opportunity to do it he only has ms bradley's testimony that i don't believe the folks in lansing had to do it and she admits she never worked in lansing to school cause somebody is basically saying we're going to fire everybody in detroit  bradley has a lads the following the end of a conference call this check up saw left the room and two other individuals who worked in lansing made a comment that sad we're going to get we need to get rid of the folks in detroit that's not a comment that ms bradley made or that mist check ups are made in there is no evidence to support the fact that his check of shaw authorized it or even knew it was made ms bradley's own testimony says she wasn't in the room she did make the comment they would have conference calls on a regular basis between the management staff and one other thing i want to clear up and i believe it's in the record the set up of the division was i was the supervisor of the labor division the division chief there was a division had secretary and attorney general employee amy get me out and within the labor division there were various sections you had an unemployment section a worker's comp section  civil service section ms checa ms bradley supervised the set the support staff in the unemployment section one of three equal sat one of three sections that then reported to the division chief