the terrorist you look like you're going to blow the place up i fired residents like you were just happy to have residents who can speak english i have the power to fire you you can't graduate unless you a piece of me as all paperwork requires my signature oh and by the way a recent national origin are important factors when building a department in a hospital the district court found that the statements made by the head of a medical residency program to an orthopedic resident of the program of indian and iranian descent were not sufficiently severe or pervasive to establish a hostile work environment in other words to alter the terms and conditions of doctor of iranian employment the district court failed to balance issues with care there's a dispute a fact as to whether there were in fact true issues of patient care but assuming for present purposes that there were issues i believe that the treatment not just the statements but the treatment that went along with that would and did impact my client's employment and his ability to testimony that establishes that my client was a motion only distress to the point where he couldn't do his job no right alec is there an allegation in the record that you did your clients say the reason i'm having these it's common again there's a dispute of fact as to whether or not he was not performing the job at the level allegation i don't believe that's an allegation i believe that he did say that the the treatment disturbed him and created an environment for him and again it doesn't have to  hostile work environment doesn't have to result in you not doing your job well and just it just appears from the record that he was let go from the program because of patient care issues that a number of doctors not just the doctor that made those we can all agree inappropriate believe that's factually correct as we point out in our brief all of the criticisms of our client that were written you know the the document criticisms were all from dr coombe any criticism from other any other doctor it was apparently a mentor of sorts to appellant i believe that the other doctors who reviewed a valuation is about his performance mine that's not the case my understanding of the record is that dr kuhn is other than maybe a  range of people doctors nurses i don't as reported i guess the answer is as reported by dr kuhn yes i apologize for not i misunderstood there were complaints reported by kuhn the the complaint from the nurse the doctor who was there with the nurse stated that the patient care that my client provided was appropriate and professional that and even assuming that the patient care was not up to par or could be or should have been criticized in some way the rock record reflects that dr rani was held to a different standard and made but the evidence is in the record now the evidence was before the judge on summary judgment and and the court did discuss this evidence and i guess if i could just get you to focus for a minute there and the two comments over this eighteen month period regular basis are not on their own under this court's precedent in the boyer case no but when combined with these other things that you know such as the holding him to a different standard signing humiliating assignments informing my client repeatedly that play out to a different stand the record shows that for the same incident where this nurse brought this issue to the attention my client was placed on level two remediation but that was that was in the context of  no had performed better than our client throughout and i see what you know i think the evidence showed that every time there was an opportunity our client was treated more harshly believe we included reference to the joint appendix that demonstrated that when event x happened our client received a punishment why the other person received no punishment and and we can say yes collectively our client dr kuhn created a record where in our client appeared to have it  the expert testimony the expert report that was submitted that was unrebutted showed that the level of patient care was appropriate for and this was in orthopedic was it all these doctors who were there at the level of patient care was not at the expert reviewed the medical records and came to a different conclusion  the other side did not proffer an expert or deposed that expert and any i because i see your sense is that they didn't need to because the record was so strongly the expert creating a dispute of fact and whether the criticisms were appropriate or accurate and we're not standing here arguing that our client was a model resident i think what we are saying is that setting aside whether he should have been kept in the program or not and setting aside the disparate treatment i don't think there can be much dispute that there was a what we would call harassment those two statements the particularly odious ones yes there were only two of those but there were other statements made such as indicating dr coombe's preference for  the district court i mean i'm looking at the part where the district court says you're the tunings that were raised in summary judge there's a bunch of stuff that was rude to me and i'm not even those in the bunch of stuff that was raised the the evidence that was in the summary judgment right the other statements that though they didn't rise to the level of what we would call a racial epithet they certainly those combined with the statements about i have the power to fire you and the fact that the person who made these statements was the head of the program i think that that can rise to the level and that does rise to the level of a hostile work environment  that we don't see that's why our client did a sub sub par job because we don't believe the record reflects that he does the record reflect that he made mistakes but it there's no evidence that other other people in the program didn't make mistakes and other people in the program did and as we point out in our briefs they were not punished to the same extent  the program director that is his function is a program director the department would do the remediation and agree upon them before they would go forward that doctor would sign them so yes the written documents are stand by dr and they i believe what you were referring to from dr boss and dr were these were the additional statements requested by the grievance committee yet which in fact to me goes to import do away with the theory of the cat's paw it is presented here because the grievance committee didn't just rubber stamp rivets committee listened for several hours and then said we need this additional information and there it wasn't expert in the expert went to it's not a malpractise case we had her not we're not contesting that anyone was killed in any of these instances we're not we're not alleging anything of that sort what the doctors and nurses have said is that him he had not even documented so here here the chief resnick couldn't even tell what it happened later they put it together and yes he had checked on the patient at two thirty that there was no way to check on that so i  disagree that there is there is a dispute a fact as to what happened in those instances in effect in fact i think in this record the material facts are pretty well agreed upon already now the spin each party puts on differ but but the statements dr can does not deny that he made the comment that he may we don't deny that it's odious is it is it odious enough to be extremely serious raise it libertad case no i don't think that it is i don't think that the record demonstrates that it is and one reason that i don't think it does is again it appears that we have to think school going on we have these comments and then we had the academic actions that are going on and they don't ever over last as opposed to some of the other cases where this is reviewed where as supervisors yelling in response to a job duty or something calling the person an inappropriate thing that you don't see that here the to augment the terrorist comments that are testified to by d different that it or that is distinct in this case from it being a situation where dr kuhn is saying you know i made the terrorist can't you even get this procedure right or can't you don't know how to treat a patient because you're a terrorist it net those things never bullied over here there are the comments and the end all and that what about the comment opposing counsel  fire anyone if he said that he he didn't say it tied in with rice in any way or national grid dr whom did say in the  november the third e mail that tends to tends to be brought up frequently or in a conversation after that that had been present when that happened i would terminate there is nothing national in origin or race related to that exchange at all dr ronnie had been asked three times to do a patient discharge when he finally got around to it he sent an e mail saying you know just to let you know i don't know why i had to do this what my patient but i've done it that pushed a button for dr king and what dr kuhn said in his response was i cannot imagine ever saying anything of that sort he did not say well you know only a terrorist would do that it's very distinct they don't lead as far as the fact of whether or not turn and he was actually over seen her in that instance she had no no prior mistakes no our concerns dr goodnow who actually i think characterize it as everything that's gone very well  testimony is that she then checked with dr king and i asked him about it and she counseled him so yes it was addressed it was it was not something you want your program director to do but but again there is absolutely no evidence for that reflects that these comments bled over into any of the remediation and i think the remediation our stance itself is very very telling here because dr ronnie was in the remediation process in august of two thousand and eleven he was in the program for twenty two months he says these comments were made in the latter part of that which he described as november through february november two  well if you look at farragher and harris you're looking at the totality of everything and i know that is balancing any number of factors but i think you also look at the fact that he was in the program for twenty two months and there are only these comments that we're talking about do we forget about anything prior to that no i don't i don't prior to the comments no i don't think we do because i think it's indicative of the relationship of the faculty and d and the remediation process started in august of two thousand and eleven but what's most interesting there and this is with doctor varian everything is he did his program director is it the remediation  member met with him he was going to move back because they noticed along the way that he was making progress on his remediation plan this is in the record that they acknowledge when he is doing good things and making progress it in a way that is consistent and is required by the a c d m e so there is nothing and unusual there about the way the remediation process was another thing that's brought up and i think this  goes not to the pervasive issue and perhaps more to the to the climate retaliate but the timing it's brought out that soon after this was reported these additional things happen again that's not that's not when the but moves the remediation process had started well before he had reported anything to dr stevens and the record clearly reflects that all parties so their actions were consistent and there was no reason to believe our actions there were nothing to tie anything to them now the comment that was made about referring english speaking resident i think is very mischaracterize in just have that comment has been mentioned here this morning the comment was that dr king said orthopedics gets the best residents and i think it was internal medicine or something it's lucky if they get residency even speak english now maybe there's a speed ahead look at app but but it the emphasis is not to me is on the orthopedics it's the best residents dr rani was one of ridiculously and reasonable expectation well to that i can only say there was no evidence to the expectation of any other president were different that dr rani cannot has not shown in cannot show that expectations were different of him now he alleges this but again to the comparatives they aren't his they are true compared hers and one of the things that the district court did bring out is that the expert testimony is really going again i think it's more along the lines in math in a more along the lines of a malpractise sort of was he made in the standard of care that the dr rani was in training they were looking for problems with of the doctors or that sort but even with that even well yes that's the expert review the medical records i mean opposing counsels of the expert that reviewed the record that is my understanding what do you hear talk about then that's a very good question it was the court i am representing the university of south carolina school of medicine dr walsh and dr croon none of my clients are party to the  not the doctor's employer the university do university isn't is responsible for physician education and so they make academic cision as to the residence however because i think we made the academic like the horowitz argument in response to the title seven and one thousand nine hundred one retaliation claims which the court does rely on the academic nature of the session in a residency  no one with universe school matter south carolina school of medicine was aware of and protected activity prior to his terminations and so could not have a child on not knowing the issue based on the fact that he was bringing a breach of contract intended third party beneficiary of accreditation agreement claim we made some very strong arguments a summary judgment in response those arguments he amended his argument to allege that is third party going to fishery claim was lose accreditation and the district court found that dr rani was not the intended beneficiary of either of those to agreements between how mental health and u s c school of medicine south carolina contract law carries a dr kuhn was asked to provide information to the california medical board he did so in as limited a manner as he could possibly do california medical board said that's not enough we need more information he ronnie contacted in dr ice counsel contacted him you need to provide more information he drafted a memo to the file which again was as neutral and and you know gave as little information as possible because he was trying not to you your honor i will try not to use all that time first i just want to note there was a discussion of dr stephens investigating in counseling about the terrorist statement the record actually reflects that dr steven said she talked to him and he said he was joking and that was the whole conversation there was no counseling noted in the record with regard to the  the level of discomfort and getting to the hostile work environment and we're not relying on just these two statements alone and and it's not the shark assignment swimming with sharks what i'd like to point out is that another doctor in the department found this is a sign meant and the interaction between dr kuhn and dr r to be particularly disturbing at j a twenty two fifty five other residents in the program believe that dr kuhn was on a witch hunt so it's not just dr ronnie saying that he's being treated differently it's others in the department noting that and while it's correct that dr kuhn is not the head of the entire residency program he's the head of the orthopedic residency agreement doesn't specify the agreements don't specify that dr rani himself is a beneficiary but the programs do state in the agreements the affiliation agreement states that educational experiences will be provided in  consistent with a c g m e requirements and federal and state laws and it says that these experience will be provided to residents of which dr rani was a resident i don't know who else that contract can be intended to benefit other than than residence that's what the program letter of agreement states and the affiliation agreement states that the organizations will opery medical educational programs in compliance with regulatory and accurate ation standards and i believe the record reflects a number of instances through the grievance process where  the ac g m e requirements were not followed in terms of allowing a hearing at a grievance or considering an appropriate level of information allowing dr irani to present at a grievance hearing and so it's clear to us that all of these rules are intended to benefit palmetto health employees who are medical residents and that's all i have and less you have further questions