me and i was excited to see that my client would be here but she got caught in a five car accident so i don't think she's going to be making it but in any event your honors if at all humanly possible i'd like to reserve about three minutes  for rebuttal and i will keep an eye on the clock as well as a policeman a matter of her the court's prior directive i will be focusing my argument today on the hostile work environment claim pelly has already acknowledged in the specifically rather than evaluating whether there were a series of separate acts which alone may not have been optional but collectively constitute an unlawful employment practice the district court instead applied an additional level of scrutiny by considering st whether each separate act was sufficiently severe or pervasive to constitute a hostile work  client for example of the principals comment to my client referring to african american people you people constantly change your hairstyles or what with respect i was i like this i mean  it seems to me that a hostile work environment importance with the case law has to be such that ordinary slights of a minor nature don't qualify as a hostile work environment  you have to have something that is deficient the repetitive and serious that it really goes to the heart of working in friendly or peaceful environment as i look at the allegations here i mean there are a lot of very sensitive but the comment about the hair the comment about whether she was a good athlete may have been insensitive but how does that create a hostile work environment those those two instances well so those basically w referring to is the standard that set forth in the u s supreme court's decision in morgan oh man and the whole point of the claim is as opposed to discrete acts in support of discrimination claims hostile environment claim race you've got the two asians where you don't point out somebody that i got a different race or that where there was a disparate treatment i'm just driving with how this fits into the that's why you wanted the focus is on the hostile work environment clean because as opposed to claim of just discrete acts of discrimination and events outside the filing period in a hostile work environment claim can be considered in terms of assessing liability and that's why it's so important to stress here but i'm just saying here help me help me by delineating what are the hostile work environment sure you conditions that occurred which in the aggregate you believe add up to a school at the elementary school and for no legitimate reason whatsoever the principal place to my client and the other african american employee in the same office to share that office space even th health specialist which is the other african american employee needed a private workspace to deal with behave really challenge the students and my kind as well as a counselor needed a private worst place to  with students or parents and whenever i had or of them needed to have a meeting the other would have to go find someplace to do their work whereas the her my clients white caucasian consular connor part had his own what would prevent it but that was their life perhaps yeah with respect i don't recall seeing anything like that in the record in terms of an explanation provided by the state and again we warn you not the summary judgment stage yet so we haven't heard whether they were legitimate business let's take this as a given away is there an allegation that the fact that the placing of these two people would but very short term as i recall the lead they put those two people together your allegation that it was done so for a a racially hostile work environment race has to be a factor and white ish beat people were treated the way they were charged i don't buy that allegation that there were but there because of hostility based on race very well in just in general discrimination cases we do consider statistical evidence so to that extent you know there's it's it cannot be just a coincidence that of the i don't know maybe a one hundred or so employees there that the only two african american employees are put together in the same office with no absolutely no legitimate reason for them to be sharing an office space they're not the same position they both need private meeting areas to meet with students on especially the school behavior health stuff specialist  within months after that my client was then put into literally a converted closet space as her office while again her white counterpart was allowed to work out of the library conference room which as we've seen is about five times larger than my client's now closet space that she has to work out of and there's no legitimate reason for that she had more seniority than him there the same position there's really just no legitimate reason for her to have been put into a converted closet space which again she was unable to conduct meetings in that small of a space and had to go out and scrounge for needing areas to meet with students or parents and again now she's the only african american employee in the in the school just and we couple that with coming off the heels of her having to share an office piece with the only other african american employee in the school it was he was the white person that was put in the library did it with here i guess in the shipwrecked he had space you can do  similar private interviews with people absolutely it was in a library conference room so it was much larger and private study conducted meetings with students or parents without having to go thought searching for a place to meet unlike my client who had to do so because your honor we understand that there are issues obviously with just the straight and discreet act discrimination claim because of the timing as there are a few other acts that were within the filing period which just like in the classic hostile work  environment claim at least one of the acts has to be within the filing period and if there's a sufficiently hostile work environment then they all can be considered even the ones outside of the filing hereon just because your time is running short i'd like to hear the rest of your list ok should be good for each of them  that we hadn't even alleged who ordered that additional responsibility but it is in the record and in our brief in the motion in our opposition to the motion of the lower court that the principal had sent an e mail to the teacher specifically saying that if you need help with extra work to ask definitely you know not specifically not the other counselor in addition to duties and there is case law specifically saying that with additional duties that is considered an iverson playing an client had found a replacement to to cover for her and it just so happens that her counterpart needed that that particular day off as well and the vice principal told the person who my client had previously found as a replacement that that person needed to  cover for the other counselor and to force my kind to go out and get someone else so again that's another instance of that the straight comments and the the assault occurred in august two thousand and twelve which you know was in the filing  period my client was assaulted by a parent of a student who she was assigned to work with there had been prior warnings by other teachers to the administration of that this person this parent was could fly off the handle was dangerous no one warned my a police report against this parent she she pled with the administration to have the other counselor take over this student's case obviously because of what happened with the criminal complaint but they refused and the rationale was that her counterpart didn't do well with change so they left my client stuck with having to still counsel the student whose parent had assaulted her and with an ongoing police report and in fact because of their refusal to the good she ended up needing to go out on leave and there's no dispute that i mean it's a work comp claim the state's own i and a physician found out it was a work related stress claim i mean that rose from what happened to her  work and that was from october of two thousand and twelve and to this very day seven years later she's still out on work on leave the state has not taken any position that she should be able to go back to work despite it still up basically acknowledg that she's disabled from work due to the stress that was caused in the workplace and another incident two in april two thousand and twelve was when the principal called her over the p a system in front of everyone the whole school to come out to the walkway and just greeted her for just you know a reasonable items in front of faculty and parents which is something she would never have done with the other counselor and those are the specific and i did  must be addressed is which act specifically can qualify for purposes of the hostile work environment claim as opposed to enjoy individual discrete after especially those which have been time part so in its order the district court tinder with the planks of sexual advances and then regardless of whatever it was that said the spark in the furnace called the fire that it ignites there from a hostile environment if the flames of an allegedly hostile environment are to rise to the level of an actionable claim they must do so based on the fuel of timely non discreet acts and then in evaluating porter's claims the court went on to separate those discrete acts such non discrete x consists of what it's a discrete x for the purpose of the unlawful employment practices so when you're evaluating for instance a disparate treatment claim you just read act is specific to this case the failure to send her to the training environment you know that the harm was sufficiently whatever severe pervasive i think is the standard you do that by piecing together all whole bunch of discrete acts they add up collectively even though you know maybe if you were to look at each one of them individually they a adverse action as opposed to the hostile work environment where the unlawful employment practice is the on it going on allegation of several small acts that i don't mean to diminish by saying small but small meaning that they don't necessarily on their own or rise to an actionable discriminatory claim ok that's why i said that the you couldn't ground a in the disc disparate treatment claim just on the one hand but that again so let me just understand your position here is that the collection of i would call them discrete incidents that you're going to kind of laid out for us nicely those are not sufficient because what if you look at each one of them there wasn't enough sort of racial animus infused into them or one that if you look at them collectively even if you assume that all of them were based on some kind of racial animus they they didn't make their work environment sufficiently hostile i mean what was your position of both your honor and also the vast majority of  discrete acts that are alleged by the plaintiffs occurred during the period beyond three hundred days from when she was required as a prerequisite to filing suit to issue a charge and that's ok the hostile work environment  that's not you can't didn't just say so we have to ignore all of the discreet acts that occurred prior to the three hundred dollars day i don't think that they can necessarily or they should necessarily be ignored they can still look provide context to things that happened a hostile work environment claim they can still provide evidence of some sort of anna mr discriminatory reason for any of the alleged conduct that was timely except i think under order they cannot be included as hostile work environment acts that are it can be used to form the basis of a hostile work environment going however here to describe it i you know my colleague and i agree with him to guess that these kinds of things are made up of discre what i understood the district judge to decide here is that when you look at these things both individually and collectively they did not show a violation though something under a protected practice if you primarily because the plaintiffs the specific facts alleged by the plaintiffs in the complaint are so lacking when compared to the existing cases cited by bo acts sufficient be severe in prefer pervasive to alter the terms and conditions of her appointments but also that she failed to demonstrate that they were actually done against her because of some status what's the inference we would draw that it wasn't based on race as far as some of the allegations of the then they might be other facts and some of the judgment that you could provide that would provide context but based on the allegations i'm not sure responsibility to establish an absence of facts showing something else and i didn't say that i should let's just we're taking the four corners of what's alleged in the complaint what other inference could one rationally draw from those facts other than that she was treated differently because of her race that there was some sort of internal workplace dispute going on between her at least for the majority of the time supervisor armstrong as well as the vice principal hurley that was unrelated to race that there was clearly some sort of clashing of the attitudes based on the different work responsibilities and plain just simply is making the assumption that because she belongs to a protected status is that that is the reason well yes because when you look at your similarly situated counterpart who happens to be white and that person is not subjected to the same treatment as you i that is why i say i mean it's at least a fair inference that perhaps the reason i'm being treated this way and not him is because of my race and for the purpose of similarly situated that we evaluated that in the context of given that hey i have more seating for you this guy has the same job i do if anyone is going to be relegated to sheridan office or for sure put in a closet out of the m and instead he's got the big office with a nice friend's face when he can do his job and i'm stuck over here play that kind of hard on the whole the african american player wonder what's going on that just doesn't strike me as a far fetched inference when we draw from that set of facts you know as soon as you're going to recognize we certainly have a different view on that and i don't want to step outside the record but looking what's alleged in the complaint as came up during our appellants presentation is a situation where there's a limited amount of space i mean this is a public elementary school not everyone is going to be particularly morgan said the opposite that you need at least one act within the time you know that it's timely but that is long as you have that you could in fact reach back at least rely upon other incentives which are on their own would be direct discrimination claims must be within that three hundred dollars days or their time barred right as long as there is one of part of the ongoing i'm lawful employment practice which is the basis for a hostile work environment claim then that all of