s derogatory comments he had a date on a very threatening inoffensive photograph that in his locker room he was routinely assigned job relied and the parties cited the case are relating to the continuing violation doctrine an argument in support of hostile work environment claim after the ruling by the district court in th officer cations and there are many things that led up to that and i think there were several arguments made but that was one of them the fact that my client had switched jobs which was routinely done on the employees there did that they did it for sake of the fishes city he switched jobs with a conversation female he was the only one approached by mr peters and she never well word that i'm eighteen the prior month my client filed a claim with the e e o c for discrimination that claim was received by the human resources department at america west the end of may they were im the court is entitled to look at past conduct and conduct that directly relates to discrimination mr peterson had admitted to my client previously that he was uncomfortable with african americans he had treated my racial animus and discriminatory intent along with the disparate treatment that my client received in relation to that i think goes with that and i think it's important when you're arguing to remember when you're arguing had responsibility for job assignments he clearly held the power relating to whether or not an employee would get a promotion to loadmaster it was his his decision as to whether or not an employee went to that school  he was the primary individual in the supervisors were on site there were some issues with the last of management at sea tac and there was no real upper management absolutely in addition to that when he was given this type of this time and he would frequently be told that i'm not assigning this to you because you're black you know i'm not giving this work to you because you're black so it was in addition to the complaint and the events that occurred i think are sufficient to establish that or at least circumstantial evidence that supports the conclusion that he had knowledge file should look at well very you know it's difficult especially when they're contending that they didn't say anything in it it's an issue of credibility in large part whether or not she did it and how far they took it because it's  information in addition to that in again we're talking more about i think the retaliation client missed caleb's testimony was inconsistent she had indicated that when client finally got ahold of her in contacted her regarding a return to work that he never said anything about not receiving the letter that determination letter that they had sent to house and then later in a acknowledges that she was aware of that in had a discussion with mr pepper about it and they had made the determination that my client was incredible i'm so there's some conflicting testimony from her that i think but i think it also goes to and can be used in arguing that on this trip peterson had knowledge of likely had knowledge and again you know i want to point out that this is a summary judgment so issues of credibility should be weighed to our favor in my client's favor but going back under morgan in the differences there's a significant difference between milligan and morgan and what the court found and it's defendant's contention that mr pepper was in he i believe he started his employment in may so it was right before the incident in june and he was at it's my understanding sea tac airport so he was there so there's that connection it was made together in addition to the timing i think that the fact that they had a policy of procedure of sending out letters and they knew that my client didn't receive the letter because it went to the wrong address call the artist that i mean he was calling back the supervisor and he's the one that told him he had been terminated he did call human resources so i don't think there's an argument for them that they probably had the heads up that he never received the letter because he didn't good morning your honour's may please the court my name is mary reilly and i represent america west airlines first i'd like to address a couple of the points that council just made in our opening remarks there was no argument in th court that the trading that the job assignment that mr peters that mr daniels ended up exchanging with cindy yarborough was an unfavorable assignment that is a brand new argument that has only come up and on appeal i would also note that there's absolutely not a single piece of evidence in the record below to suggest that in fact that assignment a regular assignment of a regular standard job duty was in fact unfavorable in fact it's quite clear that to advance  here mr daniels labels conduct that is routine and ordinary unfavorable disagreeable and he doesn't like it and then says because i'm african american it therefore must be discriminatory that's not racial about what happened that day he goes on to state on the evening of june eighth two thousand the shift supervisor jeff peterson approached me and asked if i had completed the backdrop for continental flight sixty one i told him was developed in the record below in great detail and it's the district court correctly found the issue and what prompted the altar cation was clearly mr daniels refusal to meet with his supervisor then in there as requested there is no evidence in the contemporaneous incident occurred since the district court correctly noted because mr peterson got angry over the fact that mr daniels refused to meet him that is the reason that the altercation occurred that is the reason why he in turn acted inappropriately there is absolutely nothing in the record below and the durst district court correctly found that none of the events of june eighth give rise to any inference whatsoever that race was a motivating factor in the decision certainly it was a motivating factor in his losing his his temper and yelling at him and there is nothing in the record below to suggest that it is let me turn now and have a context where two individuals have a history of alleges that mr peterson made was shortly after mr peterson arrived on site saying that he was uncomfortable with blacks that's the only specific directly racial remark and when you read mr daniels  of either aggression by mr peterson towards mr daniels nor is there a pattern of racial type of conduct only thing that mr daniels can point to is this again the unfavorable assignment which is the record makes clear and was developed in the record below these assignments that he protests are in fact the heart of his job as a ramp agent you know there is no dispute that part of the ramp agents job includes less desirable tasks as opposed to more desirable are part of the job the mere fact that he had to do that along with everyone else doesn't make it discriminatory and hearing that there were more frequently than all the offers is his speculation and opinion that that is the case he americans especially could tell notwithstanding her statement to the e e o c investigator that she thought the june eighth incident might be racial although she couldn't understand she herself couldn't articulate the reason why she thought it was racial so there work environment claim and we haven't talked again about the discrete acts for a moment it certainly isn't relevant to the disk reacts but on the issue of the hostile work environment there's no evidence before the court what the courts have consistently held what this court has consistently held is that there has to be evidence beyond just me or opinion testimony that i didn't like this task therefore it's unfavorable and therefore it's racial the that's just simply are not enough to meet the threshold that's all mr peterson excuse me that's all mr daniel the only part of my job that i want to do is argument front of the ninth circuit there are a lot of other things that i do want that aren't particularly desirable or favorable but nonetheless it's part of my job but even if we were to say your honor that that was enough the hook here is that the under any version of the analysis we don't believe that mr peterson rises to the level either of the manager status necessary to hold him to hold america west automatically liable for his actions and certainly there is no evidence that america knew or should have known of mr peterson's conduct and failed to take prompt corrective action in fact the record is devoid of any evidence whatsoever that higher level management at the facility at sea tac or in phoenix in human resources knew anything at all about mr peterson's purported conduct the record is quite clear and mr daniels unself admits repeatedly in his testimony that he never complained to anyone in higher management about june eighth was motivated by racial animus it is absolutely undisputed that when presented with information about mr peterson conduct that day mr booth investigated the allegations and took prompt ineffective disciplinary action he immediately s spended him for five days issued him a corrective and issued him a corrective action warning so there is no argument here that the company when finally apprised of conduct they could even remotely be considered racial that it did not take prompt corrective the strange well in hindsight and with the benefit of sitting here with all the papers in front of us your honor i couldn't agree more but that's not the legal standard the standard is whether or not at the time they had a bona fide belief that mr daniels had in fact and in his job and at the time there was ample evidence to find out two weeks later that mr daniels never knew that he was entitled to come back what we did find out a few weeks later that he didn't get the letter but they're not obliged at that point to basically in effect overturn their prior decision to terminations decision had already been made without the benefit of knowing that mr daniels didn't get the letter and didn't know in fact the record is quite clear that corporate personnel aren't aware of the details of him not getting the letter until after the decision is made or of his call to human resources doesn't occur until july they're under no obligation to overturn that decision reasonable people could disagree and say they should have it would have cruden two but there were other indications to them that suggested that he wasn't interested in coming back the fact that he had not called despite participating in the investigation going back into the facility to return his badges to submit a statement he claims he had originally called and was told that mr booth was out and then after repeated messages are left for him he goes two and a half weeks before he calls anybody again in addition based on the events at the time there was no obligation certainly could have but there was no obligation to do so and one of the overarching issues that appellant has dropped on appeal was at the time he had he was part of a collective bargaining agreement he had a union he could have grieved the suspension he could have grieved the termination and thousand mr daniels was part of a collective bargaining agreement he was covered under the t w what t w you contract so he had remedies that he could pursue so the company was influenced at the time that it appeared from all other evidence that he didn't sincerely have any longer an interest in pursuing his job and the standard here isn't whether or not they were right the standard here isn't whether or not they should have done something different the standard is whether or not they were truly motivated by the stated reasons the evidence is clear that they were they sincerely believed at the time that he did not want to come back to work they may have been wrong but that doesn't make it right rachel let me turn for a moment to the issue of the discreet ads there's absolutely nothing in the record source to point out that either the decision to suspend or that the terminations decision itself were motivated by racial animus and plaintive offers no evidence to prove that those stated reasons were a pretext for discriminate i'd also like to briefly touch on the retaliation issue of the record does not indicate what so in any way whatsoever that mr peterson knew of the filing of the e e o c charge as judge mchugh noted earlier the testimony by mr peterson and by miss kaela on this point is unequivocal she didn't tell mr peterson and mr peterson testified that he had no idea of the charge while he was still employed at america west so there is nothing in the record whatsoever to create this inference that mr peterson knew and that that was a motivating factor for purposes of the reached the events of june eighth it's also undisputed that mr peterson had no input into the suspension or germination decisions as for the knowledge at the district court and here on appeal we basically for the sake of argument conceded the prime the facia case what we then present to the court is that there is still no evidence to suggest that the decisions to either suspend or terminate  find them i believe i believe it's in our sunlight summary judgment response probably under the facts and i believe it was raised in oral arguments so i believe it would be in there that hearing on the he's a done a fine this is something settled on him because of his retaliation claim but there is there are some inferences that the reasons complaining about or the reason i think it's been singled out for them the matter of singling last day my client was at work style saying that he had access to a union is really nice but in practical matters my client didn't know he had access and even if he knew that it was ratified it was new question and statement question when he was still employed there right yes yes and that that's not a primary issue i think it's just one of the factors that they were arguing in