about the comparison that is part of our case an important part but in addition to that an important part is the coworker racial slurs that occurred in this case here we have testimony that a coworker who is a be observed on a daily basis and tell you spanish slurs in this same customer service department and junior testified it happened every day it was a common theme and there were two different coworkers who she observed saying these are in place panics slurs and what's important about that in addition to being bigoted insults and evidence of discriminatory animist it is important that it w set out in the open where do you know observed supervisors nearby and it's her opinion that supervisors must have heard it they would have heard it because they were nearby it was within earshot of them and based on that complained about discrimination that hispanics were being scrutinized more closely disciplined more often and more severely if she complained about the comments can we consider  this court has stated that charges are to be construed never really and claims can arise from the charge beyond the actual words of the charge if in particular it's based on several factors what did she do on that account what did she intend to do was it just an error if it was an error due to justify terminations and that on top of the evidence that supervisors had complete   and the second issue of course is the question of whether or not there was indeed sufficient evidence to overcome the summary judgment on the discrimination claim let me begin by saying as far as the  exhaust in question is concerned there is two elements to that issue one of course was the charge something to contain anything in which one could expect that a hostile environment claim would grow out of it there's no question that the actual document itself the discrimination charge itself says nothing about hostile environment or harassment or anything to that effect and i'm not even here to talk about the weather does that i caught of your distinction between race discrimination or national origin discrimination for  purposes of this discussion will dispense with that we can assume it's either or for purposes of this argument the bottom line in the distinction here is whether or not it's discrimination versus hostile from the civil rights division what there wasn't there in fact what is very distinctly missing from the findings is any reference whatsoever to ask for environment client findings exclusively address discrimination only in the addressed the question of discrimination was concerned is that there is a distinction not necessarily in the sense that it's not discrimination certainly the broad sense of racial harassment is discrimination the same as sexual harassment or sexual discrimination or religious discrimination it is not enough to simply bring a charge that says like you are by a large title sudden discrimination on the basis of race period and then try to from that basis every possible form of discrimination that might come up subsequent to that in discovery three the agency and exhaust the remedies because parson tended for the agency to have that authority and to give the parties the opportunity to address the specific issues that relate to the discrimination at that level i  found there and what the language very clearly says was is that they found that there was other evidence of disparate treatment nothing more and that's why this case in the charge itself relates to disparate treatment not hostile environment what's the definition of a hostile environment but i'll use the death of values a definition that came out of a recent us supreme court decision from the morgan case which states that the workplace must be permeated with discriminatory intimidation conclusions of law of the agency the word hostile environment or the words hostile environment doesn't exist the words harassment don't aren't there and i'm not suggesting that there's some sort of talismanic requirement that it be there but the fact that there's nothing in there about that have a photograph or been reading catch every every part of the court but i believe that the language you have to do with discriminatory treatment well this is the party was given reprimands for a variety of work that's pretty intimidating while your honor at the heart you know it is our position that had that issue been before the agency in the form of asked for environment or an absence of white and again a judge judge pleasures analysis here address was multiple instances of discriminatory treatment if that becomes an issue of environment then i believe we have a a lot that leaves for the court or left for the court an issue of discrimination discrimination in the form of her terminations period the question of whether or not the plaintiff was terminated on the basis of her race or national or saying was there seems to have been because this case shifted from a national origin case to raise case it started out as national origin at the charge level over time if one looks at the findings race creeps into the discussion because of the word for the discovery on the question of whether hostile environment on the basis of race and or national origin existed and what we're simply saying or honors if the two race and or national origin harassment which actually there has been nothing to suggest that there's a distinction here that's all i'm saying that's all i said at the beginning of our argument was we're not making that distinction what were the distinction that we're making is between hostile environment conduct and discrimination on the basis of her termination falsification of records none except except according to the plaintiff the point of says that russell or she observed it or heard it from jeanette russell that she saw it happening what's interesting is that the employee didn't know about it the way the employee found out about it was in the about the alleged falsification of records on the part of tonight russell but the way that the employer found out about that alleged falsification was after the point of complaint to the civil rights division and notify the civil rights division that she was aware of it that it was going on at her deposition she was asked about it and she admitted that yes she knew about that conduct going on but that the that she didn't tell the employer about it so now she wants t she granted the credit extension to respect her she read a positive return check and she cancelled a collection action for her sister none of which involve falsification of records well i suppose if one went to a bank and used a bank card to get money and one robbed the bank that would be two different ways of accomplishing the same result i wouldn't i wouldn't put the same weight for the same moral implications on that on that   approximately a month and a half later when mr cleaver called her and asked for an extension to pay at the same time that she he asked her to change the first initials on his name then there was a couple more weeks went by go for the payment took place and at this point someone purportedly mr toledo called again and this time asked for a further extension and it was during that if further extension that the plaintiff went in and changed the last name on the account and change the address on the account and then also noted that the individual was going to seek help from the tucson urban league which was there was some shorthand for that which effectively meant that the individual going after somebody who didn't exist correct based on what this record show there was the name was wrong the address was wrong there was no forwarding address that was another thing that the plaintiff failed to do here when she closed the account she should have created  circumstances the person who opened the account may get in or of a false address i mean it could be a false social security number that's understood as well but it's also incorrect so in this particular case it would have been impossible not impossible that not true it would not have been impossible but given the normal circumstances in which collections are made and given the volume with that information and according to the under speed record from  further collection in the matter simply would have been written off that's the difference thank you thank you though however shows much testimony that hispanics were routinely tracked for absenteeism more than non hispanics and they were disciplined more often or more severely for tardiness and the rest and all other discipline the cumulative evidence is what the court used to look at and underlines worsening when the court indicates that the cumulative evidence taken together has told discriminatory animists on the  the evidence would indicate that there is hostile environment in this case based on all the evidence