one is that mr moment is black and the end another is that he was terminated but the events of circumstances leading up to that germination and the motivations behind it are hotly disputed and for that reason summary judgment was not appropriate and we asked this court to reverse and remained for trial well then reports that he endured years of racial harassment and being called many names while he worked at our roofing company ultimately culminating with a death threat made against his life because of the color of his skin and his terminations from the company i'm april th two thousand and seventeen when he was running back  a job on a friday afternoon with other members of his crew who notably were all white they began picking on him through his tools out the window of the car refused to turn around to go get the tools when he asked and then one of the men a white man named lisa cedar who was a big man intimidating lots of tied to use started to referred to supremacy and and i'll paraphrase what he said for the sake of decorum but he threatened mr meldon said he wouldn't hesitate to beat him up and that he would throw his black self off the roof the next time they got that he got a chance and  this understandably as a threat on his life he was scared and he reported this incident the next business day which was a monday morning on may st here imported it to the vice president of the company she case would be whether he engaged in a protected activity we say that he did because he reported this event of racial harassment he continued to report it during the eight days in between the st report  the time that he was terminated mr galloway tells a different story he says that mr melvin reported tools being thrown out the window but he didn't report any kind of racial  connotation to that conversation but mr hawkins who was melvin supervisor says well no mr galloway told me that there was a racial component he said he reported a quote racial slur or something like that and so this to say this is one of the issues that the parties disagree on and that there is a factual dispute about this and many other things and another one of the factual issues is the consul connection between them protected activity making their report an adverse employment action and that being him being terminated as judge chance pointed out in an earlier argument today the temporal proximity between those events is something that the court looks at here it's a span of only a very short amount of time as a matter of days the courts recognized in the evidence case which we started in our brief in that case there was five days between the events that actually used recognized with favor a lower court opinion citing that as much as four months can be time absolutely you have a fact that the direct supervisor telling mr melvin and the day after he made his report he didn't like quote no effing snitches and then the day before he was terminated mr this report on monday morning on he was sent back sorry on the on tuesday morning is when the st pitch in comment was made by his supervisor who then kicked him back to work at the shop for the day and that incident  ask that morning he was then sent home on thursday and that mr galloway called him and that afternoon and said why didn't you show up for a joy test mr meldon was just shocked because he hadn't he hadn't heard but we would say that yes he does and if you campaign has said mr mehlman didn't follow the drug and alcohol policy because he didn't show up for the shared test and we would say well there are white employees at least one that we know of the did not follow that drug and alcohol policy either and who was not subject  and been informed of that by mr melville and mr hawkins testified to that in his deposition and yet nothing was done about it and so you have two employees who both violated the drug and alcohol policy in that  reason for the term a nation that they're real that their stated reasons not a real reason just because there's a fact issue of whether he was ever asked to take or is or could that be an error by the employer which we don't look behind you send it back just because there's a fact issue or not i think it i think it goes to the pretext of the reason for in a discrimination and i do think that's an important issue mr galloway says in his affidavit well when employers fill the drug test the st time and they're subject to the nd shot test the drug and alcohol policy if you look at the drug and alcohol policy it doesn't have that anywhere in there of pretext for discrimination you're say that not following your policy shows pretext and we have case after case it's the contrary that that follow and i'm following your own policy is not a demonstration of a black a pretext so well i think the else like reason lack of a valid reason it's not evidence of pretexts on the discrimination si and that and that's not the only evidence that mr melvin was treated differently than a white employee either because there's evidence in the record that he asked for a pay advance and was not given it they say this is because the company policy was that they're not getting pay advances anymore but there's also evidence in the record that a white and boy as he hawkins was given to pay in advance after and after that policy was instated and then there's also an issue of a race which mr moulden was denied again as he hawkins was given or raised that was a lie and boy and that's a reason at that bar a thing has raised now after the lawsuit was filed at the time what they said was we're not giving raises to anyone we're not giving advances to anyone and so i think the fact that they're changing their story also  s into question the motivations behind the reason the training of these two different mitchell and why are they treating these individuals differently when you look at the totality of the circumstances the court should in  stop but they continue what's your best and so well the evidence says that on on one occasion mr galloway says in mr hawkins the supervisor says on one occasion he talked to the employees and said you all quit doing that the idea that the employer must continue to try something new if it's not working just that one talking to i think they should do something more than just the one i think is right that i don't i can't think of one off the top of my would just say well what it is what it is or we call it like we see it there's also evidence that the supervisor was involved in the name calling  i think it's also important to note that it's not disputed that the snitching comment was made that mr hawkins told and you don't work for me anymore i don't like that's not in dispute i think that's telling as to the reason that he was terminated and the reason that actions were taken against him i think it's time i think there are quite a few fact issues and i think those cases is right for a jury trial temper proximity there is cause ation but they are not leaking those events or giving credence to the fact they're intervening events that are could cause would be considered superseding causes by their logic we could step back and say well but for the fact that appellant's chose to smoke marijuana and failed his st test he would not have been asked to take a nd drug test and he would not stop the requirement under the  sorry even if that is even if there is a retaliatory animus there it has to yes with intended the ultimate result there of his be his to being terminated i think there's evidence that he wrote him up and he wanted to be reprimanded for it but there's no evidence necessarily that he intended for that circumstantial evidence certainly they were going to go firm well but for the cat's paw theory to work the appellant would also have to establish that the ultimate decision maker basically rubberstamp that right up to and there's no evidence sure but there's also well there's also intervening circumstances here there was on on may nd he came in and complained about the least sider incident in that incident is separate and apart from him cussing his supervisor out on the job which got him sent back to the shop to work for the day which brought him but for and he also says in his complaint that he was called lazy on a daily basis and there's no evidence that he was written up on a daily basis so the distinction factor there is that he custom now in response to that and that's what got him sent to the office he wasn't written up on any other basis it was that i that's what they're imputing on to eric hawkins so they have to link those two individuals to to get to that causation there and there's no evidence linking those decisions when they're this court held that when there is an independent investigation and the ultimate decision maker does not take into consideration or even even partially the the advert the actions attribute to the retaliatory the person that  and also you ask are you basically saying that because plaintiff and not had a random admission by either one they needed to take the depositions of galloway and say did you talk to each other a that the mere circumstances the judge changes talking about or not enough to get past a need to say there's no genuine speed material fact after those deposition there is no legitimate dispute there's a lot of smoke  nothing about that so when it comes to retaliate in our motion for summary judgment in addressing retaliation there's nothing in the evidence that would leak eric's alleged retaliation or even this against racial talk comments about him but he's decision maker and he said he is saying that he was influenced by these other people and so if he's influenced it doesn't matter whether he's a good person otherwise he's influenced by the people that have the talent or animists i don't know that there's any evidence in the record that there was any influence when the reason for that as for the terminations was that he failed to show up for a drug test which he feels he didn't know about so that's  he was in his office for cussing out a supervisor and as bryson testified he was trying to figure out what was the base basis for you know what was going on what what could be done and so naturally pulled out the personnel file at that time his race including but not limited to engaging in a pattern and practice of harassment and humiliation of plaintiff using racial slurs and epithets directed toward pla and then he goes and list some of them that is a statement of a hostile work environment claim even if it doesn't say in a separate thing hostile work environment well and in fact it may have the complaint never does a hostile work environment  to this i know it doesn't have to this court said specifically that general terms of harassment and hostile work environment alone are insufficient to get you a hostile work environment clan even if you plan a hostile work environment going to the district court consider that it's in his his testimony in his deposition would indicate that claim because it has to be so hostile and it has to be so severe and pervasive that it would affect the term a condition of his employment and he testified that it just made him mad in this court has held time and time again that just making you mad is not sufficient to for a hostile work environment claim so i mean but if we follow that logic then we i mean where does it stop we can take that initial point as far back as when he initially said chose to smoke pot then that again is always a chain of events that leads to this so i think looking at temporal proximity alone and just like not taking his own his own deposition testimony at face value he said it did not affect determination as employment it just made him mad he said that he was working fine and that he in the his performance was as good as or as anyone else's so he's employment is the way that you in lies whether or not it affects the term a condition of your point is whether or not it affects your ability to do your job the fact that someone's really strong and can overcome and still do their job doesn't mean they don't have a hostile work r in that his deposition testimony would negate that claim based on his his testimony that it did not affect his ability to do that's the only basis right that you're not you're not arguing anything else about hostile except you don't think it's pled and then you don't think that  and the fact that he could still do his job you're not you can see that it's pled and that there are facts in the record that sufficiently severe or provide that correct no i have my argument that it hasn't been played in that and that that's correct but i think it goes to are there facts pled i'm going to ask again are there facts that show that it's sufficiently severe or that it is pervasive those are two different things  there is nothing in the record that would indicate that that these racial slurs sang racial slurs on a daily basis are not sufficiently severe or pervasive  termination there is evidence of that on page two hundred and thirty five and two hundred and thirty six in the record that they did talk beforehand and also as to the question of whether this harassment affected a term or condition of  said in his affidavit that it did in fact cause him to quit working on saturdays because he just couldn't handle that anymore but he continued to work during the week because he needed a job so in addition to the other choice the judge has raised i would just point out he had quit working on saturdays due to that harassment because of that he didn't want to experience that on t our next case for today