right mr conti whenever you're ready he or the right in the middle row during the six weeks she was employed as a waitress at the clarion hotel she was never disciplined but she had an intolerable problem with the night restaurant manager trudy club two days in a row ms club called her a porch monkey and threatened to get her fired on the first of these occasions she got so far up on her face she sprayed her with saliva and on the second she addressed her as little girl now by any standard that is deeply offensive and in a dictionary sense it's severe because it's extreme it's harsh it's insufferable and really harris before cliff sends its of beer because it altered the terms and conditions of employment the clarion had an employee handbook and the employee handbook of course had an e o policy which is reproduced at page three hundred thirty of your joint appendix and the e e o policy recited that the clarion would not tolerate any unwelcome comments about employees based upon their race or skin color and it required an employee who witnessed or overheard such conduct to report it immediately to h r and it absolutely prohibited any form of retaliation but when ms was abused in this fashion two days in a row it would have made it clear to anybody in her shoes who had average intelligence that a condition of her employment at the to be putting up with that sort of nonsense now interestingly the district court didn't really find that this conduct wasn't severe the district court didn't really find that it wasn't bad enough to meet the applicable standard instead the district court found that it wasn't pervasive that didn't happen often enough to meet the applicable standard but the applicable standard isn't any severe and pervasive it's pervasive so if the conduct is severe you don't get to pervasive and in this case this club's conduct towards an employee was severe because it altered the conditions of employment and it exemplified and unlawful employment practice now the statute opposition clause of the anti retaliation provisions of title seven afterwards protection to an employee who opposes quote an unlawful employment practice while a practice is something that you do and then you continue doing it and you do it the same way now the practice as a whole may well be unlawful but that doesn't mean that every iteration of the practice every act that conforms to or exemplifies the practice is individually unlawful i'll take for example the practice of intimidating employees with racist invective now that's an unlawful employment practice but some people would say that not every application of that is individually wyvil but you ought to be able to complain early before these actions reach a critical mass before they become fully formed unlawful harassment because the supreme court has told us several times that title seven is prophylactic that its purpose is preventive that it is designed to nip these kinds of shenanigans in the bud before they reach a level where they are actually fully formed racial harassment if we agree with you that the conduct i'm over here over here banks i was eligible following your voice your honor appreciate that ok if we agree with you that the conduct in this case was sufficiently severe what is the evidence of record that it should be imputed both to the employer or the case need to go back or bindings on that one well that's an issue th only to the racial harassment claims but i thought i would submit that there on the record it's indisputable that miss club was a manager she self described herself as the night restaurant manager at the horizons restaurant and her little write up of her so description is wouldn't be enough i would think perhaps not but there's more her deposition testimony was to the effect that she was had over all oversight for the restaurant all its activities the incident least the first incident occurred at the restaurant at night which she is the night restaurant manager the write up which she received which  but it's true that the district court made no findings with respect to that that's correct your honor right so should we allow them to support to figure that out and i would say not because i would say on the record your honor it's indisputable that she was a manager but if the court disagrees with me then the answer is yes that this is a factual issue upon which findings are necessary as to the harassment claim but that issue doesn't have any relevance to the retaliation claim now the retaliation claim i would submit is a more obviously available claim to the plaintive and certainly at a minimum the retaliation claim should have gone forward that you're that it is insufferable to be addressed with and opprobrious racist epithet in the workplace which she wasn't her supervisor she was not her direction other to first when you got a coworker going to a girl in a porch monkey twice right but i respectfully disagree with the characterization of miss clode as a coworker she was a twenty year veteran manager at the clarion  management team unquote and she was described by virtually everybody who was deposed as a manager of long standing so respectfully i would characterize her as a manager and i i think  response to your honor's question and judge diaz it's a question of that the answer is that on the record she was indisputably a manager and not a mere coworker but if the court disagrees then that issue is to be resolved on re man by the district that there was no basis to impute that conduct to the employer and i suppose i may have misspoken up the issue of severity is also if we agree with you that it essentially is a jury question that  court got on agreement so at a minimum the retaliation claim should have gone forward because it was objective lea reasonable to believe that this was being subjected to the d c snipers who were appearing on t v somebody else and not the person write you that you make that distinction but the statement in and of itself well what can't you also make the distinction that it happened on one occasion yes rather than two successive days and that's certainly a point of difference it certainly is your honor i mean jordan really was a single once in a case of big on of differences here it was reference the replica to the person's job correct district court misapplied the george i think it could be bob or you had initially indicated i think in response to judge king that and i was curious about this also that jordan was controlling jordan is the most recent case i'm aware of in which this court has considered this issue are you saying that we can reach we could reach the result you or without overruling your word i am saying because as we've established through argued in myself a medal believe brief and as my colleague mr ramshaw has argued on behalf of e e o c that the correct standard is what has come to be called the if continued standard  and i support that in the statute because the statute protects an employee who reports uproar opposes a practice not a discrete events and the question to put the court a case such as this one should be if this conduct were continued would it exemplify an unlawful employment practice and i think i think everybody would agree that at some point even if you don't think this is  severe at some point it's going to be calm pervasive it's going to exemplify an unlawful employment practice because we can all agree it's going to or it could is going to  or what do we were asking about now are we talking about the facts in this case are we talking about children well i'm talking about a standard which in my view would control these cases going forward i think that the jordan standard your honor if applied in this case still produces a victory for the plaintive because i think as we've established the jordan case is readily distinguishable from this one but my in my opinion respectfully the jordan care the jordan standard unduly burdensome employees because it requires the employee to figure out well is there a plan afoot is it likely that this i would begin with the observation that the conduct imputed to miss club is severe and therefore there is there are allegations now i would go about it by defining the elements of a racial harassment workplace claim which or that the harassing actions must be severe or pervasive such as will alter the terms and conditions of employment and if the plaintive establishes a prime aphasia racial harassment claim then obviously reporting that claim is protected conduct but let's are racially hostile environments so on the retaliation point you could have a reasonable belief right and yet it might it might turn out that it's not  very aren't very two distinct yes there are inquiries they are and i completely agree that i should not complain that the correct analysis is to begin with the racial harassment claim if plaintiff has established a pri case then obviously his complaint is protected but you're right if he hasn't that doesn't end the analysis on the retaliation claim because if the plaintiff resignation claim is an easier bar to clear it is i grit and you have a better together and bank what jordan is missing you must be missing something that because that's why we have a bank in a sense i don't you think we ought to clean that up in terms of clearly one one severe incident could be enough that would every sense that the racial harassment claim was fully formed and should have gone what if it only been one monkey you write a single you have to up here right and you got a reference to a girl right and othe shit i have heard many many many quotations from the supreme court many of them from my colleagues as government to the effect that you know ordinarily isolated episode of racial clear on your answer to my friend sorry if question and i understand that you think that the straight up discrimination claim is different than the retaliation claim they have different elements and what would you and i think i understand what you require for the straight up claim what would you require for the retaliation and objectively reasonable belief that discrimination was under way that actions had happened which if continued would form an unlawful employment product that's what i wasn't here about because sorry for me that it in your language is not consistent with what you and i have just stablished a supreme court law that a single instance can count as straight up racial discrimination so if you have that single instance that establishes racial discrimination straight up claim right then and the person goes and complains about that instance right or that if they have a retaliation and they're fired  retaliation for plain discrete action on lawful employment activity and hostile environment because the supreme court has said one can be enough it seems to me that might be the easier case when whatever that person does the employer does everybody would agree good guy but that is one that is discrimination but a hostile work environment seems to be it will it is different and it kind of develops is that the distinction what you draw ordinarily a kind of develops but in this case it was an exposure saying it ought to devalue it i'm not asking you to lobby for your facts in this case i'm just asking about the legal prints right as everybody has acknowledged today the case in which a an episode of racist abuse is serious enough to support a racial harassment claim by itself is an unusual case but the supreme court has the layout i think as allowed happen right not a single is and it's not enough i'm paraphrasing unless it severe enough but what if you have a hostile work environment where the single incident said was it has to be severe or it has to be apparently severe or base of or at least enough to support an objective lee reasonable belief that there is a plan afoot to establish unlawful harassment or that the per se actions are likely to continue could i please ask you i'm very sorry i didn't understand your response to judge much this question it seems to me that we agree sometimes that the bar for clearing a retaliatory claim is lower than the bar for clearing harassment klein yes or no we do not so why is this objective y reasonable standard that you are maintaining is appropriate in the hostile environment context still the same bar there you are imposing in retaliation context i thought we had said that it need only be a reasonable belief even if it turns out not to be substantiated that is correct i would agree with that and the difficulty arises in cases where there is conduct which everybody agrees at some point will meet the pervasive prong of going to racial harassment so it doesn't at that moment right but doesn't at that moment exactly but in the case where does it that moment you don't even get to this analysis if you only get there if you've got a retaliation claim him if he makes you if there is retaliation you have a retaliation that is correct your honor i know that i have heavily borrowed a retaliation plaintiff should be protected if if he or she complains about conduct racially offensive or sexually offensive conduct that if repeated would create the environment and be repeated down the road somewhere yes or repeated before them before the complaints made to the hall to the employer if repeated when if it has been repeated or if it will be repeated after the complaint after after the day or every week or is once enough they're justified in reporting you getting a retaliation like if the incident by itself creates a hostile environment then you don't  you're free to complain about it you're clearly protected because you don't even have to go to the reasonable belief test so if you retaliate if it's severe enough you have both a straight up claim and you're fired we retaliated against because you've complained about it you also have a retaliation claim you don't have to have a reasonable belief that it's going to be repeated again right is that correct yes yes but but your your standard understand are correct that you believe your standard all for more protection for the worker don't you yes because it's not necessary so when an incident occurs that could either establish that could be severe enough in and of itself to create a claim or certainly a claim for retaliation but your if repeated on i take it that's aimed at an incident which only its face may not appear to be enough to establish a claim but if you were to let it go it would because it could you could you have a case where as a matter of law all there was not an employee on unlawful employment practice which you could still have a surviving retaliation cla the object of all reasonable belief and to i think it's the difference in the standards of what we make the difference in the standard reasonably believed because no i'm asking what words in the standard makes makes it that jordan be changed now so that i'm saying when we look at it when you look at the statute in the case well something is outlawed if it's an unlawful employment practice but yet you just said you could fail that and still have a retaliation claim to reasonably believing what occurred wasn't on unfair and pointed right on the right correct i'm asking what makes the difference is that the reasonably believed language the reasonable belief should give leeway beyond the actual hostile environment that i am visiting i'm just asking is anything else it leeway the standard we're proposing would yes that we believe that are would be your analysis under discreet act if in fact as a matter of law that discreet act in a hostile work environment discreet ag as a matter of law does not amount to discrimination could distil be a reasonable belief under under your view that there was protection from retaliation yes because we believe the standard should be not not the thing that not th continue but what they did i don't think is going to continue but what they did is a no that one time you think that to make out on the right circumstance you think i can make out a substantive claim don't you yes yes couldn't make out a retaliation claim yes that is good because why a person could reasonably believe that it could in and of itself could create a claim when as a matter of law on i'm sorry i thought your talk we were talking about a single incident that does matter of  always not now nor as a matter of law was a hostile you are no no i think a claim by an employee i believe that single way was enough for discrimination and when i complained about it i was fired that's retaliation cla if the court order decided i'm looking at that case no you are wrong as a matter of law that same goal is not enough for discrimination claim not a hostile work environment play was not enough for your discrete cla with the person still be protected that the person have a reasonable belief what the law was even it turns out the law was not  i this court asked what rules should we use in figuring out what conduct is protected right and we're suggesting that the rule be if it's offensive if it was it was not trivial or moderately offensive offense of conduct repeated good at some point rise to that love the limiting principle there's there's several it it if if the conduct is trivial or only mildly offensive well it that no i'm saying it's not but that but that in certain circles if that happens if if one winds up talking about the children extensively during an interview that might be a problem with bradshaw what if you have the breed and if you remember that that the single incident with with it but two incidents with that's merely offensive language can create a hostile environment yes it's that correct is that what you think i mean i just want your view yes and what it was all  saying that a single incident would be no off or a reasonable belief probably because you want compliance to come early and probably also because the  employee has to be given some leeway and employer use aren't lawyers and i can't really figure out what a hostile environment what's not so you would have off single incident if it's very serious would supply reasonable belief of purposes of protection against retaliation but at the same time it would not necessarily suffice to establish an actual way an actual racially hostile environment and their reasons for differentiating between the two as i say an employer and employee has to be given a little bit leeway in complaining to bring it to the attention of the employer and because you can expect to to diagnose the ultimate outcome of the racially hostile environment claim on the merits so what may be enough for one employee that in order for the prophylactic in order to avoid harm while seven's goal we want employees to complain about offensive conduct before it becomes easier to wait and what concerns me is that they might be conflated when the all kinds of reasons to keep thing distinct and you know we've just been over some of them but i think judge keane and i asked the appropriate question right if at the outset these are different inquiries retaliation in the stand up in the stand up claim or ultimate racially hostile environment yes i agree your honor and i not sure i understood your answer to the chief judge th so i want to add that people can disagree about that i don't i think the supreme court may well have the people wrote that opinion may well have believed that that that was somewhat inoffensive that even if it were repeated fairly frequently it would not cause hostile environment she was jewish just doing her job there they're their comments were not actually based there was it so i mean if your answer is that you think that we could adopt your standard with an eye toward how the supreme court would regard certain we're certain conduct yes and then we would have to do that indeed yes and that britain has to be thing and white and and crawford because in white in crawford the the the the reasoning was we've we've we need to eliminate harm therefore we need we need employees good morning may please the court the supreme court's decision in clark county vs breeden set the minimum threshold for protected activity under the opposition cause i don't seven's retaliation provision under breathe in a plain this must establish that she had an objective lee reasonable belief that the conduct about which she complained was an unlawful employment practice under title seven read in further instructed that in determining the objective reasonable in this of the plaintiff's believe the court is to apply the established substantive law to the challenge of conduct now indeed the plain language of the statutes of title savin's opposition clause which protects only complaints about a practice that is made unlawful employment practice under title seven and not complaints about any offense of conduct that concerns a protector protect the characteristics such as race requires that the less that no lesser standard be applied significantly here so you would disagree with the court is to apply the same standard ok in the sense of did the conduct though did the did the con the complained of constitute a hostile work environment now and then to do that for the hostile work environment to go through the substantive law of the screen court regarding what constitutes a hostile work environment you apply that same substantive law which is precisely what the court did in breeden you apply the s e substantive laure with respect to a hostile work environment in the retaliation case the only difference is in a hostile work environment playing the plaintiff has to prove that the hostile work i'm at work environment actually existed in the retaliation claim the plaintiff has to establish that she had an objectively reasonable belief that the hostile work environment do this then the key word in that in that standard is the word of jack to and that doesn't mean that you can look at the most sensitive plaintiff or a subjective belief that has to be an objective reasonable belief but under the facts here wouldn't as a just a matter of are objective reasonable person standard  degrading possible language screaming face to face doing it twice on successive days howling in front of others and why would they complain about it and that's what i'm saying is you know that's seems to me an objective lee reasonable belief if those comments were directed at me or something comparable heck yes complain and i think i would have a reasonable basis for doing so and that's what i can really understand about your position is why it was objective leon reasonable for this individual to complain about the degrading and beautiful language which was directed at her on several occasions face to face with a supervisory official screaming you're practically the her lungs would be your honor for first in terms of the facts and in terms of the supervisory issue they have to take a member light most favorable to the plaintiff here that's correct and apply the law and in two thousand and thirteen the supreme court decided the case of verse vance versus ball state and establish what a supervisor is and this club based on the undisputed facts in this case was not a supervisor she had no authority over the plaintiff she couldn't affect the terms and conditions of her him or you was the one who was calling the plaintiff to account for going it's that simple and plaintiff ms limited she doesn't disagree with that she in fact said she in her deposition that she didn't view ms club as a supervisor she didn't direct her in any way she didn't take the fire she said my supervisor was jamie so so that's number one number two under the supreme court's decision inbreed in the court said that you have to look at the substantive law of hostile work environment and these are not this is not a lawyer here  complaining is not an attorney and you can have i'm just not sure you can have the same standard well i understand that you're on a but the supreme court in britain said yes you do and in fact what the supreme court said and breathe  this is in the decision has miss breeden wasn't a lawyer and in fact the ninth circuit in breathing said the same thing that you're saying here she's not a lawyer and we believe that a reasonable person looking at the facts of the case you know looking at the the this case to the employee also says in so many words i'm a good friend of the boss and i'm going to get you fired and she is that substantively change but going back to me doesn't just say or at least doesn't she alleged saying that she was going to go to dr berger and was going to teach the berto a lesson yes she says that and it wasn't that not a relatively is knock us come in in your view it's two coworkers arguing and one of them says and it's a heated argument there's no dispute on one of them says i'm going to go tell the boss be an argument that was initiated correct yes ok so woman so you're saying that i'm sorry right here i got so you're saying then that you have one has to be a formally designated supervisor in order for liability to incur to the employer as opposed to one exercising defacto supervisory authority tell me about the just well you're drawing there in other words does she have to appear on the management chart is this your position that she has to appear on the management chart in order to be exercising supervisory authority so as to have her remarks imputed to the employer purposes of a claim as on the screen court decision  to have the actual authority to be able to have an impact a tangible impact on employees terms and conditions of right and what about this record suggests the chief does not have sufficient authority to have a tangible impact on this employee's conditions of employment because the record indicates that what what she did she worked three three nights a week and what she did was essentially make sure that the dining room everything was set in the dining room she acted as the host this in the dining room and she filled in and helped other employees where with they were needed no authority to hire fire discipline they were all the circumstantial evidence in this case do we have to turn a blind eye to the fact that the evidence is that she's a friend of the boss she said you're going to get in trouble and that this employee was fired and that valid evidence actually frankly in the in the record it's not in the it's not in the joint impending but in the record of the case that was spewed that she was a friend of the boss the boss the owner dr berger says she's not my friend she just worked there a long time and we  and then was called comes in and says i'm more important come talk to me that's one missile bertha's right i mean we have to take that yes and yeah ok doesn't that sort of indicate that this club has some authority here if you can pull people out of meetings that are already in supervisor for liability to incur are you not necessarily ok and so so the key is that in the breeding case the court made it clear that you have to apply the substantive law and it talked about the substantive law and the incidents and them and for super sensitive plaintiffs in the house that's important because it can go way too far and everybody can use the complaint mechanism as a way to set up a lawsuit and just be super sensitive but that doesn't appear to be this case i mean so often the facts drive things i mean do we have any indication that she is complaining but because she wants to give some of herself some added protection against some impending adverse employment action or that she's somehow super sensitive i mean this is the clark the brain has a has a large scope in preventing this from getting out of hand but but on on the other hand you know what what would it say if we said no you can't complain about that something like this well your honor first of all in clock we breed and i think it does accent to this the court said you have to apply the substantive law and in discussing the substantive law the court says fear single racial epithet the record is now said that won't do it that yes the supreme court has said that time and time again well at the i beg your pardon he said except a single incident he usually won't do it unless it's sufficiently severe right and the court has indicated so we agree that's what they've said time and time again not that a single incident will never do it that's correct but when it went works at a single incident the single i don't know any case where the court has said that a single incident how much how much is the but how much is the employee system work and person charged with knowing the nuances we're talking about right here ok the supreme court as i maybe a no that's correct one incident may be enough but they're so they know why when the employee with the cars because one incident of what i would call offensive verbal it has to be judged according to the subset of law and so in other words then you would say that's fine but i am general counsel to the corporation you're not a lawyer and i know you think you read those words but if you've studied this for years like i have you know the general trend is think that the law a person could want this to this language from the supreme court to their balls and say why you retaliate against me i think it's pretty doggone severe i don't like being called there and the supreme court i think if i read that with the law that if an employee has a complaint and doesn't complain about it they may well lose that is evidence of discrimination but i think that squares actually that the to coincide and and what you have here if you look at the this court's decision in navy federal credit this court said that if the employee doesn't have to establish that the hostile work environment existed or doesn't have to have an objective y reasonable belief that the hostile vironment already has been created but if a plan is set in motion if the facts are such that it shows continuous activity that it's likely to ripen into a hostile work that the employee cannot own reasonably sit back and so i was up who's that risk in that case then for not reporting it if you are on the side of not reporting is that ever go to a nerd to the detriment of the employer or is it always going to if it hurts anybody hurt the employee if you don't say would you don't have to do the first time you got to think about it but who who benefit from not the employee it may not help the employee but the employee won't benefit from it will she well it may be a one time incident brief incident that's that's not repeated it's over he it would three be enough she added if you had another one another day this case it really would not be enough the condom repeated itself over and over again so as to affect the conditions of employment not just be report said that that's one of the factors you consider it's not you don't there number of circumstances factual circumstances and that's one of them why isn't this just a jury work as to how much is enough because it's to be decided th or what would be it in this court's decision in skipper versus giant food that in that case there was the supervisor made a racial slur and the evidence was that over a period of time there were thirteen or bree as the reason substantively this is common as a matter of law is supreme court precedent you know text without context is pretext in bringing well in a situation where the plaintiff i'm not excusing this at all but the situation was the plaintive it was a part of a team reviewing job applicant reports psychological reports and in those reports another which were created by any of her fellow employees or supervisors was there and they read from an offensive account of that person saying submit was horrible about a female it read aloud and they looked at her and and one said i don't know what that means the other one said i'll tell you later like that's between us boy i'll tell you later offens apposite but you're saying that that's like going to this case when they directly say you you are a porch monkey which means even nigger is offensive term but here you stand you are less than human you are some animal that runs around a jungle and you're not even a human being and you say man if you say breed as for clothes in this court i'm saying that that is serious enough to be one incident i want you address that ok and what i'm saying is that breed an established the standard the scrutiny what the court is to look at in determining whether the employee had an objective really reasonable belief and i had to put in that case they said the sensibilities was you're complaining about something that wasn't said about you it was in a report that they had to look at the fence at best was they read it aloud and looked at her in create that that's what the court was terms of the seriousness with the court points to extremely seriousness and those phrases which i'm saying that yeah under the under the jurors in order to be called a porch monkey in your job and be told i'm going to get you fired is extreme versus over here on the harris worthless thing right if we if we accept for a moment that there might be some contexts in which an isolated racial slur would not create a hostile work environment some kind of platonic ideal of how you could do that i mean that doesn't look like this case right because the context here it's not just the racial slurs that's coming it's coming in connection with the negative evaluation of her work from someone who thinks she has enough authority to yank her out of meetings she's having with other people it's combined with at least a very strong implicit threat of further repercussions when you put that all together to see what is there a case like that where the court has said that's not  look like this where a court has said that's not only is that not enough for the underlying violation it's not enough to create an objective we reasonable belief that there has been a violation what's the best case  i'm actually the case is just all hell hole that i just can't think of one off the top of my head but they all hold back homework a racially offensive and there's been frankly there's been numerous cases of that and you need a lot more and that's again coworkers supervisors even a higher standard and there are instances where there's supervisory conduct where the using highly offensive racial terms directly to the employee and the severe racial epithet standing here in front of the court opining i'm concerned that you haven't left anything for the trier of fact to determine saying in every instance this is a determination made for the court sitting in assessment on summary judgment what from your perspective is left for the trier of fact in this analysis and the follow up question is isn't the assessment of the severity of a racial epithet to some degree necessarily a question of fact or the trier of fact and and and again what i'm saying is  was asking about court holdings but i'm asking you is what is the function of the trier of fact in this type of case in your your discourse is suggesting that this is something always that the judge sitting on the bench decides the severity of and that can't be the case well there has to be a function for the trier of fact in this analysis and so i'm asking you from your perspective what is that function and it's the function for the trier of fact would be if the question of law frankly can't be resolved i mean that's where it is the question of law leaves open the question of whether the conduct was analysis required in order to if we disagree with you on the question of whether miss chloe functioned in some sort of oversight capacity do you luth do we have to agree with you on that point you know order for you to prevail i'm i don't i don't believe that i lose because again the limited the facts being limited to two these two offensive comments which were really done over it was a part of the continuing argument that these two were engaged in in probably fifteen hour period i will submit though that the standard as as well as we know the standard for coworker harassment what needs to be shown is is you know much higher what you'd have to show for coworker harassment than supervisory harassment but again supervisor doesn't necessarily have to be designated as such communion organizational chart and perhaps that would be one of those to the extent to which m exercised oversight here might be one of those questions of fact didn't refer to to be determined i don't think so because it's not just it's not just exercising over of a side it's actually having authority to materially affect the terms and conditions of a point well what about this club apparently reminding mr barrett of that dr berger would listen to anything she said well that doesn't indicate supervisory authority that's that's certainly suggests the ability to effect terms and conditions and then i don't think under the under the standard in vance that that a statement by by a coworker to another coworker that you know the boss is going to listen to me i don't think i don't think that close up with that at all and in the face and the at reckitt evidence is that she didn't have that authority in fact in vance decision what the supreme court says is we're limiting the number of supervisors that clearly are supervisors and here we're talking about a hotel that employs less than two hundred people and you had miss club who reported to the food and beverage direct them as to hugh beck who reported to the general manager who rice where it was perfectly clear that there was no supervisory authority here we have we have a question as to whether she supervisor is there whether it's her supervisor and the whole management structure that may be one for the trier of fact i agree with you there can be questions of law as to severity and objectively reasonable belief that would go off on summary judgment but there seem to be some factual disputes here and a number of them but without a minimum isn't this a reason this is a very different primary reason isn't this really really very very different from what we were confronted in jordan well i do not from the supervisory standpoint and not from the a in the jordan case with this was the only racial comment here was the porch monkey and jordan went on and on there is a difference between this case in jordan and that's that the as opposed to the t v i don't think from the again from the case law under what constitutes a hostile work environment that it gets there and that's what the court that's what the the supreme court supplied that's where breeden said and frankly that's what i think the language of the opposition clause says however there's leeway in that that can be mistaken and it doesn't have a stake in as to what their understanding of their understanding of the law but it can't win what the language of the opposition clause says is that it protects opposition or complaints about practices that are made on unlawful employment  statute offense of racial epithets in themselves isolated offense of conduct in itself is not an unlawful employment practice under title seven and what unlawful employment practice which is a defined term in tie in section two and section three of title seven are terminated you know firing hire refusal to hire affecting compensation and then let me let me ask you a question before we leave this is a very difficult place to deal with in terms of the type of language used here and it puts us in a position in determining summary judgment what is a matter of law the facts stab you can talk about law in terms of the standard reasonably objective but really you're saying is it enough and there is something that has to be in order here to say ultimately maybe a jury should deal with it but he asked this question insofar as joy do we initiate lee have to confront that decision in terms of his narrow interpretation of reasons really in my opinion yes and contrary to what t you agree that i would i would submit that if the court wants to i think jordan is good law but if the court the mns the need to confront it i think it's a good law and i think it's because it's based on what the you know particularly because i know the issue of jordan has been an issue that the it's been a lot of discussion among the judges and i believe the court does want to address it we would submit that the court in addressing that decision should continue to follow the joy of what the court held in jordan and as i said i think they the court applied what the supreme court that the way to scrutinize allies these cases that supreme court a stablished in the breeding case english in what sense do we have to confront it well if you take the position that it is the controlling lawyer if you apply that lot of this case because of the dramatic differences in the facts of this case from those in jordan you get different results but your answer is you don't think we have to confront it because you think we can decide this case the way you would have decided and roared right as i understand or call judicial restraint what i thought i understood that was not your idea of where the law was you think we could square this case with the law as it set forth in jordan and i thought your position was that that was an incorrect statement the law propose a different approach am i incorrect i have proposed a different approach your article which you regard i assume is more consistent with controlling law it is it is less burdensome to the employees  but just because it's less burdensome to the employee it doesn't mean it's more consistent with controlling law but it is going to do is to put ourselves where this report is right but it is consistent with the wording of the applicable statute add the prophylactic interpretation of the statute the supreme court has given and for the reasons that emerged judge gregory's colloquy with corporate greed in is was a very different case factually it really did involve an ambiguous incident with an arguably supersensitive plaintive because in that case what is the limiting principle of law in your view guidance as to giving employees leeway to complain about deeply offensive acts on the one hand and not just permitting any insubstantial not protecting thin skins and people who are offended by mere discourtesy but what is striking in this case and in other cases is the racially offensive nature of the conduct which in my view and i think in the view of many judges is severe in the sense that it  offensively and lawful employment practices and that is not mere discourtesy or incivility it is intolerable racial invective which a self respecting person would not put up with unless they desperately needed their job and i think that is the limiting principle i think that to be clear hopefully more clear than i was before that although i think that jordan can be readily distinguish factually from this and i think if you apply the law as it was formulated in jordan to this case the plaintiff still wins but i do not feel that you have an optimist as well as not correct and it should be done this way before the panel it just seems like it takes away the purpose of us being here if you're going to be and try to distinguish what you think fundamentally is bad precedent of this oil on that case so i must only say the facts but that's not your position today while my position what we would benefit from would be you given us the benefit of yes correct that if the incident complained of isn't sufficiently severe to be fully formed racial harassment isn't that unusual case allowed for by the supreme court then the question becomes ok if repeated would he had become severe or pervasive such as would exempt an unlawful employment practice and alter the terms and conditions of employment that in my view is a formulation of the standard which serves the public purpose it also serves the underlying purpose that the supreme court has perceived in title seven and it is a preventive application of the wall which takes into account the fact as as emerged from i think judge sheds observations that you know these folks are not law professors the people who are making these calls in the trenches they are worker who have to decide well do i complain and serve my self  or do i keep my mouth shut because i'm afraid of getting fired and the supreme court has said that you kind of lean towards protection because we're encouraging early reporting or encouraging people to report these abuses before they become fully formed unlawful harassment and the best standard to achieve that outcome is a so called if continued standard because it