ricardo corona on behalf of the appellant and plaintiff alexis fernandez and as i got to preface and apologize in advance for some of the language that i may have to say some curse words that i would not normally use specifically not in front of women or in a courtroom but this is the language that mr fernandez endured and had to deal with culminating to the point that he wanted to kill himself and gasoline in at his workplace so in order for this court to affirm the district court ruling the court would have to find it as a matter of law that word saying fucking cubans lazy cubans cubans pieces of shit on a daily basis combined with new policy no more cubans does not allow mr fernandez to present his claims to a jury and i believe they had the district court had the benefit of this court's recently published opinion from smelter which was issued after our initial brief was filed that i think that the outcome would have been different is there a dispute in the facts about whether the statements were made i think it was eight or nine times over the edge of the course of this problematic time versus every day so there is different testimony and the police position is that this was eight to eleven times and that's their position in their answer brief and under the smelter case that would have been enough combined with his testimony so when mr mr fernandez is being deposed he's his testimony is that this is something that was happening every day fucking cubans whining cubans lazy cubans that this would happen in the monday in the meetings this was these this company they do they cut the trees for the electrical lines for you today lines and so they would meet in the mornings with mr soto who was a supervisor and at those meetings as when this was this was done that this this this these discriminatory statements were made so there's two wooden ploys who also testify this had happened often one said it five mr hernandez or mr perez so this happened five times a day he said oh when how often this happened five times he said more like five times a day so i think that there is a disputed issue of fact as to how many times  happened because initially mr soto mr fernandez sotto says it happened every day and then later on in the deposition when he was asked he said it was a more than ten and i think that's what the district court held her head on they said god i don't know but this is after seven hours of deposition after being asked several questions and in taking into the context his his mindset and in the deposition wasn't he asked about specific phrases how many times he recalled so in other words in the deposition he was asked you know  did say you know blank cubans versus blankety blank cubans other words i'm not sure that that refutes the comment that the comments were made on a daily basis just because he couldn't remember which particular phrase correct which  correct exactly and the fact is that he said that he had heard these comments every day and you combine that also with the testimony of these two additional employees which were perez and hernandez who testified both that this happened every day and that the comments were made when people would complain about the tools because one of mr hernandez's deposition mr hernandez was being reprimanded for putting a cone on an accelerator said the truck could work these people have to use this bucket truck and in order for the bucket truck to get enough power he had to put the cone on the accelerator set the engine could be i guess would give him more power and he was reprimanded for that and what their position was was that every time they would complain about these inadequate tools that they were that mr soto's comment would be again i'm sorry fucking cubans you lazy fucking cubans you whining cubans cuban pieces of shit so this was stuff they had to endure on a daily basis and really with the hostile working claim were limited to one under the severity again the shady cubans and the fact that there is testimony that this was told to mr soto hey stop doing this you know politely i know if you're talking about cubans brulee i am cuban please don't do this anymore the discriminatory comments continued after he was vice advise of that so under the matter and remember that this court had found that would be enough to make it severe humiliating is there any evidence in the record that the derogatory comments objectively interfered with mr fernandez's job performance well i don't think there could be any more interference than attending to dollars yourself on fire at the workplace but that's subjective and that's terrible but that's how that's one page is fifteen and sixteen mr soto himself testifies that mr fernandez was his top three employees and during the last two months of employment this is their position that his that he became erratic they started doing things that were affecting his job he was reprimanded so under their own testimony it's created an adverse effect is employment what did you say that was that's on docket entry sixty nine dash one pages fifteen and sixteen where he's talking about how good of an employee mr fernandez was initially that he was a top three and then he goes on to say all these things that started affecting his employment during the end of his employment the last two months specifically which are specifically the two months  relevant for this case because this was you saying that that shows that a reasonable person would find the comments so disturbing that it would interfere with their job performance because what you just said also seems to me to be kind of subjective i think that it would affect his job performance and i think that under your under the smelter opinion we can look at the totality of circumstances and under smeltzer i don't think that that that factor was even met but i think that in our case we do meet that factor because of the fact that have similar impacts on their work performance so the we the only evidence that we have we guarding other cubans in affecting their employment was the u s one carlitos they call them for going to those who were there was a testimony that the inadequate tools that they were provided were only provided to the cubans and specifically the ability to have a truck that could use or lift the bucket truck without having to put a cone in the accelerator i think that's object to be giving somebody and in our case mr hernandez is cuban that that is objectively i mean it's hard to to meet that factor in a pure objective component but you have two other witnesses in that context where's the testimony about the defective two that were only given to the cubans there is testimony in fact the court the district court found that most said that's the only evidence that we presented to show that factor that the most we show that the tools were inadequate i make i can look at the the record quick i could bring up the court in rebuttal it's in the district court opinion that's yes he specifically found that under severe under the under that under that factor that the only thing that ab best what we did was show that the cubans were given inadequate tools so under it under the severity can under each of the elements and under the totality of the circumstances i think i see i'm running out of time but under each of the elements and and again i think if the court had the benefit of this court's opinion at least the court i mentioned like lions and i represent trees in the spatter as a preliminary matter i think it's important to look at just what is the testimony that's in the record in mr fernandez's deposition when asked about the comments that he heard while he was employed at trees inc he specifically referenced a incident between short carlitos and mr adams sotto in which mr soto made some comments including allegedly no more cubans shitty huband effing cubans and whiny cubans mr fernandez then went on to say that he heard these every day but when asked to clarify what he meant by that the question that was put to mr fernandez was how many times did he make these comments about cubans at page sixty seven of his deposition and he said i didn't count them but it was several times the next question was it every day the answer no like every other day so at this point what we know is there was the incident was short carlito said mr soto the plaintiff that mr fernandez observed  know that there were some unspecified comments about cubans made like every other day later in the deposition this was dug into a little bit further to find out exactly what the extent of the comments were mr fernandez testified that he heard the comment five fucking cubans one time other than the fight was short carlitos and that he heard the comment she cubans and  number of times he was not able to say how often he heard those comments for summary judgment purposes is a really such a material difference between every day and every other day well there is if you look at what the common is he said that he heard comments about cubans like every other day what are those comments that's a conclusory statement from which he wants the court to assume one those comments were negative to that those comments were in fact about cubans and three that those comments were severe and for that they were physically threatening or humiliating just saying i heard comments from about cubans like every other day is a conclusion it's a can he give examples of those comments like sheedy cubans etc and i'm just wondering is it really reasonable to ask somebody to remember whether somebody said effing cubans or sheedy cubans on which day or on how many days no use for purposes of summary judgment i mean he could be impeached with that trial i agree your honor it's not reasonable and we're not suggesting that a plaintiff in a harassment claim bring with them a diary listing every single time they heard every single comment what we are suggesting however is that cubans right when that if that were the type of comment that had come out wouldn't testimony to that effect have occurred well actually mr fernandez did testify that him and mr soda were friends and when he st heard those comments he thought mr soda was joking so i don't know that it would be a stretch of the imagination your honor to claim that the other comments were not that similar however it's not just that the comments were negative and looking at the totality of the circumstances and all four of the mendoza factors the comments also have to be severe and they have to be physically threatening or humiliating so before you can make those determinations you have to know what the comments are and there's a big difference between someone saying  example your lazy versus cuban there's a difference and so in order to make the analysis and reach a reasonable inference that the comments were negative that they were severe or that they  were physically threatening or humiliating you have to have some idea what the comments are i gree with you that there may be a question of whether the severity rises to the level to create a hostile work environment but for purposes of frequency of the comments isn't there enough here for summary judgment when you don't you have to concede that i don't concede that your honor because of the nature of what his testimony was the other two employees him mr fernandez is relying heavily on and trying to show the frequency of the comments those two employees testified about what they heard mr fernandez testified about what he heard and he listed two comments those are as i understand your argument about let me redirect you just a little bit in our re in our reeves case court held that derogatory comments made on a daily basis about women where the myth where she complained in the manner it manager tolerated that conduct the ported a hostile work environment how is this case different from reeves well it's different in that the reese case was not did not decide the issue of whether a general conclusory statement that they were that an employer was subject to racial comments or in that case sexual comments like every other day is sufficient w two examples that the plaintiff can give don't rise to the level of frequency because they only happened a very limited number of times so it would be different if mr fernandez had testified i heard the f ing cuban comment twenty times or if he had testified i heard the i think you've been comment every single day or every other day but that's not what he said he said he identified two comments he heard one the effing cuban comment which he heard on the day of the short carlitos fight and then again one other time and this shitty cuban comment that he doesn't know how often he heard it but there was some testimony that it was ten or twenty times if he had come into the if we were presented with the case where he said he heard either of those comments every day or every other day that would be different or if he had said i heard fifteen to twenty different comments i just don't remember how frequently i heard them that would be different but also we have here is i heard comments about cubans like every other day and that's very different than a situation where there's more specific evidence as to what those comments are or what the frequency of a specific comment is but you're right your honor that it's not just a matter of frequency and looking at the case we also need to look at the other four factors or the i'm sorry the other three factors from mendoza a the nd factor that's typically looked at is the severity of the commons and this case the severity of the comments does not rise to the level necessary to establish a hostile work environment the comments well at least the two that we know about anyways where i think he had been and should be cuban these comments were not directed towards mr fernandez he said in his deposition that these were spoken at a general meeting and were not directed to him they were not you know how many people are at that meeting all of the crews that were working so there is a supervisor then there's general foreman's and then there's crew two men crews so there's some testimony it was more than eight people but i don't know the exact number  say eight to ten people to make the meeting large three of whom are cuban we think there were more cuban employees there's testimony in the record as to all of the cuban employees and it was more than three  ok ok and the complaints were made to him like the complaints about this about these comments were raised with management right mr fernandez said he asked mr sodo not to make comments because he was cuban and then he claims he called in h r person yes that's as far as it went yes and you do not however you do not argue in your brief as i read it that if these comments a sufficiently frequent and sufficiently severe and so forth so that they would you do not like you that the company is nevertheless not liable because there was no constructive knowledge of whatever the hell the test you did you do not make that argument about no company liability we do not your honor because taking the light of the evidence most favorable to mr fernandez he said he complained and that nothing happened so we did not put that as an argument because not that we agree that he complained but of course taking the evidence in the lightness favorable to him we felt that would be taking the court somewhere we didn't need to go when you look at the th element of whether the conduct was sufficiently severe pervasive deal altered the terms and conditions of his work environment the conduct as i said was not made directly toward mr fernandez was made in a group setting did not include but  saying it to me after that it seems to me they were directed to this plaintive i think this is a different situation than we find in other cases where the court has held that the comments were made to regularly to the plaintiffs these were made in correct i believe that the cases talk about if you complain in the comments continue but it doesn't say comments made to a general audience are directly made to a specific plaintiff your honor i'm unaware of any cases that say that because in this matter the several comments that the plaintiff was able to testify to were made to the group as a whole in addition and this  and in an unpublished opinion the circuit has previously held that the comment fucking cuban's is not severe in that cases did mean gaz vs lake como club in that case the court held their comments such as a fucking and we don't have any mexicans working here but we got the next best thing a cuban and i hate fucking cubans were not sufficiently severe or pervasive it takes direct racial not one of the factors to look at in determining if something is severe is if it's a direct racial slur or if it's made to a group as a whole additionally the comments here i think you've been and should be cuban were not physically threatening or humiliating this the reeves case there were no comments directed to the plaintiff isn't that right in the reefs case leaves on bond case the court said that a couple of times i believe right there were comments such as well very graphic sexual comments comment that were not eliminated the workplace ready were not directed to her that is correct but the nature of the comments a significantly different than the nature of the comments here in that case some of comments were pardon me whore bitch hunt there were comments about women's breasts and nipples and they were pornographic images in the workplace that's certainly a different level of severity than we have here where mr fernandez claims he heard comments about cubans like every other day there's also no evidence that this interfered objectively interfered with his work performance i believe this was discussed briefly  while mr fernandez was case was being presented there is no actually mr fernandez himself denied that he ever engaged in any behavior that was a violation of any policies or practices or procedures at the workplace and when asked about specific instances where someone thought he had it working gauged in such conduct mr fernandes testified he didn't mr fernandez his testimony was that he never had any performance deficiencies during his employment with trees in mr mr fernandez his attorney spoke frequently about the recent case of smell smell ter i believe judge pryor you wrote that opinion and i think this case is distinguishable from that recent case for several reasons one in the small to case there were a specific comments that the plaintiff was able to identify and discussing whether the frequency and severity factors were met the court specifically said if we look at just those eight then it is in fact met and the court didn't consider at that point did the analysis whether or not a more general comment that i was subject to racial comments on a that general allegations such as a racial slurs being said every almost every shift are not severe or pervasive because the plaintiff failed to carry his burden of presenting evidence showing it was severe or pervasive the court found that the plaintiff it only presented evidence of isolated incidences of harassment and did not present evidence indicating the frequency or pervasiveness of the derogatory comments he alleges that's the same situation we have in it case it's case where the plaintiff made a general allegation of racial slurs almost every shift but was only able to identify four or five specific comments and the court said based upon that gent the court didn't say it as in depth as i'm saying it but essentially said that the general comments don't provide enough in evidence to show frequency and pervasiveness so we can only look at the specific comments but let me ask you and let me be clear i am not asking you to say what these comments would be sitting you not do not mistake that but are there comments in your view that could be made about cubans that would be as offensive as some of the comments that you shared from the other case or as some of the some of the other comments that we've heard and i think i'm sufficiently severe i think there are your honor i think there are cases where there are or i guess ethnic slurs that i don't know how to write and i and most certainly comments or names used to describe individuals of cuban or hispanic origin that are much more offensive than the comments that are alleged in this case perhaps if the severity of the comments were elevated you would think that this was a different case for your client well certainly if the severity were elevated this would be a different case because you do consider all four factors in the totality of the circumstances and the circumstances here are much different than in many of the cases that mr fernandez relies on in his brief mr fernandez was employed there for fourteen months he testifies he was friends with the individual who made these comments and that sets a very different environment when looking at the totality of the circumstances there are no further questions think you evidence we have in this case with regard to the complaint is judge grant asked it was complaints that happen daily not only from mr fernandez but from mr fernandez his wife mr fernandez his son and mr hernandez and there was another individual three for the deposition of hernandez he does fit the individual's name was a car and so there was there was definitely several complaints and with regard to this a very deep analysis under mr this court has ruled that if you advise a supervisor to stop making those comments and those comments continue that that the rights of this that that would go above and be sufficient to be comments are offensive and you go and say hey these comments are offensive to me you need to make them stop and the company does not make the comment stop that automatically establishes severity i don't think it automatically establishes a varity and i don't think anything is automatic with regard to this these factors i think it's just it's just another factor to consider in the totality of the circumstances so taking that into consideration in the totality of the circumstances he had complained and just has breaking point and with regard to the cubans that were working there there was testimony there was six they made the individual sign a paper two or three days after this is hadn't occurred mr hernandez also initial document saying there was no discrimination he says that he just put a circle or scribble because he didn't really believe that there was no discrimination but he was scared for his job if they were going to allege it was discrimination and that scared for your job also goes into severity and humiliating because of the fact that there was testimony from perez and hernandez saying specifically if you don't like you can go and the doors open for you guys to leave telling them to basically leave and for the door open making these comments that would also be humiliating and as your honor was asking how many people were there when these comments were made there's a big group so you take the totality of circumstances under you merely aiding it exacerbates the  the the the discriminatory conduct do we have any testimony regarding the reaction of the others in the group you have testimony regarding mr perez who said that he wouldn't like it there was testimony from mr hernandez saying that he would he was offended by mr hernandez is that but i could tell you the actual site if you mean on