consistently made put itself in fact finder role and did not give inferences to the appellant under all the actual under all the issues involved headland and harkins in regards to motivating factor analysis however a motivating factor analysis and the headwind case for which the american bottling company court cited to the headland case clearly states that clearly utilizes two tests and it's ruling that utilizes both mcdonnell douglas test and a motivating factor test douglas who are motivating factor you would still need to establish and be able to overcome a legitimate reason for determination yes your honor however the overcoming the legitimate reason is more question for the jury that happens at trial as that it hearkens it becomes  appellants brief the case of hope for motive and intent is in fact and also the jury question to be determined at trial so in essence whether the appellate had overcome it or not is more  fact necessary in a motivating factor case analysis well don't you don't you still have to point to some form of evidence that that would would somehow rise or raise a dispute about whether or not  the illegitimate factor was the reason for terminations i don't believe so you are the reason being that in the hopkins case analysis the burden does not matter shift back to plaintiffs the  starting burden and then a motivating factor analysis to prove that there is in fact that the discriminatory characteristic has some sort and act on it and then the burden shift and there is no shift back the burden shifts that offended that they would make the decision otherwise and then that alone goes to the jury there is no pretext in houses that goes into it and the wings actually know what was the evidence who record suffered at the hands of his employer along with all the actual slurs issued to him like cotton picker or porch monkey boy along with the fact that he was told he would not get jobs because he was black but one of his direct supervisors combined with regards to the directly to the  district court ruling cited similar in our brief both use utilize both factors in both analysis but moving to the hostile work environment clay your orders we believe that the district court erred and really there was a significant loss lack of pace on it we were a little bit troubled by the fact that there was a usage saying that the claims by appellant being called racial slurs to three times per month did not fall within any statutory timeline  if any hostile work environment claim if any of the continuing violation of the hostile work environment is found within the within the time period in the entire time period of the employer it is in fact found within they try and argue some sort of sham doctrine which does not fact exist and relates to as it relates to i was a civil rights actions and it does not relate to the title sudden civil rights act throughout his employment time in the in the civil rights complaint that then that subsumes the later addition all slurs that were used at work is that is that what you're saying i believe yes it includes anything in the release reason anything related reasonably to boy which as we all do was quickly used in a racial term analogy is that therefore exhausted and that's to further the include the sham doctrine in this case which to create it would be to create an exception that supposed to remove the entire purpose of the little construction to include everything together  and i understand your position it seems that it would be a stronger position if complained said student generally i was i was called names including or something like that over this sort of name calling or disrespect from from other employees i miss that seeing the language that would subsume additional slurs an additional disrespect can you point me to something and the complaint will just kill you i believe boyden of itself is does that do to the fact that it was really in fact along with the rest of this can hurt if it mention something especially when they are in fact not represented or represented and maybe they did remember something all of it is to stop th disgusting aspect of racial discrimination or discrimination just so your approach is more of a sort of factor circumstance specific you're not you're not proposing some kind of general rule for case on claims of race discrimination and terminations race discrimination and failure to promote and hostile work environment now my client atrium fired hotel front desk clerk joseph carter after an april t the position that he took room six hundred and seventeen dollars out of order he made the key without having to guess he took that key from the front desk area and he has no idea what he did with the key now that he ended up with greg who was arrested in room six hundred and seventeen with two underage girls drug paraphernalia and evidence of meth use now mr carter initially told a friend in that two thousand and seventeen investigation that he left the key at the front desk and he did not take it he similarly told the i was civil rights commission and a sworn statement that he quote left the key at the front desk when i left that day but that is depo your honour's i played the front desk video to him which shows him making the key with no guest leaving the key on the desk for about twenty minutes then pocketing that key and leaving with the key and then he admitted that yes he did leave with the key but he still doesn't know how the key ended up with this other gentleman so basically he lied to his employer in the i c r c about leaving the key up front and he admitted this that is that position now mr carter's conduct created a huge liability risks for atrium and mr carter himself admitted in his deposition that the conduct that he was accused of would violate the trims rules of conduct policy in five ways regardless mr carter now appeals judge pratt's summary judgment on the three i c r e claims and our position is of course that he cannot create a fact question on any of those i mean what about the hostile work environment claimed when was when did he st make allegations to that he made the allegations to atria atriums if you look at the declaration of just sent to carter was an african american head of h r at the company she said there was never an ethics lying complaint made by mr carter and he testifies in his deposition that he repeatedly called the ethics line there was an investigation into a comment that was more than a year old involving the n word  land and if the court looks at the interview notes which are in my supplemental a danda it shows mr carter was asked if he was ever called a derogatory term by anybody and he said no he had not and of course that w that point in time but then he also indicated that you know that he used that word in the workplace both he and mr glenn received a warning relating to that does that answer your honor's question well to some degree but i guess what i'm trying to discern here is what was he advised the company of in terms of how he was being treated over his work experience and what does the company's records and good company have in the records showing how those complaints were dressed the company has nothing in the record that because nothing was actually said to them i know he testifies now after providing his i c r c statement but there's nothing in the record because he didn't call the ethics line and he didn't talk to anybody a i understand that you know it's his position that he did that to the extent anything was brought to him and that one untimely matter was brought to the company in the company did investigate you know so that they dealt with it the one time that they believe that it came up council mentioned another individual involving it having a key issue with the company not being disciplined  because do you have a response to that has a matter of disparate disparate treatment you mean as it relates to the discriminatory warnings not not to the warnings but as t the discharge ok are you talking about the allegation that allen williams well i'm said made the key or our call them about the key yes ok what they're alleging is that mr carter in being asked why he took this room out of order it st told the i c r c that he took it out of order and then later he got a call from somebody and maintenance asking him to take the room out of order alan williamson there's no allegation that he actually made a key but mr carter is saying that he got a call from somebody who he thought might be mr williamson telling him to take the room out of order there's zero evidence that anybody else ever made a key took a room out of order and him to take the room out of order but he has no explanation as to why he you know why he walks away with this key why he pockets this key and there's no evidence that it was mr williams and he said mr carter said that he thought it might be mr williams and that's that's what he testified to of course the also told this company in the iowa civil rights commission that he left the key up front and he never took the key away when the video shows stage in the hawkins case but that was a trial case after that the iowa supreme court applied mcdonnell douglas to summary judgment and headland they also apply to motivate they looked  under motivating factor but they applied mcdonnell douglas st and you know the th circuit then and coach said that you know we presume the iowa supreme court meant what it says and that is that we still apply mcdonnell douglas  so to me though there are whether you apply the motivating factor or mcdonnell douglas this is not a close call and discriminatory terminations under mcdonnell douglas or the motivating factor test that there is zero evidence that chris stockman who is the decision maker here and who did the investigation was somehow motivated by race there's no allegation that stockman ever said anything racial or did anything racial and also i right mr carter did make the key and take peter room six hundred and seventeen and it ended up with an unregistered guess that's what the investigation show now they talk a little bit about how you know that the whole decision was  called into question because there were these discriminatory warnings mr carter initially told the i was civil rights commission in his sworn statement under penalty of perjury that he received no discipline a warning this at atrium regardless he now claims that the nine discipline or war disciplinary warnings that he had a tree and were somehow discriminatory but he signed off on all nine of those without blocking or adding any comments in this included serious security violations including one where he left the c k one guard key at the front desk an attendant which is a key that would allow somebody to make keys to any occupied room in the hotel which obviously the hotel at risk now there's zero evidence that any white employees similarly left the guard were not disciplined in fact when i asked mr carter about it he just said that he believes that white employees weren't disciplined but he didn't have any evidence of that the only thing that i saw in the reply brief about these prior warnings is counsel talks about how mister carter was disciplined for his facebook use if you particular name or slur on a regular basis why isn't that sufficient to sort of bring a reasonable inference that there are more other similar types of  guess transgressions on the workplace have a similar point yeah well you know he didn't say something like i was called a variety of forms he talks about this reference to boys but i think the court looks at what that question describe what happened to you state how you were discriminated against and be sure to just address each action and in response we got this eight hundred and fifty five word signed statement under penalty of perjury and given three weeks after his terminations and it goes through everything bad that happened to him at that employer and you know you go through those eight hundred and fifty five words and nowhere do you see what may be the most offensive racial slur in america and that's the end it doesn't appear and there's no reference to other potential slurs so you know i think this the sworn statement given under penalty of perjury and two thousand and seventeen and then suddenly in two thousand and nineteen at his deposition you know in that maybe he thought the case was going sideways i don't know but you know suddenly there are these allegations that i was a call the n word throughout the workplace and you know and i will know too that it's in footnote to in my brief there are facts section in their appeal brief as all of two pages and there are no cites to the record there are sites to their prior summary judgment brief but there is that whole law in a case law that you know judges  not archaeologists or ferrets or whatever it is that you know having to go through the record to to actually find things on behalf of the plaintiff you know and if the court has additional questions i can address the failure to promote claim as well you know i will say though that in this hostile environment there are there are there is no as if there's was or any obligation of anything physically threatening and word he was testified that he that they said cotton picking that these maintenance folks when they would pass by him at the front i don't i don't recall anything physically threatening your honor court recently where an expert gave a report and then tried to testify countered their report and they held the expert to the report under the contrary statements rule so i think you know it's apt here and and and office manager notably before those three were hired a trim hired black individual and right after those three they heard another black individual but mr carter's qualifications at that time included that he had nine warnings he had signed at atrium he had worked at thirteen employers the last ten years he had no schooling in hospitality he'd been fired from three area hospitals and he'd never been a manager these other folks they were highly recommended they had degrees in event management one was pursuing a degree in hospitality so i would say that they were all objective lee better qualified for the position i see i'm out of time but if the court has any as well as their statement of the case consistently they consistently say well this is a different fact to what he testified to earlier maybe this is different than what atrium found and every single time he says that he's asking the court to make an improper choice to make to ask the court to step out of the bounds and summary judgment and instead you know make a determination that carter was facts in dispute the the mere other words of mr hope the majority of mr martin's arguments was the fact that there were well if you thought this way well carter thought this wa carter testified to this but there's no evidence and it seems aspect of the fact is that it is material facts in dispute and the mere fact that they just they just want the court to believe standard in addition notably and their case they also talk about this i was supreme court case called susie this is titled the st ones title since the st name is titled suzy that case was in a medical malpractise case where the medical malpractise provider provide an expert report one eight report and that one nine thousand and eight report was different than there that position testimony if you read the case  deposition testimony actually said the court actually says we're going to hold them to the deposition testimony which is contrary to the moment point eight matter of one point or in the one ninety a report cannot show that there was and that there is until fact in dispute plus it goes back to the exceptions all nonetheless your honor i see that my time has expired and therefore less the court has any further questions you might time and tha