most favorable to the plaintiff specifically relative to the hostile work environment claims by just your client when when warn fact when disk the plaintiff discovered the news initially in november of two thousand and twelve he put in a bag took a photograph of the first put in a bag threw it out the next morning he return to work and there was another news right adjacent to the entrance door of his newly assigned work area now he took that news to me and i you police department and he left it with the dispatcher and made a e mail was to convey to his supervisor ms richards that it was no big deal to him because he had spoken with d n a you police department may directed him or they devised him or suggested that in order to develop some some it would benefit them in their investigation if you played it cool if you made a big deal out of it it could potentially cause the individual culprit responsible for the news to you know protect himself as opposed to making it seem like it wasn't that big of a deal to  now he reported it to the police department and nothing happened afterwards and he went to the compliance officer at n i u and he reported it to her and he showed her a photograph of the first news that he discovered she had her assistant make a copy of that photograph that photograph is is has not been produced and its claim that it never took place in the noose that the plaintiff dropped off at the police department is in the record first in the record in the record no is it anything further outside the record subsequent to my knowledge there has been so he discovered these nooses and there was an investigation he didn't hear anything back interviewed by a detective and another employee in the building services department was also employed john holmes he was given a recorded statement by detective mo he go  february of two thousand and thirteen so for five months after initially reporting the news now there recorded statement you statements made by holmes so you gesturing or demonstrating that nooses were found on th e premises of the services department building services department for years prior to november of two thousand and one and mohican is testimony but it's awfully vague do we have access to it was was holmes questioned as his interview in evidence is a just mohican account of the testimony was based on the recorded evidence that was taken in february february thirteenth of two thousand and thirteen of of because it it was an exception to the hearsay rule pursuant which one eight zero three eight zero eight zero three eight would let you put in motion because written report without mohican ok doesn't mean that everything a witness s writes this no five days later after speaking with the and i play someone who happened to the news ten so the noose is thrown into the garbage and then what happens to to it he throws in the garbage he wakes up the next morning goes to work and finds another  discoveries of a noose whether it's a next date it's a noose the noose is been taken out of the garbage pan to garbage bag and it's sitting there on the floor or is that back in the file and it's right on the top second coming of the noose now what happens next where is the press the new sco next he takes the news to the to the police department at the second discovery he walks over the police department and he ha dispatcher is the news in a bad no he's just carrying it he carries it watching through the streets carrying the news ok so he gives it to the police he gives it to the police where they say and they tell him that someone will what's the time frame was back in two thousand and twelve he said it didn't bother him right based he did he says that in an email after he has a conversation with two and i you police officers who told him to play it cool because if he got aggressive or he got overly emotional about it it wouldn't make it wouldn't help his work environment and it wouldn't help them in their investigation two years later more than the compliance officer that he was offended by the fact that he was treated by his supervisor negatively for discovering this she complained to him that he discovered the n she basically said you should've got rid of the first noose better and you know in shell so put a remark in his evaluation indicating that he didn't get rid of the noose good enough  take it to the police wise and that what he explained to her that he found a second the second discovery so she yelled at him because she claimed that he should have got rid of the first one b do with the offensiveness of the news as if she says to him it would be better if you just burned the thrown away than yours put it back in the this premise and is working anywhere so but that's very different from saying that someone is trying to intimidate your client because he's black discoveries of the news very hostile environment he was treated differently than any other form and in the building services department as a separate point well there's no evidence that whoever warning or there's no evidence that the n evidence in the record of subsequent news after the second discovery however there are there is testimony that there were nooses prior to that years prior to that and there's also testimony that newly received that there was good morning your honor is may it please the court i'm mary welsh i'm here on behalf of the university in the individual defendants the question of course this case presents is whether the plaintiff coming up with a new enough evidence for a reasonable jury to find in his favor on any of his three claims and the answer to that question is no i think it's pretty clear on the discrimination claim there are only two materially adverse employment actions the demotion for which there was a comparable  was demoted at exactly the same time by exactly the same person and the ten day suspension and there is another person white male who was also suspended for ten days by the same person richards so that claim doesn't go anywhere similarly there were telly ation claim which could be only against the university they are the only protected conduct that the plaintiff identified as summary judgment was the ethics complaint and of the pretty much every incident in the laundry list was in the in the ethics complaint so there could so there can't have been a causal link between the complaint and subsequent events because as i say  laundry list occurred events occurred before the ethics complaint so we get to the crux of the case which is in fact a hostile work environment claim now again the laundry list there's no evidence of the court indicated there's no evidence that the laundry list of bands had any racial component whatsoever and or that they affected the terms and conditions of plaintiff's employment and in fact you know plaintiff was there for from  problem so the laundry list at least to play into post no hostile work environment if you don't report it you can't expect it you know i don't work in the abusive work environment to be corrected so with and again plaintiff also says that he was the only african american former subform and now this is true but he wasn't the only african american employee in building services in fact his team he says his students at one point all his student workers were african american and it it it seems incredible or remarkable perhaps is a better word that that in the in the fourteen sixteen years that plaintiff was there before this new sensitive and that there was not a single report of a of a racial incident no racial epithet there's no confederate flag there's none of the things that you see is there a days after he found it five days he waited five days to report this to superior he says it must have been one of the food service workers that's plenty of speculation to richard's so no we don't know weeds and that's you know we don't know if it's the same one that somehow fell out of the bag or we don't know if there was a second one but again you know plenty of talks about there was evidence of that there have been nooses around for years well first of all the but the problem with this is this evidence is that it's inadmissible it comes from homes and in fact it's double hearsay because what holmes tells richard's when richard says which is asks holmes who is also the guy who was interviewed by the  detective richard it reaches as holmes so what do you know about this and he said i heard rumors i have never i never saw any news but i her and he also says workers knew about this but there's no evidence in the record even in ible evidence in the record that annie supervisor knew about any news except for hart there's an in miscible evidence about heart that heart saw the warnings news told him to take it evidence that and certainly no admissible evidence that there was anything other than this the one noose that harks told warning to put away and apparently he did because that was years ago that's what they said when when the supervisors were notified november two thousand and twelve ounces is there any evidence they took any remedial action well let's let's see what happened here ok the i suppose the most  cochon answer to your question is that richards asked the plaintiff when she saw him a couple days after he got the she got the e mail from him that said i'm not bothered it's a joke you know she said well should i pursue them i mean she asked him directly should i pursue this and he said i'm not bothered by this so he shut down any he himself shut down any corrective action now maybe maybe he said this because he got bad advice from the police i don't know but but again you know employers supervisors cannot be held liable for not taking corrective action that they are  from taking so again this is you know the new suspect on down the thirteenth the he found it he put it in a bag and put it in the trash did not report it to his supervisor did not report it to anyone so there's certainly some question about whether this was subjectively offensive but let's let's assume it was and he still just put it away the next day he finds it again there's no evidence that it's right by his door his entry door it's only that it was found outside and the plaintiff's counsel just said that it was found and in the repl that it was found outside the plaintiff's entrance door but there's no evidence to that effect it's that it was found apparently with the garbage on the loading dock outside the building for sure so it's so so there's no evidence saying you know from which a jury could find that it was left for him to find because we don't know what his relationship was to that location if he goes to the dock every day if that's part of his job we don't know that so i mean you mean the the noose was  trash that's what he said i think one of the food service worker guys you know found it somehow it came out of the bag apparently and so and so he still doesn't tell his supervisor he still doesn't tell the church he still doesn't tell anybody else except to take said he takes the picture and he takes it to the police and he drops it off with the dispatcher then three days later he finally sends the e mail to richard's a supervisor and he doesn't contact nicholas he doesn't contact anybody else who right now he sends it to richards and again the contents of the of the e mail would not put any supervisor on notice that corrective action had to be taken and again you know you can't be held liable for negligently not correcting something that you're not put on notice needs to be corrected so ok so then he a few days later he meets with richards and he reiterated to her you know not a problem doesn't bother me and when she she directly asks him do you want me to pursue this he says it didn't bother me  it could have been there forever or it could have been there are that morning we don't know the pursue just to show that what want to confess the morning doesn't appear anywhere on the record well yeah his only sort of secondhand  report this that's not correct in fact plaintiff was with cliff to talk about a prior complaint he had made and cliff asked about the incident she had heard about it from as i believe maybe from richard she had heard about it i think had been asked to send her the pictures and so she asked she was on notified about it she was on alert and so she asked him about it and he told her it didn't bother me and you know this is her job her job is to look into these complaints you know complaints about racial issues and so on just go nation you know so and that's  page one thirty six so plaintiffs every time plaintiff was had an opportunity to ask for corrective action he didn't take it now i'm not faulting him he you know maybe he got bad advice from those police but what i'm saying is that you can't hold somebody responsible if the university or the individual defendants responsible if they were not asked to take corrective action and in fact were just sway did from doing so by the plaintiffs himself so you know this case isn't like porter in porter you know there were threats there was there was this is an atmosphere of racial hatred for the threats against the family and so on in other cases you see confederate flags you see all kinds of stuff in this case you have this one incident the plaintiff took five days to report to his supervisor that he did that and each time he reported to this the people who could take corrective action and that's who are the only individual defendants who should have anything in this case which would be you know his supervisor richards and her supervisor dow or perhaps even who also saw the e mail all of these people saw the e mail and that was what they knew about plaintiff's concern lack of concern about this so again all of them if you looked at this e mail you would be  dissuaded from taking any corrective action and richards wasn't initially dissuaded again she said to him do you want me to pursue this and he said it didn't bother me no reasonable jury could find that any forms of harassment so it's explicitly racial let's say and some of it is just harassment would you agree that at least in some circumstances it would be possible to argue that the the whole pattern was so so you know these things you know you get treated differently you know i was offered secretarial jobs you know when i first came out of architecture school so you get treated differently but in lust in lust there is something that that you can link to you know you have to have something that you girls you're all like this just even one comment like that might be enough but you need at least one you can't you can't the plaintiff can't win by saying and that's what berman says i'm i'm the only person in my class and in fact that's not true because he's not the only african american person in building services he was just the only african american subform in their format and you would think that in th i mean i i was in the construction related industry for a very long time i heard a lot of bad language and you would think that and this kind of environment you would hear at least one racial epithet at least one of them something and there no evidence of that there is simply no evidence to see only the noose was the only correct correct and there was nothing ever cash with no language no  now and you know and even if we accept it has to do with the racial sure absolutely i mean i mean we're accepting for purposes of judgment that it was you know that it has an objective and subjective racial component to it it certainly in summary judgment we would have to accept that but again you know you cannot know the defendants here who were just sway did from taking corrective action cannot be held liable for negligently not taking corrective action unless there are questions we have to thank you very much let me ask you a question here you do depose warning fred warning had retired years prior decades prior he had retired at least ten years old right i'm not aware whether or not he's alive so mad continue so he was given bad advice by the police obviously because they didn't investigate it after he reported the noose and now because they didn't investigate it we have no idea who put it there even though we have the testimony from that provides that holmes just thirty days prior to the initial discovery richards holmes and another supervisor discovered a noose in that exact same area just thirty days prior to jerome being reassigned this new work area it's also important to note that prior to being prior to discovering the noose because he had the police modica it told him that the police were watching him for no reason no good reason and that it was defendant tammie cool ack who contacted the police department to have him surveyed for no reason because of that he went to affirmative action and made those complaints based on what he believed to be racially motivated there was also testimony in the record that there was a sign said no blacks allowed past this point in the motivated that of a racially motivated circumstance second to address the council's point relative to him being not the only african american in building services department that's not the standard the standard the individuals must be in the same have the same responsibilities a building services worker has different responsibilities than the supervisor supervisors supervise the work etc so you can't compare an apple to an orange relative to the similar situation argument also it's not plaintiff that's putting forth these two compares defendants are bringing forth these two white individuals as you compared her in an attempt to suggest that she was and the only one that was demoted while these individuals didn't have their office door kicked in they were assigned a budget they didn't have commodities purchased in their names without their knowledge which created a hostile environment for jerome because he was aware of news reports that there were some improprieties taking place at the university prior to that then he finds out that people are buying commodities in his name without his knowledge so it was reasonable for him to believe that he could potentially be blamed for him for misappropriating university funds or worse he made these complaints he also took the photograph of the noose to cliff after he told that morning says retired ten years ago he was retired i can't give you a date i don't want to give a false information but i since call things he's the one i know but the noose and the file and well we had the testimony that it was discovered just a month before he was moved located by holmes in richard's if they found a new study days before he's been assigned to this work area he's only the african american how is it still around there's no corrective measures it just suggests that my question i don't know why you didn't oppose warning since warning is apparently the person who planted it in the filing cabinet that seems to be whatever in thanks you think it would be important what he what he said maybe he said he hates