harassment race discrimination and retaliatory determination claims as regards the racial harassment claim that this court ruled that a jury could believe that mr davis was subjected to a racially hostile work environment which i agree with and i think that's an understatement given the facts but it also ruled that the defendant had no reason to know about the racial harassment and that it properly investigated mr davis complaint and those conclusions are contrary to the record in this case mr davis complained about racial slurs in the background but the defendant did not at all he did not and he also indicated i asked him why not and he indicated something to the effect of well the question didn't occur to me now why didn't it occur to him the defendant was advised under the circumstances to investigate mr davis's racial slur complaint yet he didn't do that at all and it first report these incidents to m rackley well as you know there are the three physical incidents that occurred the banana's it before or after that that he reported it it was afterwards and i think believe it was august rackley but mr davis complained about the three incidents on the twenty seven twenty eight then it's a tent he also complained about the racial slurs and the defendant's attorney advised the defend to investigate a complaint about the racial slurs and they didn't investigate all this directly admits he asked no questions about that so the district court's conclusion that the defendant had no reason to know about it and that improperly investigated mr davis complaints are not true as regards the racial slurs because they had a reason to know about they were informed of a complaint they were told to investigate the complaint and they didn't do it and obviously they didn't investigate complaint so i mean it's not like they should have know there wasn't other reasons for them not to know about it either phil garcia prior to this had complained about racial slurs within this modular cell which included ten to twelve action against these people or well they they yes you are they took to sever their bonuses or something yeah they took disappearing action they gave warnings and a bonus effect to their bonus of three people that so you know of a hostile environment wasn't investigated and for that reason it found its libel the court just misinterpret the record by saying they found it no reason to know about it well there a complaint about it and they didn't investigate it had they investigated it the evidence should have come out as it came out in the deposition i believe they interviewed fourteen employees no indication that during tet when all these additional things were occurring that they were as you know i mean even by your own  action against the nih employees well i i don't exactly remember when the despair action or current thing that occurred until after everything was was over within the complaint was made in september tenth my client was in terminal until the seventeenth so there's things still going on there and they just totally ignored the complaint about the racial slurs even though they were advised to investigate it that's the point what they were very easy under the circumstances it's just the way i did in the depositions and it all came out about rackley calling mr you know davis a nigger a porch monkey all that stuff came out that's very very easy question  that when you have this additional complaint on all these three incidents you're told to investigate the racial slurs and you don't do it that's a problem the rules about lab employer that during the time crying in the hostile environment if it is in existence the employee who is affected by it should advise them during that time period so the poor years investigation can do something to stop the environment that really doesn't fit our backpack well i think it does mr davis say probably mr davis i don't know it's not in the record but probably thought if you complain about these three incidents it all come out however he did complain later in september tenth about the racial slurs and they'd never investigated that's not pro measures it's just burying your head limiting it and focusing on what you want to focus on and you know i guess i have to emphasize they were told to investigate the racial slurs and they didn't know that so i think that's very very clear the court was wrong in its conclusions that you know they didn't have a reason to know about it so what about what your client said to them would indicate to them that the racial slurs came from particular sources or anyone other than the individuals who were identified right or disciplined my kind indicated he heard racial slurs in the background at that point that heard background i mean you know most the time people don't come up to people and call someone a nigger but most of it actually sounds like what you're now alleging is very specific kind involving some of the same individuals investigated who were disciplined well some of them some of them are not regular was never mentioned with regarding the three incidents he wasn't disciplined off or any of the stuff that three people obviously suffered loss of your discipline and mr davis did because davis was fired and for reasons i believe our protection i mean got to that issue and these three people were not so regarding the pretext issue you know one way of establishing a pretext is that the claims are false like they're false on two grounds he was accused of going in closing out his time no other words entering falsest time mr falsifying my time cards and yet they didn't investigate that either when my asked mr actually why didn't he investigate at his response was i don't know the other issue that they're claiming against mr davis is that he threatens and people mr davis denied threatening people the threat i guess is characterizes he told people not to talk well i don't know how that's a threat everyone who no one was destroyed did not to talk so even if what the defendant say mr de mr davis did is true he didn't threaten anyone in most he said this is according to the defense version of facts and not ours which mr davis says he denied  saying anything like that but no one was dissuaded from talking and a statement don't talk is not a threat it would be a threat is i'm going to kick your butt or something if you talk but that's not what would happen here so  that's not true and then you get to the disparate treatment and obviously i've mentioned earlier mr davis was fired for reasons i don't think had any basis and yet these people engaging in severe racial harassment at the workplace are not fired some of them are discipline some of the others receive no disciplinary action whatsoever the court also erred by not considering statistical evidence both as regards a prima facia case and as argument that the most significant point i think a defendant made about that is i didn't raise at the trial court level however and i acknowledged at something that popped into my head later thurman says i think your time i thank you all of good morning may it please the court my name is craig luban and i represent landscape forms let me go directly to the respond the outs appear your argument on harassment in other words the argument that the employer should have been a notice here are the facts of their own dispute in their clear on the record the plaintiff had mr davis had been confronted a few days earlier that his coworkers were complaining about the fact that he was frequently missing from his cell on the morning of august twenty eighth one of the coworkers approached one of the leaders and said we can't find him can we text him he said no i'll find him for you shortly after that comes the complaint and mr davis comes forward to human resources and he says i think someone's trying to get me fired and the reason i think somebody is trying to get me fired is because number one someone texted my girlfriend and said that i wasn't it my site number two someone entered time in my on saturday when i didn't work and i think somebody did that for me and number three mr quick my cell leader told me earlier this morning that my coworkers were looking for me but when i went back to my cell which is where they worked they weren't looking for me so what mr ac philips from human resources both from human resources did was they wrote all these complaints down reviewed him with them with mr davis to confirm that this is what he wanted investigated and they did investigate what they learned was with regard to the texting incident it was in fact a situation where he was missing from his cell they thought that he had his cell phone number so corn turns out he had given his cell phone to his girlfriend so they reached the wrong person he then called mr van ways and said why did you call my girlfriend he explained that the time he apologized in that was the end of the incident that had occurred several weeks before in reporting the incident mr davis didn't mention the context with mr in weeks the second thing that they found when they investigated was that in fact with regard to the time entry there was time entered for both the saturday where he didn't work but also tuesday where he had been off work and there was only one time entry that's all they knew at that point the third thing that they learned when they investigated this with regard to calling him and asking that he be back to the cell was that his colleagues said he was always missing from his cell and in fact they told an anecdotal story where he would make fun of it to the point that he took a picture of himself in the bathroom and posted on facebook when he's supposed to be working so they learn this information and they confront him with it on september tenth i think sensing that it wasn't going well he reported three incidents that we would call racial incidents one was that somebody had put a banana in his workbook work boot several months before when he had been off in a funeral leave second that someone had put yellow tape on his welding helmet and had written the words chiquita and ghetto fabulous in third there the day he was put on i skipped part after he was on  after he was they were investigating his initial complaints some people came forward and said mr davis is saying we shouldn't cooperate and were frightened so they put him on a paid suspension while he completed the investigation when he was went off  on his suspension apparently some well we know somebody wrote on the whiteboard a monkey sign and said i like bananas someone else reported to mr davis that this had occurred and then finally what he said and  this was tab nine to our brief docket number thirty nine dash nine page id one hundred one this is what he reported regarding racial comments victor said he can't point a finger at anyone specific that made the comments he thought he heard it in the background so then we come to his we get a lawsuit we come to his deposition and i ask him this is a ta door brief it's page eighty one twenty nine dark thirty nine dash one by asking the question regarding the racial comments talking about the time he made the complaint you couldn't point a finger at anyone specific that made the comments but you thought you heard it in the background are correct and which comments were those those were the ones about what i heard from brian the ones i was telling you about now i sit down here you said you couldn't point the finger at anyone specific but now you're saying it's ryan how is it that you're able to tell it's right it was ryan and he said well after all this was done and over with and i sat down and stopped to think about it it's a lot going on around me and after all this was done and over with i was fired and i sit back and i contemplate and everything that happened to me and i went through it all and went and then it all made sense to me it was coming from ryan ok so at the time they asked you to use him simply didn't remember that answer no the point is an address it this way first they did interview i think it was either ten or fourteen employees in the second investigation talking very specifically about racial allegations including the specific ones that were did they specifically asked the question well did you hear anybody use a racial comment in the background around victor no they didn't but they did ask involving the notes tell me about this this is the allegation what is the response and what they are yes yes correct actually even more generally and not just about those three yeah it was actually broader than that if you look at  and what they did was they met with each of these individuals actually obtained written statements from the individuals that was signed this is actually tab ten to our brief it's docket thirty nine ten it's pages one eighty six to one thousand and five and you can see in those notes the various things that were discussed with each of those people the notes as it relates to cornelius when weighs in with start at page one ninety and there's a question well here's the question this is mr act lisa notes i asked if there was anything else i should know about or that might pertain to this and me he mentioned several other things in m them complains about victor davis on page one ninety one again docket number thirty nine ten page id number one ninety one these are the summary of the notes of the interview with ryan about the middle of the page there's the question i asked ryan if there was anything else going on that i needed to be aware of he had a test on august twenty eighth to speak with me with berger and aaron clarke regarding some issues and then they list a number of complaints about mr davis my point is other than asking is there anything else going on i think that is a generic way of asking what else is going on i suppose you could say i wish you had done it better i wish you sent specifically is anybody using racial comments in the background but i think the standard for employer liability is did they will was there willful indifference clearly now if there's a significant investigation or were they negligent and i submit by interviewing these people as they did in asking as they say a long host of questions not just the three issues and then asking is there it also we need to know about that satisfies the standard that's why we think the court was well and frankly the the district court said as it relates to making a prima facia case we're going to say that the temporal relationship a short period of time is sufficient so the burden shifts back to the employer to show what's legitimate nondiscriminatory reason for the terminations and you saw that in the notice and then the question becomes is there pretext and on the issue of pretext the issues that the employer identified in the notice of terminations frankly most of them were admitted to by mr davis a few that he challenged but not many more specifically  there is no question that he talked to his coworkers about their cooperation in the investigation there's some dispute about the words that he used but even he says he told them best not be involved  because it's not good for you and he's saying well what i meant was if you lied that wouldn't be good but that's certainly not how they interpreted it and from the employer's perspective they had talked with these employees they had signed statements that are part of the record here that indicated the employees felt intimidated regarding the false of occasion of the time record here's what they knew he said he said he thought somebody entered the record so they talked with the i t person and they determine that there was only one entry on his record on monday morning at five forty four am and that was the entry were these times was put in for saturday and where the time was changed or when there was time entered for the tuesday to work  whether he was actually in the know he that's the point that's that's what led to the conclusion he did it because in the second interview on september tenth mr actually specifically asked him explain to me how you entered your time that week and he said i came in early shift started at six am he said i came in early before my shift and that's when i entered the time for the previous week and i logged it out and closed it out but i didn't enter any new time that's what happened the problem with that explanation was we now had admission that he was in the record that morning the technology person looked at it and showed there was only one person who entered his record that monday morning at five forty four am so his explanation that somebody else must have done it was contradicted by the technology because if someone else had entered the record as well you would have seen a second  he admits that he made an entry at monday morning and there were no other entries shown in the record it at any other time monday morning until after the start of the shift so that was the employer's conclusion for saying what he's saying doesn't make sense because he's which did not result from sure well who freeh that we are talking about are adam reed and adam reed is the one who admitted he put the banana in the shoe first key point he admitted it he didn't dispute it he also said that he had told mr davis this months before when it happened and that they had radically ryan rackley there was no complaint about ryan directly at any point by mr davis there was not a complaint about ryan directly on august twenty eight these various racial incidents they involved adam reed justin marsh and josh taylor all who were disciplined there was no complain about ryan racking that is what's so frustrating to the employer there is no dispute that this employer has an anti harassment policy mr davis admits he went through the training for the policy that specifically said if someone is treating you harassing you you are to complain and we will investigate and take action despite that he never mentions ryan rackley at any time until after this lawsuit is filed the only comment with regard to racial comments he did not mention ryan reckless and as i say that's what's so frustrating to the employer after the lawsuits filed he says ryan rackley made thirty or forty racial slurs throughout my employment but he never mentions a one and the specific time on september tenth when he does complain about racial comments it's i think i heard something in the background i can't identify anybody specifically well again i've explained how he tried to investigate that but if the claim is ryan  slurs this many times to me that's what he should have said and then that would have been investigated and i can assure you we would have been terminated because later on when there was a different matter long after the fact and something happened he was investigated he was terminated but there was no complaint about ryan got again conflicting things the one thing the employer had one look at the time card was the admission of him that he had entered time on monday before shift started in the fact that the records show there was only one entry and that was at five forty four thank you d i told you from the very beginning that people fraudulently placed that time and i mean this is time that on a day that no one work would be incredibly stupid for mr davis to enter time that no did say that now that's a question of fact from my perspective you can't have an honest belief in your own lie so that is a pretext that's a question of fact regarding the issue pretext there's also a question of fact regarding the other grounds that they claimed they terminated for at the time they terminated him which was this threat and there was no threat even if you take the defense version he said don't talk to them that's not a threat all the people talk to them there's no threat so there's clearly pretext parole or something that he did i you see in the at that came in from one guy one of the guys who made racial statements about mr davis mr davis never said that so