your honour's my client was that false testimony in the connection with a lawsuit filed by another african american you know a clerk at washington hospital my client refused to do so my client as a unit there's a suggestion made that this was appropriate because the nature of the work she was doing in preparing these reports discovered that all moving off to a different area with appropriate what was her normal the plaintiff and in the course of that also answer some of the questions that the panel's been raising i'll start first with plaintiff's claim of work environment hostile environment harassment racial harassment severe and pervasive and it has to be unwelcome and analyzing the record before the district court and before this court when you look at each of those first of all you don't have any conduct by the defendants of a racial nature the four discrete instances that the plaintiff has adana fide and i'm only going to focus on the four because the other things that she later puts into her declaration in opposition to summ and your honor i couldn't find i looked but i know the record in the deposition testimony has been identified where ms psalter testified to the one instance where the e m t did this and in her declaration and in her brief she expands that and says this went on all the time sometimes every day sometimes not and that's simply not what she testified to during discovery this is all added after the fact in any case you my next point and there may be room to disagree here too but her other discrete instance was a doctor who apparently complimented the plaintiff on her hair extensions and then made a remark or made a  having a high school girl i know other women of all races that have hair extensions and i don't believe it's race motivated finally we have a doctor another doctor not a den of fide who how the new guinea people apparently had darker skin color than the plaintiffs and i knowledge that that remark is racially has racial content knowledge that maybe it was tasteless very insensitive or bor flyer was left the purpose the motivation behind it who left the flyer i think there is and they haven't seriously argued on the appeal nor did they in opposition to summary judgment based on any record support that even again if you choose to interpret the flyer as as somehow racially motivated if i could ask you and to go back to the e m t and i was looking at the record and it's my single incident and then in the declaration she indicated that it happened nearly ninety nine times a day nearly every day and on the next page the judge indicates that he concluded that just was machine as far as this was one of the matters that constituted a sham is that is that a correct reading of the right that is the correct reading your honor and as i said you'll find it is the side of the two pages of her which is the testimony at the deposition page two seventy six and so she's asked were there other incidents that is of alleged harassment she says the one and she had  feis michael plots back or an incident where he was saying it stank in the area where the clerks where i sat and came in holding his notes and she goes on to testify about that one instant and then if only later faced with summary judgment and on appeal that this becomes expanded considerably just so it's clear the two eighty nine to seventy six through eighty nine apparently are the whether it was one instance or whether it was a dozen and never objected to it never indicated it was unwelcome never complained that any supervisor about it  evidence that ms salter ever complained to any supervisor about this remark or any remark by anyone of her stinking or or anything like that i think that is simply absent and claims that ms hunter may have made but they're not in the record before this court so and then finally the final of the fourth for instance would be her waiting in the emergency room with her daughter who has a temperature and claiming that this was somehow disparate or conduct that rendered her work environment abusive because they didn't call her daughter right back to be seen in the e r when white patients apparently went right back all the time it's simply too vague to to to allow any any intelligent analysis as to what was going on in the r what the state of her daughter was and i think that anybody who's ever been in an e r knows that there are any variety of factors that could prevent someone from being seen we we've all done that so there are the four incidents i epitaphs and vulgarity and insults that were present in any number of a dozen cases where summary judgment was granted and was upheld by other circuit courts and by this court  i'm in that case involved a woman of chinese ancestry that was the discourse one of this court's recent decision this can i ask you to address if you would the work assignment on the end of month reports the heavy can you give your best shot on why yes i don't believe most of all i don't believe the record evidence shows that preparing the end of the month report was delegated or relegated to just the two african americans and i believe miss bell in oral argument i believe the record will show and it missed salter testified and that there are others who did that report tommy farley who who is a female and who was the supervisor did the report she would also delegate it to others there's no record evidence that preparation of the end of the month report was confined to the two african american unit clerks so i know th the registration clerk are only yeah i'm sorry i don't believe the record before the court would adequately denver they understand they're not under a collective bargaining agreement they i believe they are  record the record evidence does show that ms salter enjoyed doing the end of the month report she again claims that somehow this was al d after she as she says refused to commit perjury which is out absolutely ground was in terms of the record no one as the court i think recognized as ever asked her to commit perjury or testify against  hunter or testify in favor of the hospital they simply asked her to testify there was nothing protected about that but you know there's simply no evidence that the report was confined to her t report or preparing it was outside of her job description or that it was an adverse employment action and indeed if if things like that and a host of other things that she has  claims showed some adverse employment action such as preparing end of the month reports or having to do something that might take her away from the unit desk or you know she she to things that i think this court has already recognized and stated if the if the court were to begin to analyze these things as adverse employment actions you would be in meshing the court in micromanagement and personnel decisions these simply are record will show she didn't need to carry boxes she could have pulled the folders for the end of their in one month report out of the boxes she did in her job description and in any case she did lift boxes and indeed that that box is lifting boxes based on the job description based on the fact that this is the clerical job that it had lifting requirements and there's simply no basis to maintain that somehow th was on or after she engaged in some protected activity indeed the record evidence shows she was doing this sort of work before she was asked to give testimony in the hunter matter before certainly she was  against she has to show a protected activity and as i said the refusal to commit perjury and i think and the court recognizes this not something that occurred no one asked her to perjure herself she simply says that over and hospital's determination that it had no jobs available to her with her lifting restrictions she was out on a worker's comp and we've if i can ask you to address just for just a moment that anything was put in her personnel file that there was a you know there was a general denial that was there anything more specifically and that was in response to the several notations as r i simply did not focus on that because as i said i've not i've not seen that focused on in any of her claims here and nor have i seen record evidence admissible evidence that  a protected activity is her signing a declaration on behalf of miss hunter and eleven days later miss alter went on a worker's comp leave and there's no evidence that in those intervening eleven days these summary of preexisting records in the file is that what the new document consisted of when you said it listed the absentees was the summary of what was in the file itself it was a completely wholly new allegation that is there any reason why you never reported to anybody i just didn't report it was wasn't that big a deal was it it was a big deal you never worked with another why did you first why clerks there that were there in the morning i came in and in the afternoon when they came in to change ships he didn't do it to any of them they were sitting at the desk and he would walk up and would be laughing and hold a conversation with them and when i came over he's holding on his nose and they are snickering and complain on page forty two no you know that same deposition says any particular reason why you didn't answer in fear of retaliation because my client saw what happened to my son and when she complain job function did not require her to do that report by putting that as an essential job function in her shop description washington hospital knew that she would not be able to work anywhere in the hospital doesn't but that she actually have to live boxes as a unit clerk not through the end of the month report what with her job description so are you saying that it was only because of the end of the month report she couldn't get a time restrictions work to prevent her from doing the end of the month report day so before so the first time she went out was also because she looked at boxes exactly doing most of the end of the end of the month before she did not hurt herself