time will hear le grand versus wal mart men's your honor this matter arises at the pleading stage where a complaint was filed in the eastern district of new york and let me start off by saying that ms lou grand a was an employee alleged that she was a patron of the of the store and indicated that in response to the fact that she that there was allegations that she would be banned as a shopper and banned as a  can give you those numbers as well he like those judge very well judge so we wanted to be very clear with regard to starting that with the next thing i would like to address please if it please the court is the constructive discharge claim in this situation though the defendants failed to recognize that the is that the conditions created were so intolerable that any reasonable person in plaintiff shoes would be compelled to resign she resigned to go to school while judge it just wasn't resigning to go to school she was placed in a situation where when she came in her schooling was part of a centrally deal coming into the job they knew very well that that was important to her and important to her that she was treated differently than other simply situated non disabled and non user that's adverse to climate action right she she went to them shortly before she was going to start classes again and said here's my school the response was not that we're not going to change the schedule of this the response was to quit school or quit your job that's quite a very different situation particularly in a set of circumstances where  employee who was one that had certain disabilities and was clearly a person that indicated that she wanted to continue to work there on understand your argument you know rely exclusively on on not changing the work hours so she can use to permitted to go to school that's one of the items along with our racially abusive epithets spoken by her her  superiors to other employees about her which the district judge compared saying that it was on the same level as having lots of periods but other employees saying things like whoa whoa here goody goody in other cases the statements made about these two women were outrageous and were not on the same level being holding at all this combination of factors is not not just that refusal to change ours but all those things that other add up to the construct that is correct your job is that i did not get to those of this yet but the totality of the circumstances in this situation was so and we believe well played well set out and set before this court such so that looking at it and of the circumstances with regard to being referred to using the n word and being called a porch monkey to a reliable source that reported it made it known that the these things were not said her they they and they referred to her they referred to our guest as they were not spoken to her and judge because they were not spoken to her does not say what the consequence of that i think the consequence is a little consequence as a matter of fact it may even have a greater impact in this situation once  memes learned that these two supervisors why are you speaking about them using these untoward terms that it would be even more devastating to while you're looking at someone in their face and then they go behind your back and refer to using the n word out outright devastation and in this situation we found it very interesting one of the sales i believe indicated that she had been so raised to refer to black people as porch monkeys and admitted that and other employees other employees referred this is well this was the one that came forward at the state division the human rights and her name was well known to us at that time in this region you ceded some time to the amicus i did judge and i thank you for your time i'm sorry to get into too many others good morning good morning thank you your honor i'd like to address your point or your question about whether any of these comments were made directly to her face because in fact they were wal mart criticizes the e e o c in the plaintiff for misrepresenting the facts but for the disability related slurs there are at least five paragraphs in the complaint that allege that these comments were made directly to her face taunts about how are you taking your medication why are you taking your medication also she alleges that when she would make a mistake at work her think that you understand that were made behind her back and i think the complaint fairly read you can have the inference that the comments were relayed to her by her coworkers while she was working we have laws about whether there's a distinction between comments made directly to one's face and comments made behind one's back us several cases recognizing the impact of that one would be taurus vs pisano her comments were made not in her presence another one would be the rivera case which was about harassment and the plaintiff testif to comments made to his face like spic but also this court considered comments made behind his back which included spic and nigger spic and said that his testimony was corroborated by others who had heard those and you cite to a case which is frequently cited for this point which was avon the town of avon schwab and so there definitely can be an impact to somebody and sometimes i think it can be worse for a hostile work environment to know for the argument i mean yes so you definitely do have a and i think that we cited to you in our brief that what is loosely called nd hand harassment goes into the calculus of a hostile work environment so the fact that these racist slurs were not made directly to her face doesn't negate their impact and of course when they're made by supervisors to coworkers yes absolutely supervisor ways yes and your circuit you have precedent recognizing and i will just be candid that the word nigger is deeply offensive it can be said even one time and create a hostile work environment you said than the daniel case also river talks about the impact of this kind of slur on an employee so i think that there is plenty of evidence wal mart even makes the assertion which i think is quite astonishing that there is not any evidence here of discriminatory animists or retaliatory animus but there is evidence in th complaint of bull including that the supervisor said that they called corporate on me and i'm not going to help that n word because she almost made me lose my job now if i could jump to a point that you asked about about the change  schedule she had requested that the schedule be suited to her school needs and at least under burlington northern which has a broader stand there for retaliation claim for what's an adverse action in burlington northern the supreme court discussed how a change in schedule for a mother was schooling children could be materially adverse action and we certainly think that you could fit into your and alice as of the retaliatory retaliation claim on the school schedule are there other questions i can answer onset we just want to note that defendants do not condone the language that was allegedly used by the defendants however and this is not what the the appeal is about the appeal is about what was pleaded in the amended complaint and as pleaded the complaint does not state a claim for names to her face is not true there were no stream of verbal harassment towards her ms ms mims does not allege that she actually was prevented from shopping at wal mart your st point yes  so much that she cried at the cash register your about the racial stuff that is not what is alleged in the complaint in fact the initial complaint did not allege what the planes have complained about in an effort to allow the plaintiffs to correct about complaints being made about allegations of things that were told to them but nothing is specific in fact one can glean from the complaints the amended complaint that ms members and is a great may not have even been told that the defendants made these comments about them until after she was terminated because there's nothing in the complaint to suggest that she was told about them during her my point it out that the the allegations are not that these that not that this was talk  coworker employees this was supervisors who were alleged to have been making derogatory comments using the n word deprecating them it says it doesn't the case doesn't depend on being on management on walmart's corporate offices being told this this was supervisors this was the people who wal mart had placed in charge but the question is how did that become hostile work environment if it's these comments made during the course of their employment indicating to all the coworkers all the coworkers that this is somebody who is looked on as lower class as despicable as as nothing by her defendants make these comments either i think that's the problem with the allegations in this complaint they're not specific enough to even create a hostile work environment and miss the grand what she's complaining about things are typical of a retail cashier job  some comments were made to him and some comments were made outside his presence in the court found that they could have some probable probative value here no comments were allegedly made to the plaintiffs and judge your steen still did not disregard the comments she said in the the circumstances where the plaintiffs complaining about things like taking out cardboard or stocking shelves and other typical job duties of a retail cashier and then having been told secondhand by someone else that a supervisor replayed because there were no specific allegations in the complaint about what was a letter what was allegedly said to her what the complaint she made so it was wholly conclusory and like similar to the am complaint similarly situated employees were not treated the same way that's doesn't satisfy the a paul twomey standard there is no specific allegations of how much the grand was treated differently than other employees that were outside her protect classes in fact she she was a retail cashier all the things that she complained about fit into the job duties of a retail cashier and there is no suggestion that anything happened to her because of her race or her disability in and she alleges there was no response then you're saying that that's just an allegation with that's when you have to get to doing a complete well she doesn't allege what she complained about and in fact if you go back to paragraph thirty three she says she complained about them being told that her mother was not her mother and she was adopted and she complains about being excessively written up for excessive absenteeism those two things are not specific to allege that she was complaining about reese discrimination or disability based no more serious no more likely to create a hostile work environment and i don't believe that the judge was suggesting that this case was that she was going to disregard the common knowledge comments because she was relying on case law about holy holy and goody goody comments she in fact attributed to the plaintiff's allegation that these comments were made and said yet in the totality of circumstances this is not a hostile work environment because of how she alleges what happened to her in the complaint she's claiming that things that you know such as it seems like it was in a string site of other cases regarding situations where plaintiff alleged abuse of language to the court's questions st of all it's pretty clear that the defendant's view of what the law is in this case is not supported by their brief they do not refer to burlington north at all even in their brief which i think is telling but with regard to the complaints being made in the inference to be drawn that indeed in this situation the complaints that were made not once not twice but three times about the actions that were being taken what they had learned we would  in the circumstances judge we believe that all throughout there is more than sufficient information and reference in this complaint to show that not only was there a hostile work environment in discrimination as well as retaliation but that in this situation as fridays and saturdays off which i think it's important to realize that that is one component of the entire set of circumstances that leads to the construct of terminated if she left for that reason and perhaps this is a matter that's really for judgment rather than dismissal but if she left for that reason to go to school what's the evidence that that the young the the end of employment was attributable to discrimination well judge i think that it is a cumulative impact and i by agree with your honor there is no record here to work go to work with regard to what's been developed from a factual standpoint in discovery but changing work assignments using the new learning about the racial epithets that were used altering the jobs giving workstations without the necessary information that's necessary due to to do the job being told to work without pay then being told either to quit or or the job or quit school the combination of those and the cumulative effect that that yield with the totality of circumstances creates an untenable set of circumstances for any employee no less this employee that was learning disabled and also was known to them to be one that took very seriously that her future education was something that she would be seeking judge i see that i'm out of time are there any other questions that i can answer for the better thank you thank you