concerns are first off there's some evidence here that i know that you're saying should have come in that didn't come in and so it's important obviously when we evaluate you know whatever we decide is left and was properly admissible that's where we're going to determine if you know if there's a trival issue on hostile work environment i have a i have a problem with there were there was a statement that there were other people that had had you know racial remarks made to them but it was a he it was a hearsay type of thing there were not affidavits from that person and i think the court below said you know that doesn't come in because you didn't you know you didn't get affidavits from people and i would be inclined to agree that that part would come in and but there's a whole there's another area too that i know that you explore in terms of you said that the the feet challenge but this is a summary judgment what evidence is there other than that conclusion that people were treated desperately for their breaks so i mean the areas if you take those out then i have to look at what what you have left and then there's also two employment law has been a really of all the new area for people that are involved in that i think know better i'm sure that both counsel know that better than anyone else and in terms of what would be an adequate response do we evaluate that in terms of what the law was at that time or can you who strap it and take it to two thousand and five and say well you know maybe what you did was good enough in ninety eight but by two thousand and five standards that not well on so that is a lie no that's a lot of things but those are areas of concern that i have when i'm valuating what i think you have left you know what you know what i'm going to be looking at to say you know what right and that and obviously for the employer to be responsible if we have to take into consideration the response to it right the response was really silly and then i'm all i mean this is i think even by ninety eight standard y and i think he starts to make an area to me i mean anything anyone could say that's just like saying the doctor was negligent you know i think the doctor was next and i think you know that doesn't really tell you i mean in the workplace to evidence relating to how one group of them plays was treated well to the other but sometimes the only way to do that is to have two different people get up and testify about what they observed and how they saw people being treated from that but an accident when someone hits you it with other circumstances you know that's me is more evidence than just saying well they get there's just great treatment on brakes because i saw you know there were you know were the five white people got to talk and then another time on another day i mean there could be so many things that would be going on i mean that's not you know that's not evidence like well i sat outside the break graham and you know the white employees got to take twenty minutes weeks in one portion of testimony two to three weeks another board why isn't the jury question raised about whether that was reasonable a reasonable response to have racist graffiti hanging around for maybe a couple of weeks or longer i  offensive no two ways about that and it was more than one time it's not just a straight remark so the question is give us your best argument why what they did was enough because essentially we have to we've got to give them the benefit of and that's when i was trying to with a calendar plaintiffs hung down you know what exactly do i have left in this body of facts that i'm looking at to decide whether a jury you know whether language is it's not i wouldn't talk like this normally but we've got to deal with the language we have before and so that you've got you know all of these offensive things and they lasted for six months and you have to go to work every day with his name and you know racial epitaphs i mean is that extraordinary circumstances but there's nothing on the record and that's if i go back to what the court was saying before there's nothing in the record to indicate that that period of time was on reasonable i mean is an indication of first of all  two hundred so much stores there's no evidence about how long it would take to do it there's no evidence was it your burden i mean you you didn't come forward with anything to say we have we're too busy to get it over because of a strike or some other problem i mean well i think they came forward and say there's this racist graffiti it's been on the air for weeks if lucky was slow in cleaning it up and it at some point the court needs to make a determination that this is not reasonable that a reasonable jury cannot find it such that that brings me to my next question i'm wondering why we shouldn't ask the district judge s not ever part of the record i think i think the supreme court has indicated if i am not incorrect and i have to give some more thought to that issue but i think the adequate in their response or whatever so you got to take the fact that you think we have lacked here in policy why now why with it it was now well i think when you're when you're running bart supermarket chain when you have  support after the policy in that case do not exist with respect to the luckies problems and i think we're we can all we can overdo that i think if we're going to require employers every time something comes to send out another memo employees are going to get inundated by these memos and they're just going to normal i mean they're just going to get so many memos and so many pronouncements from the company that i think there's an oath there's a fact where in fact you you you run counter to what you want to accomplish well this is where we get us as we have been clear that in order to be adequate remedial actions must be designed not only to prevent future conduct by the harasser but also by other potential harasser graffiti was just one person whoever that person may have been on as far as i can see from the record your honor no one else was adana farai as the source of graffiti but i mean did anyone ever say who are we without being able to pinpoint who policies that they have in the procedures and the audits and so forth and all of the evidence that they have that they do investigations that they have a zero tolerance policy that they have any kind of training is all after this lawsuit was