and this time we'll hear him very versus the board of education morning in morning may please the court my name is howard shravan and we represent the appellant gregory tyrone berry in his appeal of the district court's decision granting summary judgment in favor of the defendants and dismissing his race discrimination retaliation claims i'm going to focus my comments this morning on three key points that we believe were error in the court's decision granting summary judgment motion  he first the district court made an improper factual and credibility determination when it determined that what's been known in this case is the hockey puck incident was accidental and not intentional and this was a critical decision because as the law in the circuit is clear even one incident involving a physical assault in a hostile work environment case can support a claim even if it's not of a sieve with the evidence in the record that it was intentional the evidence in the record that it was intentional are number one mr swift went to the large gymnasium so a group of students playing hockey purposely decided not to go into that gymnasium went into the next unis in which was mr barry's class to join his hockey group for the first time ever which suggests that he was selectively targeting mr berry he admitted that he hit a hockey puck hockey puck was hit in the direction of mr barry and hit him in the head afterwards he smirked at mr barry and said i did it we have evidence that he's an experienced hockey coach and hockey player so he would have had potentially the skill to do it word lease or wait for barry was testimony is unclear but mr barry suggested that he was about ten feet away it was a smaller gymnasium but it was never clearly established how far it was defendants i believe said it was further probably the length of this room  also there was evidence in the record that he had told another teacher that at hockey practice one night he envisioned her husband's face on a hockey puck which suggests that whatever reason he's attributing his anger or understanding from the testimony yes but i believe he also played in a men's league because i think he said the day before the hockey puck into than he was playing at hockey late at night that night i thought he'd also say you only play for years  i've thought about i think that potentially gives him plausible deniability so it minutely he's not willing gretzky missed this and he might well know the way the ball the trajectory was only going towards the students w playing hockey over here mr barry was over there on the ladder fixing a piece of equipment in the gym so it wasn't like he was mixed in with the students he was so hockey puck and have been hit gretzky and let's assume that he's not a professional hockey player so it gives him put all that with no idea millett what i mean by that is he hits the puck across angles it right it is head maybe he meant to hit it next to him to scare him all of a sudden it actually hits him so then he can step back and say like you just a pine there's no way i could have intentionally hit the puck across the gym and hit him in the head but he still doesn't change the fact that he intentionally hit it in his direction that had proof that it was intentional is it was done in such a way that he could deny that it was intentional and something wrong i think that's just the effect of what happened i don't think he did in a way that he can deny that was intentional i think he went in had it was direction that happen to him in the head doesn't take change intentionality if you would have not the right next to his head on the wall to startle him maybe knock him down send a message same impact it happened to hit him in the head with the other two pieces of evidence that were compelling that this was a hostile work environment use i thought you said there were three things you would do with the other three things well that was the one piece the second piece is we believe that the district court negated some of the evidence of racial animus and then use that to decide that there was no bias in this case which of course is a key component of a race discrimination case the first before mr berry was ever assigned to principals with school he sent an reading of that is that he was quoting what other people were saying to her act so what is it i mean that's correct i thought you were saying it sent them a number of times that's what he said that shows racial bias but my reading of her of the meeting that's in quotation marks that the principal ricotta and i was no you were right i don't believe we relied on that for evidence of racial animus because when reviewing the record believe you're on his position is correct and i believe even sort of acknowledged that they weren't trying to get rid of him at the time and time runs out what do you do with the moment mco ward investigation seems rock solid and if it is you lose right it does seem rock solid however you have to look at what happened before it and that's what we posited in our brief first the superintendent the district does an investigation and finds that the hockey puck you're lying it is taint argument correct and that was it just they could never get it right right now their words even if the first investigation wasn't very good and then they they had you know i don't know the best investigators in the world that wouldn't matter it was tainted right not necessarily if it was an independent investigator an independent law firm then i think there's less of a chance of tape when you have your boss do an investigation conclude one thing and then essentially say here my subordinate you're going to do another investigation to double check my work and then her investigation comes to the same conclusion i don't think it's that far to say that she may have been biased words least influenced to come to that conclusion use of three minutes remodel i have known it  complaint of discrimination in the workplace in two thousand and six it is investigated the plaintiff confirms he is happy with the results and remedial measures taken seven years pass not a single complaint then there's the e mail and the hockey incident and the handing of the article all three are investigated all three result in remedial measures being implemented all of the elements of the faragher defense district as a policy is post it is disseminate it as obvious point knows of it because in two thousand and six he complained to the title line officer about a single comment that was made and and it was resolved following the results of all of the investigations mr barry retains counsel a new complaint is brought forth to the district and the adamant ward investigation at this point in time mr berry then raises all new complaints of discrimination going back to two thousand and two of which he's never developed himself of the district's anti discrimination policy and complaint procedures district court was correct in how they set up their analysis and their decision they looked out the incident said he complained of what the district do do they have a policy that addressed it where the investigation is adequate and did they implement remedial the answer is yes all the other incidents came up after the fact and he never complained about them those are not actionable and they're dismissible they're also dismissible for the reason that there's not a other words excellent in six of the ten and average in the other four there's not a single rating that is adverse to the to the plaintiff are critical of him so there's no adverse action the statement principal know you think about he he may have known but he was never the post so we don't do that there's no i don't believe there's any direct answer in the record as to his knowledge but even assuming that he does report said he had to take and anger management training right but that was changed by michael we're all right and the reason for that is mr barry after the hockey incident and if i may just regress now answer on his question it doesn't matter if it's intentional it has to be motivated by his race and counsel stood here before the court didn't raise that issue once didn't articulate a single fact to demonstrate that a high school principal who joins a hockey game loves a ball use it to the other side and he testified that he did it to let the other team get the ball and then accidentally hit the plaintiff student witnesses said it looked like an accident there's even some testimony that the ball moved the flexion off another stack there's no evidence it was discriminatory  you have innocent claim to points to is the email two years earlier where swift says basically i want the opportunity to my own staff i don't want to get the teachers are you transferring out of the high school to three major incidents are kind of close to each other that there's something going on there because the record is replete with that but insists that there's no discriminatory adams towards any of them and even if there was there's no liability because the district has a fair defense they investigate it they implemented remediate all measures cases is dismissible for that reason alone and the district court was correct to do that and in terms of finding the lack of discriminatory tend to go back to suggest earlier this year all right  it can't just be a metaphysical belief in the plaintiff part that he was discriminated against i mean if you look through it some of his other complaints one of the other ones that he brought up to move ward was in two thousand and two i believe to superintend then denied me tenure and gave me an that he is paying was reduced his schedule was reduced three fifths along with other teachers in his section for budgetary reasons and the other teacher happened to be white he claims that he found feces in the bathroom in the coffee is it that is unclear he says it's his it's in the office i believe it's a communal coffee pot that is strange but there's no evidence as to who did it whatever card if there was urine in were several emails by the way she's complaining about barry and swift never responses and that i believe was the force complaint that she raises in swift says basically if you want to make a complaint you gotta write it up you got to follow the procedure like everybody else he wasn't he wasn't soliciting her to make complaints against barry he didn't respond to the first three complaints she made and then when she made a fourth one he told a follow the policy write it up but the question is whether it's  intent when he says the district wants for what action you're on about i guess possibly earlier complaints and and about the hockey incident well there are no other complaints against with other than the hockey incident what you that if plaintiff and i had there's not a single evidence that this was discriminatory biased racially motivated or retaliatory for any protected activity that occurred before and a couple of quick points your honor i agree with you wholeheartedly the issue of retaliation with respect to will call the conspiracy between principal swift and cola is laid bare by that text message of his question which i couldn't what does it retaliate for retaliation for the first formal letter complaining the notice of claim and the lawsuit filed against member of the district was fed up with any of that e mail words as the district wants him out of april tenth two thousand and fifteen that the e mail that says the district is fed up with him why because he's been complaining he's been a pain in the butt so now yes  complained previously that in terms of the complaint against swift counsel points out that it was just the hockey incident that was complained about long time before two years before but this is not necessarily just about swift it's about the district being fed up because he's filing complaints against the district and the district using swift impulse to do their bidding so now before they were unofficial complains now the district is saying make them formal sign i'm submit i'm in writing because we're fed up with him we want to build a record to get rid of him i don't think it's that far of a stretch to find out how it were unanimous and united to find the adverse action with the evers x well that's a key point because they keep pointing towards no adverse action in terms of conditions article about the plight of black professionals dealing with prejudice which he believed was indicative that he's an angry black man which by the way as church really pointed out v superintendent sort of confirmed that when he did yes but was it what you just said coach mentor or do a friend but i will tell you this i've asked mr berry about that as does seem inconsistent and he said that as time went on and the things that happened at the school particularly in the last couple years he began to change his impression about fanelli and what his true intentions are i can't get to mr barry's head but yes they have a long and previously positive relationship recently to get into things that are correct from the one other point of the woman i can valuation in terms of an adverse employment action i think the timing is critical so first there's an oral examination and for the first time there's negative comments about his performance that's on december fifth two thousand and thirteen because of that it spurred him to file may i finish my answer now that you can use the send it spurred him to file his formal notice of claim on december twelfth a month and a half of feb twenty fifth was a written report was then put out which was all positive so there was an intervening cause which change what would have been a retaliatory or negative evaluation and could possibly have turned it into a positive evaluation so i think that there's more to it than just saying the end result was positive thank you your honesty will reserve decision the case of shin versus american airlines has taken on submission in the case