termination which you allege was discriminatory in nature we believe the lower court erred in not finding the facts in the light most favorable to the plaintiff on a motion for summary judgment which as your owners are aware is necessary and  claim because the record including the lawyers statements seem to make it crystal clear that that he was fired because he was violating the policy on using the employee discount so what we have in that regard is again it really focuses on the facts here and what the facts here are is that the plaintiff has questionably testified that with respect to the use of the employee discount number one thousand dollars worth of discounts that he gave to the lawyer in violation of the policy well there it is the st dispute which is what your honor said was he gave it what he has routinely and regularly said is that it's not him that is giving it they used  however the manager that he was keeping ten thousand dollars out of this pocket i meant that he was allowing his coat to be used so that his lawyer could could get ten thousand dollars and discounts but his but he was mean when we  say he was all that disputed it's just it's not the speed of that this client was being given discounts using his code with his knowledge with both his knowledge and his manager's knowledge and everyone else's knowledge about the e mail the e mail made clear the harris e mail said even the general manager knows you can't do this he made reference in fact we understand is going on general managers may be approving this but you can't do it in that even after that your client did another three thousand dollars worth of discounts and then and throughout the sky every management including mr patel she indicated that this was a process that that a card where there were certain circumstances that it was that it was acceptable so about after the e mail though after the mail you don't have anybody who did this after the mail who so with respect to the hostile work environment claim we have to establish whether there is a severe or pervasive hostility based on his national origin now here in the global court found that there wasn't despite the fact that the lower court acknowledged that on a daily basis he was subjected to comments really the the name calling the mocking that has to alter the conditions of employment right before it becomes  something short and what evidence is there that the conditions of employment were altered so that the evidence is that on numerous occasions that he was in the environment made him so uncomfortable that he requested transfers to other locations and while the defendant attempts to are going to lower court in our eyes erroneously limited review of the requests for transfer that you know he also testified that there were business reasons for asking a transfer and so i think agree he testified that he asked for the transfer as well because of the teasing what is this like a mixed mode of type thing what is that what does he need to show yeah i think summary judgment thank you and i don't i don't know of any law that says that if you're reporting a complaint of discrimination that if you do it in conjunction with addressing legitimate other business issues that you have that that somehow undermines or undercuts the actual complaint of discrimination and the and the statements of discomfort that those comments are making to you testified in his deposition that the discrimination no mental anguish is what i think because that would be an issue i think where that will be an issue or should be an issue is when it comes to the idea of discussing damages you got to that family issue whether or not a rational jury could find that he perceived this to be hostile and if he says i didn't suffer any ment was that mr beck says she didn't gauge in this conduct conduct i can surmise as to why he might have mentioned harrison and not that that she which is harrison was the one that had just fired him and he was upset and he had just dealt with him but that's really more speculative and at the end of the day it still highlights why there's a factual issue at play here he testified to back test she having made daily comments he testified to harrison having made weekly comments these were relating to his national origin the idea that he did not suffer and the context of the the not suffering motional trauma that related more towards when they were he was being questioned about how he has suffered whether he's the victims of the treatment for anything relating to that however he did testify to numerous times telling people that he wanted a transfer because this was not he was not this is not making him he was uncomfortable with what was happening here so he has testified to and there is evidence that the comments impacted him even if at his deposition he he he did not having to seek some significant treatment for that like i said i would argue that that would be more towards at the tail end of the case if the plane did you mention these things to come do you do you think he said he may have so and so does that create a record that he was complaining about these things as opposed to just general business reasons for transfer i think it does i think it does because if you look at that and his total and his prior testimony he previously that is that position testified to explicitly making these complaints to capper russo then later on this deposition he was asked if he had he had discussed these things a said he does use the term i may have or may have in the conjunction of his answer again this is not so this is someone whose english is not his st language but he then is asked a follow up question as to which relates back to whether he you know essentially confirms the things that he talked about earlier with kappa russo and he answers in the affirmative so in conjunction with saying using the term may he's then asked a follow up question that then reaffirms that she previously said but again i think this dynamic is again why i think the purpose of summary judgment is the vet out these cases where there is no factual issue at play intent is not at issue and here i just i think that the lower court erred in finding that there morning your honor isn't it please the court barbara sloan from the e e o c our concern with this case really focused on two things one the courts both of the issues that the court decided as a matter of law instead of leaving it is not relevant in a hostile work environment case the question is whether i mean it's an subjective it's an object of test in the focus is on the conduct not on the underlying motivation on khali really pointed right that this court said i think and she know that the question is whether the conduct is of a quality or quantity such that a reasonable person would find and the plaintiffs did find that the well at this court i think in for example alex chino said the fact that an individual is seeking a transfer or is even contemplating a transfer suggests that it wasn't as if the only reason was asking for a transfer was related to this right that's true but that that if anything at an end and ambiguous issue your honor and the task of m this them they you waiting facts are for the jury not for the court motivation is there but not necessarily hostility it could be teasing in fun but still sufficient animus i guess is your is your position yeah the reasonable person and the play to found it hostile or abusive so i mean our supreme court has held as we have how many times title seven is not a civility call so we have here teasing name calling that's what it seems to be when does a become a violation of  title so well that would be a jury question your honor but we had no i just simple t i think it's just the jury question i went to give guidance to the jury's going to know when does it become a violation of title seven and when is it simply you know acting in an uncivil manner thought we how do we say to the jury here we have two supervisors the st in the nd line supervisor making fun of this guy's name his grammar his accent things are kind of intrinsic and based on national origin in front of his peers and his subordinates which is humiliating even solano thought so happens on a daily weekly monthly basis it's constant continuous it's pervasive a jury could find that anyway but it has to alter the conditions of employment yes but he doesn't have to reduce him to a puddle of tears he can and i mean if he's to say no i'm going to do the best i can no matter what's going on here then that doesn't mean it's not you can be unhappy without suffering mental anguish mental anguish is kind of a term of art isn't it your honor that i didn't say were you upset by this they said did you suffer a mental anguish and he said no i didn't suffer a mental anguish i didn't and a lot of people don't seek mental health treatment so of repeat a little bit of what's been said already that there are two components here for any hostile work environment claim has to be both subjective and objective we don't even need to get the objective but it but it fails on both points  plaintiff's own admission as the court has noted he admitted that he did not suffer any mental anguish what's right now so no mental anguish but he there is evidence that he was unhappy enough to ask a trance for transfer at least in part because of the teasing and name calling that's not exactly accurate your honor so he testified and his testimony went back and forth throughout his deposition i took his deposition he testified that he had t conference calls along of his name also testified that he talked to mr goo about a transfer because of the mimicking of his accent right he mentioned that in the context of as judge pointed out a business related reason th principal reasons that he he requested these meetings was because he said mr harrison was quote unquote not inspiring and he said that mr beck i have had two hundred and twenty one yes i told him that is good i would like i mean he never felt physically threatened to be weighing the evidence judge i mean i think any court in a hostile work environment claim rules and sleeves up a little bit to see whether or not the total you know realistic view of the workplace is going to add up have the say over by my back that's right ok so you just recounting again subject subjectively this is also an employee who testified that if we disagree with you and if we were to a hostile work environment claim weigh heavily in in equinoxes favor that he has a medicine title seven standard here i mean every single every single but for his own conclusion and uncorroborated testimony every other factor work place they apply these these five you know these five factors and they determine you know based on these five factors and all of the evidence in the record before them whether or not it's met that standard how how do we what do we do with the evidence is there some evidence i agree with you there's conflicting evidence but there's some evidence that he asked for a transfer because of the name calling w off fact on whether the conditions of employment or altered because it's it's the it's the totality of the circumstances it's all the evidence i mean it's really significant to me that mr  plaintiff plaintiff now wants to lean back on an offhand comment that he made about mr beck tears she during a request for a transfer where he was there for principally business reasons as judge that originally recalled and then yet on the day h employment is terminated he calls the ethics hotline for the st time and he doesn't even mention mr beck and when he was it when he's asked why didn't you must mention mr beck tenchi during the call he says you forgot so subjectively how significant behavior have been that when you actually finally call to quote unquote report this purported behavior you completely forgot about it on the day you were on the day your point was terminated you completely forget about it ok thank you thank you we'll hear the arguing here which is that's really a factual incredibility determination particularly when he testified during this case to comments that were made by mr mactavish we're trying to to identify if there are issues and credibility terminations for a jury to make not remake them which is what i think the court did and which counsels i think asking you to to do when he highlights one why wouldn't he have have have mentioned him on that call and that i just think is simply inappropriate for the purpose of summary judgment but i do want to address these subjective and objective standards because those are absolutely the standards but the idea is is there evidence in this record to establish that mr dest that mr doesn't that he was subjectively offended by the comments and conduct that he was subjected to and frankly there's a to this mission and enough to think being offended can be enough absolutely but here what you have is you have and it's on  the appendix pages it's two hundred and thirty one through two hundred and thirty three but i'll highlight two hundred and thirty three when he's talking about his complaints to mr capper russo he says i told him you know josh just i would like to get transfer i do not want to be there anymore i feel like you know he bothering me a lot it's hard to work here because all that situation happened and then they went on to have and that was in the context and in talking about him making fun of jackson right before that he said well i did told him you know regarding my name making fun of my name on the conference call that was literally the testimony right preceding what i read before that so there's no question on the record here that mr d the region with a bunch of really other regional managers thereby negatively impacting his reputation is before his colleagues objectively i just don't see how a court on summary judgment can say objective leave the record here of the comments and the conduct could not be potentially perceived by reasonable person as sufficiently hostile severe or pervasive to create a hostile work and run it so on the whole there is absolutely sufficient evidence in the record to establish that claim and want it going before a jury and we would require respect fully request that the court reverse at least on that claim and re mandate for trial so it jury can render these credibility  terminations thank you thank you very much