johnston versus the village good morning mate pleased to court steven burke's team for the plaintiff appellant the complaint states a plausible claim for a racially hostile work environment where the mayor of the village of money so a launch to profane racial tirade against the tirade according to the state division of human rights it lasted it was an intermittent tirade lasting about three to four hours so mero was locked up at the time correct he was even picked up on a who was very very upset at the holes and circumstance both mean isn't this the kind of thing that officers get all the time when they pick up drunken people who don't particularly like the fact that they arrested if it's john q public that's one thing isn't he you're saying he was where his marriage as opposed to his teed off citizens have this point both because it was the mayor you can't ignore the fact that it's the mayor to regulate their employment well he's threatening to do it in the future it is de major i mean the mayor might be handcuffed to the wall but if you says look you can if you're going to be suspended you know you can forget about your future here you know that's coming from a person who has a ity to to actually fulfill it is supposed to somebody off the street who just blowing steam because he's not happy that he was arrested that's what makes this case unique you know yes he was arrested as a citizen not as the mayor but he happens to be the mayor saying these things and it makes a remember the next day well no we don't have evidence that says that he followed up on his threat and in fact sometime later on it was the mayor who lost his job for other reasons but but so but i don't think that really matters because half the time you're there in you you know he authority to make good on these promises or these threats and if you look at the language this court uses in determining it is a hostile environment altering the work environment for the worse transforming working a transformation of the plainest workplace mayor that's a work problem and you know it undermines the plaintiff's authority in the workplace that's another standard this court uses in determining who's a hostile environment the key fact in this case is i think is the fact that it was the mayor and although he wasn't you know it wasn't during nine to five business hours he still the mayor is saying these things he has control over the plainest employment and it was a racial tirade and on a rule twelve i think we can say it is a plausible claim for a hostile environment thank you morning steven gaby for the apple lease i know the tirade took place over the course of roughly four hours in fact the plaintiff left before the mayor was done saying what he had to say nevertheless it constitutes a single instance and the cases are foursquare that a single instance as a general rule will not give rise to a title seven claim or even a one nine hundred eighty three claim for hostile work environment now  is exactly there are exceptions but the exceptions are fairly narrowly circumscribed it has to be extremely severe the single instance and it has to be in the context of being extremely severe such that in  of itself it can and does transform the plaintiff's workplace and simply didn't happen in this instance there was a single instance as i said but the point is workplace was exactly the same before and after there's no allegation in the psychological trauma that in fact his work became burdens some one arrests difficulty was disheartened something like that perhaps maybe an inference might be there's nothing like that in the complaint as you conceding a lot human rights decision indicates there was absolutely nothing in the issues never even raised as i think the court indicated that the mayor may not even remembered in the morning i mean it simply had nothing to do it was a one time outburst and if you look  level that everyone and anyone who came in white black it didn't matter the mare was alleging that he was the victim and that was the context in which the stand and that's clear from the pleadings this wasn't where the the plaintiff was singled out  hostile work environment and as i said there's no allegations of any change in the workplace whatsoever much less than it was caused by by this particular incident no allegation of psychological  harm i just don't think it's the type of claim that you can equate with the cases in which the court has found that a single incident might give rise to claim the other argument if i could just touch on briefly that we'd like to raise is that even in the event that somehow it could be case is different and the reason our case is different is because this entire event was captured on film on tape and that tape was submitted to the new york state division of human rights and that  applied in the division of human rights coming with it with a decision that there was no hostile workplace stablished in this case on those facts the facts of this case we would submit that the nine hundred eighty three claims part on the grounds of collateral stop the court has any questions on the hostile environment what we just heard was a good summation for this case to go to trial joint inferences favorable to the employer it was a blunder bloss attack no psychological was may or may not have being subjected to all of these epithets but they were also directed at him on the collateral stoppel one reason they don't get collateral estoppel is that they don't have an identity of issue the state division didn't really apply federal laws it articulated the standard as severe and pervasive that's not standard on the title seven in this circuit or the supreme court severe or previous of so what you have the wrong standards like a bad jury instruction it taints the outcome of the state division did not seem to recognize that a one time isolated incident can create a hostile work environment it said again it said it wasn't pervasive enough it was not in evidence or a hearing the way we treat typically  have evidence or hearings at the state of asian with an l j it was a fact finding conference and there was a review but this court said in consequence of that state vision hearings are not quite like federal actions you don't have