seven makes it unlawful to discriminate because of national origin we're here basically for two reasons related to the trial court's destruction one is failure to construct on to keep theories that are warranted by the facts retaliation and a stand alone failure to investigate claims the other reason is the instruction that the trial court did give one the national origin claim was painted in that it focused on the conduct of supervisors and then having instructed to that effect there was a change dragged it was already just so that the verdict form was made to read that these individuals who survived the discriminated had to be listed nothing in title seven talks about discrimination by supervisors it talks about discrimination by a defendant in this particular case with prejudice this graves because first of all coun have a chance to address that specific requirement that the individual supervisors had to be listed perhaps if she had known that the the argument could have been made somewhat differently there was evidence that i discussed in the gr only of discrimination by the three principal supervisors jackson hoosegow and overall but also other people that were involved in supervisors and involved in mr graves decision making as well there was civil rights act says nothing about discrimination by supervisors rather it talks about contributing toward discrimination that is primarily our our principal objection is that we didn't get a fair trial on this one on this national origin discrimination claim but to give it a fair shot would have been simply to instruct the jury based upon the people that gets a little closer to a direct evidence requirement to say what specifically a did that is discriminatory especially in n z and especially in a case like this where the defendant theory is that finding my ability based on customary harassment yes your honor i think there's much in these facts that show that arlene grace problems were because of her national or the statute talks about discrimination because of national origin when someone talks and explains to the postmaster you've taken an americans job i'm not taking orders from a spanish postmaster that's because of her national origin when a newspaper article which covers the area reports on the controversy in terms of the think the accent from her native honduras and links the customer complaints of rudeness to the axis of accent that's because of national origin went  representative from the name of the postmaster association states in a formal interview that being hispanic is offensive that's because of national origin when the same individual says that having an accent is offensive that's because of national origin when mr fusco who goes out to will in line to to investigate what's going on and why he thinks there's a problem covers up his conversation with the mayor about whether there was prejudice because of culture versus wyndham reality and that line of cases which says that employer can be liable for customer reviews abused i acknowledge that the facts in this case are somewhat unique it's not the typical case where for example you have out of breath waitress in a restaurant who is being harassed by a customer but the principles are the same you've got a postmaster out there who guessed is responsible for conduct inside the post office but she's having these tremendous problems being addressed to two by the community and reviser primarily mr boger up to so it's on his hands he doesn't do anything about it and there's the record is replete with evidence that he was told about this particular problem she had lots of problems defend its brief certainly raised all of those but took office as well a minor postmaster miss grace testify that she repeatedly told mr bo graf that her part of her problem was because of national origin discrimination in ninety five mr volcker up was aware that there was a petition in the area he wrote a note to mrs graves saying is there a petition in the area looks like this is an attempt to gather signatures against you she testified that throughout the controversy she was telling mr bowker up about the problem and related it to her national origin the most important witness on this however is constable whitener even if perhaps would have been different if that's the same interview where mr which mr burr now who is there to represent her comments of being hispanic and having an accent is offensive so there's lots of evidence that the employer was it's yes that it's either knowing or having reason to know that there is a customer harassment going on and he gets the same standard as you would have with coworker harassment or negligent standard as opposed to vicarious  pretrial i believe so oh yes yes and then of course i was there was also that she got disciplined because of her national origin or what happened was that eventually this situation got out of hand when this fellow greenhill became so obsessed with her we wanted to drive out of the most master based upon the facts that we offer and we were deprived at that the state we repeatedly asked for and the judge simply said no i don't see it here i think there's scant evidence and i'm not going to give you that stand alone instruction and  i'm not sure that just strictly a hostile environment in the community is something that men can do and i think that that's what little i may be wrong about this but i thought that little address the hospital at work well they could have for one thing talk to the mayor because the mayor was the principal probably one of the big players here and that according to the plaintiffs the mayor make this racist comment to the mayor also received the  some of mr graves employed in heard about their problems and actually worked with the employees to undermine this grades now regionally miss graves one of her workers and carolyn murphy applied for the job and didn't get it murphy had ties with the mayor and close community ties which she is working with the mayor this rosalie smith who is involved in losing the greenhill may also have close community ties as well so i think judge i think there were things which they could have been done honor i think i was one of the things that involved in answering our question is looking at work did the managers do and so in that respect i wanted to say that john if you go somehow that the post office is responsible for not helping her with the problem that she's got the whole tale of stacked to the extent that it's it's about what's going on inside her post office a rule custer was within the post office was not the problem here and so you have you have a stray comment by mr bailey that you've taken an american job  you have the mayor who denies it saying i'm not listening to a spanish postmaster you have one customer stating i'm not going to listen to hispanic old master and there was structure strong evidence hispanic postmaster or whatever other you know probably that's next so he could have used those no evidence that was presented anywhere by anybody then whenever anybody got mad enough to really crossed over the know discrimination and i think i would like to go through some of the things the point of her spine because i think it's important to look at these things and most of that because this is the evidence the judge told us was reviewing when he well that doesn't go to proving the fact that it's about her ethnic origin he's saying his observation is it's not about her e actually being his fence of or his being hispanic is being offensive he's trying to be her advocate and give up a reason for why she's having trouble in the town he's not basing it on any independent knowledge he interact i want to make one point and because it's a terrific question i want to make one point in the no time to give a broader answer because there's been a lot of talk about the fact that the employers did nothing and i think it's so important apropos of this issue of what was the amount of evidence because clearly there's got to be a case where there's enough evidence to get to the jury and there has to be cases where there's not jury is if you show very significant evidence that the management did nothing with the problem and when the evidence is instead that management was dealing with the problem then that moves the skills to a different think judge joe gibbs was trying to say well you know should i there's so much the judge is going to have to talk about it is is there enough to big this worthwhile and keeping in mind that the  standards that that certain his sack are the standards that come out of cases such as the waitress who gets abused by the customer and then the manager says i don't care where he touched you go back in service great when there are so few instances the allegation about deborah the allegation about the me or the allegation about mr bailey who's long gone i mean that's about the only time we get to the issue of live you can't quite tell whether that's what that's about but it could be about they could have thought that that there there really was a problem they just it just wasn't competition or instructions you know you're on it we don't know what the jury was thinking really seemed to be upset that they couldn't separate the two out they didn't they really seemed to be of step that of the feel me were going to be given the chance to either say yes or no and they really wanted to split it and  truly i don't know why they wanted to split it whether they just start it was unfair to not give newsgroups anything or whether they were concerned as you've described your honor it was asked of him that could certainly have been the possibility we just didn't know and what we do know is there was an adverse reaction and the jury just as likely could have felt upset that they couldn't speak to the fact that there was never saxon in there somehow they were going have to be saying that there wasn't one either one i think it's possibility i just the  or came out of the blue for for growth council my initial reaction was oh don't do that in my initial reaction was that way because i frankly didn't think joe if you still had made a very good witness and i  discrimination and therefore if the jury had decided that there was discrimination and ultimately the only box they checked was your refuse go i think you might have granted a motion for a new trial or a motion for judgment was during the verdict that's what even though we're several months past the opening to the movie a christmas carol where through my brain and the narrator is saying jacob marley was dead of that we must be certain for nothing else makes sense  we basically had a brawl for nine days at the end of that brawl that jury said it didn't happen and so with respect to the odd thing that happened to the group for with the fact that it had these names opened disciplined the plaintiff for causing adverse publicity they denied the point of procedural safeguards they disclosed plaintiff's employment information to the press they denied her the benefits of the hispanic worker program many of these complaints against mr graves were because of a ledge rudeness which is kind of in the mind of the holder of the same token this bachelor had a lot of complaints battle of the grades actually same thing were nice and this was an interesting aspect of the case came out the depositions as well as what is rude really mean and it's good it's kind of an amorphous term but it certainly has room for national origin discrimination that some people view of it especially in small town it's rude one when a person ok i just want to briefly touch on the retaliation claim as well we haven't discussed that yet but the there was a comment made there's absolutely protected activity of us but a bit of an ego by mr gates