harassment that included consistent use of racial slurs around and against him such as the spanish version of the n word and the spanish version of boy damage to his personal property attempts to hinder his job advancement and perceived threats on his safety and his life pride failed to stop this harassment despite johnson's repeated complaints and as a result johnson was forced to resign the district court below granted summary judgment to pride on johnson's claims for hostile work environment failure to promote constructive discharge and retaliation this analysis and the ultimate ruling at the district court were in error johnson provided sufficient evidence that a jury could find in his favor on all four claims the district court improperly weighed the evidence failed to consider the totality of circumstances and viewed this evidence in the light most favorable to the nonmoving johnson at worst the record in ripley with multiple material disputes of fact making summary judgment inappropriate we respectfully ask that this court reversed and remand the order of the district court your honour's i'd like to discuss three aspects of this case with you today the evidence of harassment that johnson experienced the district court claim for hostile work environment now this is a burden that this court has described as minimal and not onerous that was just that was good reading of the half of the court in reverse is near post usa incorporated seven  standard for summary judgment st as a relates to the racial slurs in this case there are two slurs at issue the st is the n word and the spanish version of the n word pride and mr johnson do not dispute interpreted the evidence in favor of johnson and in addition to the specific instances johnson provided evidence of the supervisors repeated use of slurs in the works case is included johnson testifying that he heard it multiple times create a material dispute a fact that this case should not have been decided in summary judgment but as you point out that's not the only evidence of racial animus and it's not the only evidence of the use of racial slurs in this case briefly on my point on rayyan is this is another employee stating that he heard the slurs contrary to the district court who wrote that this entire case was based on johnson's quote fate so at that record on appeal one thousand three hundred and ninety three the evidence of reagan it demonstrates that multiple employees knew that slurs were being used that nd floor or the word mito or a spanish word for boy the district court found that this word with not objective really offensive to be clear the district court found that the use of the word mico only to the only african american employee was not objectively offensive that flies in the face of supreme court precedent the supreme court upheld and as he types and food but the use of the word boy demonstrates racial animus given context it's torkel you fidget and local custom the district court however considered this evidence in isolation without taking into account the took tally of the circumstances which is that even the supervisor would not refer to johnson by peers name he would only prefer to him to be ho in addition to these slurs johnson provided evidence to the district court of other acts by the supervisor that were motivated based on johnson's rates these include johnson being singled out at lunch for working through lunch when he was approved to do so the supervisor hiding his promotional paperwork in his desk the supervisor sabotaging equipment brought to johnson the best that we can determine that the district court when it wrote that johnson alleges discrimination throughout the record but it is nothing more than the theory a whole grassman was referring to this conduct however the district court stated that this was only a case based on a single racial slur which casts doubt on whether the court not only correctly considered this evidence but considered this evidence at all in addition taking all of these facts into account they color the entire situation at pride we would submit that it is in this context that we must consider the acts of the screw being driven into this tire his truck being vandalized and most critically a loaded magazine quit being left on the bumper of johnson critically around his i'd like to point out the fact that as to the vandalism of his truck johnson and private did not raise this evidence below the district court however reviewed the entirety of the record and wrote and discussed this in its analysis we would submit that because the district court considers the entire record this court can also consider the entire record both under its precedent and under the acts that occurred here below and bottom prive never provided any evidence that it did anything to stop its racial harassment in fact the point that pride in their brief is that this supervisor was removed six months before taken all inferences in favor of johnson that it was only when this formal charge was sense of pride that it took any action whatsoever and that was to remove the supervisor from the shop turning down the nd point that i'd like to  highlight for the court concerns johnson's failure to promote the plan the district court held that johnson could not demonstrate a prima fascia case a failure to promote because he could not provide evidence that pride had promoted individuals with equal qualifications to johnson this was an error of law as this court has recognized repeatedly in case law the last element of a failure to promote claim an individual can prove that claim if they demonstrate that the employer promoted someone who does not share the same protective characteristics as the point that here there is evidence that the individuals who were promoted were hispanic johnson again only african american employees let's assume you made out  case and that was a mistake how do you get a fact issue on the old to me question on this this claim when my new standing in the company says good we promoted people who had supervisory experience make management experience grappling with the fact that johnson has provided evidence of his supervisory experience and that we would submit is a at least fact issue that material fact issue as to pretext on that point cost the judges i'd like to point out that th did not actually rule on the mcdonnell douglas framework we've submitted that there should be a reverse in remand as to those three claims that are subject to it for the district court to rule in the st instance however this court is allowed to consider that evidence and we would say that there is an effect issue created and finally your honour's it is our position that johnson exhausted his administrative remedies as it relates both to the retaliation claim and the constructive discharge claim such that it's see that my time for now may i just finish my point there yes thank you your honor  on that point we would say that both the constructive discharge claim and the retaliation claim are subject to this court's exception in group thank  good god understood that retaliation for the filing of a charge only occurred because a charge with files therefore it is reasonably related to the charge regards most of the contents of that underlying charge but district court here said the group to apply because the constructive just charged sense jumped from the same retaliation that was alleged in the charge but it would have applied anyway so that observation th the action it's not versus university of mississippi which was cited in symonds miers in that case just record allow the jury to hear testimony about the retaliation claim but not about the discrimination claim discrimination would be simply an alternative explanation for what is alleged to be an adverse action in retaliation for filing the charge so that if the e s c is investigating the retaliation for filing a charge would necessarily investigate both the bug allegations that's the only way to rule and or rule out whether something happened because of retaliation and for that reason in our experience as the enforcement agency and either the very limited nature of the holding of scott or the close relationship between the alternative discrimination claims and the retaliation claim which under who still clearly  retaliation for the filing of the charges only occur after the charges filed and therefore there are no implication regarding the statute of limitations the employee has already initiated the administrative process and there  part of its contract to employ seventy five percent of its direct workforce as disabled workers mr johnson was hired as a disabled worker with the diagnosis of those traumatic stress syndrome bipolar disorder and paranoid and obsessive compulsive personality traits that's what qualified his employment during the two and a half years of his employment he received a promotion favorable performance reviews and his disabilities were accommodated time off and a reduced work schedule as requested during his employment he received two disciplinary warnings neither of which he complains about in the case in this case and in fact he concedes that both of them were proper based on his misconduct one of them was where he got the face of somebody use profanity and another was where he intentionally destroyed itself for a company cell phone in two thousand and seventeen after he missed work and was tardy o a couple of days later without an explanation the assistance facilities manager a woman named sanyo boneham about whom he has no complaints call them in to discuss his attendance during that meeting he decided he was going to quit he testified and this is disputed in the record that he did not have advanced plans to quit he decided at that moment that he did not want to work there anymore he told his doctors at the v a equipped because he was having problems with the shoulder and he could injury duties claims some other types of harassment that i'll talk about in the best chicago let's talk i mean there's a lot of different evidence people are pointing to on the harassment claim but i think the main part of it in this use of the spanish and w ramsey case which is a published decision it does not get into the spitz pacific's of what that racial conduct was but it does say that sporadic or not significant incidents do not constitute but certainly supervisor who disapproved the pointis relationship with african americans and disagree that she was engaged or had a relationship with an african american male and that she had a baby with an african american male right i mean part of the  it's not necessarily something that might need all the standards there are required to stablish supreme adventure cases hostile environment so i would disagree for that reason and in this case and he assumes it was about him and then we have mr yana says the affidavit which is not very particular he doesn't give us any details of of the context or when or what he simply says he heard it as well but mr johnson's own testimony was he heard it one to two times and again the only specific conversation he could remember was one where he overheard them talking about some type of cement project so i think that in and of itself does against the plaintiff were racially motivated well one reason is mr johnson can't even identify mr pollock's problem arias is committing these other acts we have unsubstantiated allegations  he didn't suffer harm if in fact these applications were found on the status there's no showing of harm as a result of that there's definitely an adverse employment action i mean again we're linking things that are not racial i mean going back to your question if we have to assume that anytime somebody says something that's derogatory and that colors every single thing they do then and important as you know you don't assume and judge you just the question is put it very circumstantial constantly regularly using very the spanish in word in other words that are of very inflammatory correct but i don't know that it was known that individual did not go and complain about it so i don't believe that it was known to the summertime actually in the office and in the workplace not in the field so they're not in the law if we found these like involved brothers and got a matter of you don't get less boy and there is no evidence in the record mr johnson other than his testimony that to me means boy there is no objective evidence in the record from anyone or any other source that says that is a derogatory all right appreciate that i understand your your point and i think the district court was correct though in concluding that those were not significant and substantial enough in their severity and their frequency to create it and then and then the court did look at the other issues and and its conclusion was that all these other things that there's no evidence that they even happened or that they're racial in nature are really exactly what the th circuit has said in the ramsey tender plain i think quite frankly the district court's reasoning was a little confusing but i think the result was correct and the result is number one in our argument and we did argue this contrary to the letter br to the fact that pride offered to affidavit testimony that was unrefuted a legitimate nondiscriminatory reason for why mr johnson was not selected and that's because it selected two candidates they had both inside and outside management and facilities management experience there is nothing in the record there's nothing in the street johnson substance summary judgment response that makes even an effort to rethink that so even if the district court did not make it decision based on that it couldn't have been under berquist versus washington mutual this this court's precedents this court may affirm on any grounds that is supported by the record and both of those grounds that mr johnson did not johnson had issues with mr pollin minus a did not work with mr johnson during the last six months or six months of his employment mr johnson has made no claim of anything that occurred in that last four to six months decided he's not going to work there anymore so he quits but we know the burden to establish a constructive discharge claim is greater than that required to establish a hostile environment it requires greater that sets forth that standard among others that evidence simply was not in the record here there was nothing that happened he couldn't tie his decision to quit in late september to anything that happened if he's going back to february that's a huge temple disconnect there and there was no other incidents of alleged racial harassment that led up to his spur of the moment decision in this meeting in which he decided he was not going to work there anymore so we believe even without regard to the exhausted argument simply believe that the evidence does not establish the constructive discharge i do want to say about the constructive about the boston or mr johnson filed in this lawsuit he specifically says that his constructive discharge was the result of race discrimination and retaliation that's in the record at age twenty one this court is held with the group t exception is not applied to claims in which both discrimination and retaliation are alleged and that's important here because the e e o c charge had already been dismissed at the time mister johnson decided to terminate his employment decided to quit so there was nothing the it could be picking back on the e e o c could not have investigated at that point and i'm because it had no pending charge before it and that's one of the reasons we have this exhaustive requirement is to that i submit that the district court should have the st opportunity to address the mcdonnell douglas framework as to the claims that that applies that is failure to promote constructive discharge and retaliation however on harassment we would submit that this should be remanded with an instruction that the harassment training claim can go to trial there is nothing further for this court to consider and this and we would need for the district court to consider and we would submit that this court should correct the district court's holding and find that there is a fact and quantity of evidence to demonstrate that this is in fact a question for a jury trial but are you saying that some sort of when it is read and i don't understand what you say man supplied to the donald douglas factors in an attempt to rule human and the district court and we  seem to be that he made a decision to leave his job on your honor there's that we would argue is there's a disputed material fact there because in fact johnson states that the reason why he left was because of the harassment that is actually in the paperwork that he submitted stating that he was leaving which he admits that he did not write it and he states that he signed the paperwork in order to get his final paycheck we would submit that there is that the evidence that the private funds to offer for  not discriminatory reasons for why he resigned are in fact simply pretext for the harassment that he experienced because i want to quickly address your point and point out that it was an error in our brief as demonstrated in his pleading below our way twenty three and it's haven't looked into the different remedies merely be looking at this from the standpoint of whether it should be reversed and on that point your honor we would argue that group applies to the constructive discharge claim there is no need for analyzing the dispute my opponents and  i have pointed out here about whether this is a discriminatory constructive discharge or retaliatory constructive discharge in that case this is a constructive discharge that johnson alleges arises from the fact of the e e o c charge he  alleges no other or no additional harassment and therefore the only additional fact that johnson relies on is the fact that he resigned that is exactly the issue that was before the court and group when it held that for policy reasons there is no need for the city to review there were other times that i just heard insert the use of may i say but i just heard him say it other times there was other times you hear the word it would just stand out clearly there were multiple instances abuse of the word in addition to the two specific instances that he discusses additionally your honor it is incredible that pride says that the word me hope could be used as a term of endearment when considering all the evidence in favor of johnson and i would point out that cry offers hid his promotional paperwork sabotaged his work equipment and singled him out and monitored and this evidence has to be considered in the light most favorable to johnson but nonmoving in this case and it all of this evidence combined to demonstrate that johnson experienced a hostile work environment giving rise to his claims we respectfully submit that the district court should be reversed and remanded on all four claims thank you