we can only bring a case against the employer did you try there was no reason to write the plaintiffs are employed by advocate an advocate brought in aramark to run their u b s department and apart from them simply being there to run the department aramark was essentially just an extension of the advocate it was an agent of advocate advocate controlled everything that market aramark couldn't discipline or fire or promote or give raises to the plaintiffs or to any of the other e v a s techs that worked at advocate without advocates approval first they didn't have that kind of a response to my question because i'm i'm comfortable with that you know there's something hope they didn't see i myself really have been wondering about why our math is it's not that's an issue that might be a factual one that could be determined if there were a time oh i'm not on another it's i'm not really satisfied when it comes to agency what we look at is how much control advocate had over there and advocate had a lot of control over aramark and what the aramark leaders were allowed to do and not allowed to do yes they were there to run the department but apart from being there to run the department aramark could not fire the plaintiffs advocate could do that mark could certainly initiate when i say our mark i mean susan can still of  leadership from aramark could initiate a terminations notice and but that would have to get approved by advocate furthermore if you look at the services agreement between aramark and advocate advocates performance expectations so all of those things together suggest that advocate or aramark was an agent not an independent contractor but it sounds like though what you're saying is that so they advocate would not be strictly liable for example for racially hostile remarks made by your remark employees are right well we do we believe that advocate would be strictly liable for the acts of the aramark leaders because they one of the plaintiffs terminated they have if terminated three of our plaintiffs what they can't do they can't singlehandedly do it they have to run it by advocates h r and get the stamp of approval there's no reason that differed from their well the difference here to give raises or promote the plaintiffs or the other t v s techs that work at advocate however upon their recommendation advocate gives their stamp of approval there is a it has to go through a employee's unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim that is to effect a significant change in employment status such as hiring firing failing to promote reassignment with significantly different responsibilities or decision causing a significant change in benefits we reject the nebulous definition of a supervisor advocated in the c guidance and substantially adopted by several courts of appeals petitioners reliance on colloquial uses of the term supervisor is misplaced and sounds like you're asking us to adopt that colloquial understanding of supervisor as distinct from  us that you didn't sue aramark because they're not an employer because they did not have any of these powers i'm very confused and i'm trying my best to i've cleared that up they sort of go hand in hand here what us well the aramark leaders did have a certain authority to essentially initiate a terminations initiate a discipline however they couldn't just do that without the running it by advocate first because they did not have that power right well the evidence here doesn't doesn't show or it doesn't support the contention that have the power it's just that that was the policy that aramark under the service agreement had to fall they had to follow advocates policies and advocates policies was that they had to run it by a chart just as an advocate supervisor from a different department in the hospital if johnson fired however that that was approved by advocate advocate is the employer here and that is why i advocate was  you tell me which if any of the evidence and derogatory statements and name calling was not based on direct personal knowledge there is direct personal knowledge of terror who provided a declaration susan christie still specifically reached out she came up to me she said do you have any people who would want to work at advocate a please no blacks i don't want to hire blacks they're s monkey that it's gossip and hearsay i guess we'll have to search through the records for these sorts of things there are there are separate  calling african americans porch monkeys and that she was using these racially offensive language that close to the point of what kind of environment and hostile work environment are plaintiffs in other e v a s you're asking me to ignore the difference between fact and room right here at rumors or bird of the environment is that the idea well you are playing have so worked in that environment every day is that what you're telling  fear that evidence of rumors becomes evidence of a hostile environment i'm not saying that evidence of rumors becomes evidence of a hostile work environment however it goes to the point i mean  not work it's hearsay regarding the out of court statements of third parties about their salaries on what basis is that hearsay admissible and other words under so did the employee who reported their salary to johnson and smith have duties related to decision making process is affecting the that we have an affidavit that authenticates it well it was an exhibit that was produced by the defendant the fact that a piece of paper is produced in discovery does not mean it is evidence it really means that it's authenticated the obligations of discovery are so broad that if the piece of paper might be relevant you have to produce it it doesn't mean the actor production authenticates so what if you got to explain that well there are works is that advocate when and when a position opens up for example attack to a position opens up opens up a sign up sheet is posted at advocate for anybody who is interested in that position and wants to be considered for it  testified that he has put his name on that kind of a sign up sheet several times and he has always been overlooked in favor of white employees for instance robert canal has been with advocates since one thousand nine hundred six so he has been there and he's still there now he's been there twenty one years pay he has all that he has plenty of experience and seniority and advocate and he has expressed his interest not only in attack to position not only by signing his name on the sign up sheet but also having conversations with of supervisors nevertheless that talk to position was given to john mueller who has now who advocate claims has twenty years of experience and therefore that is why you god well but what john miller doesn't have the problem and now has his seniority at advocate because john mueller started there in two thousand and thirteen the only difference between them is their race i would want to question this because this isn't brought up much even in this case with this company this is a substantial substantially integrated many of the people working there are black if you look at the services agreement itself it specifically states that aramark is an independent contractor to advocate i think no one disputed in the record that aramark was free to control the  management supervision of the department in terms of the day to day activities of the department an advocate did not exert control over aramark to that to that extent they were managing the associates they were ordering supplies they were distributing work ultimately under the services agreement though advocate was all to mentally responsible for those employees for the discipline for hiring firing those aramark as those advocate associates they were hired by advocate they were fired by advocate they went to human resources with respect to complaints that they had in relation to their employment their discipline was reviewed in all cases and nobody but advocate could hire or fire them plaintiffs even concede and their brief that promotions were just firm and by advocate kavin station was set by advocate at the beginning of the relationship so we don't believe that there was i  responsible for the salaries the payroll taxes all the decisions affecting their employment so council this is a real puzzle here to me as to whether the variance standard even applies because i have never seen a situation like this where top management is the employer advocated one employees or advocate the employer employees of that employer and you have seemed to have completely delegated i think three at least three different levels of middle management to an independent contractor agent who knows what we call them but it's difficult to see why advocate having the store that much authority on three levels of middle management should not be held accountable for their actions and i think it's a two fold increase in light of this court's decision recently in stratosphere which looked at whether an employee of another entity could be considered honest and join employer and city that employed the individual who sued the court in that case said that because that individual reported to stratosphere and their case they were hired by stratosphere stratospheric paid for their salary paid for their benefits they have complaints were raised that an employee was instructed to go to stratosphere they were governor their employment was governed by the terms and conditions of employment stratosphere now at the end of the day advocate again is the only anyone who could hire or fire these associates and had complete control over those most aspects of their employment decisions it is a somewhat unusual situation companies should be free to hire independent contractors to course you're free to do so and russian is with what legal consequences and with what levels of insulation for responsibility of the folks who are actually managing your employees on a day to day basis yes and there was there were some management and i use that word not in a legal sense but there were certainly song management responsibilities the fellows earmarked managers carried out such as formulating schedules on times directing day to day activities of those associates as part of carrying out their management duties and responsibilities however that the aramark services agreement specifically says that those advocate associates were never to be deemed employees aramark and that advocate alternately retain control and authority over the significant decision of decisions affecting those associates claimants so they were advocate associates at that contracted with a company that is very experienced and you know earmark came in and they reassess doubtless certain standards in the department they created a lot of  and i will just say this i don't know what you know you all signed there but it sure sounds like they were two to twenty three of your brief you talk about comments made out of the presence of the plaintive and  she heard a supervisor call another employee a derogatory term now no one is trying to prove the truth of the statement for example that statement the polish people clean better than black people or whatever the statement was rather and the statement is being used to demonstrate then nature of the work environment and the affiant has personal myself turned a supervisor say something racist or someone else told me or the word on the street is that a supervisor made a racist statement which kind of hearsay are you referring to i guess the problem that we had with the carpenter declaration was that it was very light in terms of content and or specifics and what was it like what the statement stated was that he had personal knowledge of her make you a comment he didn't say who was president he didn't say specifically you heard the statement and so there's been a lot of it is that we talked about earlier rumor and innuendo about these comments made and without any comment about a monkey was in the presence of one of the plaintiff warren johnson he never reported that coming to management and and there's no indication in the record that anyone else this difficulty heard it or the circumstances under which they did hear it so i ask you about another statement that doesn't seem to present any problems with respect to your say or aramark and that is mr johnson's testimony about what he heard mr young say yes if i recall the testimony was that he heard her say it was harder to get blacks who works here to get them out of the hospital she preferred polish they clean better that was the initial statement he later makes clear that was do you know she's the vice president when i tried to map this out she's at the peak of all the folks we hear about and she's an  the reasons one of the reasons they wanted this court to overturn that decision first of all so we would submit that they waive that evidence on this appeal second of all there's no indication it's a separate apart from the comment right she's responsible for the working conditions you've told us that the the the now these are advocate employees certainly advocate managers who work for  makes the decisions if she doesn't make them personally about hiring firing pay raises promotions etc right right well there's no indication that she herself with specific lea involved or harassment as is somehow connected to decisions at issue here we have direct not hearsay evidence attributing a racist attitude accurately or not but that's just that's for trial but person in charge of this whole department for advice are we supposed to ignore that but i think it needs to be there are comments that come up in these cases and that this court has addressed commons and they've looked at whether those comments are close in time to decisions that are because those are the it doesn't make a difference you want to treat this is a stray remark from the vice president of the whole department i think in the time in the context of a whole bias and hostility and just treat those as separate boxes that well i don't necessarily think they need to be treated as separate boxes but i think they need to be looked at in the context of when they were made how were they were made how they matter if one supervisor makes the prices comment and a different supervisor takes the adverse employment action i think that's what i heard you saying just now i think under federal law there has to be a nexus between and this crime must be and think well if she's not if she's not involved in the decisions affecting the terminations of these individuals and her comments had no real bearing and there's no of trial well i think there's there are plenty of summary judgment cases that have been a firm by this court where the court has said straight remarks by nine decision makers that are unrelated to the decisions that is judgment which is the person in charge of this entire department exhibits racist attitudes there is direct evidence not all of it is hearsay direct evidence  disparate treatment with real respect to working assignments obviously there's a lot of controversy about that i know that but again it's on summary judgment which you saw you have plenty of direct non hearsay evidence attributing racial hot racially hostile attitudes towards your remarks supervisors empowered by  of the advocate contract i would say your honor that there is no evidence linking ms deion in particular to these decisions and so the testimony so is that the aramark leaders were monitoring the performance of the associates in the department and then when decisions were made with respect to their employment they went to advocates human resources department who would review those decisions review them against other decisions that it been made with comparable employees and review and approve those decisions there is no evidence in the rocker that it was ms did yun in fact who is making those decisions or weighing in on them she was a very high level person in the organization and the day to day terminations for an authorized breaks or you know showing up not cleaning rooms properly there's no evidence in the rocker that she was involved in making those decisions or directing those decisions absent any sort of evidence men act i do believe that advocates role is limited and that's what the evidence in the record shows to human resources looking at those decisions and making those decisions not mr young there's no evidence how many people dismissed the unsupervised so she's no longer at advocate but what i will say is that she she was on the executive leadership team and she had more of kind of an oversight of the hundred twenty direct reports she had no ok she's the vice president of the entire e v a s department how many people work in that department she also had responsibly for other departments that's why i'm struggling a little bit so ok let's just take this as you have me any answer there were a few hundred associates in the leave us department a difference between same actor in terms of individual hire to fire the person yes so i understand that no longer is a presumption or something that should be decided and summary judgment not the sara lee based on the court's recent pr and what i do believe though that we've raised this in our races well when some of the same decision makers are in same race or the individuals involved in making decisions with respect  it's clear that there are many reasons why an african american supervisor might treat members of her own right race more poorly than white workers i reject the assumption that african american supervisors are more or less likely right and i think your honor that with the was this case but i think in the context of the whole and it department where the majority of the associates are african american associates where two of the plaintiffs in this case are the highest paid in their department where  evidence that's evidence that we submitted and a declaration from ronnie anderson who is in charge of compensation issues that advocate three of the plaintiffs actually in this occur three of the plane tickets were the highest paid individuals in the department and while we mentioned that exhibit earlier in the case that had some other names and now some of the other higher paid associates on exhibit exhibit in fact also were african how they were and they submitted it to show that there were other individuals who are higher paid we look back at the race of some of those individuals there was a point in time when advocate there was some change in the pay scale and so some people who are already higher than the pay scale just remained at that level based on other positions that they had an end and so they challenge some of the salaries and we submitted evidence that they were both african american associates and white associates who were above the pay scale and these and these limited situations based on some changes that had happened it out yet so we don't have a problem with it looking at it we just wanted to explain that if we did decision makers who made decisions through others that was not it was only my observation that this company is substantially integrated and that's all i read observantly because it really wasn't in the  plaintiffs here cheri young is doing well robert canal has not been disciplined he's been offered a promotion and he's at the top of the pay scale so as to suggest that there's rampant raise discrimination in a department that is is advocate with respect to some of these some of the racially offensive language in congress that we've been talking about and that council has also touched on the fact that one of these racially offensive comments comes from the the rogers versus western southern insurance company where this court held that perhaps no single american more quickly alter the conditions of employment and create an abusive working environment than the use of unambiguously racial epithet of porch monkey which is probably just as egregious as the n word in roger's these facts are very similar to to the fact here in rogers the the harasser the manager made a comment that black guys are too dumb to be insurance agent and he also made a comment about not wanting to hire any more blacks ok and with this court how was the title seven prohibits blanket criticisms of a class of employees solely on the basis of their rates doesn't exactly the kinds of comments we have here we have susan saying that she doesn't want to hire blacks because they're lazy and because polish people work clean better and she's saying that