alleged hostile work environment was limited to just four slurs and that four isn't enough for a hostile work environment we believe that's incorrect data for legal errors first the district court excluded non express the racial incidents of hostility even though it jury could find that this hostility and these id since were by the slur users and those who condoned the slurs and therefore the jury could find they were part of the racially hostile work against not only mexican americans but arab americans native americans that counted but also there was nonracial bullying that was part of it because the jury could conclude these were separate things but the jury could conclude that w use slurs express other hostility it's the same motivation mcginest which we see as the most on point case because it was about the same slur the n word will call it there most of the harassment was several uses of there within a year only one said directly to the plaintiff others just graffiti but there were other non racial the main non racial incident was denying the plaintiff maintenance on his vehicle which created a safety risk and that's not expressly racial but the court said that because it's by the same person who used the slurs a jury could choose to infer that this is part of a hostile work environment and after all many harassment cases whe race or gender or what have you it's not just sexual or racial it's hostility to the group because the gravel men isn't the title seven or nine hundred eighty one is a civility code is that you're treating people worse in the group we're not claiming that this is just about incivility this is about treating johnny mack much worse because he's african american and dared complain what non racial slurs we're talking about the court considered but did not consider yes two answers your honor first in addition to the slurs and we dispute the number with the district court there were three threats to plaintiff's job one screened by his supervisor two others the mayor and town manager telling him he'll be fired if he complains again and the snake incident so therefore express the racial things i think he was roman strewed because he didn't go through the proper channels correct and that's it we believe the should be considered as a ritual fluor by mr patterson and no that's not a racial slur i agree that's not a racial slur your honor it's that job threats when they are intimidating and a threat to be fired for something that was not actually wrong are an expression of hostility why is the rule in a bureaucracy not through channels because every other town official said he did nothing wrong the next town manager leah and the city councilor levin you see him who wrote the policy said there's absolutely nothing wrong with johnny mack saying i didn't get redress from town manager or said so i'm telling the city council this is a small town where everyone had an open door and the city councilor who wrote the policy and the next town manager said there's nothing wrong with what he did this was just town manager reset being upset that johnny mack snitched on her we're just claiming there are acts of hostility that rolled in with eight to fifteen racial slurs if you have that many slurs plus three job threats plus the snake incident which we see as highly severe then in total you twelve to nineteen incidents in about a year and a number of them are highly severe and i'd like to elaborate if i could that we believe there were or really only talk about the hostile work environment correct because we believe there's a hostile work environment we also allege that the snake was an adverse employment action not the threats you're on a risk correct we're not seeing the threats or independently adverse actions but could subjecting someone in poor health to allege the snake was a discriminatory adverse action just retaliate tory because under burlington northern view way from the supreme court an adverse retaliatory action need not be employment related just something that would deter protected activity and the the ninth circuit in dol u v rodriguez noted that quote threats the cause an employee to fear for safety easily exceed the recently likely to deter standard so yes it's not an employment action so we can't allege the snake is discriminatory adverse action but we can allege a retaliatory adverse action because would this sort of vicious attempt to incite a panic in someone known to be an ill health deter protected activity well it did so we believe that this is easily something that could in the move your client with you know because he was not that's the least of it he was much older than they were but more importantly they knew he was something like forty fifty pounds overweight smoker genuinely ill health and the most important thing is that they knew that a snake was a high level phobia of his these are folks on the road crew they knew what was upsetting or  offensive physical conduct because they knew it would cause this high level panic whether or not they knew was a heart attack they knew it was going to cause a deep panic attack and they admit they did this to frighten him because they knew of the phobia and further on your honor's prior question the main perpetrator davis had emptied medical technician training so he admitted knowing that mack would have a higher risk of a heart attack whether they intended that or not they intended a upsetting sixty two davis had e m t training he estimated mack was sixty pounds overweight and in poor health he agreed poor and he agreed that his condition that max condition physically put him quote at risk of a heart attack he knew that so it was foreseeable whether or not the intent but in a hostile work environment claim subjecting someone to physical risk even if it's just reckless not intentional or forseeable is enough in the guinness to be g t e again one of the fact that the ninth circuit said weighed heavily in addition to the n word slur they denied him vehicle maintenance even though they knew he did a lot of highway driving so is denying maintenance normally highly offensive no but if you know you're subjecting someone to physical risk by this action that's the intent and the effect that matters they knew their inflicting risky right you made your argument as a relates to this what about these comments that the the client didn't even know about are you going to get that into the hostile arment a two answers your honor one is there's only one of those that's when serrano the coworker told me i understand how many there are but i guess i'm trying to figure out what case you're going to rely on when the guy doesn't even know about this stuff to suggest it's hostile work environment well i think that when you learn that the perpetrator the supervisor pattison who had used in the past then after a year he's still doing and that goes to the fact that this isn't didn't know that he did surround a testified that when he told mack patterson said the n word again that mack shook his head sadly and in johnson v riverside ninth circuit oh wait  this is on page twenty seven of our opening brief and the cost of work environment included offensive incidents directed at others the plaintiffs learned only later it would be a different case if mack never heard and it is why is it why is it just because it's relevant to the fact that there might be one if that's the only reason you let it in well the district would exclude that one we think it's relevant because it should patterson wasn't stopping that was one that occurred late in the game after a year but  eight to fifteen slayers that's the only one we heard about second hand but when you heard this supervisor your supervisor who laughed at the snake incident and started the slurs is still going even after this owner that we have laughed at to make games and what you're honest correct that when this snake incident was hatched a day earlier hadn't turned his back and said i want no part of it ok the day it but the day of when it happened back testified and this is on page eleven the bottom of opening brief that mack testified that davis went quote went into the office where matt patterson was and you could hear both of them laughing because there's testimony that patterson had this big office window and mack was in front and they could see each other so patterson and davis were laughing as it happened to right after it happened we don't even know why that's true and that's a question of fact and that's one of those examples of how the made them laugh but as to the number of slurs i think your honor asked me to get back to we think the record is that there are eight to fifteen because the district court acknowledged patterson said for we think that once around a really good that patterson still doing is the fifth davis then admitted at his deposition that i said them up to five times around mack if it's just one time that's ok i'm ready said it a couple times to five that's at least two so we davis said that he said himself one to five davis and many said two to five if you have five one to five and two to five that's eight to fifteen and we think that's on all fours with mcginest where it was the slowest said only one time to the pla think your honor may it please the court my name is justin pierce and i'm here on behalf of the defendants in the case and i want to start where were the court kind of left off as it pertains to the facts of the snake incident when johnny mack testified that he saw that patterson and david davis laughing it was after the incident had happened because davis was present when it happened matt patterson had already gone back to the office and what he said was that he looked through and could see the two of them talking and laughing so this is now this is minutes later obviously because davis has to have time to go over to the office and of course he has no idea what they're talking about and both those those individuals testified that that that was not what they were laughing at well the problem i have is we're here on a motion for s to construe all the evidence here against your client correct and so therefore i have to go through and i have to find out just exactly what the situation is and whether  based on what's here one could go to trial not whether one's going to wind up giving every benefit of the doubt to the plaintiff right yes your honor tell me why with what mr patterson the supervisor doesn't seem to be that anybody disputes that the plaintiff was subject to verbal conduct over rachel nate racial nature sufficiently severe so i guess i'm saying to myself there are four at least incidents relating to this supervisor and i'm trying to figure out why if i is is kind of the most on point case identifying a salute of significant racial conduct the undisputed evidence is that is not the case you're going to point to a couple of things on the record as to why first right out of the gate a johnny mack's deposition and if you look at his complaint his first amended complaint his second amended complaint they all start with the comment this case involves the city of pine top approving the placement of a snake etc right out of the gate is deposition i asked johnny mac if that was really what this case was about exactly we're here today because a snake was put in the sleep in the sweeper truck correct he answers yes then my critical question to him is it fair to say that if that event had never happened we wouldn't be here he said acknowledged this wives good that's good cross but i'm taking every benefit of the doubt in his favor and with the four comments that were made that this supervisor was involved hot having a tough time understanding why that is is enough to get past summary judgment because just smith the context matters in this quarter so i understand the context but i know what this supervisor said four times right what he said four times was and what what the case is say is that the context of where those comments are made and how they are made matters if he's calling him that name we're probably not here today arguing this but i'm having a tough time how one can i have this particular plaintiff in front of them and start talking about and rig there nobody is going to defend the use of the term and but that's the first step in a hostile work environment as that but all i'm trying to say is we're now on hostile work environment and i've got the racial nature of it i've got the conduct was on welcome all i've got away now is whether sufficiently severe or pervasive correct and now i'm saying this is not so for four times and i would say that is right your honor and the reason our supreme court in this court has said we cannot turn title seven into a workplace civility code and yes it's inappropriate he should've said those things but he said it once in two thousand and fifteen or twice is what was reported when it's finally reported and it's got in it goes back to matt patterson reset goes to matt patterson says hey i was told that you said this you were fixing a machine you said this thing he didn't run for he didn't hide from it he said oh shoot yeah it's  more testimony of the plaintiff at his deposition as you started off saying if it hadn't been for the snake we wouldn't be here so that those four clearly statements of using the n word were not he said i was not hereto the pension trumps the affidavit is that your position that's a part of the judge bad because at his deposition he made it very clear i had said there were a couple of things one was that he said this is about the snake incident but the second when i asked him because i needed to find out what's the universe we're talking about we need to know johnny mack's story not his lawyer story if it's eight to fifteen it's this it's what is johnny max say and johnny mack said in no uncertain terms that well frankly it seems to me that if you're going to use johnny mack's story you've got to suggest that it is absolutely contrary to what is in otherwise in the record in order for and i add comments that were not made while mack was there but just relayed to mack they were direct they were there they were and then i read johnson versus riverside health care system which your opposition cited to me and it wasn't any one who suggested what the language was appropriate there but it was all scam one who would be generally on the other side of this issue i say to myself how do i get past so how do i say this survives right on the summary judgment standard because your honor if if this would definitely be turning title seven frankly i'm not sure this isn't enough for being pretty frequent and pretty pervasive your honor over the course of a year we're talking about a year my gosh what i'm saying is your honor that on the one hand you have  the two comments let's take the one out because it's the allegations are and rig and i'll say and rig that though that there was that that was three times again now we're now we are taking this as true for purposes of summary judgment that it was that it was through those three times the other one johnny mack testified that he was walking by a room he didn't even see who was in the room he didn't know who he said he recognized patterson's voice patterson denies this but i don't think that's admissible for him to say i'm walking by i don't see who it is it sounds like his voice and i hear dirty indians and but so but let's just throw that in there your honor we're talking about something that happens at one point in time it's reported nothing happens for a year matt patterson is fixing it on the machine slips and says it shouldn't have but you know what the town did at that point they suspended the guy for two weeks with no pay i don't know many people that can go two weeks without a pay and so maybe we ought to move then to your argument on retaliation because it seems to me then there are three instances of retaliation and talking about the snake instance because that's the one that your argument it is ok then what do i have to show there must be evidence that the decision maker knew of the employee's protected activity when the decision was made right yes in the cases in the end it right here we have a co employee and a supervisor who knows all about this accident happening and knows frankly that he's already gone to the supervisor above them at the time of the snake incident yes no your honor well look oh well just a minute all what do we have from this testimony giving someone a verbal warning someone who everybody knew about it didn't talk because it is a small ground so whenever something happened everybody knew about it what is behind closed doors or not it was leaked through the grapevine that city are one one seven one whose testimony is that i don't recall that testimony in our lives the testimony of one of as i understand it davis and it and i don't recall that testimony but it certainly would not have been with regard to whether or not first of all i can tell you davis testified point blank that he he when he did the snake incident this was a prank and i'm going to cover that just a second but he he had no clue that there had been any complaint whatsoever and the reality is you're one of the undisputed evidence is that there that there hadn't been johnny mack went to council member wessel which by the way that gets to the other issue of the chain of command this is like a normal chain of command by the way that town code prohibits town council members from involving themselves in the administrative matters of the town their policy makers this is consistent in most codes i've ever seen in arizona so when he's told not to do that it's because he's got a code provision that says council members aren't supposed to be involving themselves in that but i want to be able to get to this issue of the snake because paterson or i'm sorry davis is the one who doesn't testifies have not heard anything about any sort of of complaint when he does this he's just doing it as a prank now johnny mack in his deposition i asked him what evidence do you have that anybody knew patterson that those two who you say were somehow involved in this thing we know davis is the one that did it that they somehow knew that there was any sort of complaint he said i don't know so we can't it would be beyond speculation johnny mack him self says he doesn't know if they knew anything so we can't now impute and say well they must have or it was a small town that may be the case with other things but they testified expressly well isn't it in the record  giving somebody a verbal warning so my everybody knew about it and dog it's a small group so whenever something out and everybody knew about it or there was we are in closed doors or not it leaked through the grapevine but your honor that has nothing to do with rest set going in telling anybody that oh johnny matt complained to me about x there's no evidence in the record that that that that was ever conveyed with my twenty seconds i just have to say your honor because i didn't get to say this in are garter snakes it's nonpoisonous my daughter who's here with me today she can't stand butterflies we like to play jokes on her by putting butterflies around because it scares her if nonpoisonous garter snake that harms nobody yes just a minute just a minute you can go really on that side of an argument i've got a law clerk who hate spiders she won't even take spiders out of her house so if i went in and  spider on her desk i'm not sure it would be the same thing that we've got here it might be and it might not be a good idea but your honor it's not a hostile work environment under the law ok i can duty points i want to respond to the your honour's discovered first johnny mack never said there are only four at his deposition as in many such depths he was repeatedly asked name a specific incident name another and then he came up with four he said there might be more but i'm not sure at this time as to gain he said i can't name any at this time and there's testimony from himself and from his doctor that this testimony from him is seven eighty six that his memory isn't what it used to be and it's six sixty six his doctor said yes that heart attack and cause weaker memory not all heart attacks do but his heart attack killed a quarter of his heart tissue so he never said there are only four this until you case and the santos case page one of a reply other witnesses can fill in the details plaintiff's doesn't remember if it's the sort of case especially where there aren't a lot of names or a lot of events you don't see plaintiffs couldn't remember all the relevant names but other witnesses are admissible testimony here the relevant testimony is defense admissions santo's the same and finally a knowledge can be inferred from knowledge of others