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Face number twenty five dash seventy sixty three.

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General tour of balance.

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This is priority life care LLC.

[00:00:08] Speaker 04:
Mr. Branch, Mr. Murphy.

[00:00:12] Speaker 02:
Morning, may I please support.

[00:00:14] Speaker 02:
It's a senior moment when you forget that you have your glasses in your hands.

[00:00:17] Speaker 02:
You're looking for them.

[00:00:21] Speaker 02:
Good morning.

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My name is David Branch.

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I represent the appellant.

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This is an appeal from the district court's grant of summary judgment and dismissal of claims under Title VII, Civil Rights Act of 1964 and two common law claims.

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There are

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essentially three arguments that are going to be made this morning in support of this appeal.

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The first is that the district court ignored direct evidence of racial discrimination and racial bias.

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Then the district court improperly made credibility findings in reaching its decision.

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And finally, the district court imposed pleadings and proof standards beyond those required by the law.

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Let's start, if I may, with the Hostile Work Environment Committee.

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Excuse me.

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Do you want some water?

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Yes.

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Oh my god.

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The district court adopted my friend and colleagues arguments on the hostile work environment claim essentially accepting the claim the district the appellees arguments that the.

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allegations made were not severe and pervasive.

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And for two reasons, the court concluded that some of the comments were not racial and other comments were not directed toward the appellant.

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As I count through the record, there are at least seven comments that have that are either racial or have racial implications.

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Sharon again, who was the supervisor calling

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or telling my client that a co-worker was an ignorant black bitch and I know that even appellees were very concerned about even using that word they or this phrase they resorted to using an acronym, IBB, but that's one comment.

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And then the supervisor also said at least I don't I didn't call her the N word.

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Someone else in the workplace referring to blacks as ghetto blacks and hood rats and support is aware of the facts.

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My client was a director of marketing for a building that was being filled by

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residents or they were attempting to get residents to move into this building in southeast DC.

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So that was the third comment or fourth comment, hood rats.

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Another supervisor, in fact, the person who was responsible for the termination referring to African-American men as a pack of animals and monkeys.

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Another person in the workplace reported that an African-American female that she encountered had a bad smell and she smelled like

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you know, the V word or or slang for the V word, V word and then another employee stating what's wrong with these people?

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They live in the ghetto.

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Don't they want better?

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Don't they want anything better than living in the ghetto?

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So, there's direct evidence of discrimination in this alliance with the discourse decision on a yes, he had to be Fannie Mae

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uh the district court seemed to believe or took the position that because these comments were not directly tied to an employment action that these were actually stray comments and um this is maybe one of the most egregious cases of discrimination short of calling someone the N word.

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They did everything but

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calling this person the N-word.

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And all of it was done in her presence.

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And this is the work environment that she's working in.

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And she's an African-American director working in this position.

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So we believe that this report aired in concluding that these comments were not severe or pervasive.

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These are comments that were made over a period of six months.

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She began employment in January 2021, terminated in August of 2021.

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So, that's the first point on the hostile work environment claim for the despair treatment claim.

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We believe that claim the district court here there as well.

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Uh specifically with the despair treatment, she establishes the prime of Fassie case and the law in the circuits that once someone establishes the prime of Fassie case, she's African American female.

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I think she's she was 62 years old at the time.

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Uh she was terminated from her position, placed on a pimp first and terminated and um

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she met all the elements of a prima facie case.

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So the next step just becomes whether there is sufficient evidence in the record that a jury.

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Just with the hostile work environment clinic.

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I don't think that this case was cited in the briefing, but there's a case from our circuit, um, block the, I'm not sure I'm pronouncing it right.

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It's B a L O C H V Kempthorne.

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where we affirm summary judgment against the plaintiff in the hostile work environment case.

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And in part, we relied on the fact that comments weren't directed at the plaintiff.

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The racial comments weren't directed at the plaintiff.

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Can you point me to any case where racial comments were not directed at or about the plaintiff and yet we have found that to be sufficient for a hostile government?

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Your honor, I think the block case can be distinguished by...

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the work environment that's created here.

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I understand the course position in terms of citing to a case where the comments aren't made directly to the person.

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But if you look at the volume of the comments here, as I just cited, seven instances of comments made directly to her in the work environment where she essentially says, your colleague is an ignorant black bitch.

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or, you know, calling the colleague an ignorant black bitch, all of the other racial commas.

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There's nothing that compares to the facts in this case in Balak.

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Okay.

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But as far as any case where the statements weren't made about the plaintiff,

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Do you have any precedent where we found hostile work environment under those circumstances?

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Your honor, I have not, but that can't be the sole basis for a hostile work environment that someone has to make comments directly about the plaintiff, particularly when you're dealing with a very short period of time.

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You have these comments essentially on a day-to-day basis where this supervisor is

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making disparaging comments about African Americans.

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Everyone in the office, apparently, is making disparaging comments about African Americans, insulting the intelligence of an African American co-worker.

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I don't have a case to cite that, but Your Honor, if that needs to be expanded, I think this should be the case where the court considers expanding that.

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If someone creates an overall hostile work environment, I don't know what else you can describe this as.

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I don't know many places where you have to go to work and sit down and your supervisor says your coworker is an ignorant black bitch.

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or all the other racial comments that were just mentioned here.

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So that's for the hostile work environment.

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For the disparate treatment claim, once again, it begins with, once the prima facie case is established, the question is really whether there are facts in this case that a jury could conclude that this decision was racially motivated, or here is racial, but because of the protected class.

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And we have this based on first the hostile work environment that's created where the managers are essentially saying, this is how I feel about African-American, your African-American colleagues, plus all of the African-American people that we're servicing or that we're offering services to, that this is the ghetto and hood rats, all of these other comments.

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So it begins there with this foundation.

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This is the claim.

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This is racial discrimination.

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And then it goes from there to,

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But the way we analyze this is we look at, okay, you've made your prima facie case, but we don't really care about that anymore once a legitimate non-discriminatory reason is proffered for the employment action.

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Here it was a termination.

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And they said unprofessionalism and insubordination.

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So then the question just becomes, is there sufficient evidence to send it to a jury that that was pretext?

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In my reading of the summary judgment opinion, and I took a look at the statement of undisputed fact and the response from the plaintiff to that, I didn't see where there was a dispute

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that the statements that they say were insubordinate and unprofessional around the time of August 9th, I didn't see anything in Ms.

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Latour's affidavit or in the statement that said that she did not make those comments.

[00:10:39] Speaker 01:
Your Honor, we provided an affidavit with her detailed statement of exactly what happened on that occasion and all the other... I'll tell you, I read it and I looked at it and specifically around, this is at J567 and 568, it's paragraph 49 to 53, 54.

[00:11:04] Speaker 01:
And I don't see where she ever says, I didn't say any of those things that they said that I said.

[00:11:12] Speaker 02:
OK, so Your Honor, well, first, I understand the court's question in the context.

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Let me just place this in the context.

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First, she's the comment about black bitches made in June of 2021 by Jernigan in July.

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Ms.

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Latour is suddenly placed on a performance improvement plan.

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She was supposed to meet every week.

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The employer doesn't comply with its obligations.

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And then in September, she is being terminated.

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So we go from, there's a shifting articulation.

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And that actually supports a claim of discrimination.

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Because first, there's a claim that you're going to be terminated because of your- The reason given for the termination

[00:12:00] Speaker 01:
on or about August 12th is insubordinate and unprofessional conduct.

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And it was based on this exchange that happened with two different supervisors on or about August 9th.

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And what I'm saying to you is, for an at-will employee, that's sufficient grounds for termination.

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And what I'm saying to you is, I don't see in the record where Mitzvah Tor said, I never said or did the things that they said that I did on thoughts the 9th that were unprofessional or insubordinate.

[00:12:50] Speaker 01:
Did I miss that?

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And if so, where is it?

[00:12:53] Speaker 02:
Your Honor, I will check in the record because I know that she specifically did not agree with this characterization of being unprofessional or insubordinate.

[00:13:02] Speaker 01:
I know that you submitted a counterstatement of disputed fact that denied that paragraph, but it didn't cite anything in support of that denial, which our local rules require

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And the federal rules require precisely because at summary judgment, we are trying to determine whether there is evidence in dispute of a fact.

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And it can't just be that you file a pleading that says, oh, we dispute that fact.

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You got to point to something in the record.

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And there was nothing identified in the record.

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That's at JA 544.

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It's denied and it says the accusations are false and were manufactured to cause plaintiff's determination.

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No site.

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There is a site for the next thing that is denied.

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So she jumps out at me when I don't see a site, and then when I read her declaration and I don't see it denied.

[00:14:05] Speaker 02:
All right, Your Honor.

[00:14:06] Speaker 02:
Then I will check the record.

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What I was going to say is, yes, that's the reason that they gave for the termination, and she denies it.

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But before it was

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it was an allegation of poor performance.

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So in the course of one month, we go from an allegation of poor performance, which you're not selling these units in Southeast DC where people have to come up with thousands of dollars in money to move in to now we're terminating you because of

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Allegedly because I mean of conduct that happens at this are mutually exclusive.

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You can have concerns about an employee's performance and put them on a performance improvement plan.

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But and then and then later there's an outburst.

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It's unprofessional and you you decide that you're just going to fire him based on that.

[00:14:59] Speaker 02:
There was no out there was no unprofessional outburst.

[00:15:04] Speaker 01:
And that's what I'm getting at.

[00:15:05] Speaker 01:
They said that there was and there's nothing in her declaration that says I didn't do that.

[00:15:11] Speaker 02:
OK, so your honor, what I was saying is that there was essentially a shift.

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She's in this position for six months without any of these allegations.

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And suddenly she makes an allegation against the supervisor or supervisor makes this racial racist comment.

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And then she's placed on a pimp and she's going based on these subjective statements of what happened in this meeting, a determination is made that she should be terminated.

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And then when that decision is made, the person who makes the decision is soliciting comments from other folks to tell me, give me information to help me support this decision to terminate Miss Latour.

[00:15:55] Speaker 02:
All of that's in the record.

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That's not disputed.

[00:15:57] Speaker 01:
If you present that to a jury, a jury could very easily find that this is... What inference that's nefarious do you get from the deciding official saying, okay, what she says sounds like grounds for termination?

[00:16:18] Speaker 01:
write down the statements, but I'm going to terminate her.

[00:16:20] Speaker 01:
There's nothing that says that the deciding official has to wait until they get the written statements to take action.

[00:16:29] Speaker 02:
Okay.

[00:16:31] Speaker 02:
What is the question, Your Honor?

[00:16:33] Speaker 01:
I didn't get the question.

[00:16:35] Speaker 01:
You're saying that all of what's in the record

[00:16:38] Speaker 01:
would cause a reasonable jury to believe that this was all manufactured.

[00:16:44] Speaker 01:
And I'm saying, why?

[00:16:46] Speaker 01:
They told the deciding official what happened.

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The deciding official said, give me statements.

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And the deciding official maybe didn't even wait for the statements.

[00:17:00] Speaker 01:
They heard the accounts of what happened.

[00:17:04] Speaker 01:
And then they took action.

[00:17:05] Speaker 02:
But Gerardo is one of the folks who made some of the racial statements herself.

[00:17:11] Speaker 01:
Well, you might have a shooting match if your client had said, I never said those things on August the 9th.

[00:17:20] Speaker 02:
She denied that.

[00:17:21] Speaker 02:
She denied the statement.

[00:17:25] Speaker 01:
Well, I don't see that in the record.

[00:17:29] Speaker 01:
Does anyone have any other questions?

[00:17:32] Speaker 03:
One quick fact clarification.

[00:17:34] Speaker 03:
On the retaliation point, was Latour objected to Jernigan's comment?

[00:17:43] Speaker 03:
It was Gerardo who made the decision to fire Latour, and Gerardo did not know that Latour had objected to Jernigan's comment, correct?

[00:17:54] Speaker 02:
Yes, Your Honor, but two points.

[00:18:00] Speaker 02:
First, the incident with Jernigan, we just discussed that where Jernigan made the comments.

[00:18:08] Speaker 02:
Jernigan feeds the narrative to Gerardo on why Ms.

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Latour should be terminated.

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So under, well, just we cite to the cats, Paul, you know, theory that, okay, you have a non, even if she was non-discriminating, Gerald, Gerardo, which she was not because she had made racial comments herself, but.

[00:18:34] Speaker 02:
Jernigan definitely has an issue with the plaintiff.

[00:18:39] Speaker 02:
And she knows that the plaintiff is going to likely file some type of claim against her.

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And she moves forward.

[00:18:46] Speaker 02:
She's already made these racial comments.

[00:18:47] Speaker 02:
She moves forward with making comments to Gerardo to cause her termination.

[00:18:52] Speaker 02:
So under this, you know, I understand that.

[00:18:56] Speaker 03:
I think that was at both of your points or?

[00:18:58] Speaker 03:
Yes.

[00:18:59] Speaker ?:
Okay.

[00:18:59] Speaker 02:
And just if I just may so that same the same is true for the retaliation came to retaliation claim as well as the the of the wrongful termination claim where she alleged in her complaint that there was an effort to move residents in without the correct medical documentation and she was terminated because of that.

[00:19:28] Speaker 01:
All right, thank you.

[00:19:29] Speaker 01:
We'll give you a couple minutes on that.

[00:19:46] Speaker 00:
Good morning, Your Honor, and may it please the court.

[00:19:48] Speaker 00:
My name is Jim Murphy.

[00:19:49] Speaker 00:
I represent Priority Life Care, the appellee in this case.

[00:19:54] Speaker 00:
Quick background, I'll make five points and then answer any questions you may have.

[00:19:58] Speaker 00:
Before that, though, just for background, Priority Life Care is a company based in Indiana.

[00:20:04] Speaker 00:
And we're contracted in, don't typically do business here in the District of Columbia, but we're contracted in here to manage living someplace, the assisted living facility in Southeast DC that was open where all the relevant events occurred.

[00:20:19] Speaker 00:
Excuse me.

[00:20:22] Speaker 00:
I want to focus on the termination decision, if I could.

[00:20:26] Speaker 00:
The analysis here, we believe, is guided by this court's decision in the Brady case, wherein the focus really needs to be and ought to be on whether or not the decision maker, Ms.

[00:20:39] Speaker 00:
Gerardo, had an honest and reasonable belief

[00:20:43] Speaker 00:
that the plaintiff appellant had been subordinate and unprofessional.

[00:20:48] Speaker 00:
The honest and reasonable belief in this case was based on not only her own experience on these calls directly interacting with the appellant, but also from an email and a series of events that preceded the email exchange that is in the record.

[00:21:13] Speaker 00:
And this is all laid out, and it sounds like you're familiar with it, Your Honors, but there are three emails on the 11th, morning 11th that reflect the decision that was made here.

[00:21:23] Speaker 00:
The 8.45 a.m.

[00:21:25] Speaker 00:
from Ms.

[00:21:25] Speaker 00:
Jernigan alerting the two people of corporate as to the behavior on a group call and some other issues that preceded it with the appellant.

[00:21:36] Speaker 00:
There's the 906 email where Ms.

[00:21:38] Speaker 00:
Gerardo responds and the 909 email where she announces, I have made this decision.

[00:21:46] Speaker 00:
She makes a decision based upon the information she got from the 8.45 a.m.

[00:21:51] Speaker 00:
email as well as her own experience.

[00:21:53] Speaker 00:
And we'd submit that she had an honest and reasonable belief that that conduct had occurred.

[00:21:57] Speaker 00:
based on particularly the loud and confrontational behavior that was observed on these calls, yelling and talking over her managers.

[00:22:09] Speaker 00:
And all of this is laid out in a series of documents in the record, JA-442, JA-446, JA-448, JA-450, and JA-435.

[00:22:26] Speaker 00:
The other thing I would add here that I think should be taken into account is that a lot of the friction had to do with the fact that the appellant had not been adopting the various marketing protocols that the company required for all of its sales and marketing people at the facilities to utilize.

[00:22:48] Speaker 00:
And she had various reasons for not doing it.

[00:22:50] Speaker 00:
And that's in the record.

[00:22:52] Speaker 00:
But one of the things that she made very clear was that I don't have time for it.

[00:22:56] Speaker 00:
It's a waste of time.

[00:22:58] Speaker 00:
And in her own declaration, she says very clearly that she disagreed with these marketing protocols.

[00:23:08] Speaker 00:
They were ineffective.

[00:23:10] Speaker 00:
And she felt strongly that they should have been avoided.

[00:23:13] Speaker 00:
These protocols were things that the corporate office used to be able to monitor the extent and progress of sales locally.

[00:23:20] Speaker 00:
And Mr. Latour resisted adopting them.

[00:23:23] Speaker 00:
And that was in the documentation that was included among those things shared in the 845 AM email.

[00:23:31] Speaker 03:
On the hostile workplace issue, the comments were pretty awful.

[00:23:39] Speaker 03:
Can you just address that issue?

[00:23:42] Speaker 00:
Sure, sure.

[00:23:44] Speaker 00:
Well, we agree with the district court's opinion that it did not reach the severe and pervasive level.

[00:23:53] Speaker 00:
There were two things going on here, I think.

[00:23:57] Speaker 00:
Well, importantly, I would mention with respect to determination, I'll tie them together, I promise, but with respect to determination decision, okay, none of these comments

[00:24:09] Speaker 00:
were, I know one was said in front of, or the plaintiff overheard them, but none of those comments were directed at the plaintiff, at her termination, at her employment, at her performance.

[00:24:21] Speaker 00:
And the same thing is true with the statement that Ms.

[00:24:23] Speaker 00:
Jernigan supposedly made to Ashley Lawrence.

[00:24:27] Speaker 00:
None of them were directed at the plaintiff herself, so therefore none of them have a connection to the ultimate termination decision.

[00:24:35] Speaker 00:
With respect to those comments,

[00:24:38] Speaker 00:
Each of them is denied.

[00:24:39] Speaker 00:
The plaintiff's counsel took depositions, and each of those individuals denied having made those statements.

[00:24:47] Speaker 01:
But that summary judgment the district court can't make.

[00:24:52] Speaker 01:
No, no, right.

[00:24:54] Speaker 01:
They didn't happen.

[00:24:55] Speaker 01:
We have to assume, taking everything in the light most favorable to the appellant, that they happened.

[00:25:02] Speaker 01:
And so based on that,

[00:25:04] Speaker 01:
Should we send that claim to a jury?

[00:25:07] Speaker 01:
And so why isn't it a hostile work environment to hear racist comments repeatedly throughout the course of your employment, especially if they're directed at your race?

[00:25:27] Speaker 00:
And I was just trying to address your question, Judge Walker, about coming about that.

[00:25:33] Speaker 00:
So I understand there can dispute.

[00:25:38] Speaker 00:
There were some of these statements that the council talks about you people, OK, or these people, those people.

[00:25:48] Speaker 00:
Those comments were made.

[00:25:51] Speaker 00:
If they were made, they were directed at the people

[00:25:55] Speaker 00:
that the community that the party life care was came to serve.

[00:26:00] Speaker 00:
It was a low income housing facility.

[00:26:02] Speaker 00:
It was meant to put where it was put in ward eight to be able to serve people in ward seven and ward eight.

[00:26:06] Speaker 00:
So to the extent that there was a reference to why won't these people come here?

[00:26:11] Speaker 00:
Why do they want to live outside?

[00:26:13] Speaker 00:
Why don't they come live with us here in this facility?

[00:26:15] Speaker 00:
It was those people, these people, that's what it was referring to.

[00:26:19] Speaker 00:
It wasn't supposed to be aligned to.

[00:26:22] Speaker 01:
Why, if we take everything in life most favorable to the plaintiff and give the plaintiff the benefit of all inferences, which is what we're supposed to do at Summary Judgment, why isn't it a fair inference that there was a racial aspect of it?

[00:26:40] Speaker 01:
Why couldn't a reasonable jury say, you know, I know what they meant to get people, and that was racial?

[00:26:51] Speaker 01:
Why wouldn't that be a fair inference, a reasonable inference that a jury could make?

[00:26:57] Speaker 01:
I know you would argue that they shouldn't.

[00:26:59] Speaker 01:
Right.

[00:27:00] Speaker 01:
Well... As a matter of law, we would say you can't make that inference?

[00:27:04] Speaker 00:
I would say contextually.

[00:27:06] Speaker 00:
Contextually, in this case, that's not an inference to support it.

[00:27:12] Speaker 01:
And suppose we disagree with you?

[00:27:15] Speaker 01:
And we think that all of these statements, there's a reasonable inference that they are racial.

[00:27:24] Speaker 00:
Well, among other things, they were not the statement.

[00:27:28] Speaker 00:
One was made, allegedly made, in the presence of the plaintiff, of course.

[00:27:33] Speaker 00:
The others were not made knowing that she could overhear or knowing that she was listening.

[00:27:38] Speaker 00:
She overheard them, she said.

[00:27:40] Speaker 00:
She wasn't sure if the speakers knew she could hear.

[00:27:42] Speaker 00:
Okay.

[00:27:43] Speaker 00:
And whether or not the statements, the comments in a hostile requirement case are directed at the plaintiff.

[00:27:50] Speaker 00:
It's critical to determine whether or not there was an intentional conduct here.

[00:27:58] Speaker 00:
The other piece I would mention is that the company did have a harassment policy, a hostile government policy, and it wasn't utilized.

[00:28:06] Speaker 04:
As your friend on the other side says, it can't be the case that there

[00:28:09] Speaker 04:
can never be a hostile work environment unless a comment is directed specifically at the plaintiff.

[00:28:16] Speaker 04:
That would be a strange rule.

[00:28:18] Speaker 00:
Under the present, and I believe that we've cited several of the cases, we believe our case is analogous to those where the high level, the high stand, high bar for a hostile work environment here wasn't met in its totality.

[00:28:35] Speaker 03:
Whatever the worst comment was, we don't have to repeat it, but just whatever you think is the worst comment.

[00:28:40] Speaker 03:
Imagine that that comment was was made once a week for a year.

[00:28:48] Speaker 03:
Would that be a hostile work environment, not directed at the plaintiff, but made once a week?

[00:29:00] Speaker 00:
There would be.

[00:29:05] Speaker 00:
I'm stuck, I'm trying to imagine the situation in which it is repeated.

[00:29:11] Speaker 00:
Without the plaintiff, without the person knowing the plaintiff was present, or without knowing the plaintiff was there to hear it?

[00:29:24] Speaker 03:
I'll just imagine that the plaintiff could hear it.

[00:29:27] Speaker 03:
It wasn't directed to the plaintiff, but the plaintiff could hear it.

[00:29:29] Speaker 00:
I think if you're going to hold the company liable, there has to be some kind of intentionality to it.

[00:29:34] Speaker 00:
And if the statement is made without knowing that the individual is hearing it, there's no intentionality.

[00:29:39] Speaker 03:
They knew the plaintiff could hear it.

[00:29:40] Speaker 00:
It wasn't directed to the plaintiff, but they knew the plaintiff could hear it.

[00:29:50] Speaker 00:
I can't say it could never be.

[00:29:51] Speaker 03:
I think that's the right answer.

[00:29:58] Speaker 00:
The last couple of points, I see them just a little bit over my time.

[00:30:04] Speaker 00:
But with respect to, we don't believe there's direct evidence of discrimination.

[00:30:10] Speaker 00:
We believe this is a stray remarks case.

[00:30:13] Speaker 00:
And in this case, and under Morris McCarthy and other precedent within the circuit, the stray remarks here do not ultimately support pretext because there's no connection between those remarks and the actual adverse action at issue.

[00:30:31] Speaker 00:
Also, I should mention with respect to the retaliation claim, the alleged protect activity was occurred not in June, but at some point during the winter months between January and March because the plaintiff testified or deposition that it occurred when they were in the offsite location, which was during those months and before they moved into the assisted living facility in April 1.

[00:31:02] Speaker 00:
So that was something I wanted to point out.

[00:31:04] Speaker 00:
I don't believe the cat's paw theory applies here for one particular reason with respect to the 825 AM email.

[00:31:11] Speaker 00:
The Supreme Court was very clear in the Stobb decision that the supervisor who's supposedly providing the tainted bias on the decision, that that person must be acting with the intent to influence the adverse action.

[00:31:27] Speaker 00:
And in this case, and that's the general rule that was enunciated by the Supreme Court in the Staub case, and we have a couple of court decisions outside of this jurisdiction, which we can provide, which uphold that application to say, if the individual who made the statement, the supervisor, didn't in fact intend to influence, just know that a termination decision or whatever was being made, then in that case, Staub would not apply.

[00:31:53] Speaker 00:
And that's the case with the 825 AM email.

[00:31:56] Speaker 00:
With the latter, written statements are provided they came in after the termination decision was made.

[00:32:02] Speaker 00:
So therefore, they can't ultimately have proximate cause on the termination decision.

[00:32:10] Speaker 00:
Lastly, with respect to ultimate bias in the termination decision,

[00:32:19] Speaker 00:
In the record, as you know, we indicated that the company.

[00:32:27] Speaker 00:
who went 18 days after plaintiff was terminated, hired her replacement, Brandon Webb, who was also of the same race.

[00:32:35] Speaker 00:
And under Maury V. Gilmore, 406F3708, that fact cut strongly against any inference of discriminatory motive in the termination decision.

[00:32:47] Speaker 00:
Lastly, one more point on the retaliation claim.

[00:32:51] Speaker 00:
I'm sorry.

[00:32:53] Speaker 04:
You're just over your time.

[00:32:54] Speaker 04:
Quickly.

[00:32:55] Speaker 00:
Quickly.

[00:32:55] Speaker 00:
On the retaliation claim, plaintiff under Minter v.

[00:33:02] Speaker 00:
D.C., D.C.

[00:33:03] Speaker 00:
Circuit 2015, the authority in the circuit is that plaintiff would need to show more than temporal proximity and knowledge here.

[00:33:13] Speaker 00:
And in this case, she had neither we would submit.

[00:33:16] Speaker 00:
That's all we have.

[00:33:19] Speaker 01:
All right, Mr. Branch, you are out of time, but we'll give you two minutes.

[00:33:23] Speaker 02:
Thank you, Your Honor.

[00:33:25] Speaker 02:
Your Honor, I think the final point that was raised that the appellee hired an African-American male to work in Southeast D.C.

[00:33:35] Speaker 02:
in a high crime area that actually undercuts their argument of selling units to African-Americans.

[00:33:43] Speaker 02:
They had previously hired Ms.

[00:33:46] Speaker 02:
for this position.

[00:33:48] Speaker 02:
It comes as no surprise that they were specifically specifically look for an African American to work in this area given the facts of this case.

[00:33:57] Speaker 02:
So, I think the what's been suggested by defense counsel just does not help their position at at all to support the position.

[00:34:05] Speaker 02:
The cat's paw theory applies specifically to Jernigan.

[00:34:10] Speaker 02:
She made the comment specifically to cause the termination of the appellant.

[00:34:17] Speaker 02:
And once again, on the racial comments, it's clear that at least we believe a jury could easily find that the employer created a house to work environment based on the severity, the pervasiveness, and the egregious nature of the racial comments, the ignorant black bitch comment.

[00:34:35] Speaker 02:
That comment alone, according to the Assisi-Etaw case from the Court of Appeals, where the court says, where I think the gentleman was told, you're doing fine for black men, or you're fortunate to be in this position as a black male.

[00:34:52] Speaker 02:
A comment like that alone can alter or change a work environment.

[00:34:56] Speaker 02:
That's what happened with this comment about your colleague being an ignorant black bitch.

[00:35:02] Speaker 02:
Thank you.

[00:35:03] Speaker 01:
All right.

[00:35:03] Speaker 01:
Thank you.

[00:35:04] Speaker 01:
We'll take the case under.