which as the court knows there were proceedings in the district court that resulted in a partial grant of summary adjudication on behalf of the defendant and then ultimately there was a trial at which wentz once the pla rested his case the court granted a rule fifty motion a spoken motion for directed verdict and then thereafter issued a statement a decision and so the primary question that the court has to determine at this point is whether that was an error which plaintiff contends mr levy contends that it was to essentially remove the case from the jury the case in chief consisted of ample evidence in our opinion to conclude allow a reasonable jury to conclude that there was a sufficient authority policy making authority on behalf of miss nora who was the county administrative officer for our plain county once the court makes that excerpts of record there we can start the court and let me just say the trial court could have gotten to that decision in multiple ways the first and most obvious ways to look at the ordinance to create created the position that mr held in two thousand and seven that's an extraordinary document and it spells out the fact that the board of the small county needed somebody like miss north to be the boss and to run the county and make yanni there is very telling language there the county administrative officer shall be the administrative head of the county government under the direction and control of the board of supervisors control of the board but there's a second clause of your honor except as otherwise provided in this chapter and that's that's really where the part of the main part of the problem here is when the court then goes down to the powers and duties under section three there isn't a litany of things that this person was charged to do miss nor among them policy formation which is paragraph three d there is  facts that were a dues to trial your honor were that the what the way this worked the county government worked is that these people these board members served in a part time position mr nor was responsible for running this government she would come to the members of the board and say here's the things that we need to do and more often than not the vote on those things was pro forma it was it was essentially a rubber stamp and that becomes important when we get later into the record where there is this leverage cassady what more investigation that my client deem to be and felt and had evidence to support was retaliatory in nature so there's i've gotten a little bit ahead of myself there's three j of these  enumerated duties that mr head which is investigations and complaints there is no language limiting under three j miss north ability to launch an investigation that she deemed she wanted to do and that's exactly what plaintiff's evidence was in this case that that was submitted to the jury last year its chief among those well but you can make investigations but you know if the saying how can you put sure sure that piece together for the court the timeline that we presented both in the opposition to the summary judgment in twenty sixteen and at trial was that there was a policy stated as such verbal e by missed nor and that was witnessed by a person whose deposition was taken mr hartnett that there misnomers job was to create a younger cheaper workforce for  county now that that happened obviously sometime prior to the events leading up to this investigation say that in a policy that was not a written policy it was a spoken policy that miss nor enunciated in a board meeting at which mr hartnett was present that's in the that's in the that mr levy and another witness beth noons whose testimony and statements are included in the record saw miss nora carry out this policy targeting older workers investigating them harassing them getting them to leave or outright firing them and miss news for self was in her sixty's toward the end of her employment and she in fact testified that she felt she had the crosshairs on her the evidence presented show that mr levy went to chairman veach who was also deposed in this case and was a witness at trial complained to him about this said hey look at what's going on here i'm over forty look how much money i get paid and mr veatch discussed that with miss nor and within a matter of days if not weeks miss nor had gone to share of crawford who was my client's boss and bit made a bleak references to mr levy possibly losing his pension if he was investigated for criminal activity also there was  the the timing as mr newnes laid out of the libor cassidy what more investigation it was no more than two weeks after miss nance had a conversation with miss norway and miss nor said i'm going after rob and mr newnes knew that that the fact that you go in that doesn't make it a comic policy it does not i would agree with your honor there's no there's nothing in the record where there's a written policy that that states that that miss nor can that's correct that was it was not the basis of his decision but it was sort of a gratuitous the thought of the fallback position it was the fall back it was it was the j v position and i that was i kind of stumbled on my words when i was starting with a website and a citizenry that knew everybody's business particularly mr levy's this investigation and the report that was sponsored by it had numerous references by name  levy attributions of dishonesty attributions of falsifying documents including the different that the different greenway thing defamation well something like that that there was this case started out with a state law defamation claim which was disposed investigation because if particularly the court looks at the close alter case the case is very articulate in that it talks about this idea that there doesn't need to be a grand per procession down main street when there's going to be an adverse employment action this is the court doesn't use a term contextual you can read between the lines that it is it is it is not something that is not de minimus and something like this in a small town a small county where this sheriff everybody knew his business and everybody read this report and mr levy had planned to run for sheriff he had planned to continue working in the telecommunications projects in which the county was working on in sheriff crawford testified in this case that he relieved mr levy of some of those duties because of the public outcry it is not a cookie cutter as this court this court hears so many nine hundred eighty three claims particularly in the employment venue this is not a cookie cutter  retaliation claim in terms of the adverse employment action but that you're on is what i would submit you're also appealing from the summary judgment right right the the yes the summary judgment education motion is is as hopelessly at odds with itself as a to quote myself from my brief the it's basically a threadbare opinion because what the court spends a majority of her time doing is talking about evidentiary objections and then getting into this idea that miss nora was a policy maker for purposes of in launching this investigation for purposes of possibly harming my client's reputation which was our main theory of the case that finding requires under the case law that there be an adverse there had to be some evidence of an adverse employment action which we put in our papers was was the aftermath of the investigation the impact on on mr levy then in the latter part of the the opinion the court to says oh by the way there's no adverse employment action so there goes his age discrimination retaliation and failure to prevent it and it's a it's a put a lot of emphasis on this l c report but it looks like throughout the briefing and and the record the report is referred to as a personnel investigation but into mr levy but it seems like the report it is also focusing on budgetary concerns related to a specific public works project so i'm just trying to figure out you know these budgetary concerns associated with the public works project are important so how could the board have gotten this investigation done in a way that mr levy would not consider retaliatory boy that that is a good question and one i would have liked to have seen a jury that we had impaneled and had listen to this case perhaps ultimately decide if not in their verdict form than perhaps in polling afterwards  the point that the point of your honest question i absolutely get it is that it is very prominent and has been from the beginning of this case that alpine county pamela nor never had any animist toward robert levy this is all just a big to do about the fact that the county had financial issues and needed to look into the costs and things that were that had to do with those those communications towers and that is of course to be expected i mean if we ever get if i ever get a case where a defendant says you know you're right i did it because i was mad at mr levy for complaining about age discrimination it will be the first time so i believe that there was enough evidence in the record particularly with the testimony of the witnesses mr levy himself chairman veach m that this was this was about this was something that miss nora knew she could do she didn't have to go to the board for approval she could go and seek her dogs on mr levy and get them to in bear in mind the record is clear that that mr veatch testified that misnomer hire these people committed the county to pay six figures for their fees this libor cassady what more firm then had a meeting at which she told them she was doing this and then the board ratified which is something that judge whaley was stuck on in his  dressing down of our case when he was ruling on the rule fifty motion where the board ratified it there the final policymaker but the court did not look at and certainly did not look at the facts that were in dispute in a light favorable to my client you want to save the balance so first up like to address the issue of the character of the report it was not a personnel review it was considered an administrative review to review the events that led up to ms norris discovery that there were shortfalls and conflicting cost estimates with respect a project called the leviathan project a telecommunications project but she discovered that there were there was a potential exposure to the county of alpine and i think you probably saw in the record at least in judge miller's order it's a very small in populated small populated county of fewer than twelve hundred people so it was a matter of great importance to the county and it was significant to miss nora because there was a potential that at least up to a two million dollar shortfall could result there was a  four point four eight five million dollar contract that the county was obligated to but there was only a gentlemen's agreement a loose commitment from c h p to pay the additional two million which would take in order to fund the project did that report need to be made public was there another way to address the issues in that report without making it at least all the references to the under share i don't think it would have been appropriate to keep it private it was a matter of grave concern to the county of alpine and the people who are living there so the brown act required that it be the information regarding the report be at least disclosed on the upcoming agenda so that people would have an opportunity to talk about something that was very significant to them so no but it was not directed at mr levy i don't think he was even mentioned in the report it did say undersheriff but it also listed a lot of other people and a lot of other issues and the report did conclude that no there was no wrongdoing illegal wrongdoing or self dealing but it was an administrative review not a personnel review and i think it's really important to point out that there was a claim here or a pub or a claim and that was dismissed so there is nothing left in the case with respect to the propriety of a personnel interests investigation that claim was dismissed by stipulation an order  the other point that counsel made was his contention that the ruling on the summary judgment was at odds with the the court's order granting judgment after the plaintiff rested his case so the the summary judgment ruling did address the issue of adverse employment action it did not address that issue with respect to the first claim for first amendment retaliation and that was because it was not very in the papers the only issue that was raised in the papers was with the respect to the policymaking status of ms nor but it takes me to the point that yes in a first amendment retaliation claim you do have to establish adverse employment action and you have to do that with respect to the state law claims as well and there was not in this case so the the mulligan case the genie cases those stand for the proposition that just scolding threats words things of that nature do not constitute any kind of adverse employment action takes more there has to be some benefit crawford retired he retired with full benefits with eighty three percent of his salary as his pension he stayed on several years after this he was not demoted i think the one thing that counsel referenced was that he was taken off his duties with respect to working on the telecommunications projects briefly he was put back on in the beginning of tw thirteen that didn't involve any kind of loss of any tangible benefit to him in fact at one time previously he had complained that was something he didn't want to do but it didn't involve any pay  demotion or any kind of effect on his benefits anything tangible so all of the claims that were left in the case required adverse employment action and there was none but if if she was a final policy maker then would like a jury have to figure out if there was an adverse employment action or is that mere purely a question of law i think it's a separate requirement that there be an adverse employment action doesn't matter if there's she has the status of policy maker or not but i don't think she did  and i think that's evident from the ordinance and the ordinance seems relatively clear the county made the final decisions and miss nor probably was not the policy maker at least from my my read but i guess if the outage showed that the board was always approving everything ms north recommended could we conclude that the board was converting her by customer delegation into a final policy maker no because i think there would have to be some kind of longstanding custom in policy with respect to mr levy is a legit complaints of age discrimination and there was no track record of that and i think it was conceded by mr levy in the district court that there was no ratification there was no custom in policy there was only this issue of whether or not nor was the final policy maker and that's also what the appellate brief the opening brief recognizes as the the primary issue along with the adverse employment action those are the two issues that mr levy raised on appeal those are the issues that we we need to address so with respect to those the policymaker status the ordinance is what the court has to look at its based on state law determines whether or not an individual is a policymaker and i think that the case of delia versus city of rio auto is on ability to make decisions and do the do work but it wasn't policymaking so in the supreme court you know as recognized in st  it's you have to determine who the final policy maker is by who makes the policy and the fact that she was able to conduct investigations or do other work and had authority over certain employees or to make recommendations to the board to propose options did not convert her into a policy maker for first amendment retaliation purposes are there any other questions i don't have you know thank you very much and you very much my comments brief your to the court starting at the end with this this vote that the board took on the recommendation to approve the lever cassady with more investigation bear in mind your honour's that this was done after according to chairman v h this nor retain the firm agreed to pay the firm came to the board in the board vote as even as judge whaley noted in his decision was three to t my client's ability to pay to prosecute those individual claims it's important because it shows that there is there is a factual dispute there was a factual dispute for judge whaley to to look at in terms of giving mr levy the benefit of the doubt or at least looking at the evidence in the light more favorably to the plaintiff than on the party than the county this idea that if i may  investigation did not name mr levy personally it there's one thousand references in the in the report to undersheriff levy i think we have your argument well in hand thank you very much the case of robert levy versus county of alpine is submitted the last case on our docket sylvia buchanan versus city of san jose has been submitted on the briefs so that