if not you know again i think that the arguments that we set forth in the papers that sufficiently addresses the situation again i think that the the issue that we're dealing with here is a question of a summary judgment motion and that this very nation retaliation case by clients mr douglas was retaliated against that was found by the o c there is no question about that the he went through a ministry there hearing by himself without an attorney they found that he was retaliated against and it was based off of his filing for your fire the oakum planes and also racially race and racial discrimination the ones that we there were certainly yo claims that were decided that are not being lifted and certain other decision discriminatory acts that we are feeling so  his over the course of the thirty years that he was working there were many your claim that you file some of them are related to others some of them aren't and so he claims that well before the o c hearing over there you did not establish a prime aphasia case to show nexus between the earlier claims to the e e o c and the basis for his terminations which were violating the provisions of the the nation complained they said reinstate the whole thing and the u s postal service did reinstate the whole thing so there is no ambiguity from the postal service if there was they were reinstated the whole thing right so their argument that we there was ambiguity doesn't make any sense when in fact they acted just in the way they were presenting they didn't they didn't act in a way that was ambiguous and say well we're only going to reinstate the age claims here and say the whole thing and to the extent they're going to argue well it was ambiguous but we thought that that was the ruling well then if if if they thought they did what they thought which was to reinstate the whole thing for there is no ambiguity if if they reinstated the whole thing the question becomes on them then why didn't you appeal it if if you believe that only applies if the age claims appeal the whole thing why do you reinstate what you think it doesn't apply to that's that's the question so but the nd part of it is but for argument that had it not been for his earlier e e o c complaint he would never have been in this situation where he had to enter into a last chance agreement correct that is that is that that is the causation argument and that causation half of that but for audition is a question for a jury it's a fact based question there is no legal determination where you can determine vote for causation and that well that goes back to the voluntariness of entering into the last chance agreement it seems like both parties gave up something he gave up his earlier retaliation claims in order to get reinstated the postal service gave up it seems to me if the agency is cracked they gave up potential liability under is age discrimination claim because it didn't comply with the statute the judge callahan reference but that doesn't invalidate the entire last she answered remember that in just addresses the one claim that the postal service thought he was giving up but as a matter of law he did actually the over the last chance that you have was written was a release of all claims in exchange for getting his job so that was your argument is that and apparently the agenc rethinking was that if the age discrimination claim didn't comply with the cooling off period i'll use that term provided by the statute therefore he couldn't have legally waived his age discrimination claim that somehow contaminated the entire last chance agreement rendering all of the other releases and waivers on in force ok well and that's on the last chance agreement that was a separate harper says you don't get to pick and choose it if it reopens the entire case well again this isn't this isn't for there are two separate cases i mean this is there is one is there is a decision on the last chance of human and then there's an e o decision on whether or not there was discrimination without d looking counsel you're trying to do exactly what mr carver tried to do and that is to parse his claims and save the ones that he won at the administrative level d but then challenge the court's ruling at the district court level and we said and carver if you elect to bring your lawsuit you are in essence reopening for di all of the bases which would include both retaliation and age discrimination your honor i believe that the carver case was not is was not is not very similar to this case in that the carver case i think  was talking about was splitting up between a retaliation thing and also the the the damages so meaning that they wanted to split up one case of retaliation of the damages and then the other it just needs to be in the protected class which she was with over there and there needs to be a connection between the terminations decision and the the fact that he was old and so we see right here that there was the fact that that the a same agreement that they used to fire him that only have come about because they engage in age of stimulation by not by not giving him proper due process to sign this agreement but this very agreement that they use good afternoon your honors and may please the court i'm assisting united states attorney david thanks and i represent the postmaster general today i have two points that i need to make in response to mr douglas's reply brief and i never had a chance to do that until now the st point claims that i only raised the issue of his failure of proof as to camera cards knowledge of his  douglas relies on rock versus fairbank school district for the proposition that you can impute knowledge from a prior you know activity from what other managers typically know about these things but that is exactly what rod said you can't do the right in rod this court said that a plaintiff must point to evidence of actual knowledge not speculation or constructive knowledge and i hear douglas offers no evidence whatsoever that either kim ricard or marcus currie knew of his prior ego activity dunn just admitted that his only age claim his commission claim is that big the failure to put this language in the l c a is itself creates an inference of discrimination by age no court has ever ruled that and it's rather counterintuitive because the only party that is harmed by the the failure to include that language is the postal service mr douglas gets his job back and doesn't have to release all his claims of age discrimination every court that's looked at this has said that the the aged the o w b p a creates a shield for the plaintiff it doesn't create a sword and that is what he's trying to do and he he denies that he's trying to create a cause of action based on the failure to include that language but that's really what he's doing it's a distinction without a differen he's trying to make and that's why it's so i'm persuasive there are the regular stablish is that mr douglas was removed because of unacceptable behavior and constant violation of postal worlds he was given numerous opportunities to correct his behavior but he refused to do it he didn't learn from his prior discipline when he got letters of warning and it's just a paper it's paper suspensions and in november two thousand and fourteen he was given notice of removal but he was also given a nd chance he was given the l c a they didn't have to give that to him the postal service video mediately violated b l ca and they could have been fired at that point but they gave him a rd chance they gave him in january two thousand and fifteen his managers that he accuses of retaliating against him sat down with him and so  union representative and they tried to impress upon him how important it was for him to abide by the l c a he'd already violated the beethoven will will hold your violations in abeyance if you don't do it if you don't violate it anymore well unfortunately he said he was going to try to do better but he could see by waited a few weeks later again now i guess this question raises this case raises the question how many chances does an employer have to give an appointee who commits miss conduct violates the rules interferes with the employer's goals and disrupts the workplace how many chances does he get as this court said in the  case at some point an employer has to draw the line and that's that's what happened here  if i could go through a list of all the things that mr douglas has admitted but if you don't have any more questions for me i think i will admit on  me mr douglas says mister mr just said that there was no ambiguity we never raised ambiguity on his own be on we have it in the e e o c that's not true in fact mr douglas made mr mr douglas ok made that same kind of statement in his reply brief that we never claimed it was only the age discrimination and that it and that we never say we were confused and then m retracted that statement in his erratic the reason he retracted it is not true the reason what it's not true because the agency did whence they didn't reinstate intent to reinstate the whole claim so i guess at that point mr douglass would say it was too late but it's not true that we didn't raise that we were confused and this isn't a case like the gerard case where there was just a tiny issue that the e e o c had unlimited  this is a violation of the supreme court's ruling in obey and this court's ruling in the harming case  those two claims would be related to cover court specifically talks about one claim for damages and liability you can't split up damages in my ability but doesn't say you can't split up multiple claims and and the rule i found would be that for any time and this is specific to government agencies whenever an e o decision is made on a government agency that decision is final there is no court that has ever ever in the nicer anywhere came and said we can rightfully before including settlement agreements which settle your matters that's in forty two dollars u s c two thousand and sixteen so again these decisions have already been decided that the the agreement was void if it was determined that it was not entered into into signing this agreement in fact he was being of course now mr douglas was a great employee for thirty years and and and he was falsely accuse many times during his employment there of wrongdoing and all th they ganged up on him said he was threatening him there is no evidence that your theory that there is so many facts to disprove that and then when mr douglas proves that to be wrong what do they do they reinstate him not only they reinstate him but they get him back because they knew they were  but they do it in a way that violated the workers protection act they did it in a way to coerce they were only interested in getting him to drop his yokels d which is what which is what the they they that they retaliated against him to get him off were without pay and then offered him a carrot and said if you sign this we'll let you come back to work sign this meaning drop your view over again and mr mr think it's wrong to say that the only harmless are you yes by not having them have a attorney there because i was there for another term he was there and saw this clear retaliatory action and seeing that what they were trying to do with to get him to sign the documents and release all of his claims nobody would have ever allowed and he said it was there were it was a mistake he was under the rest to make it and and i don't right your time has expired thank you both for your arguments in this case this case will announce a dam submitted this session the court will be in recess until tomorrow at one o'clock