was no causal link between the speech involved here and the retaliatory actions and we also believe that i want to thank this panel is wonderful to be in this city and a great courtroom in this panel is noonan was an extreme example of how retaliation can take the form from anonymous sources where you don't even know who's doing it but there was a campaign for nine or ten months after someone witness time card fraud and other things going on in his unit and he was retaliated against and there was no pinpointing who did what to him he you know think the retaliation to him was a man amiss you might say and he was forced out of the department he couldn't handle it well you know we have the advantage of writing being involved in other interesting cases and what not and i appreciate that appreciate your general assessment but i'm really concerned at the moment with why the district court here made an error of law that would require a reversal well i think there's basically three reasons so you know if the time period here is significant right yes so there were some key events that happened right after the initial sort of disclosures or whatever the raising the issue about time card fraud yes but ok speech and so there were some some pretty clear cut what looked like adverse actions right right afterwards right afterward but no thoughts you just filed a lawsuit was filed i know you've got problems with the statue of limitations on those discrete acts and so now you're down outside you know when you get to that if you look within the two year statute limitations period and when you get there you know you're lose the benefit of the temporal proximity he doesn't there's no white there's no clear line drawing but you know it's you're on the way on the outer end two years out so we're really what you've got to show one is either that there was some overt part of that your honor and one of the positions you were involved in m l d talked about the importance of circumstantial evidence yashin summary judgment and here the air of the city and i think an area that they'd like you to fall into is to think that the speech here all happened in two thousand and seven what our man said was that he was speaking about this to anyone that would listen inside a department outside a department he didn't say it ended in two thousand and seven and there's evidence it was still going on in two thousand park there was nothing i couldn't see anything in the record that showed what was going on within the department of the city attorney's office or the d a s office or what were guarding any in ongoing investigation of the regional allegations of time for them there is evidence and in the newspaper accounts around or about how he was charged criminally in two thousand and nine and the charges against him were dismissed ok i didn't this that are in the record it appears were they were not named as though they were they involved at all in that investigation were they called in and you know interrogated and we don't have evidence of that and that evidence is not in the record your honor i just know that our allegation and part from the deposition of mister hernandez which is then thrown into the record by the city is twenty or thirty pages of his deposition where he says th white there was a whitewash investigation of the rotty because he wasn't even interviewed not once and everyone in the department knew of him as someone who was pointed out as someone talking about sorority and having a problem with alcan tar there was a standing joke he testified to people walk up to him and say hi lou i want to say here hand because he had told the captain he didn't want to shake his hand or acknowledge him in the morning so for years thereafter he was  the snitch in a department that supposedly had guys that roddy who was a popular guy because he was giving out benefits to anyone that wanted them so let me ask you so you point to i guess they applied for both of them play for positions in the gang unit yes and then in the family violence of the domestic violence unit yes and neither one of them going with the they went through that process neither one of them made it right they were the family i think the family the domestic violence unit applications came later and shortly later but you claim that that those were any of the decision makers on those panels at all involved in in the time card fraud situation well then what were they connected to you know other people they were connected because they were  retired just before the application into the gang units he spoke of the retirement in very glowing terms about his friend and one other thing in the record your honor that the city put in is in the department ok and one of the important things about this is the city of la city of san jose like most police departments is very hierarchical as you mentioned i think in dalia police departments are her record they don't like  and here's a good thing going for the top people in the department the people that got this thing going were so ready then and were but then the people that did the final action two thousand and ten where their friends part department and those that work for the people they see we were working for the people the people the higher echelon were keeping a good thing going and one thing i wanted to point out is that there is a pattern of this in police departments around the country judge noonan and his panel of the ninth circuit to just an ocean notice of the christopher commission report because and one whole chapter there was on the code of silence where you're not supposed to or say something negative about one of your officers the problem mr hernandez had was that he had taken a real whistle blower and directed her to work him up he never even went to work and to get this thing started work among comes in and uses the f word saying what the fuck to have against my friend is a ravi now that is basically criticizing him for talking to someone when all he really said was go to work or he's or he's in a chain image of him and he's a red guy the leader there's another direct order not to talk to anyone and this is very close in time to all these adverse actions in january two thousand and ten el al can tired to hold him do not talk to anyone under any circumstances about as a body indicating to me that he had heard some recent rumors because the indictment of the right before his time for fraud wasn't over and done with it started in two thousand and eight two thousand and nine as we're all aware there was a big financial crisis in this country still going on in two thousand and ten and the city of san jose was hit a lot of pressure to be economic or not have wasted everything they wanted to not have allegations floating around of waste and mismanagement and the newspaper articles that are in the record that are test yes your honor and one of the three ways where these hiring decisions that were made and i guess twenty twenty twenty ten twenty eight in july august and there's the other things happen in november tell me where how they're scruffy the factual dispute that the district court over looked well you're on the way of proving that there's a motivating factor relating  it started there but there's no evidence in the record saying it stop he was talking to everyone he could and according to cindy calderon she was too she listed twenty people she spoke to i guess i mean i guess you could run inference from that statement that that there was he would  what's what is the what is the competing evidence the competing evidence they say oh they flunked the oral exams and our competing evidence is these all of them for to completely subjective and there was their blindsiding people with exam questions on the gang on a day when he had told them i can show up as it turned out he was able to show up he was able to take it but they also put him first and according to him and his declaration you're going first is a big disadvantage because then they can set your bar and if they don't want it they just make everybody retires like in the olympics it's not good to go first you want to be last you can see how good everybody else did and the judges are afraid of this one so much too high because they want to give range for someone to do better so the order of examinations i respectfully disagree with my counsel's recitation of many of the facts many of the issues that he highlighted are just plainly not not in the record for for example evidence about the lax time example there needs to be a causal connection between the his his protected speech and the adverse employment reaction it's there's no evidence in this you could there's evidence from which you could draw an inference  decision maker there's no evidence that spicer who was the lieutenant charge of of the gang unit had any knowledge of any speech that mr hernandez participated in or that miss calderon was friends with m only part of mr spices deposition that is in the record is that he places the order of interviews for the units in based on seniority and then when he asked him what that deposition whether or not he had any conversations with that i think was not the attorney at the trial court level and i did not review all of all of that because it was over this work in the in the summary judgment proceeding not the entire deposition was not law was not placed in the district court record correct only excerpts fact that a criminal complaint was filed against the yes and that it was dismissed right fine but i just the fact that he was a complaint was charged filed right there must have been something going on in the department about time card fraud is now related to the not they right i agree right yes and it looks like you can draw a reasonable inference from can tar confronting hernandez in january ten that there was still ongoing discussion or concern or you know a level of tom a topic that was upsetting people in the department you call it gossip yes now there was something was going were the ones that evidence wouldn't come in to support a claim the telly or the tory conduct afterwards it was all part of one big picture even though you c see an actual injury prior to the time that you know two years before this complaint was filed i would agree that our statement would be is relevant or a court can consider that i don't think that the that what happened in two thousand and seven with work can the cases that usually allow you to look at the context usually do so you know those are more in some cases but even in those cases it you know what you know what's going on with you all and then when officer hernandez talks to him about his complaints about sorority worker that evidence is clear that we're commit makes no reaction to that and we're talking because you're supposed to be the acknowledges he doesn't know one way or the other for km ever spoke to anybody about what hernandez reported to him and we're committed not express any opposition to what what we reported to  him there's no evidence ever spoke to any of the decision makers for either of the applications either of them made to either of the specialized units  you know there's no indication there's no evidence the record that that the fact that they they did not get on the gang unit is that it's a pretty pretextual one the evidence that they present it is not admissible evidence in this court is only allowed to look at it miscible evidence when when determining whether or not entirely clear that's not entirely correct how's really going to summary judgment you know you're not really you're not you're not technically bound by the rules of evidence completely there is a little more leeway at some of the summary judgment stage and when you're a trial well into the federal rules of civil procedure  know section fifty six see indicate that that there is a little more flexibility at summary judgment i understand i understand what you're party favor of of course and like and there's no you know credibility is out the door you don't consider credibility or anything of course just look you look to see what what the evidence is that the competing evidence and you ask you know is there a material fact there that could be outcome determinative i agree and if there is then you just record has no business granting summary judgment i agree however there's no evidence whatsoever that any of prince's speech played any role there's no causal connection that his any of his protected speech played a role in any of the no one can say you know look at you look at what al  twenty ten which i think he's an intern and it would be entitled to a reasonable inference that there was concern about time card fraud in the department right that's not an unreasonable workers comp lee for it so he didn't need to take any time i don't think that rises to the level of any kind of adverse job action with respect to miss calderon she was accepted into the family violence unit so later th yes six months later but there you get no edition and pay for being on so there's no lost wages associated with with that it's just it was delayed she turned it down and thing about her uniform yeah i think yes and that's another issue that that does not rise to the level of any kind of adverse action this was the tenet grady saw her she was supposed to wear her battle dress uniform her beauty you she didn't he said you can either get another assignment or you can go home she decided not to just have another simon for that day she decided to go home it's unclear whether or not she even had one that she could fit into because she had to go buy a new one but she went home she didn't go home and bring it and come back to work that day she just stayed home the rest of the day once again that you know i mean let me ask you this is there any evidence in the record that if you participate in one of these units like a gang unit or this domestic violence unit that that's a favorable item that you know on your resume within the department so that you can move into a higher position i think working specialized they put in testimony that it is she suffered as a result of her says susan with her support of her new york's about right and however there's no evidence in the record once again that any decision maker anybody knew that they were friends or that they're any of the action was based on her association with him her it's just based only on her speculation that she could not think of any other reason why it would be that would be the  thank you ana i'm very little time so i have two sides i'd like to bring your attention the declaration of mad l fandor is ed pages to a four to a five and he puts a lie to their statement that he's oral exams that spies are set up were objective in any way he asked lieutenant speiser because he was so surprised that his ex on officers were not getting in and lieutenant spicer told me that there's not anything either one of them could do to get into one forty four and one thousand nine hundred in either one of those words or direct evidence of a conversation by somebody that had been complained to it was all circumstantial bad things happened after the