on the bench with us as today and tomorrow we very much appreciate your service to the circuit court of appeals starts running from this whole amount of minutes if you allocate twenty minutes or ten minutes or so if you don't want to be disappointed and if you do want to have time for or a bottle you're just simply going to have to i don't know his counsel here yeah all right well court has no questions so you may take that into consideration in deciding whether you wish to make a short statement good morning your honor james bond raybold for mr gonzales i would first like to start this argument with a little background and that is about the setting and the sort of involvement of the of the parties and that is the setting in this case is elko nevada at the nevada utah training center a detention facility or school i think it's called most of the time for wayward young m gonzales was hired there in one thousand nine hundred eight in the summer time and he was hired to work as one of the caretakers for the wards it's kind of like a juvenile prison system except it's in an open area now that's the setting the well law that i would like to refer to in this case there's two cases that were recently decided by this court one was  anderson said no and gonzales volunteered to write mine then on this number first he met with anderson and  entirety of the record with respect to what he said to those individuals so my question is assuming that he said exactly what he said he said i totality of circumstances i'm looking at the statements that he made to the people who made the recommendation in the decision to terminate him well and that's my point your honor if you look at what was discussed this was not discussed in a vacuum it wasn't after he had read the policy manual and said you have no policy this was in in a situation where over a period of time they noticed that gonzales appeared to be soft on the kids and he had a problem with use of force in the facility well the problem is you have to tie it to the people who made the decision to terminate him and we know i know and i appreciate the fact that you say use to force policy because your people don't have any we really didn't say that there's no evidence that he said that i repeated precisely what he said he said anderson when he first arrived and  day in and day out with the same kids and if you look at the facts here the temporal proximity the problems with joe involved didn't start immediately in the first after the first conversation where he said you have a problem with again the same sort of language where it was all it needs to forget about changing the program and go by that's the way that we've always done it we've had problems in the past and we've handled them so that you specifically what happened in the february evaluation was that and it's in it's in their brief on page sixty it's quoted you want to make changes in our established procedures and you were told that you needed to learn our procedures as they have served the program well for many years he has a meeting with them and tells them you don't have a use of force policy nothing happened and was told they have a policy well he was told they had a policy but basically the argument was your quality doesn't say anything that you cannot use anything except reasonable force so he's a former police officer a former chief of police he takes he goes back to them or he goes to them and says this is the way i used to force policy is i've gone  i can write it it tells you what force you can use how you report it how you track it so that these things don't happen again that's a kind of use of force policy that he's speaking of to these people that's in september a growing that up he goes back in december and he brings it up again well that was where things started to change for him at it from that point he went from a good employee to a lousy employee and what they talk about what they tell him when he brings it up  second meeting they call him a liar a liar and that cuts off the conversation from that point and from that point on they speak in their criticism of this man that he is being too soft on these juveniles what's that related to he's being too soft because use of force as he's seen it used there is inappropriate so what happens in the in later under this is in their great front page sits there shocking about his refusal to follow procedures there a procedure that the influence is that our procedures that when these kids get out of line we slap them in the face for we here on earth and that's the rest of our case is that was his sort of thing that was done by other people there's nothing there's no evidence that that wasn't case after the second meeting and after it was seen that he didn't want to he didn't approve of the use of force then he started getting written up for things like that very there's very few and but if we look at the nature of these alleged violations or these alleged poor performance on his part and then we look at that that none of these are very serious none of them are serious at all there is no it cuts against them as well as against us but we do have some clear evidence your honor in the clear evidence is that this issue was it was part of their motivating factor it was a motivating factor and again they're talking about risking security on there talking about it's not following procedure and then risking security wall and i brought this up earlier that the setting is out in a rural area where you've got kid it's they're not they're not locked up they're not really it's not a real true maximum security for bad boys it's kids sort of maybe you know serious enough that they get sent away but this is this is the year two thousand are almost the turn of the century and what do they tell jail you're not following our procedure you're trying to change things here what we've no one the one thing he's tried to change and that's the only thing in the record that he's tried to change is their use of force so our position your honor as it is clear there's a very strong inference when you look at all of the facts here it's something that only a jury can do and make a decision because juries have facie evidence of temporal proximity or whether he has a duty to to present affirmative evidence to rebut or to to overcome the evidence that was put in the record by the defendant recognize that the record is not the same kind of background mr gonzales came to work at july twenty seventh thank you ninety eight on water two three days after his first employment is when he had the first conversation with mr anderson so that would have made it court th last part thirtieth of july or so and at that time he said you know i have some prior lawford lots of experience which by the way are and you know a regular law enforcement policeman and he had several jobs that do not last very long over a short period time the point being that the types and uses of force that are played on the street are not the same types of force that's employed in a juvenile correctional setting centrally they don't use force they take all means necessary not to actually apply any force at all and so his expertise in normal policing activities is got the other one was in the record there's two of them he read them to mr gonzales at that time and said you know what we want you to do is we want you to learn our policies we want you to learn this is the third day on the job we want you to learn the job after you learn what's going on here and how to work in the juvenile correctional facilities if you have something to offer come to us we'll listen to you he got a first what we call a three month evaluation in the this man is on probation for one year believe so then you've got the month of our august and a couple of weeks into september he got to meet the standard or whatever it was a normal a valuation his next evaluation didn't occur until february and that's the one where he said need needs to correct the deficiencies there's evidence in the record excerpts the record beginning somewhere around document number one thirty five and there's a list all the correctly you mention the incident with the haircut there was there's a list of things it's it goes on for pages and pages first part of december they have another meeting and at this time it's with mr warmoth and mr anderson and again once again use of force policies are discussed later in the month he's presented with a memo that says you know we've warned you x number of times since september about these things and we were concerned about it we'd like to help  you learn the system we want you to succeed you know let's let's get it on here that goes on he has another episode that he's written up he gets a written reprimand for in january i thin and factual things about mr gonzales one of the things they noted was that there's no direct evidence that the defendants retaliated against him at all which doesn't mean that he can't make a case to prove his case but he has to do it with circumstantial evidence the the court has to these two we argue that there was only one conversation about use of force policy but the court assume that there were  can no more i think you are than you could draw the inference if you're the one who gets the speeding ticket and everybody around you speeding i mean yeah what if they were doing it wrong he happened to get caught and my argument is that they weren't doing it wrong th  him knowing that he was his performance was poor and that none of this is in the record your honor but i mean there's a lot of inference is that can be drawn but the only logical inference that the district court found could be drawn from this after considering the totality  evidence and the surrounding circumstances the only logical inference is that he was terminated for poor job performance and he really hasn't put in any evidence other than his prime that they should argument about that took the temporal proximity which by the way one of these conversations was five and a half months and one of them was ten minutes away and so that any inference that is created by that is attenuated by a long length of time does alter says that you can't you can't use a mirror timing in the temple proximity alone you can't you can't analyze that in a vacuum so that if the circumstances were such that there was a long period of time and with the circumstances warranted you could try and that alternatively if there's only under the third element whether the defendants would have fired him regardless of what happened or step two i would submit that all that defendants in this case the police in this case would meet the test under element three as well adverse employment action is intended to be retaliatory is a question of fact that must be decided in light of the timing and surrounding circumstances in some cases the totality of the facts may form such a clear picture that district court would be justified in granting summary judgment either for or against the plaintiff on the issue of retaliatory motive but the length of time considered without regard to its factual setting is not enough i would say guessed where that's where all the facts submitted on both  ok i don't think we have any other questions thank you we would ask the court to apply what i'm everything her to is because of alter chest and that is temporal proximity was their temporal proximity and it's clear on the facts that we have that there is temporal proximity because there are three pieces of evidence we can rely on first the first conversation about use of force policy secondly the distemper use of force policy immediately well very close there after we start having the employee becomes a problem employee after that and then in their evaluation their seven month evaluation they refer to he is wanting to change the program there so we've got this temporal proximity case here where he says well we touched on it that doesn't even incur imply that he criticized he offered my understanding my recollection your honor is that he again offered to give them the use of force policy clear message there is your use of force is inappropriate here you're not following a decent policy and then when they talk about it again they're talking there is supervisors  talking about him in their view where they're talking about him and his failure to place go along with their program the only thing that's come up is the use of force during the same period of time he is now and for that they have to know that there's a use of force and there's a use of force problem there i mean this f b i report didn't just come out of the fact you don't know that before they terminated what we don't know what they know you honor we don't we can't show that we cannot show that but we do have a situation where he's working with these people and has been seen and they mention it that he saw on the kids