honorable court is not whether schieffer and will ultimately prevail before a reasonable jury but whether reasonable jury resolve incredibility factual and inference issues and robinson's favor could side with him as this court noted in read expiration date of the contract you know the town had basically just operated on to past practices that if you continued to be employed even though the contract hadn't officially been renewed and signed by the parties that you would be continuing to be employed until they decide to terminate and they didn't terminate them when they've decided not to renegotiate his contract they didn't terminate him at that point they just weren't going to remain they decided in june i believe of two thousand and fourteen shortly after robinson referencing his thirty five years of service and saying that suggesting that he retire or risk damage to his reputation that they did follow through on mr robinson was replaced an individual possibly a decade younger than he who had lesser qualified yet paid seventeen thousand dollars more than he and then there's also you know all of the other items listed in that page i think or tell me what they are before your reputation is harmed is yes it is your honor but they harmed his reputation without cause without basis and they threatened him and i think in the case of a in that case i believe the person was questioned about retiring retiring three times in seven months what i was going to say next year on it was that in the insta matter the parties dispute nearly all of the material facts at issue most of which are common to all of the plaintiff claims issues surrounding the plaintiff's performance issues surrounding the terms and conditions of  employment issues surrounding patent employment issues surrounding what the ethics disclosures and in the subsequent agreement entered into between the town and chief robinson regarding how things should be may please the court john davis on behalf of the defendants upon their receipt of a thirty five page report from an independent investigator the board of that found mr robinson in violation of i think four different  to come in to a show cause hearing to explain why his position he should not be eliminated from his position about ten days later chief robinson tenders his resignation he put it in writing and he said that he wanted he didn't want to resign he said he wanted to retire so that he could spend more time with his wife his family his children his grandchildren the board of selectmen accepted that resignation they did not go forward with any further proceedings with respect and discipline they paid chief robinson about eighty six thousand unless unless they they found in violation of some crimes so the we maintain that the undisputed facts show that he was not discriminated against because of his age and he was not retaliated against for engaging in protective activity let me show he maintained that he was constructively discharged and the court said that there was not sufficient evidence to support a construct of destruction he failed to show that the town had did not treat him aged neutrally or in other words that they that it was  determining factor in their disciplinary process based upon the the results of the investigation and that the town had shown demonstrated that their decision was based upon legitimate nondiscriminatory reasons the constructive discharge i think you're on is key the plaintiff maintains here that he had no choice that upon his receipt of that show cause letter inviting him to come in for a hearing his choices were either resign or be fired but he was not he was not between such a rock and a hard place as he would suggest he had a choice he had an opportunity he could have come in and contested the allegations could have contested the report's findings and he was he was invited to do so and as you as you know for cause hearing can result in a number of different outcomes he could have been exonerated he could have been reprimanded he could have been suggested to get further training with respect to state ethics he might have been suspended he might have been demoted but instead he jumps to the conclusion that i'm going to be terminated and therefore i have to question they did lost in the judge but judge gordon cited the g t e products case which says he is a reasonable employee in that situation you're protections he was st of all provided with a full and complete copy of the report he could bring an attorney to the hearing he could call witnesses he could present evidence he could cross examine any witnesses who might testify on behalf of the town and then in the event of the outcome was unfavorable to him he still had a right of appeal under state law by an action in the nature of to the superior court he can't have it both ways he claims in his paper as he claims in this case that the report was a sham raised issues of gender discrimination against his niece back in april of two thousand and fourteen he was at that time he was already under investigation they had already reported based upon a meeting that they held because of his interference with  with shauna because of his interference with his brother they they had already reported him to the state ethics and the town was awaiting some sort of investigation to be conducted by state ethics they said in in june of two thousand and fourteen we're not in a position to retirement and stead of going through this process because it may get ugly for you though that's what they rely upon for the age discrimination that the state ethics did it still did not complete their investigation and it wasn't until the fall i think it was november of two thousand and fourteen that the t important in these cases proximity of time certainly with respect to shawn and he didn't he wasn't subjected to a disciplinary process until eleven months after he had complained about china so so that that doesn't that doesn't get him an inf it doesn't get him a proximity instruction if this case we were to go to the jury with respect to the age discrimination complaint on his own behalf that was made right in the heat of the investigation while the investigation ongoing and the h e i hospital case says you're not entitled to derail something that's in the works just just because you have come forward with a complaint of age discrimination the employer is still entitled to go forward with what they was they were already contemplating which was let's look into this let's look into these alleged violations and then if necessary proceed accordingly and that's what they were doing and so when he then when they get the report the following month that's when they they  they decide we have to go forward and and have a hearing and he was placed on paid administrative leave and then he quit so that's that's the set of circumstances we maintain that he can't maintain an age discrimination case because he hasn't got the facts to support that and judge gordon agree each he's not a constructive discharge and he can't maintain he can't show that there's a causal relationship between his protected activity ok if we give him credit for saying yeah you came forward you complain about you complain for you complain about south but there's not a causal relationship between your protected activity and what you maintain is an adverse employment action and that's even assuming if the constructive just charge could be an adverse employment action which it is not so we maintain the both with respect to the grounds in terms of the fact that they would have to show malice for both of those types of claims and could not show malice and did not have sufficient facts to support an inference of malice and finally with respect to the breach of contract the terms  and the rationale you're honest we maintain that the decision should be affirmed thank you very much the circumstances of everything that had transpired in the twelve months thirteen months prior to his resignation particularly those that escalated in the few months prior to his resignation or retirement due to intolerable working conditions and or that he'd left due to take or leave it proposition had he not retired the payout that opposing counsel reference would have been in jeopardy his pension would have and was diminished because he would have worked and could have worked for another five years potentially in addition i believe the court as all whined in our