summary judgment in the issue is whether based on the record it would be inconceivable for any jury to ever find in favor of the talent the first question just just some get some things eithe way i was surprised in looking at this that the division manager mr carville's division manager mr dan brooke how come he wasn't the post he was deposed because i had incriminating e mails and i didn't think it was necessary now the problem with the emails is that they're claiming that those e mails some of the incriminating e mails the ones that were most incriminating were fabricated will never be a great thing to do is the posing as to why he dan brooke somehow believe that they weren't fabricated or they were fabricated excuse me and why you believe they were not well let me say this that up first of all mr covell certainly denies that understand advocated and mr carville isn't some kind of computer whiz he's just a regular guy and i think that claim is completely unbelievable and i don't think that the yes and they were simply genuine right the district court didn't say that there are not going to consider them because they're phony and it's not that i don't put a lot of weight behind them but i wanted to back up and say that back to praagh he did submit an e mail that nobody is claiming is false that said almost exactly the same thing as the one that they're claiming th there's one cent on ten twenty nine in there is one cent on ten nineteen the one in ten twenty nine i would want to delete message yeah that's the one they're claiming is false the one ten twenty nine that that he was required as a condition for employment or continuation of employment to take a polygraph test or the best evidence is the testimony at a polygraph things would have turned out differently mr cobble testifies on the i want taken a polygraph that view was that he would have cleared himself that's everyone was was really hoping that with the conversation that i told him i was leaving he told me and there's a lot of details here he sat across my spot of the desk and he got kind of trucked up and he said and you know and i said if i would have taken the polygraph would cleared by that he would have been cleared and the whole thing would have been cleared up and he wouldn't have been the one who was guilty of this offense well the of the yes amber believes he would have because i don't think believes he was guilty actually i'm not sure anyone part really thinks he took the money they just well that the difficulty of from a factual standpoint is that after he was put on suspended he was you know suspended the problem but away well a number of people were fired at the same time the top of that if you're the one taken the money and they blamed this guy you think well i am in the clear i got away with so i don't think that lemonades the jury deciding whether but that the flying the women here is that the theory route manager i think is named dan gregory also refused to take the polygraph a polygraph test and he was not terminated well that was after mr understood but still he refused to take a polygraph test and he wasn't terminated and he only left something some years later when he got another job well that's because they changed policy isn't in my brief but i think it's very important and i don't change the policy i thought that in this case you have an october twenty sixth memo from the general counsel saying be careful no what the policy is the policy is that we do not force people to take polygraph to us well change the issue isn't pressure to take a polygraph the issue is was he very required as a condition rather that's the jury's issue his continued employment exactly and why if we make sure he never took it wasn't required was it well required if you don't take it you get fired well ok you're saying that he was fired for not taking exactly that's a that's a that's that is the issue  he was fired because once i mean because he changed the policy people weren't depositing their own money he was and then when that stopped and he was no longer there the problem went away i mean that's a little bit of a two plus two is why they needed to to clean house to because i mean circumstantially well the presidential case that talks about the polygraph is that pur case and that case states that if there's if there's a legitimate reason to fire someone but it could be because they didn't take a polygraph then it's a jury question referring to perks my doctor half the page but that statement is when the fact finder can infer one conclusion which while it's a public policy and one which is plausible and he was told to do that and there's other e mails in the record where they said he was beings one of the people up in the home office and he's been scapegoated so we're we're not claiming that he did price and one of them was a significant gift distance away and on top of that at this point he didn't trust so he was forced out and he was immediately suspended when he didn't go to the polygraph that happened immediately it wasn't after weekend cell in addition we have that e mail where they're telling him not to tell the other people he didn't take a polygraph because we're trying to get these polygraphs set up i mean all they had to do is say you know dave don't worry about the polygraph period but all it is is pressure pressure pressure take the polygraph we want you to take the polygraph the polygraph will clear a name and then one of these messages which they wanted to be deleted said his job could depend on taking the knowledge this is for the jury to decide on him let me go back to one of the judgment of questions which it which is troubling the in this case you are allowed to suggest as an employer i think you ought to take the polygraph that's not a violation of the law is that it's when you require somebody to tell the polygraph of course the case is going to be all circumstantial evidence if i if the supervisor says gee dave i think you ought to take the polygraph and then they says i don't think i'm going to take the polygraph and then one day later he's fired that's circumstantial evidence that they've anticipated expected and required him to take the polygraph you can't just change the fact that they fired him right after it into a polygraph that's very important over what they're what they're in effect saying is my guess ok your point is it's they're saying that they fired him because they weren't he was the one in charge the buck stopped with him fifty thousand was missing plus other property and you're saying ok they have to prove that  good afternoon i'm the liberty wyatt and i represent holmes ervice link this case comes down to it's about an employee you he was trying to use the answer polygraph statute as a shield well but isn't it also about what what  ences you draw from certain people statements i mean the statement that gee you should have taken the polygraph looking at it from one standpoint says well because it would have cleared you looking at it and the other side it could be because if you're just not going to cooperate you know we're just not going to watch a here any more this is for a jury is for a judge to yeah that's i don't i don't think so because i think the statute requires  statute says that it requires as a condition of employment and here this is an afterthought statement first of all it's something that said after the fact that it's already but what definitively makes it not an issue of material fact as to whether he was terminated because he didn't take a polygraph or he was merely it was merely suggested to him that he should take the polygraph well that's a question of fact and i don't think the district court in weighing in on that can if that's correct you're right if that's the case but i don't know if it is and that's not for a court on summary judgment to resolve that's certainly not for us to resolve and it would seem that that's a jury question i mean his point is the fix was in i was going to be terminated if i didn't take the polygraph test and pass it and you're saying nope that's not the case to the at will firing in pennsylvania and the cases even if he took the polygraph test and even if he he failed the polygraph test the employer still has a right to fire an employee who it feels violated its own policies and gives to misbehave if he took a polygraph test and felt that that's that's probably fairly easy but how do you distinguish the percs case from mark were way back when and seventy nine i mean there were some a judgement where there was evidence that the employee was fired for refusing to take a polygraph test but he's put in some evidence he's also pointed to some e mails although you're claiming that some of them were were were made up company even if there was a employee was found to have taken the polygraph test or refused to take it as long as the the employer fires the employee for mismanagement misconduct fired what do we have to show that while we have all of the affidavits from all of the supervisors employees that say that that's the reason pawel did not oppose the main two or three people in the case that he should have to post all we have is his statement saying that he thinks that he was fired because we got e mails i agree to some of what you say were made up but he's got several e mails and he's got early december conversations or with  to why this is being resolved at summary judgment while the issue still becomes to the issue of whether he was required these type of urgings are these conversations that they may have had were all mostly instigated by cabell himself he would go to them and he would say you not only consider that they were vehemently denied by the company so and offered by the plaintiff mr caudle in the lower court and the jury could also consider the fact that they're deciding credibility and i also wonder why are opined why there would be this v m s in terms of a denial that they even exist and take that consideration as motive well when th in part but we hired an expert to go back and they went through all of sean's computer back and read disregard what the experts say and particularly if they hear how much the expert was paid correct well yes but a couple doesn't have anything to refute it part of the problem in this case of authenticity is it's going to be his his burden to prove authenticity ok and in his deposition transcript he testifies that he had the e mails he saved them on his computer at once then he took them from the saved folder and he forwarded them to i think it's a yahoo account i understand your argument but my question still is is that something that the jury has to decide whether they accept him as being believable or not possibly but even if he's believable there are still overwhelming evidence even if he was forced to take that polygraph test even if he failed and even if shawn's fired him because he failed the polygraph test the evidence is overwhelming that this particular employee engaged in serious a jury i don't think so because karl doesn't have anything to refute that he admits that all of these things were true he admits that he had the cash in his hand there's no dispute there he had mets that he took the bank bags to the bank there's no dispute there he admits that the there was fifty thousand dollars missing under his denies that he was responsible for the fifty thousand dollars he denies that yes i mean i thought you said earlier in that at the beginning of your argument that the question of whether the e mails were or were not fabricated is irrelevant for your purposes of determining that he was fired and now you're saying later on that you had the only evidence with a forensic expert that they were fabricated and therefore that must be accepted as a fact well that was in his question it's irrelevant  today whether they were fabricated or not the district court assumed that the emails were true and the district court even typed out the e mails in the text of its order and so even if we assume all of these things are true it still does not reach that threshold level of having to require an employee as a condition of continued employment to take a polygraph test would be the evidence to indicate that there was a requirement short of the info you're saying yes we we did we required well c himself testifies that no one ever said that to him he says that you know all he has are the statements from her allegedly because remember there's no testimony in her shoes deposition he wasn't asked about that in this deposition and that as an after a fact th employee said well things might have been different had he taken the time well the interesting thing is when when he says that that helped me well i believe it would have helped now but that he must mean if you had is was not fabricated were reportedly wrote to dan brooke gary that dan brooke you need to speak with dave about taking the polygraph he crushed you and it was issue could depend on it right now with refusing it makes him look guilty really message what we did if that if that's a if that's not a fake that's pretty darned damning well we don't really know what ga to rome at in that e mail because she wasn't insinuates that she wanted the message destroyed what reason that i would assume she didn't want other people to see it but i don't know that and there's no fact in the record to substantiate any of that because george  i wasn't oppose but again the district court in reviewing that e mail and looking at it specifically said that the that the type of e mail was an urgent it wasn't something that prove that sean's required pawel to sit for the polygraph test as a condition of did you  sure you would necessarily want to depose her because you know that she's going to give some other reason and you have you know again assuming this is a legitimate email you you you have in front of you  said you know delete message she would have been able to explain if she in fact had written it what her intent was i mean for the for the purposes of motion for summary judgment cabell has to have concrete evidence he can have his own conclusions as to what the evidence means he you know he has to have more than that and all he has here is his own deposition statements which ourselves that is not their position statements he's got these purported e mails and he's got the  taking of the polygraph was a concluded before then i believe the timeline was shawn started its own investigation internally because of the banking procedures the banking records and corporate headquarters show that there were lay in missing deposits and the documents were jiving with what was actually deposited in the bank they started their own investigation which started at headquarters in marshall minnesota georgia terrelle is headquartered there she came to the other i'm talking timing and when when was the investigation when was he put on administrative leave the investigation was still pending at that time at cabela's direction three employees had been fired during the term the pendency of that investigation and the theft still hadn't stopped so you know at a certain point in time when georgia goes in and she actually starts to go through the bank records herself and she adds up all the facts that mr cabell had out of it i'm talking about timing when did she added up enough facts in relation to when the polygraph was because he was fired five days after not taking the they was all in the round and pocket of time i mean she she was here for i think about a six week period and when she came it was also reported to that the pennsylvania state police it was during their own independent and they were the ones that request of the polygraph it wasn't something that she wants instigated on its own had they had the police never been involved had the police never asked for the polygraph test you know the testimony in the affidavits is that she wanted would have fired