please the court martin buchanan appearing for lieutenant rich forsyth lieutenant steve holiday and lieutenant kevin shea i'd like to begin with what may seem like a really obvious point but it's an important one issue before the court today is not of course the ultimate issue of whether in fact the chief or tele retaliated against these three lieutenants for asserting their rights and filing their lawsuit under the f l s say this being a summary judgment motion the issue instead is reviewing the record in the light most favorable to the plaintiffs is there sufficient circumstantial evidence of retaliatory motive to support the plaintiff's claims and because of course it's difficult to prove a retaliatory motive with direct evidence and it's difficult to ascertain ascertain motives the courts have made clear it's a relatively low burden to demonstrate a tribal issue of fact on these issues in our briefing we've laid out seven categories of evidence that demonstrate a triable issue of fact on retaliation i'd like to begin with two related points the temporal proximity between a protected activity and the adverse employment action and the deviation from the from the employer standard business standard employment procedures so we have here an f l s a action that was filed in july two thousand and twelve it took a year for that action to be resolved so it's pending for an entire year there's no dispute that during that period of time the plaintiffs are engaged in protected activity by asserting that f l s a claim now during that one year time period as of course when the first promotion to captain occurs and the chief acknowledges he knows the only three applicants for that promotion who are internal applicants are these three lieutenants who happen to be involved in the f l s a action at that very time period and the chief for the very first time in the department's entire history decides he is going to open up that promotional opportunity to extra no applicants the chief acknowledges that in his thirty five years of employment with the police department this is never occurred before this is the first time the department  ever gone to extra no applicants interesting lee the city's own brief acknowledges how important the normal policy is of promoting from within the city at page fifteen of its brief quotes the chief's own declaration saying that the policy of promoting from within is quote vital for both the morale and growth of the department and also allowed for promotional opportunities to open up at the lower level so not only is this a longstanding employment practice but it's vital to the police department the chief acknowledges in his deposition testimony that the reason he made this change is because he had no intention of promoting any of these three lieutenants so he's making up this charade so that he can hire someone other than the three internal applicants so here we have the temporal proximity all of this is occurring while the plaintiffs are engaged in protected activity and we have this deviation from normal employment practices now this court in several cases has held that such a deviation from normal employment practices can raise a tr without giving first giving a part performance improvement plan also the bird gene case is perhaps closer to this one the employer there deviated from normal employment practices by opening up the promotional processes to non journeym similar to this case opening up to the promotional process to external applicants so those are two factors we have temporal proximity and deviation from normal employment practices i think those two honestly are enough right there but there's more the more is that the reasons that the chief gives in his declaration for why he did not promote any of these three lieutenants are in fact contradicted by other evidence in the record now as to all three he gives many many similar reasons they're not team players are not loyal they're not supportive of the organization so for lieutenant holiday the chief says in his declaration quote i do not believe that holiday is a team player well if you look at the one and only performance evaluation that the chief himself has ever done of lieutenant holiday which was back in two thousand and ten when the chief was a captain supervising holiday guess what he lists as one of lieutenant holidays strengths team player if you look at that same performance evaluation under interpersonal skills one one part of which is is a cooperative and participates as a team player the chief says lieutenant holiday exceeds expectations so again his declaration is directly contradicted by the one and only performance evaluation he ever did of this gentleman other performance evaluations for lieutenant holliday say things like he's the most loyal lieutenant we have not just to the profession but to the chief and me he's repeatedly rated as being a strong team player he's referred to as having unmatched loyalty in the department same with lieutenant forsyth and lieutenant say the chief says about lieutenant forsyth i do not believe he was a team player well if you look on the two thousand and eight evaluation that again the chief did of lieutenant forsyth he lists teamwork as one of lieutenant forsyth strengths so do other evaluations by other supervisors also saying he's supportive of the organization same with lieutenant shea the chief in his declaration says she was not a team player or support of the office of the chief of police you look at his evaluation and lo and behold he's repeatedly commended for being supportive of the organization other explanations that the chief gives in his declaration are also contradicted for example the chief says about lieutenant shea that he lacked attention to detail well guess what his performance evaluation for two thousand and ten says lieutenant shea is a stickler for details this is an area that he exceeds at his attention to detail is probably his strength in my opinion two thousand and eleven performance evaluation he looks at every detail the chief starkly aeration also says that lieutenant forsyth had a negative attitude and created strife in the management team well let's look at the performance evalu start take a step back and i will directly answer your question but for but for the retaliation because we contend the retaliation was when the chief opened up this process to extort all applicants and when you when you look before the rating process admits he had no intention of promoting any of these three people that was apparent to everyone at the time and whereas the other two kind of went along with the program and did their best in the rating examination lieutenant forsyth took a different approach and  he protested and he said this whole process is rigged it's unfair and of course the raiders say he has a negative attitude he keeps talking about the external applicants so if there had been no retaliation none of that would have happened have he would that he didn't bring a claim in court for opening up the process to outside applicants in and of itself right that wouldn't of been an adverse employment action would it in itself i mean it seems like he kind of shot himself in the foot with respect to that one part of the claim now that doesn't mean you couldn't have a two thousand and fourteen claim but i'm not sure how you can salvage a two thousand and thirteen claim i think because the retaliatory plan was already in fact when he quote unquote failed the raiders examination because he was responding to the retaliatory plan my position is yes he could have a client in two thousand and thirteen if the court disagrees then obviously he does have a claim in two thousand and fourteen going back to lieutenant  forsyth's evaluations again the chief says in his declaration one of the reasons he didn't promote lieutenant forsyth was negative attitude created strife in the management team well his two thousand and twelve performance evaluation says lieutenant forsyth has been great to work with and has been positive in meetings when a decision was made he fully supported all aspects of it in a positive manner going to two thousand and thirteen it says he's been nothing but accommodating and helpful to make the new captain feel at ease in his position this doesn't sound like someone who's creating strife in the management team we change the subject just briefly what what relief do your clients from us in the ultimate lawsuit suppose the lawsuits reinstated what relief do they figure i mean this is a this is so confounding case in the sense of i'm not sure what the police department's going to look like i mean i can't imagine it's real happy place now and i can't imagine it's going to get any happier if a lawsuit proceeds and gets resolved that doesn't mean the lawsuit doesn't have merit but it's kind of confounding to figure out how the dust settles at the end of the day how that's going to be good for anybody well i don't i don't know i mean as you say it's not a very happy place right now all three of these gentlemen are still working at the police department as lieutenants and to the extent monetary relief can compensate them for the harm then that i guess they get monetary relief but the damage has already been done due to the retaliatory action and actions of the chief and these people are all having to work together at whether there are working together as captains and lieutenants and they're still all part of the same management team it is unfortunate i agree and it's not a happy place i think that's quite clear from the record and it's not going to be a happy place no matter what happens with this lawsuit have you sought monetary relief in the complaint yes and i do want to point out also that a lot of these are they all you're representing all of them all of the people who were promoted i mean their claims are a little bit in conflict with each other right they couldn't have all been promoted so how is this monetary relief going to work well that that's that's something i mean i represent all three on appeal here and that may be an issue but it hasn't been briefed i'm not really prepared to answer and i'm not sure whether they're all disqualified and only two of the three could succeed i don't know  i also want to point out that and many of these reasons that the chief gives which again are almost identical for all three plaintiffs i mean coincidentally all three plaintiffs are not team players all three plain not supportive of the organization all three plaintiffs supposedly lack loyalty to the organization well these are these types of a morpheus explanations are in some ways perfectly consistent with a retaliatory motive i mean yes they were disloyal in the sense they filed a lawsuit against their employer that is a form of disloyalty it just happens to be a protect legally protected form of disloyalty so even to say oh they're disloyal and that's why i didn't promote them is not necessarily a separate and distinct reason from retaliation particularly when you go back and you look at all their performance evaluations and up until the point when they filed this lawsuit they were viewed as being loyal and team players and supportive of the organization so i think many of these explanations that again coincidentally are the same for all three the way they themselves smack of retaliation do you want to save the remainder of your time for about oh yes i'll do that thank you  evaluations and heard an argument that the chief of police was not consistent in determining that these appellants were not loyal were not trustworthy and demonstrate it severe performance problems but if you look at the evaluations i know the court has there is no question that the evaluations themselves clearly and unambiguously set forth significant issues of the chief of police had while he was a captain with these lieutenants you heard some had happened and how can we be confident that the issue doesn't arise from exactly the claim because the tone of the evaluations seemed to change and the the temporal link is hard to disregard that it was after they filed the previous lawsuit that the evaluations turned negative with all due respect the record disputes that the record shows clearly that there were negative comments before but there were also a lot of positive comments and there were negative comments offered for the officers that were promoted so that the existence of a prior negative comment is not in itself enough to demonstrate as a matter of law as a summary judgment that there wasn't some element of retaliation there which are in this case to strengthen the gist of this sheer weight of the negative comments  a lawsuit evaluations shows that the chief had a well formed in preconceived idea about the performance of these lieutenants well before they filed an f l s a lawsuit and it is significant in its criticism i can just cite from some of the evaluations and forsyth was mentioned when the chief of police when he was a captain that supervised lieutenant forsyth in two thousand and seven and two thousand and eight he said that the tenant forsyth disregards department issues unless they impact him does not want to get involved because it causes extra work is reactionary is excitable is not what i wanted a lieutenant in two thousand and eight and two thousand and nine also predating the f l s a lawsuit obviously lieutenant for reasons that were given as an explanation are exactly as your opponent read it in the in the evaluations as positive comments so why doesn't that create a fact dispute because any evaluations  comments there doing the job of lieutenant but the chief of police is looking at when he's confronted with promoting a summit a captain in two thousand and thirteen and two thousand and fourteen is basically making a decision do i trust any of these lieutenants to serve as my second in command to different position obviously a higher rank this person fills in for the chief of police if what if he doesn't trust them because they filed a lawsuit against him but there's no evidence of that whatsoever all we have is the temporal proximity the fact that these promotions temporal proximity and by the way it's time approximately by this happenstance that there were retirements in these captain positions opened up so we have these promotions at the same time that cannot withstand the sheer weight of the evidence which evaluations which more which more unambiguous lee and clearly set forth before the protective activity was ever filed the concerns that the decision maker had with these particular employees yes they do contain some positive comments as any evaluation would but the sheer weight of the negative comments especially when viewed through the prism of what position are these lieutenants trying to be promoted to this captain position that is what destroys the temporal proximity alone being enough to carry the day and as this court acknowledged in the cochran case which we cited especially when you're dealing with a police department where close working relationships are not only necessary but but essentially to that type of department the chief of police has broad discretion obviously cannot make promotion decisions based upon lawful reasons but as broad discretion to consider the characteristics and a competency is in the personalities of individuals that he is a he is looking to promote to be his second hand person his right i think to ask you something about part of your brief that i found troubling yes so you have a section misstate the evidence and several of the things in there i wasn't sure were misstatements but one of them really bothered me which is on page thirty five you criticize appellants for asserting that science has said he had no intention of promoting a then give a quote where you think it shows that he never said that but as far as i can tell on our three twenty three he said exactly that direct quote and i like you don't play in what you have that page of your brief well this issue came up during the oral argument in front of the in front of the district court where that quote was was that representation was made and the trial court actually took a recess to look at it and the reason that it's not accurate is that the chief of police in this deposition never said that i will never promote  he said the words i have no intention of promoting them at that time but the question was it was phrased in a way that it was represented the chief was saying from this time until the end of time i'm never going to promote these little i mean you say appellants a third and you give a quote and the quote an accurate quote and you're criticizing them for misstating the record with the background for that is what happened at the trial court during oral argument is that it was represented during the district court oral argument that the chief of police actually represented that there was no way ever that he was going to promote a lieutenant's which he did not say he said that a time of these promotions he was not going to promote them because of the preexisting well formed opinion that he had of them long before the f l s a lawsuit was ever filed the cases that were that have been cited by the appellant do not involve any circumstances where the legitimate business reason for the adverse actions was formed before the protected activity occurred this is a context what's the purpose of the yearly evaluations to provide input into an employee's performance and then isn't it to give feedback so they can improve  goals so if we're looking at those in two thousand and seven and eight how of those relevant to a two thousand and thirteen and two thousand and fourteen time period we're looking at the period where the chief scion as supervise these individuals which for forsyth and for say was two thousand probably two thousand and ten his close supervision and his and his ability to see them their performance over that time period formed his opinion of them informed his opinion as to their ability to become captains but it wasn't only that she's performance evaluations the subsequent performance evaluations from captain cells and also as far as to lieutenant safe from captains hendricks and captain murrell also demonstrated some troubling issues that they continue to have even during the time of the recruitment and also asked for lieutenant holliday he was reprimanded in two thousand and twelve for among other things to say negative things to subordinates about the department trying to trying to entice a subordinate to sue the city these are things which happen closer to the time frame of the of the a recruitment itself in two thousand and thirteen and fourteen but it is legitimate and it is certainly not unlawful for the chief of police to use the opinions that he formed of these of these appellants during the time that he closely supervised him in two thousand and seven through two thousand and ten two thousand and eleven and based upon that preconceived well formed opinion well before the f l s a lawsuit was filed to make a determination as to whether he felt that based upon the issues that are substantially and significantly documented that they were appropriate candidates for the captain position and his determination if they were not now you might disagree with with his reasoning you might disagree with how he might disagree that with his with his personnel decisions but unless there's some link that his decision was based upon the office a lawsuit and right now all there is is temporal proximity which happened to be a  lot i mean it seems to me what you're starting to argue for is this one is you can find enough negative comments early on the chief is free to do whatever you want for whatever reason he wants and i don't think that's the law so so if you're saying in this case the enormous pile of negative comments first is the positive comments is enough so as a matter of law the temporal connection should be disregarded kind of a tough sell i mean it doesn't sound like a summary judgment actually supports the legitimate business reason the reason the chief did that is because of the pre f l s a lawsuit concerns which are well documented only if we believe them i mean it gets back to the same point right and maybe it's because the only the people who are people flying were the ones who  well all of those statements to the maybe forty f l is a lawsuit was filed those are now somehow motivated by the f l i c f l s a lawsuit now they're not motivated by that it's just so everyone gets some negative i mean maybe they have a policy of saying something negative in every review so that there's something to improve upon who knows i mean that the person who was promoted had the lying problem right i mean there were there are problems in everyone's past evaluations but with all due respect the issue with the contention that the person was prone to lying problem is not support admissible evidence what we have are declarations without foundation based on hearsay and without any factual support for those statements so so there's no admissible evidence to support that claim but if there were such a d v d if there were such and file officers who had who had retired from the city there are individuals who don't have any foundation or factual information about any internal affairs investigations that were done they weren't involved in internal affairs investigations nor were they involved in any imposition of discipline so there's simply and the record is replete with declarations that are based upon nothing more than conjecture and speculation from the appellant side to an answer a question a little more a little more clearly the two thousand  and thirteen promotion the fact that these three plaintiffs really only internal candidates that were applying for that promotion the chief based on that the cited i don't feel comfortable promoting these three because of by legitimate concerns that i appreciate that i've documented well before and then open up the process that does not indicate that he opened up the process because of the f s a lawsuit there's no indication of that whatsoever it does support the argument that he opened up the process because of the illegitimate pre formed opinions that he had which he has documented significantly this is not a case where the chief is making up these reasons after the fact and throwing out vague terms like not a team player doesn't show loyalty these are concerns that the chief had documented indicated long before the awful us a lawsuit was filed and not just once or twice but these evaluations are replete with these negative made in during the litigation i just don't i don't recall of that specific request but i do know that through the summary judgments and through the appellate briefs there's certainly no argument along those lines in the record i'm not sure what you mean by that is that they have a lot of people saying he had problems in his past and what do you mean by there's no argument about that i took your honour's question to be how do we know that the chief of police did not make similar negative comments as he made as to these really ten other people's evaluations and that might just be his his practice just saying that there's no evidence that there are other such comments and other individuals performance evaluations other than these three i just want to correct the record on the question you asked about the negative comments about morale of the one who was promoted in two thousand and fourteen the statements that were made about him were not statements made by people who are now retired not sure what counsel said there were statements made by the chief the chief was involved in disciplining that gentleman for failing to supervise subordinates the chief told other people that he felt that that gentleman had been dishonest in the internal affairs investigation that she told other people he felt that person could not be trusted was a liar and a weak leader those are things the chief said about the person he promoted who also had less tenure than all three of these lieutenants that i represent here today so he promoted someone who he thought was dishonest and a weak leader who had less tenure over the three people who had just sued him and and successfully i might add recoup their overtime pay under the f l s say so to say there's no triable issue on retaliation i think everything we've heard today only confirms that there is thank you