testimony concerning disciplinary events that is heavily disputed in such a situation whether the intent of the decision maker should be determined by a jury as opposed to being determined by a court as a ismail has been a postal carrier for many years and several years ago he had an ongoing concerns with the postmaster there he filed and did up filing up a federal lawsuit which judgment and since that time mr kaiser has consistently treated mr ismail different than everyone else working in the post office either  ignoring him or belittling him or or berating him for things he's never he's never ever had a positive relationship or a normal relationship with mr keiser since that  never did anything about it through those years because it was not you know full blown problems it was just you know coming to work and knowing you're not going to be treated like everyone else and kind of kept his head down and did his work and december tenth of two thousand and ten things changed a kaiser and it all it supposedly was started by him being questioned about whether he'd be late with his mail and that's not even something it's such a routine thing if there's inclement weather post if a postal carrier seizes volume thinks he may have trouble they submit a form it's a non issue it's never addressed with management that day it was addressed by a supervisor who then though she testified she shows handles issues on her own somehow out and he said he never he's never done this he goes out and watches my client deliver email instead gets out of his vehicle and starts giving my client orders don't walk there don't walk there do this don't you know inconsistent or th evidence of this is that everything that led up to his decision might actually end up climbed the police he was so concerned went within five inches of his face and was pointing at him and yelling at him all of this preceded mr kaiser's decision to issue discipline to my client and he says i issued the discipline for legitimate reasons because he didn't follow a director and there was a directive and kaiser told him he was going to send him back to his country and that evidence could have allowed a jury to say you know what kinds or we don't believe you we don't believe that you did this for the good reason we don't believe that you hours given given inconsistent orders got into his face yelling at him and then all of a sudden you broke away from that and had a moment of legitimacy and we think that's something that a jury should decide they should hear all that experienced from these events there could be some injunctive relief to the post office that they have to do things differently they can't allow these things to go to go on it went on and on and on and on it went on and and nobody really did anything to are i'm sorry so you know one of the other events he was working there was a threat made by a coworker or he were my client reported to supervisor and even though mr kaiser  normally get involved in disciplinary matters he took control of this and he said my client home and another the third incident that we address in this case he accused my mike my client was put out  humiliating him making him read the book section and courtesy and then said that my cut my client to him threatened to kill him ok the police didn't bring any charges they didn't believe that the post office returned him back to work the next day they obviously didn't believe it because if they thought he was threatening to kill the postmaster he wouldn't be coming back to work for anything so these events with my client went out and to und erstand or to determine somebody isn't to parties intent you can't look at what they say about one part one slice of an event in district are all the other facts you have to look at the whole thing  so it's your job i'm i don't want to cut you off may please the court counsel the reality of this case we have two people who absolutely did not get along and an employee who found a way to get under his supervisors repeatedly i'd like a yes or a be happy to address those there are three comparables that if you don't dana hall diner daily and re edit those are the only three at issue right and and they were trying to be sensitive to the fact that they regarded because of their own personal experiences with substance abuse in their own families with friends they were trying to deal with it as they understood it as a disease in many people  so you know on the other hand you've got ishmael who is out on the street and he sees kaiser and he's going to walk he's going to get on the top of a snow pile of debris of ice and and debris that a snowplow has pushed onto the sidewalks and you have to know you have to picture the this neighborhood there's no parkways between the sidewalk and the street so that's why the snow ends up on the sidewalk and in it he gets up on it he walks on it like he's walking in a  tightrope and it's not just one person that saw it it's not just kaiser saying this he had done ellison saying it and then he calls the police it to complain that he's being instructed and it's in the police report he's complaining about the instructions he's getting from his wife's he does the police and the police see the same thing this in then when postmaster keyser says he could look in on that snow if you need to walk in a firm surface if you need to you can't cross  walk in the street where it's where it's clear now yes yes well i'm not saying that you might not bring bail at trial on it until there are a lot of factual dispute about this and how that all went now and then you have the was confronted with that your honor he admitted he did it there's a huge gigantic difference between somebody standing in front of their supervisor being told he quit walking on this no if you need to walk  the street where it's clear and those employees think no i'm going to keep doing it i don't disagree i'm not going to be your instructions and a guy who gets into a car accident and doesn't report it until afterwards when he's confronted yeah that's a built in conduct that ought to be  reprimanded but you can't compare somebody who's saying i'm going to intentionally disagree your orders to somebody who on the other hand simply doesn't come forward and report an asset that's just not comparable and the last guy who who was backing up and i think this is really hard to to deal with the record is absolutely clear he was permitted to back up in the location where that accident happened and yet he got into an accident but again certainly no intentional conduct there that was so you think that fact and think that the say i think we're talking matters of the green age where jury could look at daly's conduct even though he admitted his involvement crashing his truck and l is there is a big gigantic difference it's not as if ishmael just made a bad decision to walk in the snow when he was told to stop it he refused he refused the instruction absolutely clear in the record the other employees certainly did not refuse legitimate instructions given by their employers at least in the case of dana hall yes she kept she kept having a problem but there was no intentionality people who are under that a flight right  was favorably issue because unlike ishmael's in emergency immediate emergency placement and suspension always given a chance to rectify her misconduct before she got a punishment i mean that's another one that can be looked at differently no i disagree your honor i mean he was given a chance right away he could have simply complied with the directive of his supervisor but we fused to do so suggestion that he had been dilatory there is that there is that in the record your honor but the bottom line with fact is he's not complaining about don ellison doing that no no i understand so but maybe we can i think he's correct one a supervisor his goes of his personal car due to check the speed with which an individual postal carrier goes from house to house that up absolutely happens and it happens on a regular basis now thing overtime more than other employees there was that history your honor and well you know i'm not going to there was nothing firm put in the record but what is in the record is that's not that's not in the record the volume  pay for the overtime that he incurred and this is this is the thing that the thing to triggered all this was in the record ishmael himself admits that he triggered this reaction from the postal service by back when asked whether or not he was going to be late he said well i don't know there's snow on there i might be late will know their post no other postal employees who are all required to predict whether or not the anticipated being late no none of them said anything about being late because of the snow so was it was that conversation that triggered keyser going out and on top of let me ask you this were there other instances in the record where kaiser  carriers around noble cause over time issues ishmael himself asked him to come out he said if you think that i'm not going to do my job right you can come out and look at me that we don't have anything in the record about any  if that is that unusual that's another thing to me to put this not in the realm that would necessarily win a trial before the jury but the realm of not granting summary judgment will judge in that realm those facts aren't in dispute and he's not complaining about the fact that mr kaiser went out and looked at him was delivering the mail in boise i understand that the context of everything else we have to put in perspective the context is he basically again from what i said at the beginning he says to his supervisor i don't know if i'm going to be late no other employee did that he says to a supervisor i could be late because of the snow no other employee said back to their supervisor and on top of it he says to his postmaster you want to come out look at me you're welcome come on look at me who started that who's the postal service postmaster who's got a job to protect the budget and make sure he's not being charged for unauthorized overtime or ishmael who kicks you have the same straightforward response is any other employee at the post office ishmael started it your honor and he's not complaining about those things but he is living with the consequences but that again the key thing here is you've got an employee who says to his super base now now he's out there now kaiser is out there he supervising in his employee and he sees him walking in the top of snowplow debris three people see this and he tells the guy stop it there's no reason for that if you think that you you know you need to go down to the street just walk along the edge this is a residential neighborhood you know and we all live in or many of us live in those neighborhoods and in this particular neighborhood the street was directly adjacent to the sidewalk anyway so he's not asking me to go that far and it sure as heck doesn't tell him to walk out into traffic that ishmael's conduct in refusing to follow his supervisors legitimate instructions after an absence of any activity you know council says he didn't do anything about it well basically if there was something to do about it you can be rest assured that mr ishmael would have done something about it they've got a period of inactivity in the battle for like seven years and in this state he's insolence to a supervisor on the ground you want to come out and watch me now unfortunately case kaiser took the bait but ishmael directly refused his instructions that's why he got was put on emergency discipline  trial of the crime face a case and then the judge ruled on the first prong of the mcdonnell douglas finding that my client had met the legitimate expectations for the similar reasons that of pretax but it is a different analysis for legitimate exactly so the defendant basically did not did not challenge that we had met the prime of face the elements and it's this motion that was not in the motion it wasn't addressed in any briefing and then the court suicide single legal issue in fact that could possibly arise in connection with the case you have to you know that the party puts you on notice that the issues you respond so one of our one of our reasons for asking for an d this to be returned to the district court is that we didn't my client was denied due process and not getting a chance to respond to these issues because they were never raised on the motion so that is one of the arguments and then just i want to if i could just answer your question though your honor ok couple things i want to go through one is counsel said that miss hall got the same discipline as my client for the december tenth incident that's completely inaccurate my client was taken out of service from december tenth to december twenty eighth for eighteen days then when it was time for my client to return to kaiser put him on another two week suspension that was an amount long that my class it was kept out of work without involved in the other incidents he took over the second incident from the supervisor even though he claims he allowed supervisors to handle it the testimony there was no evidence my client had any issues with overtime or are being late or any of those and he was the only person who was approached it that morning by allison it was very hard and then allison testified she's not she never gets kaiser involved and i think that's why she would talk to him that morning about that and then why she would elevate it to the