sounded employment discrimination law the principal issue on his appeal is whether the district court overstepped the balance in the summary judgment process because mr herman provided more than sufficient evidence for reasonable jury to find for him on his title lee mr norton as their favorite subject it discusses a plot that nasa was beginning to come but with beginning to devise legal counsel asked if c p that's headquarters h r division could find him a job and make an offer to close off the o w c p claim expecting he won't take it and therefore loses cases go w c b the offer of a job is a tactical way to chip away at all his his disability benefits and it connects that plan with his ego complains is the sign to chip away at his complaints that's precisely the type of conduct the title sudden is designed to curb second notwithstanding this the describe other things that nasa was considering including whether to place mr nurse at another division within nasa and that in that e mail nasa says that it doesn't want to place mr nurdin in another division because well it doesn't wan employee as a problem and also described not wanting to put that employee another division because it didn't want to shift that problem to another part of it importantly and the tactical ploys the fulcrum but you have to look at also what came before and into the prior conduct if i kind of like to try to explain that mr norton was out of work got out of the office at that point on medical leave he was on medical leave because in his doctor's opinion an opinion that the senior medical director of nas merton they had an obligation we contend to return this is because of his being on medical leave that's correct around him and so that goes to rehabilitation needed to accommodate  frankly the fact that the district court look that much of the same evidence and came to that conclusion in two thousand and nine we think demonstrates strongly that the rule fifty six standard what with miniature faxon's well there are several there is the dispute about whether mr murray was a good employee or not we have nasa's employment records and their reviews that are negative in this and at the same time you have his reviews from the national science foundation in one thousand nine that are positive in george versus leavitt that type of factual dispute allow the reversal of a summary judgment you have a dispute of fact about whether nasa's conduct was and doctors and there's even a dispute fact about what the valid medical opinion is mr you've got several medical opinions that say that he could go back to nasa at all but you have an overwhelming amount of medical evidence that suggests that you could go back to nasa under the right set of called upon to resolve those types of factual dispute now i mean to be frank because of the the district court's failure to properly credit mr nerd in this process allegations of the rehab act claim we think those claims should be reinstated we think that's indeed to the image second of any complaint reflects that he was not excluded from a broader range of jobs by his disability because he claimed in part that he saw a comparable position if you look at page  clear from a broad range of jobs there's there's no place to go with the result they should so if the employer says this guy complained that he's not being accommodated because of his disability in that's a completely bogus claim you know i'm going to fire him because i don't like people making bogus claims against me and that's what's in the record then there's no retaliation claim claim that's a basically a title some claim and if you take a look at three seventy nine and a three eighty of the joint appendix it basically explains why he was terminated and explains it and if you look at it also at the page for seventeen of the joint appendix of the declaration reflects that it was the accepted practice to terminate an employee who had been on extended workers compensation and had no definite date and no expectation of when that person was going to be able to return to work so it was not theirs what the that's what the a's that it was looking for here then a substantial period of time that slot had not been filled and that's reflected in the terminations notice i believe and then the determined the the explanation on page four seventeen of the was that we're not really want to do a real job search to try to find him something that will be a good match for him in two thousand and one because we want to get rid of him in when nothing  worth of donated to leave that had been contributed but on there that the there's no connection between that e mail and the worker's comp period and the ultimate determination and the record does reflect that that's  isn't there one determination letter refers to the two thousand and one actions the letter itself says you know when considering this we look back to in two thousand and one you could be accommodated well in two thousand one he said he was off on medical leave for a substantial period of time and it was it was after that substantial period that he went on worker's comp and he had not been performing his position for that period of time and there's no connection i mean i think the just pointed out one at one point that the one of the e mails that it is you was over eight months prior to the the fact that that was the regular practice for agencies to make that determination and under those circumstances so and so explain this to me you say that the policy is if you're out on worker's comp for than a year in the policy is to terminate right i don't know that there's a specifically a specific period whether a lengthy period of time that sent what it's going to do with and there's no indication of a date on which you'll be able to return and here you have a lengthy leave lengthy worker's comp and  coupled with no indication no representation from either the plaintiff or his doctors about when he would be able to return to work and it was at that point that the nose of terminations was sent and at that point a nd that that was the regular governmental practice under similar circumstances and there are no facts to contradict that declaration and the standard practice and in in the judgment of in the view of the district district court and we believe it was correct the rehabilitation act playing for properly dismissed and the termination and other title seven claims develop plans for evaluating university level of fellowship programs no similarity no real comparison at all and under those circumstances the district correctly determined that that was not a but you didn't  in the office to be evaluated that he had been out on sick leave or other leave for substantial period and came back and was only went to the national science foundation here's a problem that i  had when i was reading the government's brief in this case was that the government's brief seem to repeatedly not address or even mentioned evidence that was been official to the playing i mean i know that the government likes their evidence more than the other side's evidence everybody likes their evidence more than the other side's evidence but you seem like there were a number of instances where the contrary evidence wasn't discussed at all in one of them one example one that was pretty glaring was about this whole issue of one nine hundred ninety nine period in citation two that the government made in its brief was that well there was no the other agency has to fund the award yes you need cited to a letter that didn't say anything at all about whether the other agency funded it or not in you know there are just other examples the whole thing of him being placed on a wall in there basically being an acknowledge that that was that that was improper but we'll just let it stand there were there were lots of things like that there were harmful pieces of evidence that your brief just doesn't talk about i just found that i made that inappropriate determination and that he had been and by september two thousand the district observe that he had been out for several months on sick leave and failed to provide the appropriate medical parts adequately explaining them based on the record before the time period i just make sure i understand what the government's position is with respect to retaliation if an employee makes an e o claim  a racial discrimination and the agency and the responsible people at the agency who are mentioned believed that claim is unfounded and let's just suppose for the sake of argument that it is unfounded the agents that the employee thinks that they did bad thing to him because of his race but they weren't really considering that they were considering something else when they did when they made that action but nonetheless the so so it was and it was an unfounded e e o complain but the supervisor nonetheless decides it because he doesn't like the fact that this complaint has been made he's going to take adverse action against you we use that the government's position that if that's what's pleather that's what there is evidence to support that summary judgment that you would still grant summary judgment on the retaliation claim because the underlying complaint was unfounded no no state or retaliatory act a retaliatory action that would be so long as disputed that would be actionable and trial by jury but the failure here was on the record and the failure to connect any and the retaliatory animists claims were rather vague and were not connected to the specific events that were pleaded in the complaint and based on the record the district court correctly made the determination without that kind of connection so e mail saying that this guy is a problem employee we don't really want to you know find him a job somewhere else in the agency because would just be giving somebody else's problem that that couldn't even taken in the light most favorable to mr near it and be seen as retaliate it would be properly discounted if there is no connection by all the record before the district court there was no connection for any of the specific claims that were challenged by the plan to in the district court that was the problem that the district court had and the reason the district court resolved it the way it did statement if there was one or whatever discriminatory allegedly discriminatory animus and it was that proximity of lack of it and the connection or lack of pleading that the connection that animated the district cour decision we think quite correctly based on the record before it and we would urge for that reason that the judgment of the district court  the record contains more than adequate circumstantial evidence for the title seven claims to go to trial we know what malcolm fellows thought about mr moore and c e o activity in a performance review he called it a pile of old and a crock of shit but if you look at the record the record shows that mr bakley was one of the individuals who recommended mr nerlens determination there is enough circumstantial evidence and there's direct evidence of animists in this case this is not a case it should be resolved in summary judgment