reporting to the board was a prerelease activity and they're saying that that everything that flowed from that has got to be considered released the first time is failure to deal with post release retaliation issue which is related in the failure to address this matter as a federal issue the immunity that he was seeking to apply there and the court apply related to a state court law and that law can not preempt the federal law if that were the case then there would never be any civil rights cases because all you have to do is bring up a civil rights issue in the litigation and then you're shut up you can't talk any further because you have the litigation immunity you have all the different immunities that attach the case law that i got that doesn't follow to me that i place but if that were of the can't use then how do you ever bring a retaliation case post really after course i have a lot of issues which i've described in the release itself i don't think that really should have been held i believe that at the time the release was nine keyser had no intention of following through with the portland issue that they were addressing we thought that was closing this matter  for now and i know you would disagree that the release document is valid so we need to figure out what's in it and what's not in it and your first point is that the judged seemed to collapse these things and didn't address supposed release retaliation what were the events specific the post release retaliation that you think would fall outside of the agreement the e began that problem is the trigger occurred before the trigger was the introduction not mandated my mind julie is not mandated to make false report regarding her obligation to correct the impression that was left out there after the release we understood that he should be allowed to have a voluntary resignation a number of things would flow from that one is that his personnel record would reflect a voluntary resignation and incumbent that is that they would provide to others outside you inquired that he was employed at kaiser from is that right i mean that actually goes to maybe a potential breach of agree yes what we believe that they breached the agreement i think late but they also did it in a retaliatory motivation they wouldn't give us copies of any information they wouldn't share when he was being investigated by the r c c any they would not confirm to the investigator that there had been a release or that they had paid him a large sum of money so the investigators starting to think that they will do nothing to reopen it and especially in this circumstance when they initiated the triggering for an investigation for them to support the investigation you contract what specifically did kaiser do after the signing of the contract which events occurred after the contract signing which shows a claim under the all of the events that i'm describing whether we characterize them as breaches of contract or retaliation are similar the events that occurred afterwards included the failure to let the public know that he is not record and when an inquiring employer asked about him they needed to respond well they didn't do that on before you get that second part of the first part saying they didn't correct the record now actually did by february ninth they insert the resignation into the he shows up on february first right so no matter how you cut it when he shows up when he gets a personnel file the resignation is not in that correct that's how i saw that and that's point one now let's go on to other than the fact that the resignation is not in the file what's the next act the rebuilding of retaliation you say that it's they won't confirm that he worked there right the entire process of the way the investigation was handled  hated by a letter with false charges and and they prosecuted it so to speak they provided information to the investigator that was very carefully selected the motivations for that selection was retaliation not truth the whole purpose of giving the investigator only the things that were negative to mr party but what should they have given what physical documents do they have given to bleecker that they did because of that an act of retaliation they should have given the entire personnel file including the correspondence between mr party and various people such as janet state and mary ellen thirty who she wrote to where they discussed the discrimination that was ongoing the investigator walked in and he said oh this is just a cranky employee i'm happy that he got fired there was zero in the record that was given to the investigator to support our contention is that he was retaliated against and that he was not just as an employee later we got all the records from the i r c being through a subpoena and that indicated what was given to bleecker and none of that was among them that was before the court it's hard to show absence of something your honor but we had all the records and it wasn't among them if indeed it was among them and i made a mistake certainly opposing counsel had every right and every reason to say oh no no you're mistaken they are and where if if i want to check you on that how can i go to the record you know say on the district judge and say ok i know you say this but where is your proof because you have to show some proof on this motion here before the district judge where's the proof what declaration can i go to to see that the file produced did not contain the history of the city in the eighty eight lives the only declarations on that point would relate to my declaration where i talked about the discovery and mr parties declaration so there's no counter declaration we made that point so they aren't really the only declaration as to what was in the file produced since it was produced to you as your declaration correct well i believe there was a going to the record to find that evidence so i could say no the district court was wrong and should not have granted summary judgment where in the record would i find that particular evidence that best place for you to go is to the declaration of mr parley and the attachments to let and that would be anywhere in the record i i can't give you the exact citation my memory but it's if you can give it to the brother could you find that why you're letters some of them are included in there were not given and should have been given mr pardine did give some of the materials to the investigator but by that time which was june the investigator had discrimination and he's thinking we have a whole nother animal and he was very skeptical because he saw nothing in what he was already given by kaiser he didn't even talk to us until he was far along and then let me say that let me say that i have no problem at all with the idea theory that anything that happened after the agreement which shows eighty eight discrimination that you're entitled to charge i don't have any difficulty with that at all and the only issue is whether there were facts officially presented before the district court that you should not have granted the summary judgment so yes these facts are there which were material facts and evidence then the summary judgment as to that issue should not have been granted so when you show me that part of the record i'll be able to read that and make that determination but they must be facts they can't be just statements of what i think happened and i take it you're telling you the facts are actually there starting to fade three twenty two i can't find their what you're talking about so but it's wrong to maybe you can point out that it's in the text you remember what we're looking for is where does it show that the personnel file did not have this information that would have otherwise been in this no words that they extracted from his personnel file and the second place where you can look is the absence of a reply when i stated in my opposition brief but that it wasn't there there was no response yes it whistleblower and that i am a person who was been discriminated against and that's what we're looking for looking for that the file produced on february first the bleecker did not contain prior information in my file about my activities keep the hundred thirty and sue for damages for the breach of the settlement agreement correct yes but we're perfectly willing if they want us to put that money to get it back against what he should be getting in a larger one for breaching it and retaliate against now and you can take a moment during his argument to find these citations to the record thank you get out of a valid release agreement a release agreement that he had the assistance of both his union representatives leaders that included i think a part of the lead a research they did not and i believe we brought that we made that argument in the district court in our opening brief but let me ask you as a magistrate judge years ago it said a lot of employment cases where they were firing is the most important aspect other than the money it was the ability to replace the terminations with a resignation had the most with out that there be no settlement and that was what occurred here correct that the key thing was to replace the terminations because with a resignation yes there was there was a specific provision in the settlement agreement dating that hisor would accept convert his terminations into a voluntary resignation and that would be done he signed what on january twenty first i believe he signed on january thirteenth ok that's right and when should they have placed in the file his record that he is no longer his terminations for causes vacated and he is reinstated and resign the contract didn't specify that they did it  joyce and i believe the last two paragraphs he described his actions and contacting the personnel department instructing them to remove any documentation indicating that mr parties terminations was involuntary and substituting personal action forms that showed that he voluntarily resigned and i believe there were two separate memos from mr joyce to the personnel department making sure that not only the terminations letter but also the personal action form and that a form relating to unemployment insurance for all removed threats or when when in the final do you have t isn't that a breach of the contract why isn't that a breach of the covenant of good faith and fair dealing because they didn't give him the benefit that he contracted for well we we did give him that benefit your honor we did make the change be made within a specific date it did say that it had to be made effective one week from the date of the settlement agreement when you give it to someone else especially a regulatory investigator who could take away parties license to practice respiratory therapy isn't that saying kaiser says this is the file and he was fired well that the kaiser in house counsel also informed mr bleecker that determination was converted into a resignation when i don't off the top of my head don't know the exact date but it is neither in her declaration or the deposition excerpts that we in and getting a personnel file in which you look at it you see there in january and such and such he resigned and that's what's given to the investigators versus the personnel file that basically point to remember here is the settlement agreement included within it there was a there was no admission of liability on the part of kaiser or that the accusations a terminated and he then made a claim he didn't sue him outright he didn't even have a lawyer when he settled he just as a union person right he had a union rep and the union or but he didn't have his own personal he had brought a lawsuit or anything yet correct and at wrong to this guy to pay him one hundred thirty thousand dollars before he even filed a suit so that you think that that would have been material to bleecker well leaker was given all of the information he needed to conduct an independent investigation but wasn't that of a piece of the a permission does not go to the credibility of the germination letter i can't speak for mr bleecker i you know there was there was certainly a conflict here there were many many grievances filed there were many that a factual issue here as to whether there was a breach of the agreement well there's a couple of points here your honor first i don't believe there's any issue with respect to the a b a retaliation saying mr joyce did forward that that documentation be inserted into his personnel file as of any specific date so your argument would be if they waited a year or two years or three years to be no violation of the  and whether he got the benefit of the contract has to do with how soon you should have changed and what your responsibility kaiser's responsibilities to respond to outside investigators who happen to co predominantly of argument without any actual admissible evidence they're going to spin out of the trial court in the opposition a motion for summary judgment yes ok and that's the only place you know of where there are any  the district judge in which there is an argument that there is a material fact in dispute requiring denial of the summary judgment times i'm sorry in this part of your question i just want to know where to go in the record that's been my problem from the beginning and what we're focusing on is what was before the district judge and where their material facts in dispute facts in dispute which were alleged that indicate that the just you get should not a grand  judgment motion and what you're indicating is the only facts that will be presented facts that were presented were these two affidavits and your argument was that in those affidavits they were not facts they were arguments then there is also i believe a declaration of mr of mr party's counsel you do agree that it's an object of fact that none of this the resignation and the information about the settlement was not in his personnel qual when it was given to police or i don't i don't agree with that there's no evidence as to when specifically but it's not a document was that even by your own by your own evidence they didn't ask him to put anything in the file when that's that's either in her declaration she did not do it on february first when she gave them the file isn't there a breach of contract i don't believe so because that information was conveyed to mr cleek or it was part of all of the information that was turned over to him this part of this investigation i don't i don't think that the contract requires that the fact that it what's that before the district judge has your presentation for the motion for summary judgment yes that was we did present to the district judge that we do not require i just you gauge go filtering through the record the evidence and what's in the record before this court and we submit that the only post released conduct that is at issue here that is founded in actual evidence in the record are the communications between mr wise where one party shows a lack of evidence in their records in other words you have a standard procedure but there's not and then there christmas they could have made an on the other party says well you know we made this inquiry or we you know we shot the m something over the bow why wouldn't that be enough factual issue so that ultimately it could be resolved in your favor but not at this point well there's no evidence  you know whose answering machine he got it's not enough to get passed from read judgment and we have on top of that we have ms jennings evidence that there was nothing and tries are standard saying that this circuit or any other federal circuit has adopted this type of litigation privilege but certainly the court in its death these cases from the seventh circuit looked at the substance of the communication whether it into illinois litigation privilege and that was saved determinative factor and then coming to the conclusion that this could not be an adverse employment action and we would submit that in this case similarly the public policies underlying the privileges at issue here are so strong to ensure that health care practitioners are fit and able to practice safely in the states that that should be a factor that the court considers into terminating not a good faith report it doesn't deserve the protection that a good faith report should have have had and he also said leaker was given all he needed to conduct an investigation he was given exactly an only what they wanted him to have to conduct an investigation that was supportive of the false charges and the poorly investigated actuality of what all right well you know when your time is concluded