comments the way on justified also when we look at what was the or pinion of the government about mr martinez prior to his engaging in the e u activity and fellow workers or is it something more than that well it's the it depends on the true things that the comments that he made to the f b i and also the performance evaluation that was conducted in august of ninety ninety anything about it activity and then the comments of the remaining two is inconsistent with the comments that they made about mr martin as president you activity in revealing if you had if the district court had not granted summary judgment as a trial on the merits and what damages the damages would be i'm not asking you what they were but that's the object is to get to trial and then prove up a damage case based on retaliation yes you are in your contention is that there's enough conflict in the facts that there ought to have been a trial it should not have been resolved on summary judgment yes y becoming i'm about to make doesn't relate to human anyway or this case but to your officers the word gotten around as a result of yesterday to know which court room you're supposed to be and i'm sorry not struggle we had an assistant yesterday who four he went on leave without pay status in february of ninety five and then he formally resigned from the navy in august of one thousand nine hundred five and in the interim between the time that he left on his leave without pay status and he left the navy formally filed a complaint in march of ninety five and then he withdrew that complaint three months later so there's been reference to a evaluation that occurred at the end of his time with the navy has closed at a valuation in august one thousand nine hundred ninety two points i'd like to make about that  evaluation was a fully satisfactory and as the court is likely aware from reviewing the records when we hear references to a fully successful evaluation that is a three on a scale of one to five to put in perspective on a scale of a to f that's a c evaluation so what happened when he left the navy because he hadn't been there for six months they read him as fully satisfactory but that wasn't an adverse action that was raised in the complaint that was the subject of the the district court action below so the only other section that's at issue here are the negative comments that were made by the coworkers the past coworkers and the past supervisors not this august one thousand nine hundred five fully satisfactory review a causation in terms of an allegation of retaliation in other words he must show that engaging in a protected activity his ego complaint was one of the reasons for aspiring and that but for such activity he would not have received the negative references and what was shown in the court is that as the course is noted there were six individuals who were interviewed by the sec the ivester are only two of them were the subject of the e mail complaint for then submitted affidavits to the court stating that the complaint was not the reason that they made their negative references and that's understated the mr martinez had the opportunity to take their slightly out of order drake was a supervisor from ninety one to ninety three dietz was an acting team leader in ninety four and bombers was a team leader in ninety three to ninety five but let me let me throw something in your eyes that i think is is being missed here you know one of the perks of that question and maybe on the answerable among the six people at the time martinez was with the department of the navy was one of the more senior than any of the others in the chain of command i don't have the answer immediately for me i believe in the record in the performance evaluations there are occasions where you have a first line supervisor to second my supervisor listed in the performance evaluations but one of the issues here has to do with a question whether this complaint changed things and there are two points to be made first of all we have in the record marginal mediocre average performance evaluations but more importantly we have negative comments made by these coworkers and supervisors before the complaint before one thousand nine hundred five in november of one nine hundred ninety four to be specific there were negative comments being made about mr martinez in fact mr martinez in his e mail complaint that he filed in ninety five alleged that he had been having problems with his employer for sixteen months prior to the email complaint and among the statements that were made in november one thousand nine hundred four that are in the record the most in the record that's it page thirty seven and it page two thirty nine that's before this complaint before so the issue here is why were they making these comments while they're making these comments because that was their true belief why did they make the comments after the complaint because that was their true beliefs and it was consistent with the comments they had made before the complaint so it can't be said the negative comments about mr martinez were based on the ego complaint or that but for the eel complaint they wouldn't have made those negative comments when they were already making those negative comments before and when he had complained about them before it's your best approach to saying that the plaintiff did not like  you case or is it that there's no pretext well i think it's both your honor i think we initially presented to the court the arguments and the district court agreed that he had failed to make up the kind of facial case when you look at the whole picture when you look at the fact that he was scored three out of five for the most part and there is that it's in the record that he had one performance evaluation we had exceeds expectations which would be a a b let's say on the scale but the record also reflects that the reason he was given that was because they were trying to get him promoted to a g s twelve and his work substantially declined after that that's in the record of one fourteen like it was then what year was the course that was in one thousand nine hundred one to ninety two that's a page one fifty seven in the record and the comments that were made at one fourteen i believe in drake's either declaration or i think david or in his comments the f b i officer page one fourteen were that they tried to get him promoted and and in the very next performance review it martinez was not applying for a promotion within the agency he was applying for a position as a special agent with the f b i and when these individuals were asked by the f b i investigator what they thought about mr martinez's likelihood of success their recommendations whether he would be a successful f b i agent based on their experiences with him they uniformly said no one made a comment about they wouldn't trust him with a gun others a question in the record about why he made that comment whether he was asked by the f b i agents whether he would be trusted with a gun or not and that raises another issue which is it's there's no disputing the record but racism in looking at it there is no evidence that these individuals introduced information about the complaint because they tended to do it in a derogatory manner in fact one of the vidual submit in the affidavit that the reason he showed the investigator the complaint was he was position i could talk about pretext as well and it ties in with why they're saying because you have a situation where the navy has articulated legitimate reasons for the statements made and it's supported by the evidence of the record and has failed to rebut that because he hasn't for produce direct evidence and has produced official circumstantial evidence to indicate that the reason should either be shown to be internally consistent or whether otherwise not believable was has been characterized see that was the minimum but he was getting a's and b s if i borrow that also the fact that they use the one negative about  complaint when he spoke to the f b i agent i mean has been found to be retaliation for say you know they have no business there was no reason to start commenting about it