stewart's complaints against orders that she firm since rankin man mr simoneau was dangerously exercising police powers were he lacked the training or authorization to do so was a substantial or motivating factor in either or both of the adverse employment actions there are two relatively straightforward avenues for this court to recognize that they are the st that there are myriad clear genuine disputes in material fact including those upon which you tell me c to a lie in the briefing without identified the legit be untruthful statements through all the way through to eventually and by thing the ultimate decision maker deputy chief trask that mr stewart should be terminated that was particularly problematic where anything contrary to that he simply didn't mention that that was a correct statement by your client there is one example you are that's right it cannot is there is there any evidence that the fact finder thought that that was therefore a false statement in other words if your client says seven things and seminar says three of them are false it's hard to see how he's misleading someone by not saying the other seven are true you know i take your point that the person who prepared who is who wanted that report so that is one of the issues that is hot me just give your honor in fact it is a pelleas contention that similar played no role at all in investigating the me ok and with respect to the person then who submitted that report were they under the is there anything in the record that suggests they did not know to be true what you're saying left out there is no evidence in the record that they did not know that he should know there is not how could we say that the thing that you just identified as similar leaving out would have influenced the to assuming you were counsel before the civil service hearing officer you were invited to submit any evidence you wanted to your client was  opportunity to test it to testify and you made the choice you and your client and not to provide any of this evidence that you are now recounting found that there was a very good basis to discipline indeed to terminate your client because he had charged and now their member  would give a number of examples here what is that there is that it's undisputed on the record that it was i mean this is one of the added she perhaps it was important to find out whether mr stewart's allegation th incorrectly concluded that mr stewart lied about what she   his detailed internal investigation of some three hundred and fifty seven pages found the fosli accused a fellow lieutenant of thirty six criminal counts and later an independent hearing officer attorney jack collins took evidence year and a half earlier in june of two thousand and fifteen concerning assistant to the chief similar rules especially a police officer was somehow the cause here's the court properly found below there's absolutely no evidence sergeant brown after david which was put forward that motion for summary judgment period it was in our view contrary to earlier deposition to a sworn deposition testimony when i said i don't know district court did not strike it correct addition to court application of our discretionary sham affidavit rule no you are what you refused to summary judgment decision de novo in kit you can make an independent finding based on review of the record that this in fact was a sham affidavit rule because it contradicted his prior sworn testimony under oath mr clarke i thought that perhaps one reason the district court didn't pursue the issue was it really didn't think it was germane to the  summary judgment issues both for at especially the mount healthy defense given a civil service hearing officers finding simoneau knew about the complaint against him by the plaintiff here and if there's evidence that he participated in the preparation of the report that you're an officer and and this i think is a obviously a disputed point but and simoneau influenced the report in a way that had an influence on the hearing officers resolution of the issue then the mt healthy issue can decide alone defense is independent from the the substantial motivating factor it in theory it is but here the only basis for the mount healthy defense is the hearing officers report no it's not true here on the basis for not healthy defense five minutes remaining is the fact that the evidence including the brangelina report established on truthfulness yet by the book but if that evidence was influenced by activity and investigation by some of the then the amount  healthy defense is dependent on the per revolution resolution of the question of whether some of the infants report you have arguments on that or so it's not fatal to your position but i don't quite see how this healthy think of c and independent  the idea is that even if we credit all the influence this would be that the idea of maj and similar didn't know about the complaint against him by the plaintiff imagine similar did have a role in putting the investigation nonetheless if we if we could somehow excise the influence that similar exerted on that there would be such overwhelming evidence of the plaintiff lying that the conclusion could be made that they would have fired him for that anyway and there are no comparatives so we don't have to worry about the causation questions that the idea yes there are but that think it goes deeper than that because you can look at the evidence at three hundred and fifty seven dollars page report by brenda levy which established the plainly untruthful statements and there's twenty nine dollars of them identified in the report my brother picks a few out which he wants to contest but he has an opportunity to do so at the hearing and in an appeal of the hearing any you need we've that right to challenge that factual evidence at that stage and now tries to circumvent that by looking somehow lacked discretion in he had no delivery to to to influence things and therefore he should be entitled to qualified immunity so he can't have it both ways if if plaintiff is he's basically trying to portray similar  puppet master controlling the chief of police control an investigator controlling the hearing officer in one hand there on the other hand trying to say he's not entitle qualified immunity because he he's in a mistreated official has no no no decision making capacity  so i think he can't have it both ways and i think it's clear from his job description and similar role in the case brantley's own testimony that i was not influenced it's my report but he stood by his report and there's no evidence  head in a mess based on the speech about a special police officer remember the entire leadership of the police department agreed with the content of plaintive speech they said yeah you're right we should set limits on the special police officer yes we should have a policy in place and they did so so now he's trying to circumvent it byte by saying and somehow adopted plaintiffs in a mess when in fact all the police leadership actually agreed with the content of the speech it's nonsensical and i think that the trial court below saw a right through it this is no more then a post hockey justification the trying to circumvent the consequences of his own attempt to take out his rival another police lieutenant by bringing these false charges plaintiff is now facing those consequences and trying to circumvent his own actions by pointing to some some preexisting hidden motive by someone who didn't even have a role as a decision maker in the city the trial court saw right through that they granted summary judgment because they found there was no link here no e causation and further found and i bet they would have we would have made the same action even if the speech what existed we would have to terminate a police lieutenant who was found to have falsely accused another lieutenant of thirty six interest in the truthfulness of our police officers very much outweighs the plaintiff's interest in speaking out about the training of an individual a member of the party that's all this was he was complaining about special police officer training for simoneau that's that does not outweigh the interests of the city and having a truthful police department so certainly under pickering balancing analysis of the town would prevail and that grounds there's also have thought ok thank you y should disconnect from the hearing at this time