words out of her mouth in retaliation for that prior act but there's another set of we know all right it was no that's that's a good point if they were definitely aware of his speech  what he did and the first thing that she did was confront him with that and she performed a case audits on him after he first came under her jurisdiction and she forwarded up the chain of command the second area of speech is  he reported that to her and sheep she so she was aware that speech discordance previously ruled in another appeal that that speech was a matter of public concern so she retorted to him he didn't need a book he was isn't a record one of the parolees who was unsupervised got in a gunfight with the san francisco police was in the newspaper he gave her the article she wrote an article on her handwriting acknowledging it and according to the evidence we have in the case she never forwarded that report up the chain of command that could have been a serious consequence to her the rules and we put in evidence that when some like that happens with the proly it must be forwarded up the chain of command with reported never was  the speech and then after that is when things just you know just kept happening over purity years and you know even know that like i say this because altercation points out that you know you only have so many you know talks about the time ga miss allen versus iran in case forgive me if i don't pronounce it right they point out that the longer gap between allen statement and later employment actions does not affect the analysis of whether those actions were retaliatory because the court found that all the adverse employment actions were sufficiently similar and related that they constituted a continuing violation so we say that they started you know and then they kept going on and she just couldn't get rid of them so she kept trying things and you know one thing i think is important is we really got to focus not just on stuff that nobody did or didn't do as an employee but what about good deni what was she doing for example the whipple incident where she was disciplined for supposedly withholding tools from a proly to work with all this could be testified under oath that she had nothing to do with that investigation denies it completely we have a document in the record for her from the that she pulls a gun off an arrest detail this guy's a belligerent agitated person who was on crack at the time and said oh i didn't know and her excuse is well gee i pull them off the arrest detail and maybe a jury will believe that maybe they won't i don't know but that's that's the whole point but you know let a jury decide to give her explanations or pretext or ben ami just doesn't know what he's talking about he's a poor employee and the other thing is the  the probably say well gee you know you can't show us the government benefits from the cases i'm reading we don't have to show that we just have to show that her motive was to chill protected speech and that's enough it's in consequential whether  employees not only from patronage dismissals but also from even an act of retaliation as trivial as family to hold a birthday party for a public employee and tended to punish her for exercising her free speech rights so we say that th that straightforward there has been show no causation that is the supposed retaliatory acts have not been shown to have been caused by this single incident of  his caseload was in disarray because of the the actions of the prior predecessor agent this idea that there is also some other prior incident of reporting his  supervisor for misconduct this is not an issue right now mr but no me abandon this claim early on in this litigation which is now five and a half years ago he didn't raise it in his opposition to this present summary judgment and he says he's waived longo this claim that he was being retaliated against conduct that occurred back in ninety in ninety one this reporting of another supervisor so these me that were not standard claims she was meddlesome on behalf of everybody so here we have an instance where mr ben ami has not shown that he was treated any differently from anybody else that was his equal so i don't think there is a tribal issue time is not dispositive to the extent it was before course alter was handed down but it is an important element in this case because this is marcos alter this is not a case where we have thirty something adverse performance reviews she herself was not the one passing judgment on mr ben ami performance and you know if you look beyond whether or not you know his feelings were hurt by being told his complain about the state of the caseload but again even accepting it as being true which we must for the purposes of summary judgment you know if you look at other instances when and employer opposed an employee speech this is not that type of case which would lead you to believe that mr de did oppose a speech she did not she if she did make the retorts that he was sorgen as he didn't need to if he she wasn't opposing his right to speak out she merely made a comment as to in which she had posed i'm sorry and which you disagree with what was said so we have an instance where she wasn't involved in many of these so called incidents of retaliation think you still have to finish the analysis and in the case of the first one mentioned there are just six ninety six letter counseling first off still we have to consider it's fifteen months after his so called protected speech next we look at the fact which is in the record that mr but nomi admitted that all the things that were mentioned in that report were true that he was filing late board reports that he had an obligation to submit in the timely manner and that he was not and that of course he blames it on something else on migraine headaches now whether or not it was another nice circuit panel to of two of these three judges here determined it was a matter of public concern because it has to do with public safety and mr big on would like to sort of wave that around but at the same time  disagrees with the decision to bring to the supervisor's attention the fact that he is not performing up to the standard that's required of him so he would like to escape that requirement but at the same time hide behind it and i think that that's worth noting so we have legitimate business reasons for that fifteen month later performance report and the same is true of the twenty nine months later performance review he admits that his performance was substandard and there were legitimate reasons for issuing the letter of counsel and the performance report ok all right thank you  or they may wait until they think the last a time disguises their true motivation and i think that's the case why i think that some for a jury to decide it's not speculation we have a protected speech we have a lot of bad things that happen afterwards comments that  them that's exactly what she did so you know again i mean if the four are going to find point of whether he deserved punishment and i think we're straying from the analysis of whether it was motivated by ill will i mean whether he deserved or not or admitted something later is one thing injury could could decide whether that's going away one way or another but i mean you've got to look at what she's doing afterward why all these things are happening to him consistently over a period of years and then answer the but the other thing is even if she doesn't have the final say so on some of the discipline he may have received she was the one that got the ball rolling you know and whether she in or intervene in other people personal actions or whatever is irrelevant look what she was doing to the nami why would she lie about the whipple incident if if she's so clean you know i don't have anything to do with that nothing absolutely well here's the documents that you were the chief investigator of it there's no would she do that if she's not doing anything wrong you've got to look at some of those questions about her conduct too it's not just you know me if you're a guy that gets away what you say about him and his ability to do good work or not and her