pearse's cataract which is cited of course seventy seven us three seventeen and in that case the supreme court indicates that when a court is looking at summary judgments that they should do the facts most favorable in light of the non moving party and only if then if there is no material issue of jane one fact then at that point you know summary judgment is appropriate to put it simply of on the material facts is a a rational jury favor they don't grant summary judgment correction on our side and certainly i think in this case there were a lot of lot of issues that were raised through the courts that certainly would create a  in our in our brief there's a lot of examples of this and i want to get the court's time i will bring up a few things though one of the things i'd like to point out to the court is that the lower court failed to address the case of cost versus desert palace side of that one twenty three supreme court twenty one forty eight and that is a two thousand and three case in that case the court's indicates that with discrimination cases you can have what's called the next move which means it could be suppose it would be something like the us at the end of the day if there's a decision maker in this case or their decision makers the decision makers would be the three s the wets and i think there's no indication that any of those people had any discriminatory motives wrong about that in the evidence shows that they were discriminating somehow then eliminate ok well for one thing mr cole is known for his letter writing is what his letter writing in other words  one of the reasons that elevated theirs and let me point out your honor is that this this case actually got two parts to it one is a religious discrimination which involves mr donato his immediate supervisor including a comment so three psychiatrists who independently or which is four plainly maybe four people who who ended penley review his situation including one that he passed and then we have do with making the final determination based on postal post office could be problematic however if you look at all the facts the fact is that mr cole worked the night shift and most of his time was spent on an off site premise so we had very little time that he actually spent a also if you look at his history i mean he was with the postal service for twenty seven years i believe it was and the first twenty four years it was not a single problem and even then when this all this happened he still was doing an excellent job if there were several there were two i think other than proposed fitness for duty exams request it prior to this third one that actually went forward so it seems like there at least have been some questions arise well again this is this is surrounding the letter writing this was you know part of part of what our allegation is that the for this for duty since there's no procedures to it it's basically used to flush out people they don't like and we've is get a doctor to sign off on that that he's on threat and boom he's gone there's even a pill process so the fact that he has a certain personality traits of they probably get a survey of all the people at the postal service they're probably fine a lot of people have that same thing probably including his supervisors but there was no basis really for terminating and they didn't explore any other way of doing that so i mean they didn't try to find another position they didn't saying it if you're terminated by the post college there's no in no internal governmental process to question your determination so if you think the only way you had to do was you had to go through the marriage board but there was in this room like a process well that's after the fact i'm saying during the termination process there was no no procedure to protect claim there were some previous requests for a fitness for duty evaluation but nothing came of that they were requests that never apparently from what we have followed up on the only one that was followed up on was the one that came just a few days after the resolution of any complaints timing certainly would permit an inference of connection under case  of the timing and the fact that one of the letters to the physician mentioned the person being referred had filed grievances why isn't that enough to  possibility that there was a retaliatory motive in sending this person to be evaluated which in itself is you know potentially a shilling act w to first of all with respect to the doctor's note dr randall was not a decision maker he was a gatekeeper but the letter to him suggests that somebody who was potentially timing plus that letter plus the fact that for twenty five plus years this same person with whatever his quirk's worker had worked successfully why why isn't that constellation of facts and not to suggest that what you have is obvious timing and what you're now arguing is well yes of course he's being we're going after him for his ego activity but his activity was done in such a way that it was disturbing  it simply asked for a medical evaluation that was the responsible thing to do if there had been any problem the matter would have ended there but there was a problem three different psychiatrists independently diagnosed mr c that she realized that her earlier request had not been acted upon it she decided not to pursue it because she was afraid and this is a testimony mr call if he was actually separated because of these fitness for duty issues that he might come with a shotgun and kill people that's an excellent jury argument but one can't the opposite argument be made that nothing was done until a successful complaint was successful in the sense that it resulted in a settlement supervisor had been stung for his behavior and only after that comply did the postal service decide well he's been here twenty seven years and he's always been a little weird but now that we have the c e o complaint we're going to see what we can find out about him about his behavior why isn't that an equally permissible argument i'm not saying that you would necessarily lose i guess i just have difficulty seeing on this record why there isn't an issue for trial she simply the represent i mean the imagine it represented if she was having an unrelated discussion with mr cole in a photocopy room she happened to be in the post office at the same time and he was bouncing off the walls he was acting in a manic manner he was talking about things that happened many years ago as if they had just happened that day people discussing incidents of that people that had long since gone and she was disturbed by his behavior it wasn't you know just because there's a tangential connection with his having once fall agreements the issue here is the manner in which he is acting and it's i i understand that sometimes it's difficult to separate it but on the other hand  title seven can be used as a shield to disrupt the workplace if an employer has a reason to take an action like this simply seeking a medical evaluation of an employee it can't be intimidated by threats of litigation and allegations of retaliation like any employee of the postal service has a responsibility to maintain a safe environment for all its employees it was the responsible thing to do ended everything in the record indicates that mr cole was someone who had serious boundary issues there is evidence of our humanity behavior complaints of fear of him by five different postal employees kohut tried to drag some of the postal customers into his workplace disputes and they complained there were threats by mr call of taking people out there were constant threats of litigation against coworkers threatening body language attempts that imitation erratic attempts to tie his workplace disputes to conspiracy theories involving f b i investigations and long stale allegations of court disruption that had nothing to do with his work relationships and you see all the letters  he brings it up constantly things that happened twenty years before it may not have anything to do this work just as a question about dr randall you had mentioned he was the gate keeper for these   for some reason it wasn't referred out however i mean that means that these prior to requests went to dr randall whoever was in that position yes and they had approved going forward with that and then what was the decision point where they did testified that she at one point she realized that the fitness for duty hadn't been referred out and she just made a conscious decision not to make an issue out of it but the reason was that she was afraid mr cole might be violen grievances and the like now is bad the reason and why wouldn't we infer that that was the reason this one didn't fall through the cracks well first of all there had been these prior requests and so and they had been approved me in context is this person is making complaints about management people are making complaints about him help us sort it out tell us is there a problem here that's really all that it is but again simply because the behavior arises in a connection with a protected activity that doesn't make it protected and the supervisors and managers have to have some sort of discretion to refer these types of cases for fitness for duty and not to be intimidated by thank you it just was really reissued ninety eight there was nothing separate from that quickly put if if assuming just for assuming for the moment that dr russell had a discriminatory motive when forwarded  psychiatrist did independent separate examination they talked to the guy they had a man they tested they did their own examination made their own recommendation and then do well based upon their recommendation why doesn't that just break it the fact that they're not a rubber stamp and these people are not part of the termination decision you bring up a good point your honor the second evaluation was by dr packing and he wouldn't go all the way to where they wanted in other words saying i think th back to where he is but i can't say i can't go all the way and say that this is an unfit for duty so what happened was they didn't like that so instead of just accepting that they went ahead and hired dr pearl and dr pirlo we provide documentation to show that he has a history with