we're here on an appeal from the grant of a motion for summary judgment on behalf of the defendant bill mccarthy the polk county sheriff whom my client dan charleston ran against in the two thousand and twelve election misters charleson was an eighteen year member of or employee of the polk county sheriff's department and had rose to the rank of sergeant and at the time in which he was campaigning against mr mccarthy he was in charge as a sergeant in the patrol division a division in which he had supervisory responsibilities for twelve people he had the use twenty four hours seven days a week of a patrol car and he had the eligibility to work overtime during the twelve two thousand and twelve campaign he didn't work much overtime for actually because he was campaigning but he still had that availability to him at that time mr charleston was disciplined by mr mccarthy in february two thousand and twelve with a two day suspension for failing to render aid to a person by the name of gerry brennan who had collapsed on the roadway or next to the roadway on a sidewalk in altoona iowa mister  be mr charleston appealed that of the polk county civil service commission and the commission affirmed that the trial court has always treated that as not part of this case despite the fact that in shock conceived versus ramsey the cumulative effect task of discipline is applicable namely a number of actions of discipline to rise to live all of an adverse employment that eligibility for promotion occurs off of a promotional list and mr and that occurs every two years and the next session or next time in which the promotional list was to come out was in march two thousand and thirteen so in that two year period mr charleston had a discipline of a two day suspension in february  two thousand and twelve then coupled with a discipline of on february twentieth which was a reprimand for basically activities that occurred during the course of mr charleston's campaign against mr mccarthy and mr mccarthy and others within the command taking exception to what he did if i recall right in the district court also suggests that the reprimand wouldn't have had any effect because your client was unable that this particular defendant in the promotion was well the the sheriff selects off of the promotional list but he knows the sheriff and everybody in the department knows that discipline is going to keep a candidate off of a promotional less mr charleston testified to that in his deposition he said if i have discipline i'm not going to be eligible to be promoted when you construe the facts in the light most favorable to mr charleston in this situation the sheriff should know that also and should know that imposing discipline on him well make him in eligible for promotion down the road where the record can we can we find  testimony that explains how that the promotion list system works well i don't think we went through the nuts and bolts of that your honor but i'm going to argue to you in any employment setting you you have a candidate who has no discipline and you have a candidate who does who's likely to get the promotion in that situation for example when when you were going on to the bench on in the eighth circuit suppose the chief judge took discipline against you and reported you to the juice judicial ethics board and he did it solely because he was a democrat and you were a you i i argue that is common sense that is the reality of life here but i thought that maybe i'm wrong and you can correct me but i thought that one of the  actions that that's pointed to here is is being is the action of being left off of the promotion list that's correct are you not and it's our position when you vote if we don't know how the over the years that there are you know there are ways that an employee can cause can compensate for individual instances of discipline and i don't know maybe there's a point system who knows that my point is that well i don't know the point is we don't know we don't know anything about the promotion list so how can we look at being laughed off the promotion list as any kind of an adverse action well because if you if you're stuck in the same job for thirty years and not being promoted through the ranks you're going to lose pay era lose the opportunity to gain new skills you're going to lose the opportunity to  supervise more people i believe that and be not being a eligible for promotion as an adverse employment action with respect to this and again when you're looking at a summary judgment record you may call inferring says in the light most favorable to the plaintiff not in favor of the defendant in this situation and in this situation these are all just things that the defense and the trial court raise to justify not listening to what dan charleston testified to say in my discipline left me off the promotional s that's  that how would we know that other than your client saying you're an eighteen year veteran of this department you've been on the promotional less without discipline ok if he testifies whatever the mayor told me that once political discrimination count is there any evidence that it was the discrimination as on the basis of him being a republican as opposed to retaliation it right as opposed to him being somebody who ran against judge  you are not going to be a shadow sheriff and be here and survive in this office you're not going to be a spokesman for the rank and file and you're not going to talk against the policies in this administration and get away with that i believe that that statement is a comment on what dan did as a republican candidate namely he's raising the issues i disagree with you and i'm not going to get away with that now that i won the election so i believe that that statement supports the the political discrimination and it also supports the political retaliation claim the discrimination doesn't that need to be because of his affiliation with the republican party yes it does but what in that statement other than the fact may be that he ran as a republican well he ran and he pointed out campaign issues that he disagreed so that sounds more like retaliation ok a little discrimination but i argue i ar though that no employer or no candidate in this situation is going to come out and say i'm discriminating against you on the basis that you know you ran against me as a republican i mean that you'd have to well you could be unsophisticated to do that he could say hey i notice you're still going to republican township meetings there you know and without saying it maybe it's because he's going to run against him again you're fired ok that's back could happen but again that that's not part of this record but i still believe when he's questioning da policy he's questioning what dan did as a republican and that therefore the political discrimination claim still exists with respect to the adverse employment act wagner versus campbell this court found that a reprimand him and of itself generally doesn't constitute an adverse employment action but when it leads to patrol department he no longer has access to a car twenty four seven he's no longer supervising him twelve employees he's knocked down before and he's no longer eligible for the overtime we believe that the pro court completely ignored that when making its route her ruling on summary judgment in this matter and i'm over my time  please the court counsel to answer your question does she ever have what's in the record concerning the promotional lists and ones eligibility become on the promotional less the answer is there is nothing in the record on the promotional less i will code chapter three forty one a govern civil service commissions and under that chapter it sets forth that it is the obligation of a civil service commission to create such promotional the three member civil service commission is made up enough of an appointee by the sheriff and appointed by the board of supervisors and an appointee by the county attorney however nowhere in that statute does it say what makes one eligible for the promotional lists nor has mr charleston allege or introduce evidence that there is a policy of what makes one eligible for the motion list by all accounts it is not an objective standard is a subjective standard and there is no evidence from the three members of the poll chi civil service commission about what criteria they use in two thousand and thirteen to make that promotional list they were originally defendants to this lawsuit however at no time or affidavit taken from either of them and no time were depositions taken from them the sole evidence in the record is as you mentioned your honor mr charles and speculation and that occurs on page one twenty of his deposition where he testifies he answers a question because they look at different things when they are doing the civil service interviews and if they  the assumption in that statement is that he is aware of everyone else in the departments disciplinary history discipline under iowa law that does not go to the civil service commission is confidential so i don't think he would have an adequate understanding of his fellow employees disciplinary record i think that would also be speculation on his part as well i would also note during his history the composition of the commission and the sheriff changed over time so i think it would be difficult to extrapolate some level of personal knowledge that would give him the ability to make an evidentiary statement as opposed to mere speculation was interesting in this case your honour's is that while we all agree that the projected activity in this case is the two thousand and twelve campaign for sheriff all of the actual issues that we're discussing occurred in the months following the campaign and the election not during the eighteen months the campaign was going on in fact several of these events took place four and five months after the campaign and this court has previously said that even a two month delay between the protected activity and the alleged adverse employment action breaks that inference of a causal connection and here we have a far more significant delay but looking at the adverse employment actions that are alleged in this case it's important to note that the original twenty twelve february two thousand and twelve suspension the two day suspension that it a national event in this case we would have to disagree there is no evidence in the record that sheriff mccarthy had the legal ability to rescind a suspension that was imposed not just by himself but affirmed by the i was civil service commission that decision could have been appealed to the district court in iowa it was not done so and it was a final judgment at that time it is also unclear how the sheriff would have had an obligation every day to re evaluate discipline that he met it out in the past and that discipline while we can talk about the supposed lingering effects it was an isolated two day suspension that was served in march of and twelve there is no evidence in the record that any effects of that lingered during the actual period of time in this case which was april twenty fourth two thousand and twelve and onward so we believe that as a discrete event and that event is not actionable in this case as to the three other events the february two thousand and thirteen reprimand was not based on conduct that occurred during the campaign it was based upon conduct that occurred after the campaign after the campaign as is traditional as the sheriff testified to in his affidavit it is routine for the sheriff's department to look at transfers within the department and the first transfer list were going out to the rank and file soon there after the election mr charleston according to the o p s investigation that was done spoke to individual deputies about their transfers prior to them being informed by sheriff mccarthy that's obviously a violation of the chain of command so that was events that occurred post election not pre election it's also important to note that that reprimand had no effect on mr charleston's salary or benefits it's also important to know that the command staff recommended to the sheriff that due to mr charleston's actions and his cooperation or lack thereof during the investigation that he received anywhere from a suspension to a demotion determination sheriff mccarthy however chose to give him a reprimand which is the lowest form of discipline available we do not believe that reprimand had any adverse consequences i mr charleston turning next to the march transfer to patrol i think why this case is distinguish from the shock and say decision as the march transfer from patrol to transport was a lateral transfer he maintained his rank as a sergeant he maintained his supervisory duties he also maintained the eligibility for overtime which mr charleston admitted to in deposition he said that over time was less desirable for him  because he no longer had the use of a patrol car because it wasn't necessary his new position but he was still future career prospects for vice fewer people he did you honor but he also testified in deposition that that did not change the amount of work he had and unlike shock and see where the original transfer was arguably lateral and then there were two subsequent transfers that were clearly demotions mr charleston and this record stayed in transport for only a matter of two and a half months before he was trying to transfer again this time to court staging where he supervised twenty people significantly more than he supervised and patrol so this two and a half month time period severe of a deprivation when you just read it on a piece of paper but for a foreign officer with you know no law enforcement officers are overpaid use the use of a vehicle well i would note two things are on a first there's no evidence in the record on any kind of financial impact that that loss of a patrol vehicle had on mr charles and he didn't testify in any way to that fact i would also know it goes to is not a matter of convenience they are allowed to take the patrol vehicle home so they can better able to respond to emergencies is not intended to supplement or replace an individual vehicle and only deputies and s as the loss of status i think it could be viewed that way however mr charleston testified contrary to that your honor when when discussing the managerial position and transport he was specifically asked that question and he testified that it was not punitive work that that position required a seasoned veteran and it was equally as important work for him to do and transport reason for want of a better term  least of i don't know if that would amount to a material disadvantage to a change of employment or not it certainly is within a transfer there's going to be some changes and your every day duties of course anytime you take a new assignment there is some change his i don't think were adverse however again it remained in that position for only two and a half months and there's no evidence in the record about who has patrol vehicles and the sheriff's uncovered by sheriff mccarthy he was not the sheriff at the time mr charleston was hired and he discovered that sergeant charleston was terminated from his previous position in pomona california for a line on a police report sergeant mccarthy was concerned after discovering that coupled with his belief in the fighting in the o p s investigation that sergeant charleston lacks credibility that between that initial finding that he to police report his current inability to be credible with o p s question his credibility and his ability to testify authoritatively on behalf of the county and so the justified reason in the record for his transfer was by placing him in transport and not patrol he would not have to effectuate arrest and would not be required to testify in court  sheriff mccarthy's purported reason was not accurate i would also note that sergeant charleston was not amongst the first two waves of transfers post election so i would say that the o p s if you're looking at  timeline his lack of cooperation with the o p s interview would support that his credibility issues were the justification for the transfer speaking of the factual record always agree with mr favor that this court construe is all factual and francis and mr charleston's favor as the nonmoving party as this court has repeatedly said it cannot and will not adopt a series of facts which contradict the record and here you have a balloonist record that was submitted by polk county in support of this motion for summary judgment contrary to that what you have is mr austin speculation which is not based upon personal knowledge and so the facts here support the county i'd also know that we don't have a factual dispute i believe our dispute goes to the legal implications of those factual decisions and that's why summary judgment was appropriate in this case and on behalf of sheriff mccarthy we respectfully ask that this court affirm the decision of the district court and train judgment on both counts in his favor no role in investigating my client he gave this information to share of mccarthy in october two thousand and twelve and mccarthy sat on it until he used it as responsibility for supervising my client going out and conducting out of out of state investigations into my client and then the sheriff using that as justification for the transfer of him i believe the bat is political that's political retaliation in a nutshell is using information you learned on the campaign to justify your actions  disciplining him later secondly i want to go back to the december sixth two thousand and twelve meeting with mccarthy his counsel roger roger cool the date of the december sixth in this case mr charleson was disciplined for failing to render timely aid to mr brennan in february two thousand and twelve in october two thousand and twelve roger cool writes a letter to the brennan family's attorney saying that there is no medical evidence that we know that shows that any action or inaction of either deputy caused or contributed to the death or the minds of mr brown cool learns on december fifth based on his letter the brennan family is not going to pursue a civil suit this is then brought up at the december sixth me and instead of reconsidering this discipline sheriff mccarthy doubles down here and says i think you deserve more discipline than what he got that is rounds for retaliation i believe you will always hear cases where scientific evidence reverses convictions years later why can't we rely on the inferring that the science didn't support the discipline back in february and that the person imposing the discipline should have made a reasonable reconsideration in that situation instead he continues to retaliate in that situation thank you thank you where counsel appreciate your