harassment retaliation and a common law claim for violation of public policy based on adverse action that were taken against him that affected the terms and conditions of employment the district court granted summary judgment after also the declaration that stanek and other way if the guy's asleep he's not going to be writing in his log book went through that's correct but it's stanek was an impeccable employee of twenty one years no evidence that he ever fell asleep on the job and in this instance he she make a phone call to be with you in the nature of your discovery examining officers as the supervisor sort to identify the truckers that came through and then go to those truckers find out if there was any traffic through the gate at that hour or that by any other drivers  the credibility of defendant ranken specifically you can see in the gatehouse there is evidence that you can see in the gatehouse she claims that she went up there and looked in and could not see through the gate house because you can see in it but that is directly contradicted by captain rank but he was only disciplined after gauging that conduct on three occasions so there is evidence to dispute captain ranken one is does he have a motive there is a wealth of evidence showing to ninety five ninety six that she engaged in trying to get rid of  stanek that seventy nine to ninety five they had a wonderful relationship even promoted him once he became disabled and what he was older and specifically on the job is probably right that you should try to get rid of them he wasn't sleeping on the job  enter the port after twelve am on the graveyard shift of january two thousand and one and you could testify truthfully to that effect if he was asleep because he would not have any knowledge to the cracker of what you say say no where did he stays awake and nowhere does anyone ever say he was asleep while for the first part of your statement that's what i wanted to know for the second part i think an inference or that evidence actually was in the end of march of two thousand and one after all of these events occurred then his doctor said that the stress exacerbated his condition prior to that time he could work in fact the defendants when it claimed that they felt he was unfit for duty still allowed him to work for a month before they sent him to the fitness for duty and what we must do is look at the totality of the evidence here what we're doing is looking at one isolated incident and of course there is i believe a triable issue the jury could infer by looking at all of the evidence that have to rankin was not credible because of her prior conduct there is a triable issue if you look at the evidence that happened on january the night when she went out to conduct one statement let's say for purposes of discussion that we think she's a liar i think she's dishonest person motivated by hatred of static so we don't have the authority to throw out state a record year and yes in any event but then after that hassle things quieted down and there wasn't anything was there or what after ninety seven until to christmas of two thousand there were no adverse acts however there was hostility between them but even the calls alter cases that had come out so sometimes the defendants lie in wait and may i just  activity and that was he participated in a work fraud investigation that potentially concerns captain rank and defendant rank and also that occurred in ninety six timeframe was that he had granted that there was when you have almost three years ago no one ever sacked its animists john are standing to not engage in any protected activity from ninety seven to two thousand at the end of two thousand is when he engaged in the protected activity number one  will present it to the court and gives three copies after this oral argument but it's the rads case rad pers is fairbanks northstar borough is the ninth circuit case and it was decided in march of two thousand and three that three twenty three eleven eighty five and in that case the court specifically said that remote evidence or evidence that is not actionable is may still come in  show animists and it's relevant and little insofar as it bears on the issue of discrimination and mr so hard to prove because you have to read someone's mind that's why most cases on circumstantial evidence in this case the point of have to show circumstantial evidence and there is a wealth in regards to animals as well as pretext the pattern and practice is evident each time that stanek engaged in protected activity there was a retaliation that was taken against exclude the evidence that that was an abuse of discretion it just means it can go either way but even if it went your way i still don't get why the animists enables him to  get to a jury in this case so if you hated him so well i will address that under the first amendment i have shown to protected activities that number two thousand and a february fourteenth two thousand and one remind me what they are  december two thousand two thousand was the overtime he objected to her failure to pay overtime and told her that she was violating california law the other protected activity was february fourteenth two thousand and one when he stated that he felt as though she was discriminating against him based on his disability and age after those actions he was subjected to adverse actions in regards to the overtime there after he was suspended have forty hours about six days after he objected to the failure to pay overtime she did her surveillance also there was a two written warning women are we talking first amendment in terms of interpersonal business transactions and relationships we're not talking about him out for the press complaining about the whole court activity or its management or its police chief or this is just internal employment he does go to management he goes to the governmental agency where he works right to go to the newspaper and advertise this or what the first amendment claim is that he has a right to object in regards to issues that are a matter of public concern as to his personal concern about overtime it was not only his personal concern it two point five the hard for me to see is retaliation the way it sounded to me as she's thinking over time you're not even entitled to under time you're sleeping on a job you're telling me that you can't stay awake because you've got this these medical problems discrimination and at that meeting the union representative and his representative claimed that he was handling himself find that there was no need for fitness for duty there was a discussion as to what to do at that  and looking at the evidence in favor of the nonmoving party opponent respectfully request that the court reversed the decision in remanded back to the district court thank you very much for your time happened was on christmas day he worked more than his regular shift and it provides an officer asked him why he told her and he was paid that's the overtime as judge beezer pointed out purely an internal housekeeping or an administrative matter then on the morning of january tenth captain rankin's after receiving reports that the port was not being properly me guarded during the evening hours and early morning hours last council to correct you too if you continue to mr stan liberation on page five zero two at the very bottom of that page paragraph thirty three of his declaration he says i was never accused of sleeping either verbal or in the suspension written documents that's true who's accused of dereliction of duty i was never asked by anyone if i just sleep we will accept that is true for purposes of this argument i was never asked what i was doing between three thirty am and six am however i did state several times that i was present in the gatehouse and that from three thirty five am i was sitting at the stool at the front counter so you get three seats there but he doesn't say i had a light on as i am required to do he doesn't say that i acknowledge captain rankin's when she comes up and checks the door lock he doesn't say that he locked in has not been able to return to work since that time and he's permanently unable to work as a police officer because in his own doctor's words he said he subject to lapses of judgment that could make the difference between life and death was he re page number and tell me what he said about being asleep on this guy's back almost continuously ninety five ninety six when you talk to other people how you could get rid of this guy legally and if you cheated i think i'll find a way to give it to do it and he gave up his job as an instructor because he didn't believe the port was doing adequate instruction based on his interpretation of disability no one knew he also said at the bottom that even if the port brought things up just not  believed they should have been he would not be able to be the firearms instructor because of his disability but he remained as a police officer carrying a gun