issue subbie issue in the port an issue in this circuit which i think is one of first impression is whether any of the contemplated discipline differs from the ultimate adverse action do you lose the benefit of the standard of temple proximity which under the cooper but lighting got to cases in other cases in this circuit have held that if you have very close temporal proximity of the alleged retaliatory act after the been generous and start on october seventeenth where the chairman sent morgan a letter to inform our shoot would remain on administrative leave until further notice and get in on the twenty second voted to the i took the position that she received it on the nineteenth and that was the operative date the defendants argued it was before hand moffatt my position on appeal your honor is it really doesn't matter because that contemplated action of terminating her which the district court based its opinion on partially that basically was nullified by the commission it was withdrawn ave she want action want action of the commission when it no finding the action of the commission of the document thirty seven three which was received by my client four days after she found her yossi compliant on november fifteenth and that document your honor it says it's drafted nov eleventh she received nov nineteenth and the district court assumed the appropriate date was november not teens so four days after she was she she found her compliant it was withdrawn ave show it was rescinded that was a word  useful what else did the letters they also demoted her to a deputy director which had never been contemplated demoting her deputy director and it put her on a thirty day suspension which is less than terminal which they discussed doing nat i mean months before and hadn't she herself submitted that they only needed teal employees i recognize that she thought they would combine different forms fonts abilities into the two employees but didn't see herself recommend that they go from three to two employees now your honor if you look at her july eighteenth two thousand and thirteen letter which is document thirty seven one she does not recommend elimination she simply says for right now during this financial crisis we can get by without a deputy director she does not recommend the elimination of the position the district court only file one basis and footnote one ninety two for the prior consideration of the elimination of the position and that was the october twenty second minutes of the commission which do not say that either they simply in those minutes tell you poll the classification consideration for that position a classification is talking so my point is under the authority of the cases we've cited the monfort from the tenth circuit in the others the prior contemplated activity bobbie limitation on that position is not there in the evidence i invite the court to look at those minutes from october twenty second all they simply saw is the classification dept of directors be entitled and in again as does the court found this position was funded sixty five percent by federal funds and debt evidence is disputed what it was in the budget or not in the budget mr davis said it was still in the budget on the pages i said in november it was still in the budget so and that's why the district court i think simply rel the october twenty second minutes which do not say that in making a finding that the elimination of the position had previously bank i'm contemplating if the evidence is just not there and that's why we are contending that bre go do not apply because you've got to have consistency all of the prior contemplated action and what is ultimately done in our situation here i would i would urge the court to look at this clearly and i mean the behavior was bizarre you are i understand it we have not appealed from the clients we made based on that and i certainly am not talking about recess retaliation i'm talking about even with temporal proximity if the if the defendant comes in and says ok it may look bad chronologically but let me tell you what the woman did and kathy evanescent is overwhelming largely undisputed it's a woman  any rational agency would have been very concerned about and could have fired her far much less demote our then summary judgment seems now it to me here on earth they can make the head of the not terminate a demoted or demoted or to a direct right but they had good cause for doing that even after she filed the e e o c say complaint an independent but based on i gather you're not disputing buzzsaw aren't but they are your honor i'm not disputing the factual findings of the court nor can i have not appeal from the even though there was counter evidence what my point is the ultimate retaliation aiding her position and they're what they're for doing away with the job so she should have been left his director no sir i'm sorry and she should have been left in the position of deputy director where she was demoted and i understand they would promoter back at the end of the month so and no commission could have been concerned about having as a deputy director somebody who just goes in somebody else's house uninvited in the middle of  commission looked at that and said terminations not warranted he said in and they didn't terminate her but i'm sorry and after that they got rid of limit dating to position which the ultimate retaliation they basically if they had a basis for terminating are based on her bizarre behavior and not wanting anybody in that position hoof was inexplicably prone to bizarre behavior it doesn't matter if they call it cat and a half if constitutional rights to follow the e e o c kline according to the defenders testimony day it determined she was not going to be terminated she would have a thirty day suspension belt but it should be put back in the position of deputy director only after free she filed was in the record first of all she was not demoted at the time when the letter went out to her nov fifteenth nov eleventh as was noted by the district court she had been removed from the position of acting actor back in october before to any discipline was actually even previously contemplated and tammy vinson had been put in place so well before we get to the chart she's already been removed from our temporary acting position put back to deputy director second of all that's right rosenbaum pointed out before the district court the plaintiffs had the p m a only argued that the nov eleventh date which is what the evidence is and i make you know i cannot explain why my clients didn't deliver that letter in the more timely fashion except for you know sometimes going to happen but all the evidence shows that that was when the decision was actually made now the other thing though is before the district court the plaintiff had ms morgan had relied on the fact that the deputy director position had been eliminated prior to this appeal they were absolutely arguing that the position already been eliminated that they knew had been eliminated before and were trying to use that as evidence of sort of skullduggery as to some of the other claims so that's an inherent contradiction  you know the other thing about this whole notion that somehow determination was rescinded that's simply not true this is a case where due process actually worked like it was supposed to right you have a he proposes termination that doesn't mean that it's final it's means it's been proposed come tell me your side of the story in the letter in his final letter to her in which he you know tells her that she has been suspended it specifically states the seriousness of  offenses does warrant terminations these are still great to offenses now he did consider her long service with the county and also as to the portion of the post germination that was based off her behavior during the september thirtieth budget meeting as opposed to her behavior at the hill residence a few days later he also found that you know maybe there was some understandable friction between her and the former county administrator that had led her to act that way and so downgraded a few of those offenses however he was very clear in that letter this is not to say that this is justifiable this is not to say they shouldn't be fired for it this is just to say basically i'm sort of cutting you a break and that's what he did ultimately what was it that's in the nov eleventh fifteen letter where he specifically states that yes these offenses are still worthy of terminations but i  after having heard your side of the story and taken into account so that it's in correct as a matter of fact just to say that the terminations had been nullified or appealed and was there anything between  you're going to be terminated and november fifth there was communicated to our that there was a hearing that was held on i believe november fifth it was so november she filed the e e o c charge that was what she did before the final decision had been made that was the basis for it you know one other thing just to address another issue that didn't come up previously  argument but has been an issue is that there's been this very loose argument that somehow the commission didn't follow their own policies and that that should be taken as evidence of retaliation it's  brought up and as one of the new grounds for evidence of retaliation first of all it's never been quite clearly discussed by the plaintiff what policy she claims that the commission actually follow in regards to her you know second to be frank an admission handbook has at the beginning a reservation of rights to deal with unique situations and to be frank this was a very unique situation nothing like th issue of whether or not you know that the commission struggled with exactly how to how to deal with it i think of anything this particular case is almost evidence of no good deed goes unpunished because the thing is  that the commission had simply hauled off and fired her before she ever filed the you see charge we wouldn't be here when that's that's been absolutely agreed to on both tough times so the idea that a governmental entity can then be or any employer can then be punished for trying to take its time and ok we're going to put you on a ministry of belief with pay while we investigate this because we don't know what's going on right i mean they find out about this when daughter comes makes a complaint her son and daughter in law and her son in law files a charge at the sheriff's office so ok we're very disturbed by this then there's later some weird communications with about her phone being cut and all this kind of stuff so put her on leave have an investigation after the investigation it becomes clear to print a status that this is you know this is not any kind of because any kind of physical eyes for disability or anything like that and of course that wasn't on appealed regarded as disability claim underlying but you know this is just extraordinarily poor judgment and handling a situation by somebody who can't handle obviously can't handle the stress of being the sole person in the i'm a office that's strictly under in charge of being met and so that's when he gets through the nose to terminate her pulls her in a hearing does not just conduct a pro forma hearing listens to what she has to say doesn't issue decision that day waits decides on it later require an employer to eventually carry out the literal exact same action to have already basically decided on a course of action thank you very that out well  more retaliation climate action carried out had been harsher absolutely honor and then before any other point you talk mike and not unless the panel has any other questions i don't believe we do mr campbell fo a suspension without pay it says on the face of it it was drafted nov eleventh that's four days before she filed the comply but it was not delivered to november not tanks and in that letter the chairman of the that retaliation well let me if i may finish honor also in that letter she was reassigned to the position of deputy m f e m a director but she was still in place she still employed but then one week later they abolish the very position she's assigned to that is the ultimate retaliatory act because when you have her cancel side that position was abolished on september thirtieth why if that's true and the evidence as i've pointed out to the depositions don't support that of the judge did not find that it was september thirtieth if it were if it was terminated on september thirtieth how could she be terminate they were concerned about her filing a claim right but but can you and i understand you're going to make a point here but let me just ask yes predecessor question which is if they had decided to continue with their original plan terminated her employment after that period how could that have been retaliation since all of that occurred before she ever filed right here on earth that would not be retaliation in itself you're correct because that was october first that was before my simple point is though in the law is that the adverse action in this case ultimately the elimination of her position had to follow what was contemplated i thank you misunderstood  with that and the italian ish your honor i don't believe so because that would have been contemplated rhythm of my point is simply what ultimately happened was not that it was a lemon dating a position which had not been previously