players in this case david harrell the only claims that are remaining are those that were dismissed on summary judgment that were in the form of the retaliatory reference or retaliatory discharge of in a speaking about the issue of the retaliatory reference first there's a few different things that the defendant attempted to argue one is that they seem to argue that there was no second is that if you were required to show that we did the reason i say that you're not show that is showing that he didn't get the job yet that he didn't get to show causation between the the tell on the protected activity and given the time lag here that problem pretty well at least in an issue that's what they're arguing but that would be true if we were going to be more of a  initial actions taken after his traffic accident and what his ultimate terminations bus trips then which then led to things going his file that were survived everything that happened and and caused the final action ok and if we can do that and the reason i say we can do that is first of all if you look at the my how can you show that  the things that went in the jefferson county file after you were to was terminated what's the evidence that those were unusual those wouldn't go in the filing of every action for you well the first thing is that so it's not supposed to be in the file if you look at b o c compliance meaning they indicate that where somebody disclosed that you know she had a lawsuit or that she followed the neo c charge and she's troubled that  that so what well part of what's unusual is that they said chief james said that falsely should not be in a personnel file and right there in there with the with the  there was but see there was only a portion of the allegations that they brought to the leader in their attempt to decertify and it was the portions that have been falls if you look at what was in there you think the a legal proceeding was still going at the the documents that they sent along with that he o c charged they indicate that he let girls who were drinking go and just drive off where they had danger to the community yet in their investigation they found that was not stain they that he had lied about the reason falsely claiming that he was about to have a baby but in reality he was about to have a baby and now he will only was he about to have a baby sitter his wife and his baby were close to death she had lost a bunch of blood the baby was coming months earlier they indicated that he was neglecting his duties but if you look at pages nine fifty four i think you know in the things that were tried to the jury up if i read the transcript of the action and then and the negative references turning over the file with the e e o c complaint in there and the evidence that you claim is false what's what's the how do you make the link between the e e o c complaint to the negative reference which was i think eighteen months or two years later well first of all we can establish two different ways one is that the e e o c has indicated that providing negative information or case from any other circuit that says giving and a raft a negative reference to following protected activity is direct evidence of retaliatory  reference would be a harder case for a point it was only just like she wouldn't get employed but that's not what happened here what happened here is that they disclosed his referencing getting not getting the job but as i understand your allegation is that he what your client was ranked number one on the hot springs employment last he doesn't get the job he calls them and asked why did they say it's because of this reference or the how did he find out about the negative or if he found out about the negative reference because after the fact every one told anything for months on in the f a  file and what he got from the hot springs police department was you know sixty seventy pages and included it was about fifteen pages which are in the appendix from the jefferson county sheriff's office which the testimony was that thought there was just a transcript of what jefferson county presented the law enforcement yes but chief james said that false information should not be in that file in nearly everything they said in there about my client his condo line being i don't think so especially not when you're doing it because they've all been e e o c joe i mean if you look at the evidence in there almost everything they said about michael was proven to be  proven how proven through their own testimony prove it because they mean in the lead in this lawsuit or in this lawsuit but also by that time they had been to a leader they've been to the law enforcement mission which is if ever there was a jury of peers or higher level where the jefferson county sheriff's department representative showed the case was called on the docket if you will and the it would stood before the commissioners and basically presented what the case would be and he said that he why that mr and he claimed that mr harold lied about wife being in the hospital no he didn't he never will he never said that he lied about that he said he said that believe me it is now there's one statement i have in your brief i really have some problem with you said there's no evidence that jefferson county suggested that harrell was unfit to be an officer he did not they helped date they tried to decertif they did but they never that was in connection with the job or they never called so i face off i sent some if somebody asked me for a job reference and i said he is that he is not fit to be certified as an officer that doesn't mean to be an officer in then you said here that they differ said that no i believe i said that i don't believe that he said that mr harold lied about his wife nor are you saying here brief that they've never suggested he was unfit to be a police officer the elite of proceedings was put in the jefferson county fireworks so that everyone in the state would know that jefferson county didn't think he was fit to be an officer i don't know that all i'm saying is you heard when you heard high and that you answered before i and i'm sorry my by what they put in the file told every other police force and law enforcement force or just been in the state that he wasn't fit in there in jefferson county to be hired but i think the important thing about that is the issue in this case is retaliatory until that's where we are know of but we're not that's now we're talking about right now now why will who testified as to why such an incomplete worship of the  obvious that the defense should have put something on that to that effect explaining why just the introduction to buy out the presentation that would so they didn't support it in the file i think they did i think they did i love denying they so jefferson county did send it i believe they did all i'm saying is incidental so why did they send the e e o c complaint i believe that there s first of all there's nothing in the record that explains that but except for the testimony of mcqueary manes where he says he called he called major woods and i asked for that's what he said which means is he is i think that my view of me ask you this ok you got protected activity you're firing the complaint you agree on that right yes and no lawsuit what say although you don't agree with this wet say that giving the to the partial transcript and the second point to hot springs at least creates a jury issue as to whether that's a negative reference all right you may not agree to follow let's assume there's a negative reference and an e e o c complaint separated by roughly fifteen to eighteen months is that not correct disk evidence of retaliatory contempt no i believe it's a direct evidence of tension between former employees and employers i do not believe there's any evidence that it's the that it's evidence of improper retaliat rx about them being deceitful in the internal affairs investigations about the girls in the ditch incident on a saturday night when he when he goes out to help two girls at ten thirty at night in the street clo police car and he turned the blue lie down and he doesn't call it in and there his corporal smelled alcohol i mean didn't take any of that into account and also doesn't take into account it's clear from the the record that david harrell applied for twenty one different positions and and none of the others there was there any evidence of a negative reference i mean if if my clients are out to get him wouldn't they be given a negative reference every time they got a chance they didn't all they did is tell the people that i can't tell you about david hero david harrell has a son and a release however and if you want to come see his bio you may what about the argument that they gave they gave false testimony to the certification board and if there's enough evidence to release get that to the jury does that qualify as why would that not qualify i think it would but there's absolutely no proof of that i mean that i vehemently deny that there's fall that those pages that ended up in the hands of the hot springs police department were or fall there's there's nothing in there this fall  the transcript so is that if i google that transcript while i find false testimony in there i don't believe you will i will i do believe you will find as in any lawsuit that we've all been involved in our whole lives two sides to  lied when he said he didn't show up from the pool for the for the polygraph because he had when he said he didn't show up because his wife was in critical condition at the hospital bob to get baby to give birth to a high risk sergeant told me that david harrell told his daughter but the real reason he didn't go is because he just didn't want to now whether that cripple hearsay is true or not evidence when they make day to day decisions they just go by what they hear and i try to make the best decisions that they can and i think that's what i think that's what the jefferson county defendants did here they had a quote bad cop at least in their mind in his affidavit he didn't tell me that well somebody is lying or mistaken or don't remember well but that doesn't mean that we live it just means that we presented our version it's like an opening statement lafayette w making made an opening statement yesterday he said here's what we're going to prove they come back seven months later and lo and behold as the panel hell they didn't prove that the panel we were lying or he uses the word foster out of birth but he can he can loosely throw that phrase around but about i don't believe it to be accurate and i don't believe it to be supported by the record