case number five for argument today just act against after hackett and already the time is a member of the armed services of united states and in two thousand and fourteen he applied for position or actually an opening within the south and police department that he applied for when he applied for the position there was a number of other officers also with the bomb squad here at some point met with the city's human resource director who informed him that he would not be afforded that position so because of the possibility of his numerous deployment well that's crux mr hackett you know right away it involved with the department of went back and they changed it and they said well mr hackett we change your mind you can't be a member of the bomb squad now keep in mind that he had appointed two other officers to the bomb squad already people really stand went and told one of those two operators guys listen we have to put mr hacket on the bomb squad one of you will have to make decisions as far as which one of you will leave the bomb squad that said not being on the bomb squad is not an adverse employment action and therefore it was legally permissible for the city holder has status against violate your wrists are incorrect and that one of the things that were pointed out that he didn't lose any pay it in lose any status by the action that the city took to the district judge said that this decision did not affect acted speed right what you're now saying is that it did is there some place in the record we would go to see that again i say you're briefed also tackle the reasons your client lost so where would we go in the record to see that this decision cost packet while there is no there is nothing in the record where they actually address the pay part of it there is nothing that you that i can direct this court to go to did did you hack a could have filed an affidavit saying this is the supplemental paper being on the bomb squad that if you do that you know he did not he could have filed the city's rules for computing pay did he do that no of themselves that's why officers apply for them because of the title of being a member of a unique institution with in their own agency right it did not affect his pay his rank or his hours that's correct and what i would have expected to see is pointing to evidence that it did affect at least one of those things is there any evidence that it stronger in your appellate brief you focused on this hostile environment theory and the legal question that oh yes we have not decided before about whether hostile environment claims are viable under the service members act was that a theory this hostile environment question one that you raised in the district court i think it was raised but how the defense move for judgment greg i've looked at your brief i don't see any discussion of it in the district court and i don't see any discussion of hostile environment there you well i would submit your honor that it was there but it wasn't overly are you at the lower court the judge in this case in his opinion really spent six ages dealing with the house the work environment before he again addressed the other issue that was argued at the lower court which was the issue a retaliation claim under the service members act right and in our human to to borrow from white against burlington northern you know since that there's a lower standard for adverse employment actions we try to encourage the purpose of your risk was to give service members the notion that once they serve their country and they come back to their place entrenched they're not going to be harassed because they have to monitor duty to this country when they're out on deployment and when they come back they can officially begin their role that they left i'm better by any mistreatment well you know that's that's the substan really clear i think that the district court also picked up on that but they kind of summed it up in the sense that well we had a couple off here was the with upset because they had to remove them separate one of them have to remove themselves and  that please the court my name is james gross and i represent the after ladies a question has been raised here as to whether a hostile work environment   is viable under the uniform services and let me try to address that at the l without addressing the waiver of that argument let's assume that the hostelry as it's been briefed comes into play i could not find any case law regarding a hostile work environment under the uniform family medical leave act cases it does talk about that and with all candor to this court i would suspect the analogy can be drawn so that it could fit under the uniform services act i'm not arguing i'm arguing that the the suggestion of a hostile work environment which has been heavily brief here was waived it was never discussed in the court below looking at the matter de novo there was seemed to be no discussion of that nor any evidence of a hostile work environment as we understand it in the kinds of cases your honor skipping kind of flowing from that i think there is a lack of evidence of any just the bomb squad or just this blue shift or just a small group of workers right if the supervisor tolerates hostile or that can be a basis for liability right supervisor capet yes yes ok i would according to mr hackett when he was placed on the bomb squad he was ostracized they said he pulled away and left him in the lurch on one occasion he was told to sit at the front desk well solely from hackett does not give us the kind of evidence that is compelling sufficiently to make a prime a facial case of a systemic kind of harassment or hostile work so there's no evidence in my mind at least of any systemic endorsement of any of the conduct that he alleges getting to the blue falcon the so surgeon o'neill would have been a supervisor there ain't no sergeant o'neal was not a super the only supervisor capacity would have been on the bomb squad if we're talking about a supervisory reship here there was a supervisor on the bomb squad he didn't know he testified he didn't know anything about blue falcon or what it even meant never heard that secondly it's a little bit vague in the evidence that hackett is trying to present as to whether the blue falcon com sergeant all of this becomes a little bit of a checkerboard of just discontent because of treatment of by a couple colleagues or at least so he sat  nasty treatment by some of your fellow workers doesn't get you much now but we've we've got this let's go back to the early decades of title seven law ok in this country where the were were courts would order people to be hired or promoted and would it be your view that  for example ostracism of somebody in those situations encouraged and tolerated by management could be could amount to retaliation under title seven you know i've sorted thr persons than another produces a difference in the terms and conditions of employment hostile environment is a misleading phrase retaliation isn't just leading word but the statutory term is difference in the terms and conditions of employment are you denying the possibility that somebody who is made to feel miserable because he is in the military reserves could make the claim that he is being treated differently conditions of employment now your question puts the qualification because he's in the military someone who's made to feel miserable i would have pressed the question i asked rather than some different question i will answer no i am not denying that i am saying someone who is made to feel miserable in his employment because he's in the military when that making him feel miserable are facts adversely affects a condition of his employment that gives rise to a viable crime a face and what about if it's not because he's in the military but because he invoke his rights under the uniform services act that just because that's the nd section of the act the end of a cation of the rights and the retaliation because of that in vocation gives rise to a cause of action so long as it creates an adverse condition or an adverse impact on a condition of his employment and if if i may and if about it tolerates it when somebody asserts his rights either based on race or sex worried or military service correct those are all viable theories those are viable theories but we do not have that here we don't have the evidence of that kind of either systemic or supervisory indorsement we just don't have any other further questions thank you cheryl thank you very much anything further mr almer you have one real briefly you will note also that one of the issues also was hackers actually placed on the basel the a ministration changed the rules they said only certify technicians can receive training and that was done with the