supported by substantial evidence now we know that this court is reluctant to disturb evidence rulings but in this particular case the number of rulings that go to the core of the issues of discrimination under the  are significant as we pointed out in our grief the reason i'm not going to take the brief i want to point out why they are significant firstly as the opinion below expresses a special agent in charge sherman when he was talking about his selection process the first time he talked about why he made the selection was that his hearing we had argued below and it's in the court opinion that the agency is acknowledge raise no affirmative defenses to the issue of userra discrimination in this case it simply litigated on the merits as to whether or not the conduct in denying mr sharp promotions in particular in this case amounted to a form of discrimination and the significance of that  that because the agency was not forced to provide information in advance it was relying upon testimony at the hearing for mr sherman that explain for the first time why he had made his decisions as the record below show as we've noted our brief special agents in charge when selecting individuals are required to do comparative analysis are inquired to maintain nodes are required to interview people they simply make a recommendation to the career board for the drug enforcement administration which in virtually every case except when there's a transfer coming in from overseas or a hardship agrees the selection is desired by what they call the special agent in charge or sack except when and isolated cases that individual is usually been chosen for another position at all well except to the extent that the conversation was literally recorded before the a r j and a proffer was made as to what he would say the e mail was very it was basically one line and it's recorded and they are   if the following happened this would be a little bit surprising which is you're trying to lay a foundation for the relevance of the to mask e mail and you're precluded from asking the questions to establish that foundation so now you're telling me that there was deposition testimony which perhaps you could have said dear administrative judge here's the foundation in the earlier deposition little confused about the cutting off of inquiry to show him and to lay a foundation for the testimony i was confused as well i kept trying to raise it with the administrative law judge that there were a number of things she was saying that were simply incorrect she said this was hearsay under the federal rules well they don't apply but even if they did the statement of a party opponent goes directly to the core of the discriminatory and retaliatory animists which simply makes the state in the day after they file their joint appeal and he ca military reservists a cowardly time now i didn't appreciate this is this used to be fairly joint appeal are you talking about surround and sharp all of them did it's in the record your honor they filed they originally filed it's also in the court opinion that they originally filed sixteen reservists filed an action against the da arguing for class status that was denied by the administrative law judge and not appealed there was an attempt to and then you tried earlier it was an attempt to then after a class action was tonight to have a joint claim that would have included both surreal and sharp and that was also tonight yes ok and and mr sherman i'm trying to tell you about events that i was a clue that from presenting at the key hearing that's the whole point can i ask can i ask is in things that weren't part of the record certain you say now there was a deposition about this so it's a matter of fact and i assume that we could if we requested the record we'd be able to get the deposition is certainly part of it and i don't know if it's not the record the preceding it maybe it's in the overall record of the case but my question is what was there any question bringing a complaint and he called him a coward for doing so i think the problem with that is again i am trying to tell you one of my problems with it is if mr sherman is i supervise a number of people right here and if one of them e mailed another one calling them a nasty name i don't know i'm both in my office sitting down and i tell you this is not professional this can occur in my workplace this is not appropriate if are you judge took into account everything you said and said i disagree with this but the thumb was a bit on the scales for us here not only did tomasky say this e mail which which sherman never not only addressed he never attacked or never referred  strange to me so i want to understand  judge read her decision concerning relevance and so at that time the administrative judge with at least aware of why why mr sharp wanted to proffer this evidence did did the sherman deposition take place before the pre hearing conference at which the a j excluded the e mail yes the deposition took place before the  hearing in the pre hearing submissions in which the government filed something to exclude the email on relevance groundsel arguments had been exchanged about the relevant like you  exclude the email didn't you also move to exclude mr sharpe's ability to ask mr sherman any questions about the email yes your honor that is correct but the administrative judge did not preclude mr sharp from asking a general line of questions aren't we here to learn about whether mr sherman has any hostility toward military reservists so he wasn't precluded from asking that particular line of questioning and with that included as an example this e mail you will see from the hearing testimony that she was concerned about mr sharp attempting to litigate cases that involved other employees she was trying to sort of narrow it to making sure this is the second point mr that as part of her consideration about whether it was likely that sherman was discriminating against this particular military man she says i also considered as part of that fact finding whether mr sherman had hostility not just towards  but towards other military or you sirrah activity by others so how is it that this e mail and mr sherman's reaction to it doesn't go right to the heart of this fact finding she said this was an important part of what she considered in her decision making so your interest in judge chan was oh well this should only be about the should only be about mr sharp the shouldn't be about litigating other people's stuff and i get that idea of how you want to limit a case but here she saying she isn't just considering whether sherman is discriminate against sharp she's considering whether sherman has a hostility towards other military men or other you sirrah filers yes you wouldn't this e mail and questioning mr sherman about this e mail go directly to that second part of her sentence well mr sharp again was not precluded from asking mr sherman have you how do you feel about other military reservists who for example how mr sherman dealt with it i'm a manager you may be a manager if you have one subordinate employee that says something completely inappropriate using his work email to another subordinate employee he as and you're copied on it as a manager you know have an obligation it seems to me to react to that and to say it's not appropriate to use your government e mail for these kinds of things and it seems from the deposition testimony that sherman didn't do anything like that but that mr sharp wasn't permitted to introduce that evidence in this hearing to show that mr sherman might just go along with the sort of behavior maybe he shares in tomasky view or at a minimum he is interested in telling people they can't be hostile to others about userra activities there is nothing in the record  establishes that anything in the e mail concerns military reservists it does use a derogatory term coward but it does it well but referenced mr mr and we don't know is not part of the record but mr sharpe's attorney suggested that the deposition it was mr sherman that connected this e mail directly to the earlier in the day before you sarah filing and that it was mr sherman's understanding at least that's representation by counsel based on his deposition tell testimony that this e mail was very much directed to and exclusively about the usera filing that's not supported by the recognized while there's a wreck because they weren't allowed to introduce enough to know i mean as far as the deposition he said that the deposition testimony is not included in the record but to some extent it is so and if that was the connection if that was what he presented to the judge i don't it seems odd that it wouldn't be in his briefing this is the first time that we're hearing of mr sherman being the one making the connection between the e mail and the fact that it concerned military reservists i mean but the most logical conclusion not having gotten to question anybody about what this e mail is about is that it was about the day before usera filing i mean there there isn't anything in this record that would suggest it was about something else and if it was wouldn't it have been great to clear that up so that mr sherman can say oh this had to do with the softball game last week where you know he walked off the field after striking out you know he would win it be great if if mr sherman could have cleared the record up so that it doesn't look like he didn't care at all that his direct subordinate was severely criticizing and using his government e mail to send inappropriate e mails to another subordinate employee about his constitutional right to file a claim of discrimination not it's not established that that what that's what the email is about and yes it would have been certainly made this case easier if it had been quite clear as to what the intention of the e mail was however mr sharp critical lynchpin decision maker with regard to the fourteen instances in which he sought promotion and if he can demonstrate a pattern by mr sherman of the hostility towards military people either because of their military service or because they  that military service to file complaints against him based on discrimination either way that sort of throw it into the same basket that would be relevant you know wouldn't it tend to show a pattern of hostility it may have been relevant but mr sherman cannot establish prejudice because again he had the opportunity to explore a general line of questioning about mr sherman hostility and that he could not ask mr sherman about how he felt about someone else's or his opinion about someone else's value let's just suppose that there was a governor about which there was an awful picture in your book just a hypothetical and now let's just suppose that you tell me where you can ask the governor do you have any general prejudice against people of a certain race ethnicity or gender and he says no but you're not permitted to ask him about that photograph or introduce it into evidence it seems like that would not be exactly giving somebody the full opportunity to vet the issue doesn't it i think it depends on what's in the photograph it's a photograph of something that has nothing at all to do with race if it's a photograph of him in a park or something then the judge in looking at what she has in front of her looks at and says ok why are you proffering this evidence i'm offering it to prove that this person has some sort of  what about people of color ok there's nothing in this photo that demonstrates that at all what is it that you're offering this approved and if looking at what she had before her the pre hearing submission mr sharp purported that the e mail stood for and the e mail itself did not in her opinion rise to the level of being relevant to this case and relevant to the line of questioning that would a stamp lish what mr sherman understood about the e mail and then on the assumption that from the questioning took place there could be any number of different answers and any number of different way being of relevance so that may be a hostility to you know to use your a claimant's whom you believe to be making  something wholly immaterial to her reserve status altogether you know that might make the whole thing a nonevent and non prejudicial but we just don't know  off we don't know whether we don't know how mr sherman do you know what his opinion of it was what we do know however from joint appendix pages twenty four seventy five to seventy seven it reflects several comments that he made about mr sharp who he seemed to hold in somewhat high regard he had recommended him numerous times to be included in his top and he said he was a very good  record that demonstrates mr sherman the sort of own attitude towards reservists and their military service i see that my time is on well let's just assume was and any actions you did or not did not take in mind of that e mail is it your view that even though it was erroneous to exclude it it still wouldn't have caused any prejudice or still wouldn't have caused any harm to or affected the outcome of the case if that's so then why would that be given that critical mind of inquiry here is what was he was able to explore a lot of territory with respect to mr sherman's recommendations of mr sharp specifically and again the central inquiry and mr sharpe's burden is to prove  no action in response to one employee using his government e mail to send a nasty you know to another employee who had just filed a suit claiming discrimination based on his military status you have to counsel your employees at a minimum that such behavior inappropriate you cannot use your government e mail to do that tomasky was more supervisory as well which is even more of a problem having a supervisor challenge people like that i mean i don't know mr sherman said which i don't know who who was in the room with him when he said this but i do cringed if i were his lawyer or the government lawyer mr sherman was asked about his feelings about people who file suits of discrimination and he claimed they were all free riders you know what jack nicholson was an excellent witness right up until the moment where he said he ordered the code red so i mean mr sherman has not been an excellent witness for you already and he wasn't allowed what the sharp team wasn't allowed to ask him what might have been the most provocative questions so i thought i mean that's the problem for me i have trouble it may well be that there's no prejudice at the end the day this case might come out exactly the same way but for me the problem is there's enough of a reason for me to be concerned about prejudiced that i'm not willing to let it go so i mean that's it that's not really a question sorry i understand your honor i just want to just also say that again the joint to explain just twenty four seventy five to seventy seven if you look at mr sherman's testimony in its context i mean the free ride remark is what the heck what does that mean but in context i think he's and of course the administrative judge is in the best position to observe his demeanor and whatever motivations he may have had or displayed during his testimony in context and we defer to the source of credibility things though i have to say her explanation didn't thrill me with the idea that i don't think he's being candid i just think he's been hostile lots of people saying lots of inappropriate things they're all being candid when they say them it doesn't mean they're not i agree that in context it seems that he does take issue with i have a i have a pretty good relationship with with with military reservists in my office is not an issue to the extent that this group is filing claims i just don't see  testicle evidence that mr sherman had high proportion of reservists given the scale proximity of san diego to military bases and never promoted any of them to a supervisory position there was evidence that that mr sherman had had seven complaints in his office filed against them which the judge noted but seemed to accept the premise that it was in response that well if you're so great with your reservist how come so many of them are filing against you and his response was they want to free ride so i think there is other indications in the records that are substantial so the e mail doesn't stand on its own it's it is a linchpin because i think there's a misunderstanding what to mask he says is somewhat irrelevant in the sense that it's it's an anti military comment in our view because you can't do anything worse original appeal which included his name so this argument that somehow this is in a vacuum is incorrect the reality is that the central premise to get at in a discrimination cases i have never and i've been practicing for over thirty two years never had anyone give me the perry mason moment where they stood up and said you know mr burns you're right i didn't want to promote these people because reservist take too much time are gone and i'm just not going to promote that is not going to happen so the way i look at this is we have two things direct evidence of discriminatory intent which you members of the protected class a crucial otherwise everyone would be a one off and that's what the government's i think the problem i have the fundamental problem with their claim well it seems to me that what isn't as significant as  comfortable copying his supervisor on such a derogatory e mail didn't mr sherman create an environment in which his employees were it's ok to to say things like this to people who  discrimination and you could explore that couldn't you if you got to ask him questions about how he handled this after the fact if he called these men into the office did he tell tomasky and make it clear to everyone in the office that such behavior is inappropriate that sort of thing or did he say i just thought that was to muskies personal view i think it's ok for him to use his government computer even though he's a supervisor and said that to other employees and you know so i feel like you know this is something you can probably figure out well but there's another when i asked him about it that's when he came again to his personal opinion there was one final point in the precept and there is the issue of the of the other additional cases that the judge wouldn't allow one read now and i do want the court to focus on that because we could have had been allowed to present that could have presented a different theory of retaliation we could have supported his client also i think it's fundamentally unfair particularly given that this case was sent to the sale jay and initially on every man for misapplication of the standard to have those other cases no your honor this is this goes to the issue of combining cases because it simply exhausts the party to have to file new appeals and with all due respect i'm not free so i think the reason for the inclusion like in the perry decision where the screen it came out and said well let's start putting all these claims in one basket i don't think there was any reason whatsoever on that  not to exclude those additional claims that would been highly probative they could have we could have examined mr sherman as to whether he felt were tallied three enemas because they filed an appeal and we were clued in there so i just conclude with the fact that i think that we're entitled to have a