our second case for this morning is yankee against county of cain illinois fifteen two one six two based on engaging in a protected activity seeking elected office we have that issue before us where there was a manifest error in court ruling where it misread the law the standard says i'm not giving yankee any time off on firing him he thinks he's going to run for sheriff against me some day the district court doesn't mention that in the opinion and i want to know whether that's because it wasn't clearly raised to the just reports attention or why it was absolutely raised it's manifest throughout the record it's one of the basis of the underlying pleading as well so she's given that page in that deposition pinned site the whole evidence is a second there in the district court's ruling because this takes us back to the carter three paths to survive path one is but isn't there any evidence in the record that tells us the time miami that congress ation when was that conversation in relation to yankees terminations that conversation predated all of the o p s investigations that the alleged purported absolute honesty issue is built upon what we have here your honour's is a clear case of paper in the record this conversation i'm going to fire that guy because he's going to run against me for sure was the incident that kicked off a series of investigations in these investigations were conducted by the o p s office and it's officer christopher then there's a follow up question and do you recall the date this conversation took place answer no and then i don't know because i don't have a few pages this weather's anything else i guess by that time he'd been teaching it w maybe there are other indirect ways of knowing but it's it's odd that the just record would not have at least commented on such a direct statement and i think it's more than i think it's it's a matter it's a manifest error but the district court find out that the purported justification and no basis in fact you could are you that they were insufficient to warrant this charge or and this is a crucial key or that they were not the real reason the folk the district we have an expert witness testified to this we've gone through that analysis from there i think that's a harder road for you to be honest because it does seem that he was told because of this new guidance from the attorney general and others that holding the position of police chief in maple park was inconsistent with his judy says sheriff compensated or not so if that was their opinion then it's hard to see that that's retaliatory they  wrong retaliations hard to see judge i think that's an excellent point but that opinion was something that came to after the fact that rationalisation was built through up litigation after the fact that was not what he was told at the time that the undersheriff tell him that those maple park employment is suspended until he comes back and then as of november sixth the undersheriff under sheriff zeman orders and cease that work well first they didn't tell him it was suspended they told me he couldn't be act of limited duty restrictions the undersheriff gave him permission to do administrative work office duties because he was injured but he was operating  interest him now on the due process kind it seems that process these were available on that yankee or you know perhaps his attorney may may have heard and not preserving his but it appears that the sheriff simply helped him to the procedural rules that apply to everyone else your honor what occurred is the sheriff used different time fr and changed his mind about what occurred in different dates at the outset it's undisputed american which rules shall commence within thirty days after the chair files a written complaint seeking removal of the ploy and the merit commission rules unless the employee waives the awfully nice of you to look at me good so that could be for as you're answering joe it's my understanding that whatever the sheriff may have said that he didn't file a specific grievance about the terminations he may have filed grievances about other things but without the predicate grievance then there's nothing to arbitrate it's not the issue the grievance is the issue of whether the sheriff can immediately term and he has a right to hear it so the hurin the due process grants deputy sheriff yankee at the time the i understand it but then he's then he decides i'm not going to go through this hearing process before the marriage commission i'm going to go through the grievance procedure but he doesn't file a grievance about his terminations as both the record shows the district court comes to the conclusion book pres and zeman were under the impression that yankee intended arbitrarily what's an impression worth i mean you have to file a grievance absolutely judge but this comes back to the reversion is history on the date share of present wanted to terminate she operated with the statement the affirmative statement that a gr then at a later date he flipped on that and said oh there was no grief but if a grievance had been filed the arbitration would what whatever sheriff's paris's opinion had been there would have been an arbitration support that well i appreciate that there is a great area in the facts because the facts change as the story of all us on the day progresses terminates he writes in his terminations letter that he had evidence of of wrongful intent from mr simmons deposition you seem to have north that in the briefing so my question would be why haven't you wa any claim relating to this evidence at  said that in his deposition that's the only evidence that they had but you are doing well you need to take it in context i think the jury might not believe it a jury might say for the reasons that you're describing that in fact you know it was not amount healthy kind of but for superseding reasons cetera but a jury might say well here's the sheriff out of his own mouth  two thousand and thirteen now one's even intends to retire in turn two thirteen that are i'm sorry yaki in terms to retire in two thousand and thirteen that is really important because that shows that at that point march and eight he had no subjective intent to run for office i know you argue that but a lot of people retire and then they do something else after they retire retired doesn't mean you go home and sit in front of your t v for the rest of your life maybe you run for public office maybe you take up a hobby that you've had before maybe you conduct a public service work through your church or something you do a lot of things to run every election with a couple of years off right are the relevant election was a couple of years on election what would have been held in two thousand november two thousand and then you become the sheriff the december two praise you said it was fired realize he had been politically retaliated against intel two thousand and twelve three and a half years after his fire a year and a half three after the selection election that he now claims he was going to run for which he never did which twelve that he's within the statute of limitations highness you're not arguing that he filed this case today dari you know i'm not arguing at this point i'm just saying three and a half years after he fired then he comes up with a theory that he was retaliated against politically so whatever ha ppened between two thousand and eight and two thousand and twelve he can't claim affected his ability to run for sure for doing thank you also because he says he did not if he had well his complaint is that he was fired you know it to be anything that doesn't sound very here's what it says public employee disability act is five i l c s three forty five s subparagraph one d during the period of disability which is during the time that you're on leave of work because you're hurt the injured person shall not be employed in any other manner with or without monetary compensation that's what the statute says that is being a volunteer republic when you get ten cents or something when you know the races and is so i'm a state senator i had to they had to make a special rule that state senators could actually do a sure for that reason to maybe one of but there was no indication that he was going to and there's no indication that the findings in the o p s investigation that sheriff president believe them and you know investigations if it occurred and i'm not conceding that's a true statement at all well you don't have to that's not the point here ok anything else any other questions you have all the time you reserved thank you first i want to address a couple of the points i'm stunned that we're here arguing context this is an appellate argument it's based upon the record the argument of context ignores volumes of conflicting evidence which present the genuine issue material that this is a struggle they cannot get around so what we've heard in this oral argument from defense are things that are not even in the record not even in the record which is completely improper and scorch disregard what this court guy he was an off with republican party he was a precinct captain he was walking the beat he was serving as the chief of maple park he was very active in the political engagement and he testified as well as other witnesses testified about this barbecue where just an ounce count with a capital a announced actually in the formal requirement of putting yourself out there for public office you have to realize this is a very contentious police department the sheriff himself had o case chair for ads because he supported the winner of the prior election the loser the prior election so if you put yourself out there with a formal announcement you're picking a team and that impacts your day to day operations as a deputy sheriff in king county and s genuine issue of material fact is it right for the jury or not there was never a slam dunk here now can this read thank you very much and thanks to both