even if this court were to assume that there was a and objective lead reasonable basis for bringing disciplinary charges against them crown and i submit that that assumption would not be  because it involves issues of fact but even if the assumption were to be made the it was clear error for the district court to hold that no reasonable finder of fact could conclude based on his record that the individual defendants intentionally retaliated against plaintiff first i think it needs to be crystal clear that what the crown did when he requested the documents in january on january twenty fifth two thousand and ten in his e mail what he did was protected speech he was requesting documents that pertain to data that pertain to matters of public concerns in connection with the course that he was doing that is correct and as we explained in our brief although there may be private motives for requesting public documents if those documents pertain to matters of public concern then the request for those documents is protected under the first amendment it matters not that if you really want the documents and they offered them to him at one point well the i believe there was an offer later on after he made a more formalized for the request i plan to paint right in he was i think there was some back and forth as to the cost and whether or not he could bring his own xerox machine and i believe that ultimately he'd say no you can't bring in your own xerox machine i'm sorry was it unreasonable to say no you can't bring in your own phone a copy i well apart from that i don't think it is material to the issues before the court but perhaps not perhaps not be in an unthinking only in terms of privacy concerns medical records the need to read back and so on so maybe that there's an argument that that could be too cumbersome but i think what's very important on this issue of whether or not this is protected speech and whether or not it's a formal request and just before you go on i'm sorry is january twenty five e mail i think all of it was and you say that speech and all the speech that could be deemed frequent and public criticisms of the of the company and it came to a head obviously when he made his january twenty fifth fo request that's when the chief gatton seized the moment and filed his own four requests with the state to get the registration forms and give him ammunition to then bring what we claim to be and what the had reasonable well in if they had that belief there's still the issue of fact as to whether or not their motive for bringing the charges was retaliatory because the law is clear in this circuit that even if there is an objective reasonable basis for bringing the disciplinary charge if it's tainted with retaliatory motive in summary judgment is not available and qualified immunity is not available certainly if there's retaliation then there is and then there is no good faith and the law is clear on that as well as acting real reasons for their actions absolutely and those questions  fact are based upon one the temporal proximity which is only thirty eight days from the last instance of protected speech was who is the foil request a request for documents and the suspension there's that therefore the charges were pretextual and there's also the disparate treatment jeffrey baker's testimony the former firefighters is very prominent he said that he took about sixty four sixty five courses and used this manner of registration that is gad and let him see iraq's the forms just in the same manner that crown did and he would provide his completion of the courses to the fire district and not once was he ever questioned about it he certainly wasn't disciplined about it those are all probative of and certainly grounds for finding retaliatory motive if i may though and i know i asked for three minutes re rebuttal what it was cited in it brought to the district court's attention in our memorandum of law to district court but wasn't contained in the brief was certain testimony given by the fire district lawyer mr butler mr butler testified at the hearing that when he gave the crown the ultimate i'm either you know why don't you just resign so you don't have to face these disciplinary charges and possible criminal charges he said that he explained to crown in his testimony was i quote at the hearing the crowd rather than participatory and contributory he was confrontational and challenging and he wanted to explain to crown what that meant and during his deposition he was even asked specifically what did you base your statements mr crown that he was quote unquote confrontational and mr butler the district's lawyer answered this way our discussion referring to him and crown was about how adam was making applications under the for oil law in new york for materials from the instructors for the background information he was seeking to not use and not i'm sorry for his course and he had received specific instructions from the instructors for the background information he was seeking to not use that kind of process that could be seen as confrontational rather to use a collaborative process and if it serious for the course were not readily available without causing a great deal of time and trouble for those that he was requesting it from  chief the district court did not air in dismissing this complaint and it certainly did not based soley on the objective basis for the alleged  resignation the district court certainly found and we argued strongly that there was an objective basis for the disciplinary action mr prout had attempted to take a fire officer three class which required  approval from not just from the chief but from the fire commissioners without their authorization and he had also disobeyed a direct order from the chief to meet with him at the plank it says that he was authorized to use the photocopy and there are some supports back in the other witnesses testimony that he had been given saying yes substantially the same instruction so why is that a fact question might in the end be resolved in favor of your client i just don't know whether it can be well it's not a fact question because new york law required the approval of the of the class for by the fire commissioners and and  fire board of fire commissioners under new york law has the ultimate authority to provide consent for a firefighter to take a class outside of the county you can make all these arguments my question to you is why this doesn't at least race a factor question about the circumstances and you know to get qualified immunity you have to either show that there are no disputes of fact or you have to accept the facts as represented by the plaintiffs except facts as represented by the plaintiff the fire the board of fire commissioners still had an objective basis for bringing a disciplinary action they were not and they were not when the circumstances be different if he in fact have the chief's permission even to show me and have the commissioner's permission no they wouldn't because the chief can't authorize a fire which i don't discipline them in the same way maybe they wouldn't discipline him in the same way but in fact they did not discipline him they brought him up on charges and they probably provided him with a noticed that was required to be significant that he hath from mission from the chief assuming that was the case it would be significant it certainly would and he could bring that up in his defense on the charges the board of fire commissioners did not terminate mr crown the chief suspended him which is his right for failing to obey a direct order to meet with him and they and they presented  with charges and gave him an opera and were prepared to give him an opportunity to prove to present evidence on his beer acard mr crown represents that he attempted to reschedule the meeting a and that may not have been his choice to make but to the extent that were credited that he tempted to be scheduled to meet or does that at least raise a question as to whether the defendants in good faith thought that he in support but because i think he not only attempted to reschedule it but he attempted it to reschedule he attempted to reschedule it in the guise of challenging the chief's authority to meet with him at all and the chief i think rightly and correctly and properly told him that he had the authority to order him to a meeting and that he could choose to come or not come to the meeting as peril and number as the basis for the insubordination that was the basis for the insubordination yes but also i think the the district court properly found that mr crown the appellant failed to present particularized evidence of is what he's claiming is the retaliatory action now whether it was whether it was motivated by retaliation maybe a question but in terms of what if there's retaliatory action he's saying  disciplinary proceedings i think then i think though the district court properly found that there was an objective basis for that disciplinary action and that mr truong failed to particular end of a actions taken by the board to support his claim that he was being retaliated against on the basis of his public comments as a matter of fact the board even as this disciplinary process was moving forward the district secretary and the fire company secretary were in e mail communication with mr prout trying to narrow what he was looking for in an attempt to assist him to gather the information he needed for the class standard in your view when there is an objective basis for firing but the claim is retaliation doesn't the don't we have to say that is a matter of law the jury could find would find that he could only have been terminated because of the objective basis that retaliation could not be found by a fact finder no i don't i don't believe that's the standard i believe that if there is an objective basis for the disciplinary action then the burden shifts to the plaintiff to show particularize evidence of which supports his claim of retaliatory action and i don't believe the plaintiff has done that and that's what i believe the district court found in this case and i thank you very much anything else because it was it was a request maiden's part of an internal course that the that the appellant was taking the responses is part of it's a public matter relates to a public and obviously important well i think though judge will do respect there is there are a number of cases that are cited in both briefs and in the district court's opinion in which there are issues which could arguably be of a public concern but the court ultimately finds that it is an internal matter to the police department or to the government agency and therefore even though arguably it could be considered a public matter the purpose of it is an internal review only and this is clear from mr crowned e mails on the subject that he was looking to obtain this information and in part  as he says in self to complete the course work and in part to provide assistance to the department when he's completed the course that latter part is a problem for us and i don't believe that is because i think once he completes the that the firefighters criticisms of the department for deficiencies in training discipline in the route protected as matters public concern as long as they relate to the department generally and not the firefighter in particular that's correct your honor but that's not his stated intent in obtaining these materials and stated intent in maintaining in obtaining these materials is not to criticize it is to provide them to the department for purposes of planning that is clearly an internal matter that would be the responsibility of anyone who completed that class that they had to then provide the material to the fire to the department that he i mean i understand that's his intent but you said that would be the responsibility of anyone who took the class and i'm asking you what to do is record evidence that once you take the class then you have to make your findings known to the department there is not record evidence that you're required to do that but he offered to do that as part of the class matter i understand you very briefly i think that there's a distinction between charges that have an objective foundation that could have been ruined and charges that have an objective foundation but were not brought this if the court looks at the charges that were actually brought again or drafted against crime and there's no mention of this objective basis that you violated state law by going outside the county that was not the thrust of the charges there isn't even any mention of that statute where the fact that it was outside the county what what the charges have to do with is you said you had authorization you didn't have authorization and you force the documents they both for charges are about filing forms that are false and forged i don't think that the law is  that an officer would have qualified immunity if although he brought a charge that was retaliatory there was an objective basis for breach arts in the never before and i think that's what the fire district is arguing with