reverse order the way from the briefing with the retaliation claim that may be the at least in our mind one of the most obvious errors of the district court there has been no dispute below or on appeal no circumstantial evidence of retaliation and we disagree we believe that the evidence of retaliation is the proximity in time from the last reported and complained of racial harassment which occurred in september of two thousand and fifteen in november two thousand and fifteen the city fired mr vasquez the th circuit we believe has made it clear that evidence based on timing can be sufficient to let the issue go to the jury even did say that it was sufficiently retaliation was sufficiently pled but was it really that's that's an issue on appeal that was an issue raised on appeal i think as a certainly as a practical matter the issue it went to racial harassment over the course of his over the course i think the facts as i read in the complaint is the city failed fired him because race and retaliation for complaints about protesting of racial harassment that that's what was alleged when those aren't facts that's really a legal glitch and well i i can go through the through the allegations of the complaint they're fairly detailed i think we i think we allege them insufficient fashion but they there was no motion to dismiss for for failure to plead them properly that issue was raised on summary judgment after the when waived it necessarily our argument was that we're past that point procedurally that we're past the point of rule twelve you know we're now to rule fifty six motion help me understand why there is enough evidence to trial  title seven with respect to race discrimination and then it's retaliation would you just review the evidence for me yes your honor the way i see the case from the other side is that the employer gets these reports of sexual har t and decides that they're valid and it fires up and it's not really disputing that mr baird was a pretty despicable racist but they're saying there's very little evidence that baird had anything tell me the evidence that supports your version of the case all approach it initially from the from the priest from a pretext case analysis and we have presented substantial evidence we believe to this not to undermine  sexual harassment as a basis namely that it did not occur but but that really doesn't get you anywhere does it whether it occurred or not isn't the issue the issue is whether the city i had evidence it could have reasonably concluded that it occurred when you're dealing with pretax this in my car well my my reading of the what we believe is the kind of the controlling supreme court case law in this case which we believe is where you were sanderson plumbing is that there that that whether or not there there is sufficient evidence to establish that that the reasons given were false by the employer and and we've we've established that we believe that we have undermined that and shown that there are there are very good reasons under rule fifty six when when the evidence is reviewed in the light most favorable to the plaintiffs that it was false now we have a question here and as to go ahead i'm waiting for the facts now ok as to why it was false and you're you're talking about indirect not direct evidence correct i'm right which she later complained against mr vasquez she she didn't report any of these things which allegedly occurred over a long period of time not only to the employer which is understandable not to sometimes be difficult to report those there and there are two other alleged witnesses in this case mr sergio soto and we've undermined the reasons you know the bases he lied on record forged my client signature on an employment document in order to return to work after a dui he said he indicated that he wanted my client's job so he had an axe to grind the other individual was a nephew very yes mr baird a nephew and which was against the  the me too movement argument saying that this is not the kind of thing that we should consider how much investigation into these allegations of sexual harassment and how much investigation should they have done well i don't think they did all that much i mean what they did is they they they took these statements which by the way brant martin who was was a decision maker in the case said he received these statements and the allegations i believe was november th of two thousand and fifteen which is a sunday undisputed that was a sunday and as  we all know government offices are not open on sunday and that goes to the issue of the mendacity behind the falsity of the decision making process but but certainly they should at least have interviewed my client had gotten denies that he ever got any complaints from your client about their correct that's correct you know that that i think he did say that which is very surprising we have we had a conflict in the evidence on that point yes i'm just wondering if you are going to assert this on appeal that mr pyles affidavit is not sufficient enough which you would be using for the purpose of this stablish direct evidence of discrimination that it doesn't make the affidavit was stricken and the frankly i don't think it either way it supports the just a court's decision whether it whether it whether improperly strictures struck it or not but if in terms of your evidence you really need that don't you yes but i believe alice the direct evidence and if if you don't have that what else do you have for direct evidence of discrimination well we have relied upon the vance line of cases  in support of the direct evidence and that's the hostile work environment though those that's it that is the context in which which that line of cases arises the whether or not the analysis of the vance court  limited to a sexual harassment as opposed to an overall discrimination claim is not an issue that was raised by the city and it wasn't the dress by the by the district court everyone pretty much assume that vance applied and well then it applies though in that's hostile work environment that's you don't have that here all the old perhaps you're going to argue that you do even though it was an alleged you're not claiming that that there is vicarious liability are you we are farragher and l or thin those line of cases he clearly under under the city's own written policies had the authority to make tangible employment decisions with regard to mr vasquez including up to and including firing as long as long as that receives approval would beard at the time of the firing was not then ploy he was out on leave i forget now the reason i believe the court is referring to yes that's that is the allegation and the circumstances in which that arose are filled actually as to why you never got your hands on their deposition from him well if it arose in unusual circumstances he was he was he he was disclosed as a managerial level pretext book case though i would like to point out we have identified several other items of evidence that establish a pretext in this case aside from the deville yarm all analysis that the district court relied upon in addition to prove showing that the allegation of sexual harassment was false there's the record is replete with other examples of pretext they didn't follow their own disciplinary policy with regard to mr mr bascomb progressive discipline correct your honor they didn't fall that progressivism a disciplinary part of policy they jumped right to terminations whereas despite the several allegations against mr baird that my client made of racial harassment they went to step one and stopped and so they didn't follow their own policy i think you know the answer this question but i'll make sure it was martin who fired him well martin was on the panel they they did what i call basically a laundering panel so they they make these decisions they get recommendations they make decisions and they fire somebody and then they use that is in order to essentially launder any any discriminatory intent martin was on that he there's no evidence that he actually committed acts of discrimination but he was aware of them and he was the one to whom my client complained about baird so who else was on the panel with martin gregg weisel who was the superintendent and i also believe the mayor of idaho falls to reserve about a one minute please the court counsel i we are asking the court to this court to affirm the district court's decision granting summary judgment maybe if i can pick up with a couple of points that we were just discussing st it may help to understand the hierarchy of the city vital falls in the parks and rec department if we're unclear on that we have various department heads one of them is greg weitzel he's the department head over parks and rec below him there are a few division directors one of them is brant martin who's over cemetaries and then below brant martin we have jeff baird below jeff baird we had mr vasquez and he supervised some seasonal employees so on this issue that you raised judge silver with regard to vance and whether or not it applies in this case i do not believe that it applies and the reason is we have in vance the court specifically said that you know the determination the supreme court said the determination of whether or not an employee is a supervisor is can they make a tangible employment action and a tangible employment action is defined as hiring or firing well you know and i looked at the record on this though and as counsel is sad very there are the personnel records and they are the personal records on discipline and performance improvement guide and it says that the supervisor and that would be who would that be mr could have yes fired him even though and the record indicates i think on equivocally that specifically he did not but i think the argument made by the plaintiff is that because of that there's at least  inference that he was involved and taking that into account with the fact that there is certainly sufficient evidence to get to the jury undisputed evidence that this had occurred over us that it's not undisputed  but that mr baird had been had engaged in racial remarks and and created an environment why isn't that enough to establish that he could have or at there's enough to establish that he was directly involved with the firing let's but let's break that down into two parts st on the policy manual there are two spots in this record that you've got to look to understand the city of idaho falls policy the st is it s e r one hundred and twenty one and that is the actual city of idaho falls personnel policy and what it says it's very clear and who may terminate an employee and it says regular employees may be terminated only by a division director or by the mayor the division director in this case did produce the discipline and performance improvement guide it's a separate pamphlet that was distributed to supervisors to help them understand how to implement their progressive discipline policy but in that policy and in that improvement guide if you look at it specifically it says that they can recommend that a supervisor can recommend certain actions that be taken it talks about steps one through three and then it says meets performance standards under step three or demotion suspension terminations that has to be read in terms of the overall city of idaho falls policy which says that if you're going to recommend terminations that has to be done by the division director which would have been brought martin and so it's removing that final decision making authority from the supervisors jeff baird in a vast was as level and it is moving out up the chain to the division director or the mayor ok think that's the break can i ask you a question then once heard from the evidence of direct evidence of discrimination to the indirect evidence of discrimination and as i look at it of course is there a genuine issue of material fact and you take a look at what is undisputed and and as i say i see one undisputed fact is that there was no progressive discipline in this case and undisputed fact is that mr baird was never he was never disciplined why isn't that enough to establish pretext it's not enough because geoff baird was not involved in the decision to terminate that's was no but but but in terms of pretext you have mr baird who was accused of discriminatory conduct and he received no discipline and in the light most favorable to the plaintiff and you have the plaintiff who was immediately disciplined why isn't that some at least circumstantial evidence or pretext again i think it gets back to the the allegation that mr vasquez is making is that comments was when i confronted him about the writ isn't that irrelevant on summary judgment that we have to look at the evidence in the light most favorable to the nonmoving party in the nonmoving parties as i made multiple complaints to mr martin so mr martin's denial doesn't go to the summary judgment standard to pretax sure so let's assume that we have this fact in the record the vast was says jeff barrett has made comments about me and i complained about it and nothing was done right ok so you still have to have a link between the nothing was done and the decision to terminate or to retaliate against mr bass was but that's to go to your when you have  credibility issue isn't it where you have disputed issues of fact that are relevant or material well not you have mr basket is saying that i made these complaints and actually two months before he was terminated he said he made these complaints mr martin says no it never happened the jury's got to decide that right it's a disputed issue a fact if i didn't believe it would be if that fact if jeff baird was the one who made the decision to take some action against bass quite so but here we have not only does i complained to mark and nothing was done about it he also says and martin lied about it because he says i told martin many times several times before martin's is the st time i heard about it was x so that's if we believe vasquez he complained to martin martin did nothing and then martin lied and now martin is the is one of the people responsible for firing him and if you add to record right about the discriminatory comments why isn't that enough to get to jury on this well i don't know that keeping a record telling someone to keep a record would have any effect on what the supervisors know the supervisors actually in place were brought martin and jeff baird what they would know about what was happening so what happened to those records they admit that there were records because mr vasquez had paper court in a conversation with mr martin and he said there were records but we don't know where those records are well he says there were records but during his deposition he we have no books that we presented to him and when you read his deposition you can see that it records somewhere yeah they were presented to mr that's because i missed something i thought we did we those records were never turned over to him well he says that he had additional notebooks so there is a notebook that he kept notes in that was discussed in detail of his deposition and portions of it were read back to him in fact when you look at the record of the portion where it talks about art rodriguez it quote i quote back to mr bassett was one of the quotes out of his notebook now he claims he had other notebooks which we didn't have those we don't know where those are at that one of the reasons he was being fired was because he improperly fired i guess it's mr alvarez yes and isn't there evidence in the record that mr alvarez resigned there is and so why isn't that evidence a it's not necessarily the case though because when you if you look at the record and i could find out for you but when i confronted mr vasquez about that the note that he had made in his journal was i let him go because he was sitting around all day i mean so from the city of idaho falls perspective again that gets back to their policy their policy requires that a division director be involved with the terminations and presumably if an employee is going to resign resign jeff baird should have told the division director that as well being in resigning are different and letting go may very well be him saying to our as i'm kind of making this up but i think it's permissible inference from what you haven't got is that he said you know if you're a lazy if you don't resign you may be enjoyable and he resigns so i let him go and if he resigned he resigned it may be of course many resignations are sort of a nice way of getting fired but there's also he didn't actually fire  might have said something that led him to resign sure and i'm not sure that the facts in this record or are fleshed out enough to know what the answer is other than what vazquez said about what the city said one of the reasons we're firing you is because you improperly fired alvarez correct correct that was there's nothing in the record that shows that mr alvarez was actually terminated correct yes there is it's mr vasquez his own statement very instead of that which does it as a matter of law is that if you're not necessarily i think if we back up and look at the context in which the city had this allegation the city had an allegation of sexual harassment ok when the city has the allegation of sexual harassment they are investigating that allegation mr vasco was comes in and says well i have been comments have been made about my race over time let's look at what the actual record has from mr vasquez on that i think that that's important for this court if you look at s e r forty two when i asked him about the timing of the alleged comments that he's saying to mr martin i asked him in the relation to the time frame that your father passed is that help you remember when the comments were made i don't exactly know do you know if you remember it was while he was still alive yes so it was his father died in september of fifteen do you remember if it was months prior he said i want to say maybe months at best we have mr basket coming in on nov th at his hearing that he was given and that his hearing he comes in and says will know i've been discriminated against on the basis of race jeff baird made comments about my race about my father when he tries to pin that down he thinks that that was months before september of fifteen and so the only argument that that would have any bearing would be on the nexus in time is there a sufficient nexus in time to suggest that that's a pretext and if we look at some of the cases that this court some of the cases we've cited on the nex to point to a couple the heat that it was three months he says two months prior no i don't think it was too much part by his own testimony he said he recalled it being months prior to september of fifteen but aren't there other places in the record where he facts i think that the district court properly analyze those things and the district court is looking at it the district court is relying on a couple of things st you've got to look at the decision makers that are emplaced making this decision how can you say that it was jeff baird that was retaliating or making the decision if jeff baird wasn't involved in the decision that maybe you know the answer why don't we have anything from this record because the plaintiffs never deposed him and we were you unwilling to provide any address or absolutely not absolutely not you know the plaintiff knew who he was it was his immediate supervisor at the time that the plaintiff was in did they know where he was i don't ok maybe i don't want to get a long story but again he was terminated from the city of idaho falls shortly after mr vazquez he was under investigation for improper use of computers at the time he was not involved in the so the only way that you can say that there was a pretext some retaliatory animists is if jeff baird was involved in that decisionmaking process and he wasn't the record is completely clear that he was not in fact he was out on leave at the time and when you look at the vance case you can't even make the vicarious liability argument because jeff baird wasn't a supervisor with the authority to make that decision and it would request of the court affirmed the district summary judgment thank you just briefly your honor thank you by the way judge fletcher with regard to baird we didn't depose him but he was disclosed as as a as a managerial level by the city with the name and address of their attorneys that never changed they never supplemented that they later on said oh he after it was too late for us to respond they said oh he wasn't really a supervisor we we removed his supervisor a supervisory capacity but they did that after discovery they did it after their opposition to the motion for summary judgment and so we didn't have an opportunity to respond to that and you have any case applying vance and vance was a later case of course than the other cases we have on direct evidence i mean i think you have any a very good question and i had the same question i did find a couple of district court cases i didn't find that i didn't find a circuit level court court level cases it's among those that i cited in my brief on the direct evidence of those district district court cases where where the court applied that vicarious liability standard from dancing in a a just a just descript straight discrimination case is opposed to a sexual harassment case but other than that i'm not aware of any other context i would also point out art alvarez i would direct court's attention to our one hundred and eighty three where the city in its personnel action with regard to our alvarez says that he found a different job spoliation the we have the video in which bret martin my client says to brant martin i have these notebooks and they contain these allegations in there and martin goes actually leaves goes into the office finds and comes back and says ok but we need to go through them and make sure there's nothing in there that the city needs to keep and and then within a couple months they disappear well let me ask you though said that in the deposition that deposition of mr vasquez that he had he had they some kind of a notebook  wasn't did they eventually turn over the notebook they handed over one notebook he if you look in the record i don't have the citation but in our briefing we have he's got like three or four that he kept and he we have a declaration from his wife who had