areas in dispute that's i think is obvious is is the determination itself in this case the company maintains that mr murray is employment a warren pumps and my client meetings that he was told shortly after he complained about very serious safety violations as well as filing an injury report relating to his medical condition on may twenty seventh that he was unhappy with his job quote unquote on the happy with his job the only evidence of unhappiness in this case you is the is the fact that mr murray complained and those complaints of safety issues intensified right up until the time that he was terminated and they escalated in  wrongful termination claim based on violation of public policy and that policy is rooted in several areas of the law one is that he complained about a very serious number of violations of the electrical code mr venus a coworker was was performing electrical work in violation of the electrical code and statutes and mr murray on numerous occasions complained that he shouldn't be doing that work unsupervised while mr murray is not at the company and so  that is one piece of the violation of public policy playing another is the complaints that he made about osha he made several complaints and not just fifty two day normal complaints that a safety inspector my highlighter or bring to the company's attention but very serious safety violations were employees were experiencing actual physical symptoms very serious symptoms calculus is different in the in the case of someone who's a safety officer and whose job in effect the job description in effect requires him to look for him to report complaints about about safety matters how do we how do we it so it seems on fia since that's the requisite of his job and and since we don't want to perpetuate a rule what would say well see if you offices are frozen in place and the employer can never fire them because because they're making their registering complaints about safety models all the time  what kind of rules can be devised to distinguish between the safety officer who gets fired because the employer doesn't want to hear about the safety complaints that it's the employees job to report and the safety officer who gets fired because he's not doing the job of a safety officer he's reporting things that shouldn't be reported and wasting everybody's time what what sort of rule of law can we devise that will the sting wish between those two holes one point your honor is that is that in this case these were not routine safety complaints or issues raised by mr murray these were very serious complaints out of bounds complaints or yes but but bounds complaints cuts both ways from his point of view maybe they were they were very serious safety matters from the employer's point of view maybe they were just mad as that never should have been raised that all that they were you know  with that without getting hung up by some artificial inference i can't believe this is the first case in which a safety officer has been discharged and has  never came up in that case but the court let that the plaintiff go forward with a violation of public policy claim notwithstanding the fact that this was a safety officer notwithstanding the fact that as you say complaints themselves and the severity of them and how they are they are they can be outside of the normal bounds of safety compliance or not and i'll state one example the complaints up something for me sure that i can understand the case a little better sure some of these complaints are made to courts it some of them are made to black to elect joe is an employee of a different company colfax america's what's the at the actual complaints and how i think if you look at the complaints and how out of bounds they are and how nothing was done to correct the c v t issues after numerous complaints by murray i think that puts this in a category of even though he's a safety inspector he's complaining about very serious issues and and then immediately after that gets terminated i think that it's both ways in the fact that they told him shortly after he called corporate and corporate came out to investigate they told him that he was unhappy with his job and he was terminated i mean i think that goes to an issue and i think a jury could could probably on their own determine whether you know that the defense would be that's his normal job responsibility but a jury it seems to me should be able to weigh whether he was within the scope of his job and not in doing nothing more and not complaining more than his normal job duties would require were not but it seems to me that the bottom line is these the complaints that he made are very serious complaints and surely they are after he's gone counsel you want to spend the moment on your hostile was disabled but so that you would not be able to establish that on the basis of that disability he was subject to a hostile work environment he seems to take the right seems to take the view that work environment claim we also argued your honor below and hear that as part of that hostile work environment playing the denial of accommodations which is a separate  honor i think even you have discounted two of them as well and considered one of them as possibly viable but peaches to thirty i just want to highlight on peaches to thirty nine and to sixty seven of the appendix nvfs we've argued visit our grief there were other instances within the last six months of his employment there where he was trying to he was mr murray was required to lift heavy cables and heavy tools and he complained about that protected activity and then on may twenty seventh as well your honor i don't think the judge would like to address this may twenty seventh two thousand and eleven just a few days before determination he was required to handle a large shipment required to walk long distances in violation of his restrictions and actually filed an injury report as a result of that incident so that was another instance of violation of his accommodation requests and restrictions and so i think with the comments honor as well as the denial of accommodations which clearly contributed to a hostile work environment there's enough fact there for a jury to decide i did want to make one last final point very quickly and that is on the retaliation piece if you consider the protected activity that we just discussed and the complaining about of making him do things against his restrictions  shortly thereafter and were again within this three and a half month window before his term and it isn't from february seventeenth of june first these things are happening the denial of accommodations some of the comments were ma and judge would like basically looked at the temporal proximity of the protected activity in the june first term and in said he didn't see it basically  it wasn't close enough or clear enough and i think it is clear enough i think that you do have protected activity within that short window of time and i've cited the case laws and his law in my brief  yours addresses that temporal proximity but you also have to look at the pretext evidence meaning the other evidence not just the timing between the protected activity in the adverse complaints here don't rise to the level that has been repeatedly found necessary in the case law to sustain a claim for terminations on the basis public policy either has to be involved criminal behavior work has to involve behavior that affects public health or safety not employee safety which is by far the vast majority of the issues that were raised by mr murray throughout his employment there frankly are no interestingly i couldn't find a single case in massachusetts involving complaints about osha violations other than one in which the employee asked to see a material safety data sheet with respect to a chemical that he was using  his is work case called mitchell versus tac tech services he was fired he claimed that he was fired because of his request for the datasheet and the court said that's not enough to get to a level that's required for this very narrow exception to the out will rule many of mr murray's complaints involve employee safety but none of them involve a threat to public safety much less criminal behavior and in a massachusetts case called no versus stop and shop which is cited in our papers the employee complained about three different matters involving damage claims by suppliers to the stop and shop companies the court said two of those don't rise to the level necessary to sustain a public policy claim the third one might but we don't even have to reach that question because there's no way that a jury would distinguish one from the other so even if mr murray were able to convince this or that one or two of the matters that he complained about did rise to the requisite level simply the fact that he had such a flood of complaints most of which plainly don't satisfy the case law is enough to sustain summary judgment because there is no other evidence on which a jury could say you know he was fired because of the electrical complaint or the weldon complaint or whatever you know you choose there is simply a welter of complaints and then the jury is asked to say that's why he was fired i'm second going to try to sell yes point about mr murray's job he is responsible for safety it's his job to report issues and we can't exempt an entire class of employees from termination because they're doing things that may rise to the level of protected activity i just shake told the court that the way we should distinguish and the way we should create a workable standard is to look at the nature of the complaints  that's entirely unworkable because a safety employee's job a compliance officers job just report what he sees and if it's a serious violation he should report that at least as much as he would report some minor violation and we can't have the public pop existence of a public policy clean turn on the seriousness of the complaints that are made in terms of proving causation because the employee is just going to report what he reports and whether the employer takes that overly seriously or not seriously enough has nothing to do with the motivation question that is essential to causation so what the courts have said as we've explained in our brief is that we're a safety employee to mount a public policy claim he's got to come up with at least something more than temp oral proximity between his complaints and the adverse action and you know assuming that there was an against his restrictions but even those a mere four incidents over a period of a couple of years actually don't sustain much scrutiny one of the four was a request to paint which he refused her he said i can't do that i'm not going to do it and there were no consequences from that in the second instance he was asked to do some wiring he said i can't lift the tool box mr gore's act and say do it anyway he said find a way to get it done and mr murray testified in his deposition i pulled somebody else off the floor to do it that's the hendricks at page two forty one so he got help which is what mr cores are permitted him to do again he wasn't required to go against his restrictions although he did testify that he carried a toolbox in that instance he was asked one time apparently to take in a shipment of but he didn't object to doing so he didn't tell  that you know that shipment is too heavy i can't lift it and when i asked in his deposition why not he said well i had said in the past i thought that would be so on in this third instance he didn't even object to what he was being asked to do and then finally this issue on may twenty seventh shortly before he was terminated when he was in charge of a project that he says required him to walk to watch from one end of the point to the other it's not even clear on this record that he was instructed to do that he says that he was forced to take charge of it because everyone else had been released for the weekend or a holiday but there's not even clear that anyone asked him to do it he may in fact on this record have volunteer finally with respect t retaliation claim again mr mori relies entirely on questions of issues of temporal proximity but he can't establish any conduct protected conduct with that respect that's close in time to the be do you think that we have to get into that swamp and if we do do you think the district was right no you don't have to get it and that's why you're on it because of the district court went on to find that mr murray was no not any sufficient evidence that he was retaliated against or requested accommodations really doesn't matter and in the last analysis for purposes of this appeal whether he was sufficiently disabled or not we can assume that he was and it wasn't in that case