it goes all the way up i think the arbitration last a long time and then you wind up with something going up to the presidential and an alarm or something like that yes why do we necessarily regard that as a continuous single process or isn't i'm thinking a harsh for for some sort of cooling purposes yesterday i think that i think that it should be regarded as a continuous years and the process itself was by far created between which might call liability in a remedy phase but i don't believe there was any there was any interruption in that process and i think it proceeded as a single grievance under a single you know sort the reasons that were given by the people who fired him he also advance arguments in the grievance that he was being discriminated against on the basis of his disability but the court never had cause to make a final finding on that on that when he was when he was originally terminated and when that sort of the nose was given that was going to be terminated and he was suspended and so forth you had a promotional grievance ongoing that was a separate process and i believe it that's simply dropped off and i think it i don't know what formal action was taken on it but this was not a continuation of that process after he was filed i says me after he was fired he filed a new grievance paper opening a new grievance process to challenge his termination well that it did not include a claim for relief under any of the disability laws he advanced as an affirmative defense in that case that that what he said is ok first of all the my i guess my real question is if we said there was arguably enough to trigger at least a further look at equitable tolling at the end of the day is it go doesn't yes although i again i i think similar i think similar in this context really just means that you know that basically that the wouldn't be sort of born inside page opinion of the arbitrator we want to give up your rehabilitation act claim i mean ethical towing because it's so on the margin anyway you mean that you may know even on the margin in the sense that the allegations are not not very right ok no time did your client ever say ah but you know the same principle applies to the rehabilitation act claim that you were improperly dismissed from statute of limitations gr didn't move to reconsider or call back to the court's attention or anything district judges to me just aren't supposed to you know some kind of mystical you know when if your not worth much coming from stanford but you know what the rest of them were and probably say it's worth quite intact so we're not talking about somebody for whom we ought to feel an incredible sympathy well no your honor i'm not able to point out to the district court in a motion for reconsideration and get the district court to look at sort of on face and conclude  between the two the only issue that is in front of us today is the not healthy defense and i think that this is actually perhaps rats in comparison to the rehabilitation argument i think this is a much better argument for him and i think terminated despite the protected speech i e if he had not spoken what he saw then terminated and mister comes to this court and came to the district court in a very unusual position he had an arbitrated decision that the reasons advanced by the e stated reasons don't justify terminations through a second order saying you can't be reinstated well that partly goes back to arguments advanced by the defendants by the police that maybe there's no proof that the art of the application would have been rejected because maybe it would have gone in front of other people than the ones who were litigating his arbitration i think that's just a speci well like i don't have to reapply because these folks wouldn't hire me anyway i think that in in evaluating the two waiver arguments it is actually helpful to go back to what did happen in the district court if you read th state and so therefore he just doesn't have a plan and then you know three months later you get the you get the decision and that's what it's all about but it's not like there was you know and intense opportunity for this record to consider this issue it was really kind of  it is alleged and it is sparse and it is a and it is a bit of juice and it would require almost clairvoyance to determine the potential relevance to the allegations that were being made and i'll tell you why because and this rehab back claim was about and that's why when the court parsed out the one nine hundred ninety one term nation rehab back when there wasn't any complaint from mr i hate and that's why when the first the men first amendment retaliation claim showed up without the evil court in one of the amended pleadings there was a whole analysis of it because that was the first time anybody had ever heard about the first amendment of the television so there was an analysis there and there was subsequent pleading and there was a lot more detail on the griev processed and everybody understood at that point what was going on and could see more clearly the potential flick ability of equitable tolling but in the very beginning when this case was filed the only person in that courtroom that really understood what went on in that long and sli get involved now in an exercise of its discretion because pro bono counsel has noted some nice legal argument that wasn't raised at the time to relieve this trying him or of that choice that was a choice and absolutely correct never never never considered it never went into it focused so we don't know for example if even if you accept the notion that from the moment he filed in ninety one until the end of things and were remained then the court could look at it and say even accepting your argument that this tolls you're still short of the time that is correct on that is correct and so because i don't think this court should get involved now in exercising its discretion to relieve mr i hear of that choice he made in the district court on that claim i'm going to move i don't think that equitable tolling is a very strong argument and i'm going to move on to the first amendment yet excerpts of record tabeau it page thirteen where the district court begins the first amendment analysis i don't think it could be much clearer i mean it went right through the mount healthy steps as subsequently articulated in the by this court and articulated even further in the kaiser case the court said first mr i hate her must demonstrate protected speech even though he hasn't put forth any evidence whatsoever i'm going to credit what he did on the motion for reconsideration because he's a that by proximity and they can do that by proximity actually what the court did was it looked to this court's decision in kaiser and said this is the way you can do this there are a bunch of ways to do with one of this temporal proximity another one is that the person in this case chief erickson spoke out against the speech the district court found that that had happened and the other one where it gets a little confusing is that the third way to do it this by demonstrating pretext so that's why there was a pretext discussion in the speech was not roughly the time the district court did the district court excluded some of the speech because it found it was too remote in time and that's one of the issues they raise on appeal and i frankly believe that that's just the red herr been dismissed regardless of his speech regardless of any speech in other words the university showing at that point is independent of any kind of speech it's completely independent also doesn't matter how many instances how far out in time was any speech so the district court was somewhat reading between the lines and putting the evidence together itself to try to figure out when some of these things occurred if you read this issue court's opinion you see how the court kind of did its own investigation in some cases to find out when particular speech occurred but i think the oldest was perhaps eighty seven and it worked out in that you all didn't she specifically item of speech that was more than six months  may have your honor but i haven't we said since them that three to eight months is proximate enough i'm not aware of that but i am taking that as a fact that is that is irrelevant in this analysis because the court found that some of the speech was recent enough so that's that analysis is then done so we move on to the next step and that's the university's byrd to show that he would have been terminated regardless of his speech regardless of any speech and when you look at that the evidence submitted in business or court was undisputed there was no effort by mr i'm hearing there was no evidence presented eroding or showing that the reasons becoming a chief that she'd get rid of him within a month well this is why doesn't that raise the tribal issue on on on the whether the universities reasons or are actually the reasons well i believe because that was hearsay and it was excluded because it was in the form of the declaration of the third person and so it was it was under threat i don't understand i think that the method by which mr i never attempted to get this speech in front of the district court was by way of an unverified potentially even unsigned declaration of of this money that she heard the defendant say something something that said that she heard the chief unrelated to the action and it was i believe i'm sworn i just don't understand i mean i may be wrong but it's a declaration it's under oath it's admitted well that's that's what i'm saying your honor it very important because the arbitrator did not find that that terminations was inappropriate because other people because there had been disparate treatment the arbitrator rejected mr treatment plant considered it and rejected so mr i'm haversack claim that i was treated differently than other officers that other officers did worse things and weren't fired was considered and rejected by the arbitrator rejected mr i'm here which claimed that disability discrimination had something to do with it so the arbitrator's decision does not give any support for mr i have here that there's something about that decision that calls into question the university's first amendment position and also bear in mind mr i knew him very demonstrated substantial motivating factor by what i would believe would be the least this method and that would be temporal proximity he didn't decision the arbitrator's decision was that the university in my opinion didn't take into account sufficiently enough what i believe in motivating factors that his girlfriend was very ill that he had been want a wonderful officer up to that point the arbitrator didn't look at the university asserted reasons for the terminations the arbitrator didn't say hey people have lied to the oakland police before and not been terminated that he would not have been terminated for his speech and the arbitrator's decision supports the university's position here finally just a minute about the ultimate dismissal of the rehab act claim i'm going to give that about the same amount of time i gave it in the district court which which council believes was insufficient and i'll tell you why futile gesture and rehabilitation and  don't have anything to do with the factual posture of this case what mr einhorn risk claim and so we all understand is that they argued against they presented evidence in the context of my grievance hearing that i wasn't medically fit to come back and i believe i was medically fit to come back and i never got a chance to come back that's what this claim is about well let's understand what happened the university presented that evidence arbitrator winograd found it credible and arbitrator winograd in addition to concluding that because mr on here was attitude he wasn't fit to come back to the apartment also conclude it also accepted that evidence and found th medically fit to come back to the department either ok so the university end result was arbitrator winograd saying i understand what arbitrator silver said but because you're not billy or medically fit to come back to the department but i'm going to do is convert it to a long term leave and ultimately a medical separation so the result of mr ryan haber's agreements was that the university was never ordered to do anything the university never reconsidered anything there was no decision there was no adverse action there needed to be no application futile gesture does not apply there is no there is no employment decision here the university terminated mister for reasons unrelated to his disability and was never ordered to reconsider that decision so the  simply doesn't apply there's no employment decision here there was never the university was never asked to reconsider its decision and its first decision had nothing to do with mr our neighbors disability as arbitrator so profound so must