ordinarily more that's right here and that is another important fact that the judge made a mistake on in our estimation the judge found that mr scholes was not the person closest and therefore he wasn't the one who sh in fact jason tenet who was the driver of the man left was calling out for someone to throw the rail he had mr mccauley sitting right next to him in the john c which is the position that the judge police and the secretary of police should have been the person to with that because there is a process i wanted to this which is that if they wanted to have testimonial evidence at this point he did not give us an opportunity to do that and in fact he said it wasn't necessary he said that there be a different point somewhere later later in the process where if you wanted to hear further evidence or take further evidence on that he would give both parties and opportunities as i was to them out of the back pay and then and the l j ultimately did not give us that opportunity and a district court sorry the l j happened was sufficient to support the back a war that's one argument but just as to this process thing my understanding from you is you got it in everything you want and you never objected to the l j arguing your brief here that you were prejudiced by here's something else you would have done had we been given the opportunity that would bring you now you know rightly i appreciate you give me a chance to address that you know we we take offense or we take concern with the so that's where that's why i didn't see anything your brief that said here's what else we would have put on or what else nothing would have said the same stuff orally rather than writing here's what else we didn't get a chance to hear it or he made his decision based on a credibility thing it's this this is something else the judge relied on very heavily particularly to find that there was a protected activity in this case we just did not have a good faith belief that this was intentional conduct the very fact that mr school just five days later in the game around incident challenge m mccauley in front of the crew i think mr holly should be the one that threw the real incident i think is good evidence of the fact that mr schools was not intimidated by what happened in this so called head but incident mr scholes was not in fear of his physical safety health that's correct term all right thank you scott preserve the court perhaps i work backward from this argument this case is simply a substantial evidence challenge to the judge's findings and what harrison county has asked the court to do is simply to really get the facts not to review them under the deferential standard which simply asked whether the judge could reasonably have reached the conclusions that he did and the answer to that question with respect to every issue is yes you start by focusing on the calculation of backpay how there was sufficient evidence i will agree that maybe the judge's ruling was on this point was imperfect but the fundamentals of the language i'm talking about whether there was sufficient and by the way the l g said you all agree that it was just an estimate too so that's not the problem with the able j s language here's the days it was close what evidence was there that mr fastow was wrong with this record of it is that i don't believe mr has you know i guess for anything so what evidence what affirmative evidence was there in the evidence in the record in which he could credit mr scholes estimate as to the date number of days the mine was close more other than mr school has evidence about what he works there wasn't any but i don't think that that means that part of the bac again i gave the judge the best evidence that he had of that and i think this goes there was the best evidence the schools had was i don't know let's i'm wrong if you can point me to something where schools said here is my actual evidence of how many days mine was the st part did you prove by a preponderance on the days mind was open i think by a preponderance yes i mean where it's at i didn't see that i saw just those saying i wasn't found that that was adequate and this court in the commission review that her an abuse of discretion and i don't think the judge abused his discretion by concluding that that evidence without acquit particularly when harrison who conceded to this court that it was in the best position to rebut that evidence didn't do it it had  don't believe anything this guy says so therefore i'm credit one hundred and seventy said i don't know i don't think that's what the judge said i mean the judge's decision actually does i mean it does say that generally yes they didn't find credible but it also says you know harrison was in possession of these records and it didn't provided the affidavit so the secretary decided by what point the secretary told her that we no longer consider this an estimate we consider it actually  case i don't know exactly what they thought occurred but you know again i think the question is whether the judge abused his discretion on this point and should be extended my question is efficiency of evidence not i'm not making the procedural concern i'm asking have calculated that under this process and under the showings when everyone agreed the mine was close a certain number of days and there's no evidence no substantial evidence of them something that was described as an estimate when i think that's good enough to meet the substantial evidence cast at the very least that the estimates said mr schools doesn't know how many days is open it was close that's true and the ok so what is the substantial evidence such as mr sole saying that that's guess but i don't know that substantial evidence do you think that's enough to sustain or to sustain the judge's decision in this case yes no and again not because it was standing alone but because harrison didn't identify specific evidence or clear evidence that would have required the judge to purview to the extent it back that was airy you know that but i think that only the only the only remedy that would be required to be serene and for perhaps a more precise calculation but i don't think that's necessary here again because especially when it's i mean i'm just trying to pin you down your position is that when it comes to calculate impact a substantial evidence isn't needed no my position is that before the judge the secretary has to prove by propounder and that a particular amount of damages was appropriate the burden then shift discretion is based on no evidence rather than substantial evidence but i think if the record were wholly locking in evidence and the judge me to figure out if their schools have said for example well i generally make sixteen dollars an hour and i usually work four days a week and i week i can't recall that he was very clear on the evidence that he gave the judge it was not pure speculation him over my time and if i might just take one moment to address the question of protected activity most of what it's harrison has said to attempt to argue that schools do not engage in protected activity simply misses the point the question is quickly whether you agree that the challenge to the specialist training is now live your honor we have not received any confirmation from the secretary that the training has been fully completed based on what the secretary has represented here today i think we' so we were deprived of that opportunity to pursue that as a procedural matter if you did you try to cross examine you know your honor because the duration originalist this hearing is not the place to have evidence about the the amount of