good morning may it please the court the first thing i'd like to start off with is that violation of the uniform services employment and reemployment rights act thirty eight u s c section three eight zero one that that alone may be a basis for a federal civil rights action and that the trial court for some reason just didn't talk about it we raised it in our summary judgment opposition council has indicated it's not properly raised in the complaint now i don't know what the trial judge thought about it because there's no decision on it but what i'd like to say is that the complaint filed by mr salem does say a lot of factual detail at page six paragraph twenty three twenty four about how the correctional manager is there mainly valerie hicks was the main person that was involved in this made his attempt to get military leave extremely difficult by doing something called holding him over now holding over means you work another eight hour shift so your you work one and hour and you work another one it just happened that that c just before he had military meet and their idea is he wouldn't stop but you know you could still go you were told midnight you got to drive four hours so wake up at four am and drive all the way to the air force base no problem right well the fact is and he did do that he did work till late at night and get up in the morning and drive all that but it interfered with his day down there i mean he's an emergency medical tech airborne so i think we want those people awake  second the point is in the complaint he says that ms hicks we used to release plaintiff as she was required to do by an act of congress for some reason my predecessor counsel did not spell out that but refer to it as an act of congress we have now skulled it out and we would submit that under the notice pleading requirements of the federal rules that the facts are alleged in detail there's no mistake about that the law was not although it is referred to as an act of congress and the summary judgment proceedings we most certainly raised it in articulated the act etc the crowd court didn't rule on it now in this area i want to point out that the declaration of valerie hicks seems to be a forward mission of a violation of the act in it she said is we need a new change of rule counsel objects to the use of the word  rule whatever it is here's what happened before you got to do your military leave upon you give them a verbal i got to go and they go and when you get back you deliver post orders the military for purposes of privacy they don't factually these things before hand you go to the plane you fly on the plane you do all your medical work you get back at the end of the day they give you your post order he comes back and he gives it to m the within about a month after the cow osha citation issue came up they make a new rule you've got to have post orders up front now here's something i think it's important is that just the fact that that happens leave that's all we've got to show we went right there and if you take a look at the declaration of valerie hicks paragraph four five and then thereafter she discusses this new rule an important omission in that there is no new document policy statement of operation or other document to support that she says she called her supervisor she gives a verbal new rule kind of thing you got to get the posters up front and she says hey i'm just following that rule i think what's important to note is that the and i don't know if you you have it here but in the just court law library they have the correctional like this and it's called the dawn department operations manual i think it's about twelve volumes i don't want to misquote it but it's a big thing they have a an absence of documentation as proof that something is going to right and i think that really has happened here now but the other point is what they're trying to say is well you actually made it to all of your military leap you for pay or anything so what's the beef and the beast is interfered with it now the good news is he went to senator dianne feinstein she contacted the prison she contacted department of labor the secretary they got involved and the good news without a lawsuit or anything they wrote a couple very clearly stated letters and this whole thing got corrected so you didn't need to sue anymore in effect to enforce that right it was kind of one without a court battle you'll be happy to know sometimes things get rights act actually covers more than posture to tional violations a lot of people think it's only that and was the violation of this act played in your complaint yes although they say no and let me that's why i was referring to the complaint what the ok anyway what i see there though they didn't spell out like the citation of it and they did spell out the facts the facts about this whole problem are very much there they were also testified at length during his deposition which is part of the record and he also described them at length in his declarations so this whole problem i think is very much in the record what was missing is the actual citation of that statute and it's a question of whether in that notice pleading that you would permit a little liberal reading of  it to allow for that especially when something is as important as this federal right of military leap let you do your own noble review of that issue i just hope that it gets reviewed this time because last time it was she certainly opposed it but the trial court just did may not buttoned up altogether but it is something we can show to a jury and that a jury could infer we'll look at that after we get to a cow osha citation given to the warden a little bit later they get a new rule about military leave they make it very hard for him to take military leave and ultimately he has to get a bunch of people involved and finally they back off and fix it but they would like to see that the military leave change had nothing to do with that count osha citation we just cited several cases including the studio or what was that fall over the city of oakland where you know of course the defendants are allowed to put up whatever defense or protection argument they have it's our job to come forward with evidence showing that the pretext or arguments are impeachable are untrue i think we sort of skip around that but really are just  lives i think that's ultimately what our job is to do and we submitted all this evidence of all this kind of parade of horribles that happened to mr salem after he got back out of the citation and mind you it was going on even before that mr salem you know he was three times by needles carrying them out to inmates to give them insulin or what have you so of course he has a very personal desire here and it's something that the attorney general's office has seized upon this is a personal case it's not about a public issue of first amendment proportion let me submit for your review that if he raises an issue that has to do with blood borne pathogens and we're talking about aids hepatitis and all the other blood born diseases that inmates can have and the transferring of that from an inmate to either an inmate or two correctional staff including especially the m t a who's kind of on the front firing line you're the ones that actually do the injection if we're talking about rules that deal with that issue that is most certainly an issue of public concern and i can't imagine any argument that says oh that's just his private issue callow should be the most rules about it they just violated it flagrantly amazingly he raised a union grievance about it and we're not suing anybody on the union grievance what we're saying is there's a right to make agreements they don't have to you know granted but they can't go attacking him for having raised it and i gather your argument so ok you did your free speech over here and then you had all these bad things happen to you but you haven't shown the connection between the two and in order for the trial court to be sustained we have to agree with the trial court that as a matter of law the entrant simply wasn't there yes and i think that the reasonable jury could have found based on these facts that if there was a retaliatory motive then you've got a cause of action yes and the question  we create something you know they didn't confess to it so we're absolute confession although you'll note in our record there is what i'd like to call a mini confession one person barbara walters says that are something to the effect watch your back they're out to get  and if you wins or loses fine but you can't retaliate against him for having gone there now the retaliation then started there but it was sort of in a smaller way the riposte reassignments where you got to drive all over creation and you know just little things nothing that he would file a lawsuit over but handed to the war and the warden was upset about they don't like to have a government agency tell them they're violating the law that's not what prison wardens like to hear at all and they got mad and within a month we have all this stuff going on with the military in your states in her declaration what happened there in a sec paragraph four and five of her declaration of she said she made a call and one of her superiors said a new rule not a new rule but you know for now one you need post orders page fifteen sixteen seventeen eighteen of my opening brief weighs all these out but let me just give you a quick summary of them through the next item we have this reassignment of him to third watch r d o and this is where he's got to go all over the place and so inconvenience because you go to different prisons you're allowed to do that but they happen to just do it right after this event they initiated it completely fabricated charges sexual harassment against him  the defendant's claim by the way that that sexual harassment claim never happened and again this is where absence of documentation becomes an issue they have no record of any kind of sexual harassment claim having ever been made against mr salem oddly he's in a position now of trying to say yes you really did make one which may seem backwards but the point is that they came up with this kind of nonsense invent out there were two internal affairs officers assigned to it and there were some  there were some actual interviews done and the fact is there was during that period they say well if you have a proceeding coming against you and it doesn't result in anything there's no adverse employment action that's kind of their argument to that and i interrupt you for just a second you said you wanted to save five minutes you're under three minutes now for your rebuttal i know hard questions of taking you on the directions so it's your choice it's your time if you want to continue with you and i have employ plaintiff to paint with a broad brush all his discontent with his employer and in order to determine whether this case is valid one must take a careful examination of the facts for forth by the individual furthermore the elements of a used terror claim are not alleged in the complaint you sarah is an act designed to prevent discrimination in the form of terminating or refusing to rehire military members who overtime on a day in which they also have to pack travel and rest before their military duty if that were the standard i'm not sure how that act would function under the real world  simply do not they are out that characterization that rivaled it isn't because no evidence was really put forth that there are concessions in the plaintiff's deposition that there was only one day he was not allowed to go to his military duty and there was only one day where he had to work an abbreviated overtime normally he would have had to work eight hours overtime on that day but his supervisor accommodated them and cut it to four hours that's focused precisely on this as i understand that aspect of the claim it is that your clients liberally added extra work when they knew he was about to go on military  and that mr salem wasn't treated any differently from the other m t a he's there was a list under the contract the union collective bargaining agreement under which people were contacted in order to  leave during those two months i believe four or five four times i believe and how many times of those four or five times how many times was he asked to work over time immediately prior to taking the lead in the record there is a single time happened once yes and how many times was he asked to work overtime during that period when they did not involve the much terry that i don't know is that in the record  i don't believe it is and with respect to the characterization of the need for military orders being a new policy that was generated that is a complete mischaracterization of the evidence in the record the  disputed evidence in the record if you look at the declaration of valerie hicks what happened was she was the new supervisor she became mr salem supervisor in march of ninety seven she had him for only four months when you know meeting to be on disability leave there was an overtime issue within the prison there was a cut down on the amount of overtime that was being allowed she goes to a superior and asks how do i handle these overtime issues when i have a military leave request we have to backfill behind that and we have to dip into overtime to accomplish that how do i balance this directive to cut down over time and these issues of meeting  military leave and the guidance you received was make sure you have the orders let me ask you the last in terms of the actions after the c citation there's a series of them that are so forward by mr salem are you arguing that they did not happen or are you arguing that there's not a connection that's been shown or are you arguing that these are not ad we're talking about performance appraisals perhaps but that happened over a continuum so that was one of the issues i did consider reassignment from the specialty clinic as a result of the you knew union steward coming into  bumping mr staying on and the selection or non selection for a correctional counselor or one positions that occurred during the statute that period of that was opened by the statute of limitation which is in this case august hundred nine to august tenth two thousand now those four actions i don't think the performance appraisal of a lack of one is something that rises to the level of an adverse action  with respect to the other issues that the court would consider within the statute of limitations if there is i think we talked about the resign the performance appraisals happened both before and after the statute of limitations and therefore there really isn't a reasonable inference that the lack of the performance appraisal was a retaliatory act the investigation was initiated on the twenty eighth of april nine hundred ninety nine it was forwarded outside the institution to make sure it was objectively done the discipline and withdrew it within three days and the process under which he was through it was called discovery hearing it was the first opportunity that he had to hear from mr salem himself about what had happened on that evening goh retired he may even be deceased we don't have any information from him but what you can tell from looking in in the investigative report is that this probably resulted from a lack of communication between the street salem and his relief mr stay on top of relief was coming that really thought somebody was with the prisoner and there was a lapse of time under which he was entirely alone and that is something to get excited about in person the non selection for the correctional counselor one position is another allegation within the statute of limitations that could be deemed an adverse action the only problem is there is no connection between any of the n all the statistics about who was the most qualified in those competitions say one was not high on the list think judge burrell when he had this case with so many issues before him some untimely some perhaps timely some maybe adverse action some not the best job that he could do in trying to mar the evidence and it was easiest i believe to find that there was no connection no evidence that the protected speech if there was any was the matter of with the way the prison stored sharp's and how they administered medication during the lockdown period which is critical when you look at the osha citation it's not a global criticism it do it now so so i think your answer to my question asked the timing with respect to going to the union with respect to the safety concerns about needles and the military action is that you're not sure i'm sorry your honor i am were interfered with there is also nothing in the record that any of these defendants interfered with the plaintiff's association with his union or of the world he desired to play in a union he in fact or that i struggle to find out what it really was based on the record we have in conclusion i'd like to urge this court to truly look at the record and to decide this case based on the facts that are presented there and the facts that are only claimed to be there through plaintiff's pleadings an the beginning of this was early ninety eight was when the union grievance process started but by me and that took its course where there was actually a grievance granted at last but it happens early ninety eight it goes and then his osha attempts go on in ninety nine and they start about me ninety nine and i have a reference for that the declaration of mr salem the paragraphs four and five was going to count osho there's a whole process where you submit a complaint they review it they investigate it and then it culminated in december ninety nine where it was handed to the wharton so the warden certainly knew it had you know it was given right to him the  whole problem of military leaders going on throughout all that you said it only happened once during a period of two months right then and that was after what i want to point out is that was definitely after the union griev and what they're minimizing is the fact that they are in this retaliatory method forced him to say you know stay up till midnight and he just went ahead and went anyway he didn't actually miss a day so there except once except once he just suffer through it in effect and we're saying they don't have that right you know to interfere with that and make it so difficult and they're trying to minimize that also but the cow osha site you can read it they just flagrantly violate the law