material facts makes the grounds of summary judgment inappropriate and here the fact does with his appeal resulted in him being placed under reid's supervision days later in response to requests to restore douglas to his sanction living conditions reads respond it's because you're sanction was overturned doesn't mean you're not guilty your job has been failed i'm moving your style you're not getting your back i'm not changing your classification or douglas th me before you go too much further down i just want to clarify because there was a little bit of inconsistency please what exactly is the protected  factor asks whether the plaintiffs suffered a deprivation that would just sort of person an ordinary firmness from engaging in protected speech in the rd question is whether there was a retaliatory motive  connection between the retaliatory speech and the deprivation and turning to the rd factor st year we think that reason words and the timing in this case provide at least a question of material fact on them and the record she says because her sanction was overturned doesn't mean you're not guilty and then she listed all the way through which she could exercise her official discretion limited as though it was an order to retaliate against declared innocent exonerated of the wrongdoing i'm not sure the constitution speaks to that one way or another i think it is prevents her from retaliating exercising her official discretion against amendment claim here other than that it created the conditions under which they could then interact and she could retaliate against  them and so in addition to read statements we also do have timing as an element in this case that for there to be a inference creating a genuine issue of material fact on whether or not there was a class a sanitation position and she denied him that opportunity so this was reduced to let me ask you as i understand it correct me if i'm wrong mr douglas was not actually eligible for the class a recycling when this issue arose was i think that's a that's a question of fact that remained open in the record your honor the job offer that he received came with offer to be reclassified into that position we know prior to being disappointed he was in a classy position and we know that he was to return to that after the discipline but knowing the record of the think he was in allen general for a different position so i guess what i'm what i'm struggling with here is the broader question and i appreciate your thoughts about whether there any differences between how we treat let's say a public denied a promotion because he has published a letter to the editor that's critical of police chief that's the kind of thing that might or might be the subject of a st amendment claim  ms like what mr douglas is claiming here is d i had a right to be promoted from class c to class and the denial of know under the court's precedent that being removed from a job is the basis for a st amendment claim and we know that there's no substantive due process right to a job and so the basis of the complaint is an  forecloses your argument that their refusal to return him to his old self was a retaliatory action yes you're honest ok thank you  yes me please the court this case is about a prison officials following the department policies while managing a one hundred different offenders and a prison a prisoner demanding to receive more favorable that she was not in charge of self placement there were no jobs available but that he would get back pay in accordance with the policy unless a month later douglas had a job which is in the same class as the prior job he received  pay and he was moved out of reach his wing so all of the actions about which douglas is complaining there are natural consequences of the department's policy and they were not retaliatory as far as the placement in the recreation job versus the laundry job they're both classy jobs so they have the same rate of pay and douglas doesn't quantify that hour difference between the two dollars but quantities are really important here because minor differences are simply insufficient to deter free speech and all of it does with his argument about the differences between the jobs are entirely subjective some people might prefer to work less hours some offenders might really like managing a recreation room and some offenders might paint doing laundry because there's nothing objectively worth about the recreation job the laundry job that cannot be adverse as far as the feeding back pay in accordance with i'd off policy that is certainly not adverse and it's an offender would not be deterred from engaging free speech merely because a prison official d follow the department's policy and although he had a way a little bit to receive back pay that wasn't out of the ordinary and prison because prisoners are paid on a monthly basis and he requested back pay on march rd after the march payment had already been distributed what about the person ordinary firmness from engaging in st amendment activity i would say two things st that argument truly has been weighed because he never talked about that before the only time he states that  very qualified immunity argument and in his reply brief douglas says that you should consider his pleadings liberally but his declaration is not a pleading but waiver aside even if she did threaten to withhold back pay we're talking about a really small amount of money here he was only eligible for a day's worth of work which is a total of five dollars forty cents in the grand scheme of things five dollars and forty cents is not a large amount of money even for a prison or if you look at his trust account he spent one hundred and fifty dollars on commissary in the month of april alone so a loss of five dollars and zero dollars forty cents is less than four percent of what the spend each month and an objective standard here not a subjective standard so can we make that determination objective please that five dollars forty cents wouldn't be enough to a prisoner to deter st amendment activity it may not be enough yes it is a subject sorry go ahead it may not be enough to look at this or douglas but looking at it objectively can we make that determination yes subjective zero dollars forty cents is a small amount of money it's only eight dollars days worth of pay now if he had been denied an entire month rd two months worth of pay that might be a different story he would have been threatened to take away that amount but we're talking about about the good time credit and what what was what was douglas facing if the sanctions had been that held against him what effect would that have had on good time or release overturned everything went back to the way it was before so and then he didn't lose any time the original and he would have lost how much i don't know how much i don't ha gave him a reduction in his sentence but that that information our job description none of that is in the record but i'd like to correct one argument is that reed did not deny him the class a job she refused to contact a supervisor about three classing him into that job so prisoners might have to tolerate more than average citizens they're not required to have to take their job taken away from them they may have to tolerate going through the normal procedures of the job hiring process and they might even have to accept a job they don't particularly like the case in the case worker or case manager can't just contact and he was in a classy position before and there's nothing in the record showing that the case managers or other staff members have to contact a supervisor because an offender tells them that a supervisor has offered them a job and this would seriously inhibit prison officials ability to administer the prison and a fine job because prison cousins are constantly claiming that the providers have offered them jobs when they have not and prison guards are not required nor expected to believe everything that and they told them under open vs morgan and if douglas was unhappy with the job he could wait ninety days and apply for a different job his job situation was not permanent but even if this court finds that all the actions were adverse douglas's claim still fails because there is no causal connection douglas's burden is very high for establishing causation up as a part of its retaliation claim is simply managing her unit when making her decision as far as informal presents and the form agree then there is nothing in the record showing that we knew about it but alone that she was motivated by it douglas talks about in his reply brief that you can make an inference but he's confusing inferences with speculation simply stating that as he frames that giving the name given the nature of the grievance read knew about it they the grievance officer handles it on their own some time in the pending on the nature of the grievance sometimes they resolve it themselves sometimes they have to contact the higher ups to go through it but there's nothing on if you  she certainly knew that part of ms why she certainly knew that he had appealed his sanction because it was overturned and she specifically mentioned the sanctions being overturned to him so she about the ministry of appeal she do about the protection activity of the administrative appeal yes but once again those the statements that she makes in connection with the initiative appeal do not allow a jury to draw an inference that the adverse actions were connected to the free speech so the st statement was that are that the march th statement that i'm not contacting nobody i'm going to give you the job i want you to have i had nothing to do with douglas as a minister did appeal it shows reeves was exercising her discretion and assigning douglas a job based upon the needs of the unit the job she had within the control and public safety as far as the nd or the st statement just because your sanctions overturned doesn't mean you're not guilty i think we had the nail in the head before earlier her statement doesn't show that she acted because of the fact that this is like well sketchy versus fox in that case the defendant say that he wanted relief from all the plaintiff's allegation that the allegations that he was talking about are the seats in the talking about were complaints of harassment and that was not free speech  there were other instances of free speech in that case but he wasn't referring to that and here you can you cannot make an inference that she was referring to the free speech if she has then maybe next time you don't file an appeal that different story of her or she had said you should have just accepted your punishment instead of trying to weasel your way out of that one that maybe you could john in fact but that's not what we have here and read did not have to believe that douglas was innocent and that his do contend that that what inference to be drawn from restatement is a question from the just for the jury the court were not aware of any case law holding that there needs to be magic words like appeal or grievance or litigation we have to have this know you have said in your phrase we should broadly construe the plaintiff arguments a brief where in the record was adapt particular argument raised and the only place in the record of here is to restoration of privileges and she says the sanctions overturned she was soft you're not getting your back pay so that's the only place in the record where it appears we think when we literally construed that that's a threat that's a statement of future intent of what she's going to do she has the power to do it and if reeves had evidence that this was in fact just a hollow threat as they say that he was paid then then the graph of men in the complaint really was just a speech