trial motions brought pursuant to federal rules civil procedure fifty b and for a good trial or emitter under federal rule civil procedure fifty nine in the short time that i have with your honors this morning we'd like to focus on two points which we think are dispositive of the case the st one here is that we believe as a matter of law the pain the plaintiff has failed to establish that she engaged in protected speech under the st amendment because the content context and form of her speech which is at issue in the case failed to relate to a matter of public concern in the context of public employee st amendment claims which this is a superintendent suing the board of education starting w pickering it's been clear that that matter of public concern is required in order to receive protection under the st amendment kind of versus miers starts to flesh this out and focuses on the content context and form of the speech conic recognized that it is limited to realize the commonsense realization that government office could not function if every employment decision becomes a constitutional matter which is why it has imposed this limited area of speech that is entitled to protection this is a question of law for the court and is reviewed on a do no basis reviewing the record as a whole based upon the trial record as a whole here we submit to the court that the content context and form of the speech here failed to address a matter of public concern and instead it sought to further a purely private grievance that dr adams had with respect to a singular board member mr tyrone rogers because the facts with respect to this type of interaction are very brief i will reiterate them for the court this started in in or about july of two thousand and fifteen july th where dr adams had a phone call with mr rogers where he  claimed where she claimed that he stated she was quote unquote it's in for an ass kicking later that day she had a conversation with a police officer from the harvey police department where she described that mr rogers had said something inappropriate to her she didn't tell him what she said what he had said and that she wanted to talk to the board president about it because as she testified at trial she wanted to work out a solution or something that made her feel a little more comfortable about what was said she thought about it over the weekend and decided on the following monday july th two thousand and fifteen that she would file a police report because quote unquote i felt threatened i felt that my faith it was a concern in the district at that point based upon the form content and context of skins is probably the case that is factually on par most with the situation here because in that case there was a physical altercation between two employees of the sheriff's department one being assigned to the d o c who punched her in the face she went and filed a police report seeking the intervention of law enforcement and the th circuit determined that that was not speech and a matter of public concern because it was serving her private or personal interest and it focused on the relevant inquiry of what the issue was was whether it was was whether the public would be interested in a topic speech but rather whether the purpose of the plane to speech was to raise issues of public concern the police report there was nothing more than her personal grievance in order to have the individual struck her arrested which is exactly what we have here the police report that was filed by dr adams and directed against mr rogers had the purpose of attempting to have mr rogers arrested it had the purpose of protecting dr adams it had nothing to do with raising issues of public concern the court research similar conclusion in kubiak vs city of chicago and their coworkers made verbal and threats of violence against one another and the court again determined that the speech in that case was not a matter of public concern and it determined a couple things that i think are important and relevant to this case st of all the broad subject matter of the speech is not determin instead the court focuses on the particular content of the and kubiak much like here the precise context of the speech for focused on the work related incident between the employees and concerns about the reporting person own safety either exactly the issues that we have here point it's have failed to point to any case law that suggests that these cases are not on point you know are not a political and otherwise she called the police and then filed formal report after the weekend had janet rogers come to speak to her at that point and i write that that it already happened the record i believe is that mrs rogers had come to speak to her but it's unclear to me whether or not that was before or after she had spoken with the police officer writing right but but it had happened before she filed a formal report is my question i believe so you're ok at least that's what the record reflects so absent a protected speech the plaintiff's claim fails as a matter of law and the court should have granted the defendant's motion under rule fifty be the nd the tangential issue that i'd like to address is the court's determination with respect to plaintiff's due process claim and how it impacted the jury instruction and how it impacts whether or not the plaintiff had demonstrated an injury in fact in this case the court did grant the defendant's rule fifty a motion determining that point to fail to state a few process claim because this case involves an extension of an ongoing employment contract by a superintendent under illinois law there are two types of contracts that superintendents can have a one year contract or a multi year contract referred to as a performance based contract the school code in article ten and section twenty three eight puts a restriction on the authority of a board of education to extend an ongoing superintendent's contract unless there has been a determination that they have met the golden indicators which are contained within the contractual agreement and which are required by law here a agreement based upon its failure to find that the gold existed once the court made that determination the sole adverse action that was set forth in the complaint and argued by the point if at trial no longer existed there was nothing to rescind because from a legal perspective the extension never existed it was determined by the court to be void any show which means it never existed under illinois where the district court said that sure you aren't so if you if you look to pages twelve and thirteen of the sort of panic that we file with our brief in the in the last paragraph and going on  into the next page what the court is discussing is there were specific requirements or let me say this superintendent requirements and those were not gone over performance requirements performance requirements is what she was discussing and then she states that they didn't do it properly while conceding that they have the they have an ability to extend contracts the court is determining that they didn't do it properly which is in line with the argument that had been presented  yes you can see why that part about replacing doesn't sit well with the court yes your honor and i apologize i think that we were trying to present it to the court as representative of the argument that was raised and why the court would have made the determination that it did because that was the argument that was being presented to the court but i see your honour's point with respect to th with respect to that same issue your honor and i don't want to continue down a path that your honor fixes on toward but we also set forth an argument that once the court threw out the due process claim from our perspective the reasoning of the court it was throwing out the due process claim because they the board didn't do it right which means they didn't have the authority to do it so from our perspective that was an argument that was presented the court arguing the contract extension is void because it doesn't meet the requirements of law but yet the court then turned around and entered a jury instruction which specifically told the jury that the rescission of the contract was the adverse employment action and then asked the jury to find whether or not it was adverse it invited the jury that it was adverse but in the same breath the court had thrown out the due process claim by determining that it did not meet the contours of illinois law so we believe that when those two things get compounded the jury instruction that was given here was inaccurate because those two things can't exist together if the contract extension didn't exist because it was  then it couldn't have caused a harm and it couldn't have been an adverse action that the jury should have been instructed upon so at that point and sense that was the only adverse action that was set forth by the plaintive there was nothing further for the jury to decide on that issue and the court should have thrown it out anyways but in any event the jury instruction was contradictory to what was otherwise presented to the court and for those reasons your honour's will request that the court reversed the decision of the district court has requested in our brief and i'll reserve the remainder of my time certainly sounds  matter of law was timely or not and you calculate the time to file the appeal is running from when you think that motion with the night in the middle entry my question is do you dispute that there were fifty nine motion with timely filed because your argument about the timing of the will to see motion really doesn't matter because fifty nine motions also told the time yes that's a good question and we knowledge that the  appeal deadline that that would run afoul of the stablished principle that you only get one post judgment motion and educate the success of appeals continue to extend about being threatened with physical violence because she asked for an audit that included mr rogers we think that goes directly to how mr rogers was doing his job she also indicated that the reason she wanted the it was because she was concerned about potential fraud and she also indicated that one of the reasons she made the police report was an only for self protection was because she felt rogers had something to hide when he reacted the way he did and she wanted to expose what this matter to the public she was only concerned about her personal well being and counsel focuses a lot on that but she was talking about matters that are quintessentially matters of public concern and you are  question about the timing and i want to make it clear what happened is the police came to visit dr adams on july th the incident occurred on july th with tyrone rides and the threat shortly after need it was the police janice rogers mr rogers is spotless came in and told her she wanted to put on the agenda disciplining the if the purpose of the police report was as you say to to bring to light the board's financial improprieties as opposed to seeking protection from the potential of mr rogers violence against her there would have been every reason for her to mention that another board member had also threatened her although not physically and she did not mention janet rogers in the report she only mentioned mr rogers and it kind of incidentally mentioned that the believe both reports are protected speech the st report on the test and the report on the th we don't distinguish between them and janet rogers she did say that one of the reasons  disciplinary action she wanted to document what was going on in the district she wanted to blow the whistle that were the public employee confidentially doing our job was being subjected to th to look at it is to ask the question is this the kind of speech that we want more or is this some compelling rational reason why this district should have or be allowed to have we'll focus on the fact that in respective of the contract the due process clause lay and the fact that the board voted to give her a extension  grossly failed to apply the proper standards and she made decisions that were arbitrary and specifically we believe that judge the order with regard to the  for just briefly your honor i'd like to jump in with respect to the st amendment question again if i understood counsel's argument he was saying because they were critical of how a board member was doing their job but that makes the speech protected as a matter of and i would just point out to the court that in connacht versus myers a lot of the critiques of the individual employee were of an elected official then the acting district attorney and that's similar to both cooking is versus case where the comment was reflective of a disagreement that the individual had what's your clark who is an elected official and i think the the milwaukee deputy sheriffs case versus clarke kind of fold into what we have here is counsel is stating that mitt dr adams was attempting to expose a potential fraud to the public the problem with that statement is in the trial record that testimony does not exist in his in the brief that  dr adams filed for this this court she's relying on those statements from an affidavit she filed but that was not what she testified to before the district court furthermore he contends that their counsel contending that there was fraud but what they were talking about was the hiring of a forensic auditor by law under the school code section five yesterday seven the school is audited every year so this is a separate and distinct audit that we're talking about but the audit was at an she wanted to get an audit to find out where the district stood financially into sure that the information the board was receiving was accurate and to make sure that the financial procedures were in place there was no fraud to be even reported but that aside that is not what the context context and content of her complaint were similar to how they tried to bend that argument in clark by saying that the statement against the sheriff implicated his use of officers to protect him while i was off duty the  circuit saw through that and said really what the content context was was a personal challenge between individuals much like here this was a personal issue that dr adams was seeking protection from with respect to mr rogers under a long line of cases that is not protected speech as a matter of law and therefore the st amendment claim must fail just briefly to respond to the cross appeal portion with respect to attorney's fees the district court plainly didn't abused its discretion it provided dr adams counsel with the very rate that he set forth that he is is market rate and was in fact the rate that was charged to the plaintiff in the case there was nothing that could be further from my own abuse of discretion and although we argued that we thought the rates actually be lower the district court did not abuse its discretion and making the determination with that will rest on the remainder of our arguments in the brief that we saw before the court thank you thank you