conversation that was had between as my client who was off duty as a janitor was strolling through the cafeteria ah early in the morning they do serve the kids breakfast and then they would be preparing for lunch and he talked to a lady who was that he'd known all his life and a neighbor and unfortunately that was the day of the local elections the election day and  all the girls and who were at that time opposition candidates to the incumbents and she said well i'm supporting freddie who was president the school board up for re election and after i leave here i'm going to work i go to the polls i want form in my client responded bug you got to do what you have to do and then he went on i'm about levon ish i'm he is summoned or is contacted by the assistant principal who who tells him mr cooke that the president of the school board had a call the assistant principal and instructed the assistant principal to tell mr cook that he better stop talking about the election and who people are going to vote for words that effect or i'm pretty clear that you have to have for a first amendment retaliation claim you have to have arms sufficient to deter a person of ordinary firmness from from supporting the candidate is his or her choice and we have cases that say criticism and verbal reprimands are not enough well is another that is don't doesn't this case end right there with one missing element of a first amendment retaliation well we say there's more your honor that's in the in the middle of all this odd mr cook had  to a much more junior employee and that my client had to file a grievance to to get that job and that there was a grievance arbitration hearing and that the arbitrator found him to be competent for that job and that within a week after this has something to do with this cafeteria conversation yes we say that it does and that within a week after that he was given the job but imposed a thirty day probation which the union took the position and there's a letter from thirty day the thirty day probationary period is prescribed in the c p a well the union takes the position that because it was awarded by then there's the additional facts of that the supervisor mr felina who is to evaluate mister admitted two to two people in conversation that he was called to the superintendent's office and told that he must find mr cooke incompetent or not satisfactory for that position and then we have the  facts alleged we have snapped at all this is because he said something in the cafeteria to a covert well it's a little bit more than that it's also because he had the temerity to challenge the management's decision as to who this person would be for the maintenance didn't miss mary and so what's it going understand what's protected activity about that well actually with the cafeteria conversation and the first amendment speak it without without that  election day incident it wouldn't certainly that would not have been a public issue it's that he supported opponents of the the majority of board members and this was near this was this is not like the frets in the various cases cited by the school district where a superior supervisor says to somebody well i'm thinking about demoting you or i'm thinking about giving you an unfavorable assignment or something this is this was that statement was more than to the principal tell this guy to shut up i mean it was it was it was a for a threat of physical minutes and that that and the other part of our argument is that it it with there was nothing said to the other party to the conversation never was we are here i'm not here arguing that the employees in the newcastle school district have a right to to conversation that got this thread not the other side and and those therefore we're saying that it's more than merely saying i want to chastise you you can't talk that way you can't talk about who you want to support particularly if there are opponents because the congress is if you talk that you want to support us with then that's ok and i think that's that's that really is the the crux of why the district has a policy but it wasn't put into evidence and really isn't very helpful because it basically says employee shalott politicker can do political campaigning during the day and that doesn't really help because the school district doesn't say that mr that and we're not attacking that policy actually we've actually approached the school district that maybe we need a more detailed policy and unfortunately because the personalities  it's a little sensitive with that with with the board i'm must admit i'm still confused on what motivated and what is in parts of your brief times you seem to be saying that all this happened to mr c because he bid on a job intended for another and god that's what starts yes you and that is not your motivation i don't see what your claim has because i don't think it's protected activity  and which wish what was it was it that he taking the job away from somebody who was favored that motivated the work assignments that we haven't gotten to yet right right and we don't have the evidence here i don't it is so thick and i don't understand nobody says what this work is the principal said the only reference to what the work assignments were was changing lights everybody else doesn't say a word about what and what the work consisted of how much time mr cook was given to get this were not all done by himself and he doesn't say he is that's the money he deposition is there but he doesn't even say anything about well we know anything what do we know about this work well worth a summary judgment level i'd submit that these are facts for for the jury to decide  mr gave a very eloquent explanation for the various tasks and his reasons but i submit that that's not enough to decide that as a matter of law but we can agree the record there's nothing allegation no evidence that it was degrading or or inappropriate it's just that that coupled with the the threats made to the supervisor that you better find this guy incompetent then with the that during these thirty days he was subjected to something that was so burdensome it would just be swayed a person of reasonable firmness not to support the candidate of his or her joyce categorization yes yes or yes i don't mean to assert that that there was a tremendous amount of hostility wasn't being yelled out there were no inappropriate job assignments in that sense degree it was nothing degrading found and there's no dispute at this point that the speech in question which would be the conversation between mr cook in the cafeteria lady was definitely a matter of public concern and is protected speech and then th applied to pickering balancing that in so doing found that obviously if the districts interest in providing a functional workplace opt out the way mr cook's interest in having such a conversation in the school cafeteria it appears that appellant's are saying that since it does or the district court did not rely on or mention the fact that the cafeteria lady didn't receive the same threat and i don't agree with the threat of physical manifestations but she didn't receive the same threat that somehow that the lies the district's interest in maintaining a functional workplace in and it would somehow make his balancing pass effective in some way your honour's it's our position number one that he she was never before the district court with respect to whether or not she should have received the same threat as mr cook i would suggest to the court that that's probably the reason why it's not mentioned in the district court's opinion because they were never asked asked to address that particular issue i would suggest that even if they were in balance it still wouldn't tip the scales in favor of mr cook's interest over and above the district's interest in maintaining dysfunctional workplace owners with respect to the job in question in the grievance just so it's understood the position in question this maintenance job that mr cook wanted to get was promised to somebody else that all happened when he was still supporting mr masako for school board it was the fact that the job was given the somebody with mr cook's political activities or put political speech that that came into question with respect to the thirty day probationary period and smith you're correct it's in the collective bargaining agreement there's really no dispute the language is there the arbitrator found that he he had provided evidence of competency the thirty day probationary period which no evidence that he was treated any differently than anyone else the thirty day probationary period was to demonstrate that competency which is what happened here at the end of the thirty day probationary period despite these threats that supposedly mr flynn it was receiving and which he disputes by the way but the simming for for the purposes of this argument that he in fact did receive those threats he certainly didn't bend to them in any way at the end of the thirty day probationary period he found mr cook be competent any awarded in the job gave him a good evaluation the same would be true with the assignment of the work you're on of the tasks in fact were not demeaning they were the tasks the typical maintenance men do the issue was whether or not he was sent out by himself in retaliation there is no  to set him up to lose the job right if we accept those out the back to find or with those two together that is a pressure on kool aid who is the decision maker with respect to that they are correct none of those affidavits connect that assignment those work assignments or the fact that other people didn't go out by themself that couldn't be connected to his political activity or his political speech and in fact when mr cook was asked point blank and it's in the record why would paul felina retaliate against you he couldn't recall he said well i may have known at one time but i don't know any more so what was missing in that whole thing was the connect between those job received no threats so there is no in the affidavits that were supplied on behalf of mr cook i don't believe any one of them specifies why these assignments were being made to mr fuller or to mr cook they were more along the was being threatened to do a fine because of it and there's not a there's nothing in the record from which you could determine that the reason for those that pressure and threats was his political life that's correct that's not contained in any of the affidavits and i believe that's what the district court cited too as well yeah make that connection an overwhelming the overwhelming that's for the fact finders why would the superintendent of schools be interested in whether or not this man with many years of seniority as a janitor now is in a maintenance position why is why is this so important it's the same thing with why does the president of the school board care about what the janitor says to the mostly me to say because he took a job that somebody else like somebody else should