good morning thank you judge andersen before i begin my argument if i may distribute to the panel exhibit a which i don't know if it's in front of you but i wanted to happen front of you during argument i don't know whether we have ex action and its determination of causal connection but also with a respect to examine interference decision judge batten who originally had this case was the district court judge assigned to it originally correctly ruled that mr a alleged sufficient facts to support a claim of retaliation under both the eighty a and the r i he observed that the th circuit construes the cause of connection element broadly so that the plaintiff need merely show the protected activity and the adverse action are not completely unrelated and then he found as a matter of fact that it can be reasonably inferred from the lengthly delay and ultimate denial of readmission that they were related to the and our argument as we've argued to this court in the briefs is that her decisions were incorrect both actually and more importantly legally with respect to a refusal to admit i would like to know just that the what issues are properly before us on appeal there were eight claims to be given with the dish record appeared to grant the motion to dismiss on five hundred and sixty seven and eight you asking us to review we're asking you to review both judge baton and judge may's orders what i intend to argue this morning was judge may's orders but they're both in front of you because they have been raised both in the opening br that was filed pro se by the appellant and then also in my supplemental grave so what is it that you want to address specific this morning my intention was to argue issues concerning adverse impact on a cause a can add adverse activity action causal connection and interference with respect to the adverse action this court and shots which we raised in our brief has held that to establish a promise facia case of retaliation a plan of my show that he engaged in  activity which is not an issue in this case that he suffered an adverse action and that the adverse action was causally related to the redacted activity and what is the adverse action that the adverse action in this case is the denial of mr a and requests for readmission which was based not on what the official said with the reasons given but actually in fact based on the enemas against him which is demonstrated and this enormous record of the both that i've submitted to your honor this morning that stapler and i can go through the facts but what judge may did was judge may said well you had to make out a case of material change and conditions of his status as a student in order to make out an adverse action and st of all that's just wrong i mean that is not even the standard for employment cases what happened was the judge relied on the wrong burlington supreme court case and carroll versus carroll this court made clear that in retaliation as opposed to a discrimination claim there's a relaxed standard requiring only a showing of a material the adverse action that might dissuade a reasonable worker from making or supporting a charge of discrimination and that to satisfy the adverse action element and employee in this case so assuming that she used the wrong standard we would of course apply the correct standard but applying the correct stand that with his history of of misconduct it is hard to believe that that  matter whether or not it would dissuade a reasonable work on well your honor she also applied the incorrect causal connection standard so that in this case she didn't even look at the evidence she didn't even look at anything that opposed what georgia tech said for example georgia tech made the argument that the reason that mr actions and what his reconsideration petition was denied was which is what's before this court now is reconsideration and his request for reinstatement re admission that the plan defendant argued below in the judge may found that the reason for it was because he had centrally for disciplinary but the problem with the argument what judge made never looked at and which she completely discounted apparently in her bombings was that the president of the university who made the ultimate decision didn't know anything about that he was completely unaware of the four disciplinary actions and his deposition testimony he testified that this is new information i didn't realize that he was found responsible for previous occasion question oh he didn't realize that those four prior and cements have been included in the determination answer the st i've seen of this so we know from his testimony he didn't even know about we also know that in her order judge make completely ignored in finding that there was no causal connection the fact that it was a pretext based on our information about what was in the minds of these people at georgia tech and what we know we know that they issued and i have in basis of the prior decisions and i don't recall that having been raised in you'll brief was not in my brief it was raised below but the point of his not knowing that it's hard to believe that there was so much swirling it had been tried so i apologize for not saying that but in getting prepared for argument i took the case i guess i had about a month right library has a big record for me to evaluate everything in a month and everything else that i'm about to argue is actually in our brief that this is information that was supposed to be included in the district court's order when the district court is deciding an important case of somebodies rights under the a d n a and whether there is retaliate the president if he did not know the extent of the conda he must have known that multiple decisions ov for a lot of that yet we got real new to the program but would he not know that according to him he was unaware of a lot of things that he had that he didn't say he was not aware of let well they obviously knew it was a reconsideration he knew there was a reconsideration and he was fully aware of the fact that there had been a cheating alleged to have occurred and that that was what he testified that he was not aware of the prior instances of misconduct and it was all new to him but that's not the only reason why there was a proof of them not just the swing line which we argued in our brief and and the fact that they were the bolo posters put out that there were holes put on mr acheson is transcript in a very unusual way there would be a hole put on and then it's in the record the whole be lifted and then the whole put back on and the whole would be lifted and there's testimony that that even mr adjutant asked to have the holds lifted so he could try to apply to other schools but they would they be lifted for such a short period of time by the time you try to access this transcript then they'd be put back on it sort of like a lack of how he couldn't quite get the schools to be able to look at the transcripts while they were available at discrete acts were within the statute of limitations hard what discrete acts fell within the statute of limitations well for one thing it has the facts are the basis for his claim is the filing of the complaint which was within the statute of limitations  if for example of their yes you can file a request for reconsideration if it's time taken under consideration which this was in march of two thousand and ten then that is a discreet act if that is what about the earlier ones thousand and ten and forward but in order to prove factually what was in the mind of the people of georgia tack reliance on evidence both before and after if it shows a pattern of conduct is admissible and should be considered by the district court judge and we have set out the pattern of conduct and before i close i want to point out to the court that the let let me ask you about that pattern as is asked the only  this case which leans in your direction at all it was the president's outburst which reflects some hostility perhaps it seems to me in light of the totality of the evidence that that has hostility is most likely attributable to his frustration with could a reasonable jury find otherwise well st of all your honor that you're speaking with respect to the defendant's point of view a bit what happened actually in this case is the repeated acts of the photo with  stapler these are all the people who were george attack and all the people of georgia tapper putting out the bolo posters they were all the people who were talking apparently for an hour and a half with the president according to his deposition testimony about let me tell you a little bit about m and it was these people for example the woman who fished out of the trash can after the test was over and the professor a you know senate and they gave him a grade they fish out of that she had evaded the eight apps program the director of the disability services program fishes out of the trash can and then later is one of the people talking to the president that all of the was it was a problem because she is one of the people who had the discriminatory retaliatory animal against the plaintiff for having complained about the eight apps program he made repeated complaints that her program was not a good program because he tried to take the test and it was quiet people were talking  in that that was on her under this under him and when he filed his request for reconsideration she was one of the actors that he was have you know having issues with and she was was just talking who fails to power brief will not be heard at oral argument unless the court grants permission in the purpose of that is to not sandbag the appellate and we would asked that to the court to enforce that rule so that we don't get further into my argument i do you want to clarify the state's position on what the definition of adverse action is i do you agree with my colleague that  brathwaite this court made it clear that the supreme court's decision in burlington northern is what controls the definition of an adverse action and so for that we heard it we understand that the district go  court applied but end braithwaite what this court date is it went ahead and it applied the correct burlington northern standard and i say i see no reason why this court should do the same thing there is no causation i want to focus my argument on the lack of causation because i think that's our strongest argument in order for mr acheson that the only thing before this court the summary judgment or did mention that in his brief but but his appoint counsel did not mention it in her supplemental brief at all and so because of that i would argue that perhaps that argument has been abandoned  because ation is one of those elements and he doesn't just have to show any causation he has show but for cause nation according to the supreme court's decision and nasser and that of course is a heightened burden not have been not denied if he did not complain about his accommodations and he is not provided evidence in the record to support that we now know that the decision to determine the names of the individuals on that committee he failed to determine what materials that committee considered he failed to determine why those committee met mur reached the decision it reached and most importantly for this case mr ashton failed to get evidence as to whether those members knew that he had even watched complaints about his accommodation protected speech and again without any evidence from these committee members mr agist saying cannot possibly show that they knew that he engaged in protected speech and that their decision was based on retaliation and so for that reason alone he cannot establish a but for causal connection and that bat itself is sufficient to  the lower court's decision  it was just absolutely obvious to that he was not going to be readmitted and they have full the there is no cause  argument there was that we do have a legitimate nonmetallic tory reason which is that mr agist and gay engaged in a long history of personal and academic misconduct that only progressed over time and that that in no itself is a sufficient legitimate reason and that also to be your honor that also ties into our adverse action arguments which i will just hit upon very quickly to show an adverse action has to be it has to be materially adverse and our our position here is that there was no materially adverse action against mr acheson under the unique circumstances of this case because mr agist in had exhausted all of the procedures that existed at georgia tech in the war regions for appealing his expulsion contacting people via e mail letters face by face to ask them to please reconsider his expulsion and read met him to georgia tech over those five years he made it least eleven those informal requests they were denied each time and so essentially what he is done is he has repeatedly asked for the same relieve over and over and over again and our position is that yet another denial of his request after five years of a long line of requests that is not a materially adverse action in this case so that as another basis for this court to uphold summary judgment and in favor of the border region  reminding us that the president said he would even away or of this extensive and serious history of misconduct well your honor the president peterson was not is they so additionally mr x and asked for the board to reconsider his request the board denied that saying that they wanted president peterson to have an adequate chance to review the case because under by law eight only you can only review decisions made by presidents so what they did they kicked it back to president peters and president peterson testified in his deposition that he was new at this point in time he did not know anything about this he testified that he spoke to various people in his office and about how to proceed and what the correct procedure was and they all and told him that there is no policy or percy juror for reconsidering this kind of request they all told him that mr addison had exhausted all of his avenues of redress and so as a result mr p a president peterson did send a letter to burns new some saying that text position was that they they did not think this matter should be conducted their own independent analysis and they reached their their own conclusion that the expulsion should not be overturned so so in other words they  and there the board took it up at the october meeting that is correct because the chairman of the committee alone has told or action as a whole discretion whether to take these matters up so he decided for whatever reason we don't know it's not in the record he decided to to take this matter up at the next order of regents meeting and that is when the committee on an organization in law met and decided to up hold the expulsion and i think it's significant to note that president pearson was not a part of that committee he was not present at that committee he did not provide recommendation to that committee that is true with every single individually named defendant in this case they were not part of the committee they did not provide recommendations to the committee they were not other than transferring all the materials to to the committees so he was basically just a conduit passed through and so for those reasons at we really don't think mr accommodation complaint i do want to also turn really quickly to just some hypotheticals even assuming that mr addison's long history of personal and active academic misconduct as a result we would ask this court to affirm summary judgment on the border in favor of the border regions and it seemed individual your honor applebee's argument underscores why this case needs to have back to the district court rather than having the case the court here decide because the district court needs to look at the facts and apply them to the correct standard of law here we have a letter that was written january th two thousand and eleven by bud peterson and the president of the university who concludes that i've reviewed the information to mr acheson and this is on the record document one sixty six page thirty four mr agis and i've reviewed the information you submitted to me regarding your expulsion from george attack and then it clint concludes at the bottom by carefully reviewing the information you provided i find no compelling i'm aware the fact that the letter was written and there c c d to smith's schafer and on other people involved in the administration of george attack so i find it impossible to believe that peterson who they held this up for and as the apple has expired he needed to make a decision in order for it to go to the board of regents it's impossible to believe he didn't weigh in on this decision number one so it really this case needs to go back to the district court for the district court to look at these fact except ing is true that he said in his deposition that he was not familiar with this long history of misconduct code and what your opponent just said he was he with his staff they talked for like an hour and a half about mr agis and i am certain that it came up in there that he has been making complaints about a the testing and i really want to make it and it also that happened thousand and eleven where he says he's turned it down yeah and that meeting was july two thousand and eleven in the summer right at two thousand right correct so his and we know that he talked to the people who were involved in the complaints that were made so we would tell your honor that it's not so obvious that the misconduct the extent of the misconduct that it previously wasn't been talked about was not part of the entire retaliation and i point out to your honor that much of the misconduct that were the basis for those prior disciplinary proceedings related to his disability that was the whole point is that for example he was in the library and there one of the mines was he was in a library got got into a thing with some of the students because he was asking them to be quiet and nobody in the library would make them be quiet make the people be quiet and then he got into a thing with the students that was related to his disability that was the same thing as it was disability so we would point out to also with respect to his roommate they put him in a room with a basketball player who is sixty four dollars he was terrified of them they got into a thing would be to all of all of this your honor w swirling around mr agis and when the court didn't even make a pretext evaluation because she didn't think she had to she thought it was over wef none of his information came in none of his case where they the court said that a a prime aphasia case of retaliation in public services context is what we have here can be established by proof that quote some type of action occurred that sufficiently qualifies as adverse action under the circumstances of the case so you have to look at the end of the individual case and that a reasonable person in his position would view the action in question as adverse that's what we're looking at we're not looking at some heightened standard or higher standards a pretty low standard let you know he was listening to it there was so much hostility toward him unless there's actually an a judge or in our case should be a jury looking at this and saying what really was the motivation the refusal of the boulder region to reconsider that final in october of two thousand level and taking six hundred and twenty six dollars days to do it to that delay there has never been an explanation for why that took so long and why they didn't just send him the letter is hard to tell me to conceive that final denial and even the delay  i'll could dissuade a reasonable person from making complaints when he made all of these complaints of full and he was here is hard for me to see how that could persuade a reasonable or dissuade a reasonable person from making further attempts in fact the fact that they  last reconsideration would suggest just the opposite wouldn't it no your honor and the reason why is because during this entire period of time the what's in the head of george attacked is being exhibited by the conduct they display for example it wasn't until two thousand and ten which was after he originally filed his quest for reconsideration that the holes were lifted you know they were up and down on the holds up one minute they're off and then they're down so you know that toying with them this photograph i cannot tell you enough how that explains what's going on in the minds they're thinking he's just a pain you know we and most of his complaints like ninety nine percent of his complaints to georgia tech were entirely related to his disability on that staple is it not true that there is no evidence at all that any of the decision makers proving each individual defendant had anything to do with that stapler it was georgia tech how why would they do that well they knew about and how they know about it georgia tech knew about and they knew why he's asking for these records there's no evidence at all that any decision mak happened by accident somebody put that red stapler in front of those sacks and to humiliate and i would argue your honor dissuade once you're over and over humiliated by university you think that you're going to go away and that's the whole point thinking you're going to go away is the retaliation i think we understand in the question that i would like to  cknowledge that you were appointed to take this case pro bono and as you always do you've done an excellent job and th