versus jordan no bridge board of education arises because the school district became very dysfunctional starting around two thousand and ten the hearing officer we have a thirty twenty a hearing on this matter and in his decision he refers to the site geist of of the atmosphere at the district a great zener as the high school principal found himself on the wrong side of some personality conflicts which developed where the board targeted certain administrators including at the elementary school principal sanders the high school principal the assistant superintendent for business i think we're well familiar with the facts and i understand there's a lot let me focus you first at least one of the issues that is concerning me is your argument regarding collateral estopp and at the hearing officers decisions or findings somehow should bind the district court are you making that argument just so i understand as to the individuals here as opposed to the board well as to the board most privity with the board and that they would also be bound by the decision they were in for it with the board such that all of their rights and interests were protected in the course of the year in office or proceedings every board of aim extent they would be if they were actually sitting they're under the gun i do you know i think the laws are see they're not sitting there under the gun that i sit in there with their own counsel but the board of education was certainly represented by very able counsel this was an extensive hearing in which was almost every aspect of what as the charge party can claim that the charges are frivolous and mr slater claimed that several a major part of the charges were frivolous brought against him with no basis in fact that means that the board hasn't proved  well i think it shows two things your honor number one is shows that the board did not prove their charges so mr saner effectively defended he won but also he won on his burden to prove he was the prevailing party he was the moving party to say to the hearing officer these charges are frivolous there was no basis in them this hearing took about forty two days it went over about a year eight thousand pages and transcripts about forty one witnesses about four hundred exhibits years that  these were not fictitious charges that he's agreed that some of these events happened yes there are several minor incidences that did occur but all together there are about two hundred in twenty two specifications the hearing officer anus favorite in two hundred twenty one of them that's a pretty good winning record i think any baseball team or any lawyer would love that winning record your honor so he prevailed on those he propel them frivolous charges about the frivolous charges represented about a third of the herring under new york state education law you get your attorney's fees mr zane his attorney's fees for about a third of the hearing were paid to him by the school district we believe that makes in the prevailing party and if it if it doesn't go all the way to dishes through decision to twenty pages with you each counseling memo and found in mr z in his favor on all of them all of them they didn't prevail on one of them it cannot be said that a jury could not find the same thing can it be said as principal no i mean he is he is the principal he's a suspended principal he can't screw up on the budget right i mean well i mean he's responsible for fiscal matters at least insofar as they pertain to the operation i would disagree with that your honor i think it would i would say  principles in new york state can you know we don't care about i don't care about the budget i mean the budget is passed by the board of education they're the main executive lead executive body of the board of education so they're the ones who pass the budget up see as the high school duty to actually speak out on those keys i don't i mean it doesn't the sounds like you know you're on it kind of talking about our city or our conic versus myers type situation he's not speaking out on his job duties or his responsibilities he's talking about the way the school district is is functioning and the way certain administrators are being targeted the way personnel decisions are being made and he's doing as you're saying after after he was suspended ect there is some association no obvious activity before he suspended the first one suspended in this was the elementary school principal jan issue so that was there and he was seen as a supporter an ally of hers that's really when he got targeted that's really when the counseling memo started that's really when the board of education went after him because of its association activities he started to speak out on this at board meetings in support of the elementary school principal and other administrators who were being targeted and what did they do they suspended them they brought three sets of charges against them they banned him from the board meeting he's a parent in the school district his daughter goes to the high school even tonight in his parental rights to see his engage with his daughter and her education at the high school he brought to article seventy eight petitions for violation of the open meetings law he brought the article seven a petition saying that the district violated the open meetings law when they appointed interim superintendent they for the court found in his favor on that open meetings law violation they suspended him like a week later then they brought these charges against him he bought a second article seventy a petition he won an appeal on the first and then they banned him from the board meetings under some trumped up charges they banned him for an entire year he couldn't go to board meetings for an entire year he couldn't engage with his starter who was a police had intervened and so forth and in or out of disputed issues of fact the video i think is part of the record the hearing officer did not find that the hearing officer viewed the video heard all the evidence and said that it wasn't disruptive we even had a new york state supreme court justice greenwood who heard the article seventy eight petition on the ban who said you know other members of the public went over their time limit they were ushered out they were in and that even the deputy sheriff you referred to officer quickly we took his deposition he just said mr saner was frustrat or what we have here is mr zener trying to present a wrongful discharge claim under the guise of a first amendment patel initial claim he doesn't have evidence of retail ition which is why he goes to such extensive lengths to avoid being called upon to present any evidence or isn't under our jurisprudence in a variety of cases proximity of a protected action and let's say hypothetically doubts or or for as one example the article seventy eight proceeding proximity to that and then an adverse employment action taken after that sufficient at least to get over to get to the jury under some circumstances it is your honor but in what is case that i'm sorry under quite a few circumstances we've held that disciplinary action taken within a matter of a few weeks in each case your honor there's intervening circumstances that preclude drugs and an issue of fact for the jury and there may be a very good explanation for each and every one of them but isn't that some evidence of o counseling memo starting as far back as june of two thousand and nine before any known protector not some evidence to suggest that the counseling my mouse why are shama pretextual there is no evidence of that your honor which is what's interesting or maybe its findings even if it doesn't have to stop a fact it's in the record with the borg and the board seem to find that at their worst that these were protections in effect i'm sorry the board or are you talking about the these actions were taken in retail even for the content and it was the issue exactly which is why there should be no collateral a stuck record you agree with him and the hearing officers agree on that that is still part of the record but if somebody has looked at this and decided that there was substantial questions as to the viability of the charges against but it's not evidence your honor by its nature the hearing officers decision is not evidence and he can't sidestep his obligation  would his findings be admissible at trial i would argue not would argue is there a lot more than they are innocent but yes to be admissible as evidence and one person's opinion as to what the facts show is not evidence it's my opinion deserves further receipt and that requires the court to inspect whether there is actual evidence drawing an inference of causation from the protected conduct to the adversary actions most of the protective conduct constituted counseling memos there is no temporal proximity to argue about with regard to the facebook meeting in february two thousand and one if you believe you is the first arguable and i'm not asking you to concede that it works but the first order you will trigger point that would give rise to an inference the first arguable trigger point would be article seventy eight percent the bringing of the articles that we received at best the february two thousand and ten face an intent to retaliate when you have to have an extremely short term world five days understand your honor it's not five days from the august twenty five two thousand and ten article seventy eight until the suspension alzheimer's or screen what rules it has favor on october first the board files formal charges against them findings land those charges had already been drafted and by the time he even filed the article seven you have explanations from why should a jury be given the opportunity to sign these things because by the time of the article seventy eight filing he already had eighteen counseling memos he'd been the subject of advice from two not one but two attorneys that are ready officer found basically that  clark county slattery in real time he was suspended far i'm sorry during all these proceedings he happened to spend far like five years for some things that he was suspended for a long time with full pay as is required by the thirty eight and then in the end the hearing officer branch tantum yes your honor but i would also point out that between the filing of the jury can hear all that i do not think that he's raised an inference or retail ation from just twenty five two thousand and ten filing until the suspension there was the intervening event of him giving cigarettes back to minor children on school grounds in the superintendent who had been until this time his defender said he's got to go he's a danger to himself and the other students so there was not documentary evidence it's an opinion and it's unless the court is going to realize that it does cause us to have some question about the viability of the charge appellant had virtually unlimited discovery there was no full and fair opportunity to litigate aside from the fact that the issues are not the same for collateral estoppel purposes and what is the point of the elements and requirements of collateral estop if appellant can simply turn around and say but here's the hearing decision anybody over there with you and i'm not sure how the three of us would come down out of to meet we'll get an answer but i think judge walker's question at least the one that i would follow up from w with with the one that he posed as given all of that regardless of whether there's a collateral estoppel effect given that there was an evidentiary and extensive evidentiary proceeding of some forty days at least as your adversary i haven't counted them up  suggested doesn't that suggest at least that there are facts that need to be resolved in a proceeding that cannot that are in dispute that cannot be resolved in the course of the summary judgment person again i would contend that he is not sustained his burden of showing an inference of retaliatory causation at the prima facia stage but even if this court believes he hit there's still the question of the not healthy defense the only evidence before this court on that subject whether the board would have taken the same action in the absence of mr zingers protected kind of is the affidavits of the board members right and you get me right to the point where i wanted to be so thank you very much are you suggesting seriously that one somebody counters judgment when there's no evidence on the other side that's exactly one summary judgment should be away or did and it's been awarded in various cases under my own healthy and remember the boards the pelleas burden is not to show that they were right in trying to terminate xavier only that they would have taken the same action the decision whether they could terminate it was taken out of their hands by education for twenty eight that's exactly the comparison undermount healthy is not was the board right the third and one about the institution of the charges filing of the three are three or two are charges i believe the suspension of thirty twenty eight charges and the part eighty three reports are the only things in this record that i was the third one i'm sorry the filing of the part eighty three report which the superintendent is required to do when thirty twenty eight charges are filed so it's all of a piece and again well that was the suspension was on the arc six of october correct the suspension started september twenty first i believe in september it is their claim as you understand it based on what i'm called prospero exclusion you can't come to these meetings i'm sorry say that again the prospect of exclusion you are not allowed to come to these meetings in yours they have made a claim yesterday thank you for reminding that if they are honor and they quibble over the length of the ban but i'd submit that after the board had tried imposing limits on time for public speakers had tried bringing in moderators repeatedly admoni and bringing in police presence and he still engaged in misconduct such as yelling at the board president i have no respect for you mary elliot i have no respect for you any reasonable employer would have banned him from further meetings on a reasonable prediction of destruction and s jury questions they have their version of the facts we have our version of the facts you heard a lot about well these counseling memos there's excuses for this and excuses of that i agree the hearing officer heard all the evidence he judge the credibility of the witnesses so i see these are all he'll have to treat that we would certainly want to get it in motion but you do see a result and the district council will oppose it and we'll let judge moore do a render his decision but in any event we already tried this case once i mean we try to over forty one days all these witnesses the teachers to you they all testified we'll bring him in again and we'll have him testify again in federal court and i believe will prevail in federal court as we prevailed before this hearing officer even if stoppel doesn't apply the disputed issues of fact and i'm confident will prevail in all of them when you look at kabul which is what the district court relied on your honors and it got another second circuit decision he talked about there being a  different in two different proceedings a different burden of proof but even there in cobb the one example the court referred to was the difference between a criminal and a civil proceeding obviously that's going to be a different burden of proof he also had a case where there's a difference between clear convincing evidence first of proponents of the evidence i can see that's different here it's all preponderance of the evidence yet here we prevailed and the frivolous charges have berg and and i think you know pop is peculiar to those facts  the only thing was whether the punishment was it's not that these things didn't occur but whether they punishment which was his discharge was was merited amount of time i think you found three things many of them are factually deficient factually not true decision and did you want to do course