the morning honors may please the court my name is todd stockman i'm here representing the plaintiff appellant luke weinstein in this appeal from the district court's decision granting summary judgment and favor of the defendant the district court's decision granting summary judgment is wrong on the law and wrong on the facts were asking the court to reverse and remain in this case for trial the district court's decision did not follow established legal principles relating to the pickering pickering balancing framework the mount healthy defense in the first amendment the district court's decision fail to focus on the actual record of plaintiffs claim relating to the a p i our position and the record evidence relating to the a p i our position is different from the record relating to the innovation accelerator position that was the subject of the previous decision by the district court and the previous appeal to this court where the spec to the pickering balancing test we believe that the established law relating to the pickering balancing test mandates and limits that balancing test to disruption caused by the plaintiffs protected speech in this case defendant early never claimed that any disruption was caused by the plaintiffs protected speech that's actually the so you may be right that it was puzzling that district court here in gage in a pickering balancing test because understand those no that was not the argument made  do not believe is actually challenged in the district court's previous ruling we hear because of the grievance we're here because of we're still claiming the initial protected speech as well as the nepotism complain i believe from september and then again in november of two thousand and ten the plaintiff reiterated those complaints relating to nepotism and also claim that he was being retaliated against here on remand i mean i was on the initial panel but i think that we help your cause by remaining and it was because the district court had not addressed the grievance issue that that's correct your honor but the underlying protected speech relating to the nepotism complaint communicated by the plaintiff to director of compliance ruben is still protected speech and we're still claiming that the plaintiffs retaliated against by the defendant because of that protected speech as well as because of the speech made as part of the retaliation complaint in september of two thousand and ten and november of two thousand and ten and in the memo from dean klein to dean earlier which i believe can be found at the record starting at page eleven eighty nine dated november tenth two thousand and  comments but also the subpoena and i understand that it's wrapped in but the the reason that the prior panel remained it was the september twenty fifth ten grievance that he filed after the adverse director decision but before was the subject of the prior appeal was the innovation accelerator director position that adverse employment action is no longer part of this appeal this current appeal relates to the adverse employment action relating to the a p i our position is an assistant professor  residence position and so the subject matter of this appeal is a claim that the plaintiff has retaliated against in connection with the a p i our position because of his protected speech both in may of two thousand and ten communicating concerns about  the director of compliance as well his his reiterating those complaints in the context of the employment grievance for retaliation and communicating in our winter agree that it is now we view the nepotism comments in the with respect to the complaints that were when they were reiterated in september in november of two thousand and ten they were reiterated in connection with a retaliation complaint was made through the grievance process but that doesn't let me see if i your  there was a there were never says a complaint made in may and that it was two years prior to the time approximately two years prior to the time that his contract was not renewed as an assistant professor but you but one of your claims is there was that was the non going to my colleagues question though with regard to that labor grievance is that really protected speech i mean that labor grievance was predominantly about his personal problems at work his desire to have a tenure track position and i'm having difficulty seeing why that's protected speech so help me out so we're only claiming that the particular content of the speech relating to reiterating his concerns about the nepotism and also complaining that he was retaliated against for his earlier protected speech relating to the nepotism is protected all of the other speech that took place as part of the grievance process in the fall we're not claiming it's protected but in light of the fact that the district court previously determined that the may two thousand and ten protected speech relating to nepotism is protected that was not challenged by the defendants part of the previous appeal and i don't believe it's being challenged as part of this appeal so the initial framework for determining whether there's protected speech here is the many two thousand and ten complaint that i don't believe is being challenged as part of this appeal but in addition to that we're claiming that the repetition of that protected speech as part of th september two thousand and ten grievance and the step one hearing which i believe was in november of two thousand and ten the reiteration of protected speech remains protected the fact that it takes place in the context of a retaliation complaint doesn't strip protected speech of its protected discipline in the classroom that was the content of the speech here the content of the speech is protected it's the same speech that happened in may have two thousand and ten relating to the grievance and we contend that you are to make a claim for your make a claim they're being retaliated against for protect speech is protected by the first amendment that in order to further the purposes in the interests of people's rights under the first amendment that accordingly you're being retaliated against for exercising your rights under the first moment when the underlying speech is protected should is it relevant that he use the employee grievance procedure would you agree with that i would agree that as part of the first amendment doctrine that the form of the content in the context is all of his chain of command disseminating this we look at besides the fact that he pursued this avenue that's reserved for employees i think it's not dispositive ok it's dispositive if you look at prior supreme court presidents the decision i hope i'm pronouncing that right back decades was internal employee speech and that's still good law the fact that an employee doesn't go outside to the public  and if i could just follow up on one moment based on the earlier question from the court in terms of the timing it's our understanding in the i believe the record supports this that the decision to non renewal the plaintiff from the a p i our position was made sometime morning and may it please the court i am nancy assistant attorney general for the defense university of connecticut and dean christopher early the district court correctly decided this case in favor of the defense based upon the mount healthy defense but i'd like to concentrate on the alternate grounds for firm and in this case qualified immunity which clearly protect the defendant early given the state of the law at the time he made this  does this mean that you're not relying on the district court's pickering balancing analysis no your honor does not that you're starting with the not healthy and qualified immunity yes your honor with regard to pickering balancing just to make sure i understand  i'm having difficulty seeing with regard to that defense and maybe other defenses work better for your position but i'm having difficulty seeing how the district court didn't hear with regard to that because you're your client never claimed that he was relying on  any disruption by virtue of the speech so it seems sort of a side to the side of the proper analysis so what am i missing i think the concern that the district court was addressing that was in may two thousand and ten when we have this speech weinstein is both the director of the innovation accelerator and the assistant professor in residence so the court was looking at what happened in may two thousand and ten when we had this disruption after when he was no longer director of innovation accelerator after july twenty eighth two thousand and ten when he was an assistant professor in residence there was no no we knew disruption by winds to you just had that history of him being a polarizing figure who exacted a price from dean early in terms of the morale and the function of the school of business and that is why the mount healthy defense applies even if this court as it didn't is prior there was no separate funding there's no dispute that the position of directorship was can join one salary of one hundred thirty thousand for both the professor in residence and the directorship so when you lost the last directorship there was no separate source of funding and that is why dean early a testified if i had to feel that i could fill it with an adjunct who made under six thousand dollars a year not pay this professor one hundred thirty thousand dollars so there was no funding available and interesting only weinstein received that assistant professor in residence renewal june eighth of two thousand and ten with the anticipation that he was going to get the directorship when he didn't get the directorship you can scrambl to find funds that were on a one time dispensation from the promised funds there was no separate funding so while some people in some positions were hired there's testimony that it was only for limited positions and they did eventually replace the director of the innovation accelerator to so the mount healthy defense favors the defendant because uncontested there were financial constraints on this position that had the assistant professor ship could not be separated from the directorship position that really uncontested i mean your adversary says points to position testimony that people said well everything's all one pot you can go back maybe there was no line but you could go back to the provost and do what you did the preceding people to teach them but at a much lower rate you're not talking about people who are being paid at the rate of one hundred thirty thousand for the notes of the people who were hired were not hired for anything more than rate that's what i'm saying that they were not regular state employees they were on a limited contract per course as opposed to being hired for a permanent state employee position in regard to the qualified i mean it's important to focus on this speech here was in two thousand and ten well before laying and after many decisions addressing qualified immunity by this court of public employees additional weintraub which is the case most point with the internal labor agreements and no relevant citizen analog we have lou versus austin the president of the university of connecticut that found in favor of president austin for not renewing an second circuit firm mean that a state trooper who follow written complaints about unlawful conduct and mismanagement was engaged only an employee speech matthews versus connecticut department of public safety another two thousand and ten case where corruption by the state police reported and that wasn't protected speech it was employee speech yes your honor because the i'm sorry the existing law at the time certainly would not have put anyone in the position of dean early and notice that his conduct in not reappointing could be considered against the law winds to start early could have believed and did believe this was unprotected employee speech and that he had the right not to reappoint this is focusing on the internal labor correct even the speech made in the nepotism complaint was done through the school of business and internal channels so yes judge edg did conclude it was of limited public concern and it didn't affect the number of people and of limited concern of the public fisc but there would be no reason for dean early to think in two thousand and ten that communicating only internally at u conn with the audit compliance attorney rachelle reuben through an e mail was anything more than the continuing conversation they've been having in march april and may  the programs within the school of business and especially the accelerator program we were to use this as a form of whistleblower you're saying that there was nothing that clearly established that it wagging the dog and if we were to look at it that way then why why would it be the established that it's at some level as the district board determined protected speech  that the university couldn't tell you the against it was speech on a public concern your honor but since it was made as an employee early could certainly have the thought that it was made as part of his duty says the school of business as well before lane be frank this is what we have car setting and all of these other decisions saying even though i'm talking about public corruption with the state police even though i'm talking about mistreatment of mental health patien because i think it's clear from this in the record before you that there's absolutely no question that qualified immunity once again apply she just as it did in regard to the directorship possession and there this court may make that determination as an alternative grounds for a firm and although the defense urge you to decide based upon the amount healthy defense and we rely on our brief thank you ten protected speech to the point of communicated to the director of compliance compliance office anything that's not limited to employee complaints it's very clear from the record that any individual has the ability to communicate concerns to the compliance office and in fact once the plaintiff did that those concerns were escalated to an independent state agency the state ethics office that resulted in a memorandum of understanding being executed as early as one of the counter parties  it's our understanding that the defendants had years ago decided not to contest whether the underlying protected speech initially found in the district court's initial summary judgment ruling prior to the first appeal decided not to challenge that's protected status that wasn't  argued in the underlying summary judgment moment motion that resulted in the district court second summary judgment ruling and i didn't understand to be challenged as part of the defendant's brief so we believe that the underlying protected speech by the plaintiff in and the district court's ruling just a court advance an argument that i don't believe defend early actually advanced relating to disruption that in the record it was but but there is a point about they could afford to fill to have him fill that position the assistant professor position because of the hiring freeze and so what they found were people who are not regular employees of the university is that the courses that professor weinstein was assigned to teach in the two thousand and ten two thousand and eleven year were all electives rather than required courses that's not actually true if you look at the record the truth is that the plaintiff was teaching required courses not her point so what's the ok the next one is that the management courses were not in high demand as other disciplines refilling the management positions in a very limited way to be done by the business school that's also at nine fifty three the truth is that the plaintiffs courses were in high demand that the department had highlighted the need to hire management faculty and there's a disputed fact as to whether as to the author of the source of that information and those points can be found at page ten sixty nine of the record or if you look at page ten seventy of the record there is evidence the funding was available and other people were hired if you look at page twelve twelve sixty one of the record that there is evidence that other people in other a p i are was recruited in the of business and that group of professors is almost one point seven million dollars in the second portion of the table on page twenty two ninety one there's other faculty hired that exceed two million dollars and so we believe that contrary to opposing counsel argument that the school business only was not hiring adjunct faculty at six thousand dollars a course they were hiring people well in excess of one hundred thousand dollars a year and we respectfully submit that me