earlier this year when i read justice roberts opinion in department of commerce vs new york when he quoted judge friendly as follows judges are not required to exhibit from which ordinary citizens are free i merely thought of this case that what it was in the st case i thought of when i read that going why don't you explain yourself i think that i'm here we have a situation where it's really undisputed that these firemen in highland park were watching pornography in the dining hall on a city t v which was against warders there they were some of them are married they were bringing women from the street back to the firehouse and having sex with them either in the men's dormitory or in closets the director of age our mr jackson was meeting a married fireman behind the fire house at night every time that he was on duty my client is  devout christian from a young age he was instilled with principles that sex outside of marriage was immoral and that pornography was more so naturally when he saw this happening he objected to it now judge murphy wants to focus on the sex is a form of harassment that my client is complaining about and he says well sex is not complaining about sex is not replaced upon religion there is not the form of harassment that i'm complaining about the form of harassment is that when he spoke out about the immoral conduct in the in the department not only because this is to visit religious police but also because it was impacting the performance of mens duties they were missing fire runs because they were with women and they weren't performing routine maintenance so let's focus on the different claims so title seven is one of the claims right there's two you're you're you're you're one complaint is that he was fired based on his face right and the answer you know you know how this works when you've got the mcdonnell douglas standard and one thing towards the end is you've got to show their explanation was and they gave an explanation was that he done two things that violated the rules and that was their explanation why why didn't that suffice as a matter of law first of all we have the timing a year before he was just heard my client filed a complaint with my osha the michigan version of osha time intervals are tough but a year is not a great one if all you're relying on is timing you know the timing of it only timing it's ok keep going among before he was discharged another fireman who was friendly with my client wrote an e mail to the h r director complaining that a firem and his wife were having sex in the fire station all over the station in public venues and he objected to it he made it anonymously because he was afraid he would be retail unit against if they knew who made he says it is in his declaration that after that there was a rumor going around the fire station the my client had sent the e mail a month later my client was fired now there's also the usual way you get around the pretext argument is by saying someone else did the same thing and they weren't fired and they didn't share this faith for example that's that's the comparative point we have that well you have it on one point you know you don't have someone that had both problems though at least i did think well we have paul bates and paul the aids my client was accused of reporting a one hundred dollars over three years period  for a fire engine operator pay and he says that he reported it based on what he was told how to report by his commanding officer then since evidently that wasn't enough for the chief to use to fire my client he went to my client nd job found that there were days that he claimed time at that nd job in the same days he claimed time at the fire department my client has an explanation for that he worked on the weekend at the school the principal told him that instead of putting your time down on weekend because you won't get paid for we can work i want you to put it down on a day during the week when you weren't actually here at the school work and there's no affidavit or other evidence from the school on that he should write the school was dismissed from the case on that issue but there is an if a david from my client but if the question is whether the end vocation of this conduct was pretextual the fact that your client chose not to say offer an explanation i mean this this double dipping allegation came up kind of spontaneously in one of these mediation sessions is my understanding and your client chose was advised and chose not to speak for fear of self incrimination at which point he was fired summarily is that an accurate statement he didn't speak because the meeting was supposed to be about the alleged ifill paiva ok well he's from this one i mean he didn't have a chance to explain to his union ribs it is a but he chose not to speak at the meeting and i'm not commit we're not i'm not saying i'm not trying to say imply it's you know shows he was guilty of anything but he chose the point is he chose not to speak at the meeting they fired him on the spot so they didn't know about any much as we have a fireman who was not religious he was no judge sutton said there were two problems that your client had one for mr bates that's not the same conduct which is usually the compared or requirement but the case law on computer says it doesn't have to be exactly the same conduct the minor differences are not does and i'm saying that look to two violations is different from want i would say if you're violating an employer policy to seems materially different from one if the other one is six thousand dollars and the police chief silicates your fraud i think that the compared or is even more serious th what my client is alleged to do i mean this fireman bates was supposed to get compensation the difference between his pay from the army for reserve duty on the weekends and what he was supposed to be paid as a fireman and that for two weeks we presented during depositions which was authentic aided by the the new h r director and the payroll director that in september two months after my client was fired had received six thousand dollars in pay that he didn't deserve and then in october he asked for more in the new h r director said he's not entitle to it and the payroll director said that when someone is on military leave it's the chief chief filmon a defendant in this case puts down the number of hours that this person is entitled to be paid for while they're in a was only entitle to two weeks differential so it was not only that hilman didn't sanction bates for what he did hilman was aiding and abetting bates the main persons involved in the sexual misconduct in the department and this was something that human the chief had participated in this good of conduct before he became chief so you know the circumstantial evidence is that hillman was protecting bates and his con bates was one of the main perpetrators of bringing in women even though he was married and his wife was also a fireman he was the one of the people that put pornography before my client while he was eating he was the one of the main persons who directed my client for wearing a cross for saying grace in for believing in god in jesus you're a little short on  time you you know the district court dismissed your person on the retaliation claim for failure state a claim in your blueberry i'm just trying to make sure i understand your area and i don't see at all twa only twelve the six standards instead it seems that you're saying the district court violated your due process rights by the manner of the timing in which it took that up is that correct no prior notice or opportunity to respond like her i mean you you seem to have one argument with respect to for some and tell you shot appeal if i described it correctly yes and then i mean is there any authority for the idea that the district court can that this is some kind of due process violation of the manner in which this came up i've cited the cases in that set which which case do you think is your best compared or sorry forgive rebuttal think about this case may i ask you one question on the the complaint that hudson filed with osha in your complaint that paragraph twenty two it says that you complained about improper operation of brakes the jaws of life the chain saw and the k twelve saw and that they were checking the air bottles but it doesn't say that he included in that compliant allegations related to this wasit it's clear that's correct so it was simply a report that people firefighters are not doing what they should to maintain the the safety and work ability of the equipment  right ok thank you but after that judge coleman said i'm tired of hudson's complaints hudson had not made his osha complaint before therefore hilman was talking about his complaints about the and speech in my colleague mr bernard will speak on the due process and i'll take ten minutes he will take five minutes the harder than matter for me that are you making the point there's not really a true discrimination based on faith that is actual problem yes i mean i get your point but there are some examples of making fun of him when he says grace before a meal or wearing a cross and some things that it's not conduct related that's directly related to his exhibiting his faith it has religious overtones but what is happening is he says this behavior is immoral it offends my sensibilities so be it taxes coworkers and they retaliate and he says this is something that the employer should one know about though he doesn't inform the employer into this is something that the employer should stop would you agree that if if an employer said to a christian employee listen i have no problem with you being a christian i just don't want you acting like one don't bring it up don't act on your beliefs don't try to be a witness at lunch legislating behavior now what he says for example is that they miss these fire runs because they were having sex and pornography was being consumed now i'm not sure about the difference between pornography here and adult entertainment that's his characterization based upon his own value system are not the differences either from you know him i also the question am becomes you know is this protected speech i mean just because you say that it's a matter of public concern and there's some religious overtone that we can c the two for consider for example that the firefighters were knitting muffins for the children of the local orphanage and they misfire runs could you therefore say that they shouldn't be knitting in their spare time what he's saying is that they're watching pornography and having extramarital sex that i that religious that's offensive so therefore it's a matter of public concern and i can speak on it and i can instantly it is a confrontation and if they retaliate and mock mean that that's mocking my religion and i'm saying that he's spreading this notion of the st amendment far beyond words supposed to go of public concern however how they spend their spare time is not that's a private matter unless where they're needed their job unless it's interfering in their not doing their job which is what he's claiming right he's claiming not that they're not doing it just claiming that they're engaging in harassment based upon religion that's that's they're not doing keeping the firehouse claiming they're not doing their jobs erect and he's saying that that's a matter of public concern yeah right because we don't want to pay firefighters to not do their jobs right and he's saying that the retaliation against me is not because i reported it it's because of my religion the well maybe saying both you can't discriminate against me i have a  amendment right to speak to matters of public concern and you cannot impact or or discriminate against me because i have done that and then the nd prong is i am the  discriminatory laws protect my faith and i can speak about my faith you don't have to agree with me but you cannot make the place where i work so hostile because you're mocking and making fun of the fact that i say a prayer or i wear a cross or i won't watch pornography which i declare is a tenant of my faith the question is whether now his coworkers can respond to his criticism and whether that constitutes unwelcome chief was on site he said all this and then told another new employee don't buy now with this guy because because we're not doing that he's a problem he says a couple of things he says that the reason he was mistreated was because he was not a part of the clinic and he also says in his amended complaint he never conveyed that to the chief because he thought that it would be futile so he's all over the place in terms of whether or not the employer knew about it but it is not with the chief saying to another employee do not hang out with this not go around this guy do not hang out with this guy he's a problem he said don't associate because you will be disliked like he is now he is saying that the reason that the chief said that was religious is no connection there between any religion and any linette a dispute of material found arn isn't that a dispute of material  achieve merely said he's disliked he didn't say his dislike because of his religion he didn't say don't associate it with him because of his religion he's saying he's does like his coworkers don't like him and this is kind of the heart of the matter he is the insecure he is criticizing his coworkers behavior based upon his value system and then is saying the court and the law protects may when my coworkers respond to my criticism that i am a hapless victim when in fact i am the instigator of the conflict you know that is a struggle through at discrimination law time recognize that concern but i don't think we can say that there is no discrimination klein because you started  it i don't think that is a defense to treating somebody differently or creating a hostile work environment because you started it no question in this case you started it and then with the the record  clear but the question becomes what level of response is appropriate and can you then create this ongoing dispute in the workplace that becomes we don't we want to speak to you we laugh at you if you pray we make fun of the cross you have we tell new people not to associate with you  that there is a question of whether whether there is a dispute of material fact about isn't it isn't that a dispute of material fact about whether they are whether they've created a work environment that is hostile based on here's religion he did say that his employer created the environment he said his coworkers created that environment allegation but the district court said there's no relationship between that allegation in any retaliatory adverse conduct the play to that show but for this action the motive of the employer would not have been terminated and of record establishes that he was terminated for other reasons why wasn't the instigator to get back to your point why aren't the instigators the people who are watching pornography in the workplace and having sex in closets and cetera now he says in his deposition he never saw any sex that he just assumed that they were having sex is a matter of fact well as i mean not summary judgment certainly we're going to assume this stuff is going on i mean i think there's enough here ok right yeah he says also now it's like blaming the messenger you know somebody does something bad horses you then have to say something bad and now you're the bad guy we've all been in that situation so isn't it a bit unfair at least to say that he's the instigator well let's go a step further he makes a comparison between him and mr bets mr bed's is accused of having sex with his wife in the please the court of paul bernardo on behalf of appellee mckinney jackson and mr maginnis indicated i'm going to be also addressing any issues about the procedural due process claim for both the from both perspective of the city  ms jackson but i want to start by talking about some of the causation questions on the retaliation claim with respect to mr jackson which was our st amendment the st amendment retaliation right so not arguing that right i mean he's he's making he's not saying he pled causation i mean the plaintiff expressly said at podium here today that at least on appeal he's just saying the district violated due process in the manner in which it well i'm going to share the rest of his brief doesn't talk about this so go ahead say what you're going to say i might have a slightly different reading of his brief ok well the point i was trying to make your honour's was that mr hutchins counsel started out by saying there are certain undisputed facts that everybody knew about mr hudson's moral opinions everybody knew that he was complaining about work not being properly done whether it's the maintenance the equipment or being available for firearms or otherwise everybody knew that mr jack ms jackson was having an affair with somebody in the parking lot after work and that everybody knew about that ms jackson what there's no evidence ms jackson was present or where of what was happening in the exchanges between mr hudson and the other firefighters you know she alleges the mr he alleges that mr hellman was present at these things but she was never present and she didn't work in the fire station nobody complains to either hillman or jackson about mr hudson being discriminated against oppressed bothered for his any of his opinions whether you characterize them as religious or moral or complaints about matters of public concern all the evidence shows she just wasn't aware of that mr mr hudson's claim that ms jackson is retaliating against him in their individual capacity is that he heard a rumor from another firefighter who said i'm having sex with ms jackson in the parking lot every day after work and st mr hudson alleges that he saw ms jackson doing this but in fact later on admitted his deposition that he didn't actually see it  just relying on this boasting by his colleague and there's no evidence that mr jackson was aware that mr hudson was aware of whatever was being on the same page as to what you're talking about we're in for it st amendment protection free speech correct and that was one that was dismissed that motion dismissed as supposed to post a cover current so doesn't that raise the burden a little more here i mean isn't the honor but i think there's also you know i think you can affirm on the basis of the fact that the evidence is in on this question and so we could convert it to a summary judgment yes or no but isn't that unfair to him i mean he he didn't know in discovery he had a duty to get evidence to support a summary judgment opposition when he thought the claim was out of the case what would just judge murphy's a great judge what happened here why did well what happened with the decision on the motion to dismiss i was just trying to figure out what happened was that he heard argument and it didn't seem like the plaintiff was really focused on this so he thought it really was it was the tail and get this out of here or is i understood it i think judge murphy looked at the elements of the the cause of action that were alleging the complaint and didn't see a causal connection between the tran duct and i don't know i've  with the question of retaliation and the st amendment discrimination there was enough alleged to overcome qualified immunity which is an argument that i that i think we make in the brief so that the qualified immunity part turns on how bad or not bad the underlying retaliation was which usually you're going to learn in discovery well you know again your honor i think having taken your point about the the availability of discovery i think there was still i think there's enough in the record to warrant affirming the judgment with i take it you're when you say that what you're said another way of putting your point is what more discovery was he going to get to deal with for example the pretext argument because pretext would still apply to st amendment free speech or tally and i guess you would probably argue there's no incentive to not get all the evidence for one is for both but but i still seems very strange to well and yet you know there was a pretend there was a there was also allegation that his constitutional due process rights were deprived because for the same reasons as his st amendment rights and with respect to ms jackson there was evidence taken all that stuff that would have applied to both of them in there wasn't anything unique about ms jackson's position with respect to the st amendment stuff as against the constitutional due process must say with respect to helmand there are allegations that he was present when all this stuff was happening and there are those kind of allegations about mr jackson ok i see my time is up if you have any questions about the procedural due process as you would be happy to address them otherwise i don't think so i think you you remember you've got i believe it was the rd which you called deprivation of right to freedom of speech and to the person i was at the want right ok i just want to know which one thank you i like to  that under the a matter of public concern that was not disputed by the trial judge the only thing he disputed about my the the requirement that a st amendment claim that that speech have been on a matter of public concern that particular issue was not disputed by the travel judge he agreed that this speech was a matter of public concern  with regard to miss jackson in the st amendment claim what we have here is my client did no need to know what was going on in the car between the fireman and miss jackson every night that he said that the fireman was there to know that miss jackson was violating a policy of the city of highland park one of my exhibits was i saw it you know so free speech retaliation as to knew about his free speech i mean what are the things where you actually say you know she knew he was talking about how christians good christians behave or he knew or she knew that he was complaining about people weren't ready for to report for work or handle an alarm do you can you tell me where that is she knew he was a devout christian because there was an episode of that in the complaint it's in his deposition here so that doesn't help you  allegations in the complaint that say that that cover miss jackson relative to our to any klein that's the question because we're two of the six but let me help you i'll tell you what you say and i've got it here and then you can maybe help a little bit this would suffice in a way because it says hellman and jackson fired hudson because they objected to his religious convictions and wanted to stop his outspokenness she had an affair he was part of the immorality in the from her to her but that's that's neither here nor there if she's not aware of speach are you with me i mean you've got to make some allegations that allow this to be more than circuit's case for her hot says that if there's some kind of procedure who specifically a union grievance procedure to provides adequate due process and that satisfies the due process requirement in and the converse is if it doesn't if it's not adequate if the union procedure and the collector bearing agreement is not then it doesn't satisfy due process well we have a situation where the union the police officers  association of michigan disclaimed representation and they had a reason because the local officers who are against my client wanted to have a change in local leadership and it wasn't permitted because the the election time wasn't up so they withdrew therefore we've got a collective bargaining agreement but yes your lights out so we finish up with a sentence or two without too many pending clauses that he can read when you don't have a collective bargaining agreement when you don't when you have a collective are you but not of an exclusive bargaining agent then to have due process you've got to offer something else besides the procedure you've got to offer individual grievance when my client requested that he was turned down and that was a violations that strongest case supporting that conclusion are hot and the case is that rogers versus thirty six district court which was