and then if time permits dismissal of the section one hundred and eighty three dollars suspension claim for sending x rushing summary judgment st i'd briefly like to mention the standard which on summary judgment this court takes all facts and reasonable to lamb and i want to emphasize that even though it's well now and because the defendant's answer brief didn't do that instead the answer bre presents a view of the facts that is in the light most favorable to the defense or example matlock shows that summary judgment for dunlap was erroneous those cases hold that if the defendant mentions the protected activity as a basis for the termination it creates a question of fact as to whether the protective at i'm trying to understand why this text message which is the subject of it would seem to be the st four issues why that's protected speech at all and i'd like your best argument please for why we should deem that language that private text from a private phone to an individual who's not even in the office why she we should being that to be protected speech well under this  and let me be clear i was not as clear as i want to be why we should deem that to be a matter of public concern that really with my focus and i apologize for that certainly honor and i think if you look at expressing support for political candidate you don't come out in public you don't write letters to the editor you're just telling people you support a particular candidate for office that is still a matter of public concern because you are trying to influence people and their perception of the candidates and then to give on the supreme court case of a teacher went to the principal privately expressed concerns about a desegregation efforts and the school again didn't make it public you know look even though they want to be the principal privately you're still discussing a matter of public concern and that's really what's going on here issues of racism of unprofessionalism in the sheriff's office or certainly matters  public concern things people would be concerned about the fact that they're being expressed privately to another person doesn't change that and let me stop you there i one can accept the premise that is issues of intention of having this be aimed at some other broader purpose then personal gripe be over the fact that he doesn't like racism in his environment in other words it's not just the subject matter one can say in the abstract the subject matter is a public concern but that doesn't mean necessarily that the speech in question which uses one word racism comma and talks about a bunch of other stuff that be the intent of the speaker right i think that's correct and i look at the ranking out of this court where the court said you can have complaints about your work environment and those still can be a matter of public concern again if it's aimed not at your own condition but the conditions of the workplace there was complaints that a principal was sexually harassing other teachers and students and this court said that's a matter of public concern here mr lamb was not complaining about racism directed and cells he was complaining that racism directed at the public and other employees and he testified when i sent this message to chief thomas i was doing it because i was going to seek guidance from him i was expressing my concerns with these things in sheriff's office i was seeking thomas as to how he could better or best aggress these issues so i think you and i i wonder about your understanding of our summary judgment standard why you have to accept his explanation for his subjective understanding of what he was doing i mean we have to we have to infer in this language in the language talks about a poker night and it talks about using one word racism i it seems if you want to be a reasonably going from that that there is some intent to do something he has exposed yeah ex post explanation for what he was doing subjective as it is it's not something that our standard requires us to accept and if you believe that i'm wrong  if it's ambiguous as to what his goal was and i think it is here you would look i think a broader explanation for his conduct i think this court has looked at the broader context in which comments were made what he did say more than just racism you said it was a mistake coming to work here he mentioned lack of nationalism he mentioned good ole boy network so i think he is expressing concerns about what's going on in the sheriff's office near is a broader measure public concern the public's going to be concerned about what's going on in the sheriff's office and he's sharing it with another a friend who's also in law enforcement show he's sharing is concerned with what is going on in the office and i think that makes it a matter of public concern because he's not addressing simply things that are happening to him which was the case in the davis decision where the woman was claiming about sexual harassment of herself and she wanted that to stop instead he's expressing concerns with the how the sheriff's office is being operated as a whole not directed it and i think the reference to poker night you have to take that in the context of how people often talk about these thing it's not just when you go to the press it's not just when you go to letters to the editor that people talk about matters of public concern people talk about matters of public concern in backyard barbecues and family dinners and watch meetings with friends and it's intermixed with conversations about other topics you're not just going to go with a friend and talk about the election you're going to talk about how their family's doing you're going to talk about how work's going and you're also going to talk about the election do you have to put it in the context of how ordinary people talk about matters of public concern and that i i'm sorry can i interrupt just because i've got a question back on something you said a minute ago would your answer to judge holmes questions be different do you think if he had made his statement or his text that he sent the text to someone not in law enforcement to his again it could because it is part of the broader context if it's another person in montrose county or montrose in the city it might not matter because again he's expressing it to a fellow member of the  montrose community about what's going on in machos here chief thomas was just belting he he's in the delta what's the relationship delta is right next montrose they're both right next to each other they work together yes ok so those counties are right next to each other they're border and counties and they cooperate quite a bit with each other and so it's a member of law enforcement that he would be communicating working with and somebody could work with in the past which a natural that he would express his concerns about law enforcement and montrose county was referring to racism directed at in a run of minority employees explaining that to the investigating officer before he was disciplined and reported up to the employer understood what he was getting at when he made that the total seven context don't you have a problem with or do you have a problem with the fact that he made this his comment to some one in a text he was not had no connection with the thousand and eighteen motion to dismiss order which address mr lamson st amendment retaliation claim and narrow the scope of their both order should be affirmed on the basis given by the district court in this matter concern recently in two thousand and nineteen in case in which the court held that speech in and entering grievances of the purely personal nature is joined on american public nature of sexual harassment perpetrated by a judge by definition had a public public concern and so in eyes of hair or versus whatever county we didn't p and so if you look at that can you st address it seems to me that the court sort of took off on its own on that dismissal order your motion to dismiss was pretty narrowly focused on whether these various defendants had warranty to act and on the discipline or on the terminations and the court then on its own decided to examine the complaint and look at the the allegations with respect to each individual defendant putting that aside i know for instance on this defendant monday monday he dismissed that claim regarding monday with respect to the terminations and yet the complaint specifically alleges that that monday knew that one of the bases for the recommendation to terminate mr lamb was the very st disciplinary incident which involved this text and he nevertheless included i presume that text in his letter as one of the three bases for terminating mr lane how is that not sufficient presuming that the st disciplinary incident was retaliatory for now  what other sure did is make a recommendation of terminations based on an incident including the text and disappointing pleading that text on the text and the multiple instances of insubordination different a little bit from one judge more of a page by his order judge more specifically acknowledge with judge moore it's is is commenting about and that is that he says the determine places terminations nonetheless in response to the motion to dismiss plaintiff didn't rely on the termination as a basis for arguing that they retaliated obviously if the fair were a if the text  retaliation claim against martin grundy with regard to determination well i mean again you know i just go back to looking at the specific allegations in which mr lamb made the connection between their conduct and actually saying that this was done in retaliation and you only have two instances of that being done and that being done in reference to deputy gru this court's decision and wolf that even if the other defendants didn't have the authority to terminate their recommendation leading to a retaliatory determination could establish a section one hundred and eighty three that both of them made recommendations i think the district court even acknowledged that but they were there on the this missile and then just briefly on a moment i assume out a time