go ahead and concede that our notice of appeal does not list the city as an appellant in this case it is specifically mentions the qualified immunity issue so i'll go on just concede that the city is not properly before the right so the only issue then you will agree pro before this court at this time is the question of qualified immunity as to the individual that's correct or ok that the briefing raises a few issues as to qualified immunity obviously you'll be to the court question i'd like to focus on the question of the adverse employment action  line is to protect all but the plainly incompetent or those who knowingly violate the law there are generally two ways to establish that that's typically through a similar case or the obvious the rare or obvious clarity case what they did is commit what is sort of the cardinal sin of qualified immunity and that's defined the clearly established right in a very high generalized level as the rights to be free from discrimination and the right to be free from statutory right to be free from discrimination but that's too generalized a level to define that right it's no different than defining the clearly established right as to be free from excessive force or to be free from being denied due process what would need to be clearly established in this case is that a non decision maker who fails to recommend an employee for a transfer to a position that pays less that has different but not materially better job duties now did it pay less that is the evidence your honor yes it is so paid five percent or less there's no dispute about that that that's what the evidence shows you are i understand that mr mayfield argues there is any substantial evidence that supports that the patrol canine position was entitled to the five percent premium paid i'm sorry i don't believe there is any evidence a status thing that the patrol canine position did receive the five percent scout position received a five percent premium the position that mr mayfield held if you if you want a magic zero dollars ten cents on the dollar is what it received the t s a canine positions did as well because of the dogs bomb detection duties but the evidence is that the patrol about tangible adversity well let me ask you one question st are you asking us to review the fact that the court looked at it and determine that the court was  light most favorable to the non believing party and asking when we measure that against clearly established law whether or not your client was entitled to qualified immunity yes your honor that as opposed to asking our us to get involved in picking and choosing between the facts that's correct your heart and with with that in mind if we were asked to do the latter it would be clear we did not have and would not have jurisdiction on an int that's correct now i will qualify my answer by saying that under the i think it's cultural he called well in doing that analysis of what the appropriate summary judgment facts are the court is entitled to accept the district court's conclusions but it is not bound to accept the district court inclusions about what the correct some are just the facts all right but what we are obliged to do is exactly the same thing the district court is obliged to do which is to take the body of fact in a light most favorable to you and ask and drawing all in princes in your favor and ask when measured against clearly established law whether or not you are entitled to call for an immunity yes your honor the correct analysis for this court is the same summary judgment alsace that the district court would have to so to look at whether this is a clearly established issue i think it's important to focus on some of the differences between the case law that's been cited five sure i understand your question judge kelly if mr bo akhil took what is clearly established to be an adverse employment action based on retaliate yes as long as it is clearly established to be an adverse what the law has long been clearly established that you can take an adverse action on account of very simple is that your position is there's no clearly established law here that this would be an adverse action because he necessarily would have taken a pay cut well that's one of the reasons it would not be clearly established that this is never simple i mean actually and again i would refer back to other areas where qualified immunity may be comes up more often it's been long clearly established that you can't use excessive force to effectuate an arrest but the correct analysis is not that it's due the facts of this particular arrest show that the officer would know that what he or she is doing is excessive inverse we have denial of a transfer but transfers that are adverse are analogous to demotions and is there any case out there in this circuit or before the supreme court of the united states which is materially adverse appointment action the district court based its conclusion on the supposed proceeds of the patrol canine position but again the law of the cases in the circuit are divided on whether prestige is whether what occurred constitutes an adverse employment action there are some cases that say well it is a jury question because of the various factors but you also have some of these cases saying it's just not an adverse employment action and since we're talking about a question of what is clearly established for purposes of prestige there would have to be at minimum some clearly delineated test of when prestige falls on the violation side of the line and when it doesn't that chief booker would have been or could have been aware of and applied but none of these cases really lay out such a test it almost becomes the old supreme court's obscenity analysis the court just seems to know it when it sees it and for purposes of qualified immunity that that is good enough that is enough to clearly establish what the law is beyond that in the court's determination of what are the summary judgment facts if elected not to defer to the district court's findings findings for the purpose of summary judgment being what i'm talking about was your position your prestigious the only real issue here where the district court talked about prestige which i don't believe there is sufficient evidence to support that the canine position was even more prestigious i think the correct disposition is that it's really not but the court also for this record also focused on loss of job opportunities but when it did so it sort of them out made the analysis of what's a job opportunity and what's a job duty on page i think it's eight of it's real fifty nine or it refers back to pages twenty five and twenty six of its summary judgment or in saying here's where i said that this was a loss of job opportunity but the discussion there is about the duties of the various positions and it's also the same evidence the district court cites  the district court referred to the canine position itself as a last job opportunity but if that were the case your honor every transfer case whether it's a denial of a transfer or an involuntary transfer is going to deal with the loss of one or more jobs and if good morning good morning may it please the court my name is patricia keel and i have the honor of representing officer mina field in the lawsuit that he has filed against sergeant though akhil my outline started with a lot of the issues that the defendant has already conce will start with the adversative or the adverse action and whether or not there is one it's important to note that there are two causes of action that mr officer mina field has alleged against sergeant bowe akhil there is the race discrimination and then there's the retaliation both of them have different standards for what constitutes an adverse action the st adverse action with the race discrimination is immaterial all turned out you know to the microphone i apologize i think it is a material altering of terms conditions of employment that includes things things such as loss of prestige or loss of job opportunity with regards to the rally retaliation thing is the very st sentence in their brief the defendant talks about the tactical unit involved a five percent increase in pay so i don't think i thought and you can help me with this i thought the motive scout position got a five percent right or wrong and that is what the defendant says but the defendant also says through testimony presented by the defendant that the tactical unit got a five percent increase in pay and the tactical unit was comprised of mayor scouts k nine everett all those units so there's disputed evidence of whether or not involves a decrease in pay well if there was no difference are you relying entirely on the prestige that apparently goes  canine handler i'm not relying entirely on prestige it's a difference in job duties the duties are completely different it's also foreclosure of job opportunities and it's not just that the foreclose opportunity to be in cannot patrol a biting dog that goes and bites you know suspects you know that there are being chased and apprehends those suspects whereas the t s a bomb dog sniffs out bombs and attacks them as it goes through luggage and things like that the airport so that position is the position my client originally signed up for and the rules and regulations say when you enter the tactical unit you sit down there are your chief and you say which ones are are your favored positions to say canine was his favorite position and you work to start a career development plan to ultimately get used to that position this decision to not let him be and canine patrol preclude him from being t s a canine forever and that the rule wasn't that you had to be canine patrol to begin with that rule was changed after my client told after they offered my client the the fictitious dog that was put dual purpose the biting and bomb dog that did not exist they had no authority for what in their budget and my client said that's completely unacceptable i want the a dog that was promised he should give the mr phillips the biting dog i mean the the fictitious dog and give me the t s a dog well after he they have that conversation that following week during the abbreviated handlers hackle tells my client well now we're going to require people to take abiding dog before they are required to get before they can accept a t s a kanan job so not only did he preclude him from being in the canine unit as a whole he preclude him from ultimately receiving his favorite position which without a doubt has the five percent increase that is not disputed so it's not only complete difference in job duties if you're a scout versus canine it's also the loss of that job opportunity to to ultimately be canine patrol up to be in the patrol unit and then ultimately t s a canine and it's also a prestigious position and that is based  subjectively on my client's testimony which the cases that are opposing counsel brought up the i believe it was the cornell versus brennan case it talked about is not lo question that there really was a five percent differential in the positions you got five percent increase let's just assume when you were a motor scout position which he held during the relevant times in this appeal and let's assume that you didn't get the five percent increase for this particular position the patrol are in position didn't get the five percent and so that if indeed he were to get that position he would have had to take a pay cut of five percent just to sort of that you for my purposes that the facts pretty clearly establish that i understand you dispute that but just take that as  is there any clearly established law out there that would have put him on notice the officer that this was an adverse action where there's some indication that there's a loss of prestige there's a paik caught on the one hand and maybe subjectively there's a loss of prestige on the other is there anything that would have put an officer objectively unfair notice that that constitutes an adverse action i don't think that there's a law with this pacific detailed fact i don't think that's required i think there is case out there case law out there that  economic you don't have to suffer an economic i think that's clear but what i'm asking is if in fact you will suffer and economic harm by getting the new job on the other hand the job has other benefits like prestige is there and you so that an officer would have to weigh the one against the other there are positives and negatives is there anything that would have clearly put an officer on notice i think that there is and if there is what can i what can you point me to specifically because i can find that yes i am not aware of a case that talks about an opportunity that where there is a decrease in pay what i am aware of is there are cases that talk about foreclosed opportunities and sure and one could understand and that makes sense and i've been involved in panels that have said that after all if they're i'm losing possibilities maybe it is adverse but if i'm losing pay well then it cuts in the other direction and i'm simply asking we have the right kind of arguably conflicting evidence on that issue there is the minus and maybe arguably in some subjective sense there's a plus is there anything that would have told an officer that this would be an adverse action i mean how is an officer to know if well look i'm not giving him the job and it in any event he's going to lose five percent of this officer knew that the t s a canine patrol position had a five percent increase this officer knew by not allowing him about a decrease in pay everything talks about a foreclosed opportunity in this situation the foreclosed opportunities the opportunity right and that only applies to the race discrimination case it doesn't apply to the retaliation case or tell us in case the burden is much more relaxed and it's any good any conduct that could dissuade someone from filing a charge that is a whole separate burden a whole separate issue and it's much more relaxing that was outlined in the burlington case and you really really would have to look at officer bill ackles conduct as a whole which is why all the history is involved in the in the briefing for instance when officer mina field filed his e e o c charge regarding the selection of larry phillips a meeting was held they all  and that's when they that's when they offered him the dual purpose dog that's when he changed the parameters that you had to do they cannot patrol the day after officer bowick i'll send an ang e mail about you know if you're criticizing my selection process talking about the larry phillips position the end later that same week officer mina field attempted to send a grievance he it was a rice discrimination grievance which is attached the record he seeks approval from the fraternal order of police for which he sergeant bowe akhil is the president  that that request was later table by the fraternal order of police after his meeting with the the chief about the disconnect or practices every time my client did something to requiring well you can go straight to c s a canine he changed you know he opened it up to other applicants you know when mr mina field was the only qualified applicant you know he didn't the rules require him to list everybody that had applied and send it up the cheap and that the chief make the final selection he didn't do that all those things i mean he was he he was closing his ability to be in this unit  and i think it is arguable that the unit is more prestigious and that unit is it's a rarely post at position he had waited two years to get to try to get the t s a job that's not part of this lawsuit it wasn't until a year and seven months do that then try to figure out how to get that if you assume that premise then companies could completely segregate employees into all the african american boys and one unit in all the white employees and another unit and say it's perfectly all right unlawful and i would i would like a box of pandora's tomorrow if it was a situation where some i filled out a job application and the application had checked the box are you african american are you caucasian you check african american going to get it and not this fella and she will wait a minute i'm african american so therefore you have to consider me better than the other guy is that what we're looking at here no here we have established  we have we have established well you've established that the white person got the job and each case that you haven't established that you're applying it was better qualified mississippi at least i didn't get that out of the materials we've established that my client was the only qualified applicant well and the other fellow's work did not even meet the minimum standards required in the posting in that it would not let me ask you a question at the outset where will i find in this record undisputed evidence that this position that he sought and it wasn't recommended for the units for the motor scouts and for the bomb technicians there's a five percent increase of pay there's also some on call time for the canine t s a positions as well as for the patrol canines and also there's on call time for the reckon struction is what is it i don't think it says anything about what does it mean on call time already is there with me is there any explanation any further interrogation or answer that tells me what on call time means i'm not aware of this your honor i can supplement to that effect if the court is there anything else in the record that bears on whether it's a five percent cut or not that's all i have said totality of what's been presented both by you and your colleagues as i know standing here today now for the since the procedure posture of the case is what it is we accept as factual that blackall actually told him that but it's also want to speak to that mr bo acol is not a policy maker he would not have had authority to make that policy only chief roper would have had is there any evidence that she program actually made that policy changed none of which i'm aware you're on of there on the record rules and record rules and regulations that i'm aware of in this record that would establish that so the policy would have to change before you could actually consummate the idea that there was something else that you might have gone but i think that was more attractive i think that's correct your honor again i would ask the court to look at the evidence the district court cited to establish prestige it deals with issues like the fact that there are just a few of these handlers which can mean anything the fact that i'm asking a question different from prestige i'm asking whether there are other opportunities that you could have gotten if you had this position but didn't get it that's different from prestige such as that the canine positions were promoted more frequently or things such as that i'm not aware of anything like that associated with the canine position and i think your owners have hit the nail sort of right on the head whether we're talking about discrimination or retaliation the since we're dealing with qualified immunity and the clearly established element where is the authority that would have put mr boac all on notice that this lack of a recommendation was an adverse employment action whether for purposes of retaliation or discrimination under either standard and i haven't seen that case i've looked for it so the best i can say is that i don't think such authority exists so mr book would ask the court to thank you