at fifty three thousand dollars worth of double dipping is his principal never would have been convicted of such as he had painted a hundred one dollar fine for basically double dipping in for committing a fraud on the city this is a classic was for a situation that we were very happy to get to trial in this case i know very few of these cases get to trial and this is one of the cases that made it to trial because mr foretells reported to the special commission investigation and it had to be conceded that that was considered an outside entity that would deserve first amend protection the problem is when we got the trial the district judge who was new to the case who was assigned to the case just before the trial sort of filled our hurt our timeline or it severely impacted our time timeline summary judgment ruling is even before us based on the news but we did we did make reference to that in our in our in our paper is on page three to five and we believe that could be it could be implemented liberally given that look at the matthews case the you'll see analogous circumstances here of someone talking about speech as a matter of public concern and a volunteer activity and again the core want to hear further on that we can discuss that but there was also two other severely impacting restrictions on what we could put before the jury that second aspect that they do with union speech which which judge which was clearly part of the trial on the union speech issue we had presented evidence that on january twenty seventh before the retaliation chapter leader at the school was not doing his justice to the membership judge paul initially allowed that to be added to darcy hall added that to the case and then the next day she changed her mind and said that it would not be protected speech and she would let the jury consider that  considered we believe we would get a directed verdict on that on that issue because he was there was no dispute that he was in directly disciplined for emailing the entire staff no this just in speech has been considered by the  school and he's talking about the membership in the concern of membership that can there wasn't doing justice to the membership he is engaged in classic first amendment activity and judge john mccarthy and pacing just decided the case on this because ski and so that speech in before the jury there's no dispute that he was concerned well i think the courts are recognizing that union speech can be a medical concern if it's not strictly of his own personal interest but if he's speaking up for the membership now richard and the issue report of the time later he became the chapter leader at the time he was a delegate stamp to leave it not about his own personal concerns it was beyond his personal concerns in fact it's conceded that they said that the judge was weighing this she said well some all of it had to do with this proposal a concern some of it didn't and the majority i decide i my own that it's not enough public concern but she says she herself conceded that some of it infringed on that public concern aspect she just kind of their weight and balance without really real standard to be applied standard which we generally judges to see is very different as you know well i think an abuse of discretion i think on a first amendment claim because the courts have been reviewing some of these cases remember matthews was reversed by the circuit i think it's almost a review because you're the court doesn't really have to weigh the evidence so much this is a classic legal issue that the court can look at and there's been many cases of the circuit has reversed florida or judges any evidence ruling was wrong  wasn't first protected speech as argument yes and then the third argument is the anonymous speech again we have evidence in the record suggesting that  the principal was well aware as early as february fourteenth in fact earlier january thirtieth that he was the one reporting her for the time card fraud now at trial she only let us say to the jury that april twenty third was the first time it was revealed portholes testified on direct that you that personal admitted she knew for fourteen that he was rich investigating time card fraud and it was reported that completely changed the timeline for us as far as what the jury heard and it's interesting that the jury  by your strictness the april twenty third we were sort of the box and this didn't look like a retaliation case at all so what we're asking for is to reinstate this or if you find that union speech is protected we can get a directed verdict on that ground alone and and again we believe that you know if the speech got in properly this would be a much different result good morning scott shore for the op at least this court should affirm the order denying plaintiffs motion for a new trial and to the extent there is jurisdiction it should also affirm the order granting the city's motion for partial summary judgment just today with respect to your question and jurisdiction there were two notices of appeal here the first one said that plaintiff wanted to appeal from the jury verdict but then provided the date of the judgment and arguably if that had been the only notice of appeal ever  filed one could infer that that meant they wanted to appeal from all at sea to rulings but that was not the final notice of appeal there was a modification to the notice of appeal which said what we want to appeal from is the jury verdict didn't mention the date of the judgment anymore and we also want to appeal from the denial of our post trial motions so that looks as though they knew what they were doing when they decided to designate only those two things the verdict and the post trial order and that is all that is available for review right now the decision denying the can supersede the first to reduce combination the second supersedes but this court has said in other cases that it's permissible to look at withdraw notice  appeal to discern intent and our point here is that if you decide to do that all that shows is that they deliberately decided to limit their appeal and the post trial order denying the motion for a new trial didn't reach the summary judgment issues because plaintiffs sought review of the summary judgment order to late they had fourteen days under eastern district local rule six point three and they didn't do it in a timely fashion but even assuming this court has jurisdiction over the summary judgment order summary judgment was of course correct as you'd expect me to say but here's why the the court ruled on the s l t speech the school leadership team speech and that speech was engaged his capacity as a teacher he was appointed teacher member of the committee was a teacher a member of the committee your honor he wasn't even eligible to serve as a parent member of that committee and it was part of his job was he paid to be that he was compensated your honor and it was in his capacity as an s l t member the teacher appointed member that he asked the question of principal hill what's going on with the comprehensive with the comprehensive education plan c e p and he got his answer and he took that to mean that she had ignored the s l t now it's the s l t his responsibility to work on the c p so he performed his duty as a teacher member of the s l t by emailing other to let them know what he thought and that something ought to be done about it this was part and parcel of his responsibilities as a teacher member of the s l t and therefore it's not protected under the first amendment talk about the council claims they were aggrieved yes i want to talk about the union speech but first before i forget there were there was this other list of what i'm calling miscellaneous speech that my adversary hasn't mentioned  on that so that's really out no basis repeal the union speech i haven't heard my adversary cite any particular statement of mr ports helos when he was speaking to union members or in his subsequent e mail to union members that addressed a matter of public concern as opposed to his own individual situation one thing he said during that meeting at two brutus and that just suggests that people have been stabbing him in the back he made  other references to people getting stabbed in the back he certainly felt that he was being stabbed in the back he mentions staff members forwarding his facebook post to the administration to cause issues while it was causing issues for him and he complained principal hill had admonished him that's all his personal situation similarly in the follow up email he said he wanted to keep his commitment to staff that candia had sidelined him even though he was a union delegate that he had some ideas he hoped for the sake of the community this can be worked out none of that is a matter of public interest it's his own situation and the district court didn't waffle to use my adversaries term the district court said sure in general union speech can be protected but it's not here because your union speech addressed only your own situation and i i wanted to mention an argument made in the reply brief citing this perv decision which is outside the record and came down after the trial in this case and had nothing to do with the first amendment the perp decision was about whether the school had interfered with plaintiffs exercise of his protected union rights and even the portion of the per decision that the plaintiff or a law is on which is pages twenty six to twenty seven isn't about hill or claudio it's about  queer a and whether she disciplined him for engaging in protected union activity so no connection between that decision and this case with respect to the sudan amisse e mails the district court correctly ruled that that that there should be no evidence offered regarding the question of whether principal hill knew that he was responsible for the suit on a miss e mails before mid april of two thousand and twelve the district court made that ruling based on collateral estoppel during the section thirty twenty eight hearing the arbitrator had already determined that principal hill did not know about this that appeal thirty twenty ruling was appealed i don't believe it was your honor but i will note that when  when the city moved for summary judgment it asked for collateral stoppel asked for collateral estoppel effect to be given and my adversary did not oppose that he didn't oppose that with respect to this ruling in footnote seventeen but he did go on and say that the like to get to that because the statement my adversary just made that she knew in january is unsupported by the record my adversary says well if you look at the text messages she received in january she admitted that when she looked at those text messages she knew that parts hello was behind the suit on a speech there's no support for that he cited her statement from the perp hearing where she says the opposite i was some text messages it was an exchange between  and for tell us the ports helos messages were edited out so all i could see was candia and i stopped reading because i didn't want to see just candy the side of the conversation and i saw nothing in there that would have and she said i do not recall they wanted to review or tell us his direct testimony about when he reported principal hill's misappropriation of funds and i don't know where they're getting fifty five thousand dollars there's no record support for that that i've seen in response the jury has read transcript page grit that's it and when or tell us testify that on february fourteenth principal hill started out meeting by saying i know you've been looking into my timecards he didn't say he didn't say that she said that she knew that he had reported it investigation that had been prompted by the suit on the most complaints at that point the only evidence we have is that she knew as of that date that he was looking into his time cards then later on mark later she testified that on march twenty fourth after he had reported his concern she made a note in her log that he had done so so that is why just to court properly precluded any evidence that would have contravened the thirty twenty a finding that principal hill didn't know before mid april that he was responsible for the s e mails and i would like to know that although plaintiff says retaliation was not at issue in the thirty twenty eight that's just false on page forty one of the thirty twenty eight decision the arbitrator says in the first paragraph or two of the descent of the decision of the discussion that plaintiff wants all of the charges with respect to two thousand and eleven to two thousand and twelve dismissed on the grounds that there retaliatory so that was front and center and he never complained that he lacked a full month or opportunity to engage in discovery in the thirty twenty eight if there's anything else that he wanted the arbitrator to  consider it's interesting to note that the plaintiffs do not make any sort of weight of the evidence argument nor would it be wise for them to do so there was evidence that mr patel this was disruptive insubordinate and eventual and the jury properly determined that there wesley pointed out on page thirty seven thirty eight of their brief the city is trying to claim that he had this extensive discovery procedures and thirty twenty eight which is not true the reason we found out that hill knew about the time card fraud earlier is because it was an sci investigation where she admitted to the cia investigator that she knew earlier in january or february i said that in the record we did try to present to the record but she was relying on this collateral stoppel idea that the the arbitrator had thrown something in during the thirty twenty eight decision which had been decided well per subsequent subsequent to his thirty twenty eight decision that again she admitted that she knew and there is actually evidence in the record of every fourteen mr portholes testified at trial yes she told me to bring fourteen she knew about the time card fraud so the city is playing this game here on page thirty eight they say the portion did not answer the jury's ikari because if they're not concerned when he reported the suspicions but as judge wesley probably picked up if she knows in february fourteenth about the time card fraud you can put two and two together even if he was anonymous initially everyone knows this for she knew that that he had reported fraud earlier in early history fourteenth earlier and she was perfectly well aware of that of course of a trial she's going to testify she doesn't know she's already committed fraud she doesn't want to see the front of the jury but there's really no dispute and the jury the judge would not let this be heard by the jury the jury asked specifically when did he find out when did when did she know she knew february fourteenth she knew january thirty if there was more than ample evidence to put then for the record and she would allow it that's it that's in front of the jury we got a different verdict as far as some of the other points we did read raise in our judgment supposed summary judgment motion push trial motion the issue of the speech i believe that  squarely in front of the judge she relied on this idea that we had to do within fourteen days i understood within the law kotori at the time again if you're going to reach the s l t question it's clear that he the parents get compensated as well he's not talking about his teacher duties look at the matthews case again this is not this is a broader public purpose this is not part of his job he's a he's a teacher he's not talking about budgetary fraud he's not talking about you know double dipping a timecards that's i want to teach or does very lively argument we will reserve decision