james marks off was the trooper his wife was connie in a nutshell connie was prodigious lee pursued by a supervisor seeking sexual liaison to have the things with her james complained complained to the internally in the pennsylvania state police complained to  o l l report for those that are not aware or familiar with something law there was a very severe problem a pervasive problem of sex discrimination and harassment in the pennsylvania state police executive order  governor the cole commission was created one of the defendants in this case which understanding we didn't know or any was something which was going to come down in the interim no being slow with it was my call patrick as to patrick actually work for the croll report was a vendor for the pennsylvania state police interviewed connie connie was that i understand the attorney general's argue that yes i'm sorry i understand that the attorney general's argued that that we respectfully disagree with that it takes a troop commander to do these things and still i guess what i'm wondering i don't was no longer on certain other things among other things we settled those claims the trial court who sat on this case for two years of course it was a don bailey case but it was a case of sat for two years and along with a couple of dozen other cases was was this missed mostly state police cases this is one of them when we went back and tried to argue the cert issue the trial judge  judge connor had indicated that we weren't allowed to present that as an issue there was a time discrepancy in time evidence of what we've become confused if you read that right you're going to forgive me for interrupting sure because i want to get to this public concern sure because i know i don't understand your article ation of your public concern involved in the case but what is the matter of public concern that takes it out of that private public paradigm and says no no it's clearly public well again if i could connect any short connie was investigated and mr patrick one of the defendants was an investigator and they put together a deal to commit in question connie did that they frighten her to death she was my client initially plaintiff in gauging protective first minute activity by supporting conny and her complaints of sexual harassment against offended vocal that was her supervisor and by voicing his own complaints within the pennsylvania state police of inappropriate conduct towards connie and himself by the defendants of the trial judge found that the be valid if we're here on that issue again fine i mean what can i do to argue with the gods that was good he kept in many of our paragraph by way of what was going on in that case vocal was involved with another very famous state police case involving over half a million dollars in damages by one of their female a supervisors there's a horrific problem within the state police over these issues those well i'm trying those are the matters of public concern grow report was there they became involved in this investigation there were allegations that they were trying to to skewer that investigation that became part of the issue judge a car sat on the stade matter of fact we could do no discovery for roughly two years better than issues having to do with the family basically that's what the underlying situation was in terms of matters of public concern we know what he says it's very very clear judge greenaway and you know they say that unless you have a matter of public concern that we're talking apply the petition clause in the i mean we all know that i wouldn't or you with i'm sure you know ten times better now ever know it but the point is that  when we had written this case and we have sat there underneath the discovery in fairness to us we're nini didn't exist now we come back and of course you're going to tell us that you're in the unique applies in this case was pending and the real issue for us in terms of the cert thing that the attorney general's office agreed us should be should be appealed it's a week you know i can handle them like umma some kind of dunce or didn't do this or didn't do that when you start looking at the procedures in that case the way we were treated in the trial court and i'm sure everybody knows my issues but the way we were treated there we came up here and felt that mr martz off on the issue of the  h it was a big ticket item there was no evidence to support taking him off of off a cert insert and september zero five he had been put on a temporary thing from sir because he was complaining was way to say hey we don't rock boats around here we don't complain about these things ok now which the supreme court says aren't under garces at eight matters of public concern and like  no class a one and everybody knows where the policy is going i know where it's going are appellate courts know where it's going the issue is does the law and judge clovers write the laws the law we have to abide by it we're confronting it we're trying to deal with it and and and and respond to and we've made the appeal thank you but your time is not thank you very much thank you we'll hear you in the battle good morning it please the court i'm claudia to soran here on behalf of the apple east the one narrow issue that's before the court at this point is whether mr martz all phrased a triable issue against any of the six individual defendants as to whom he didn't withdraw his claims on his first amendment challenge to being removed from the certain the court can affirm under either of two approaches as we see it either for the reasons that the district court specifically articulated or which were which concerned the call it a sequencing problem based on mr own deposition testimony although there he had engaged in some protected activity there could not have been retaliation for that protected activity because the removal from the sea team occurred before the protected activity as he described it that was a pretty straightforward application of summary judgment principles that was lightly i did not  best but i think what one once the documentation became available it became pretty clear that it did preceded the adverse action well that's true and that's more or less what i was referring to as the alternative grounds now when you say the documents became available i trust you're talking about those two memos by majors inc and those were only brought forward well after the summary judgment ruling as you know but even even setting aside the unorthodox procedure that was used those documents showed that mr martz off was temporarily removed from sir in october two thousand and five early october and permanently removed in march of two thousand and six which was not what he had testified to for three reasons that doesn't save his petition clause claim which is the only claim that's really at all possibly alive now he has he has narrowed the case down to say that the filing of this lawsuit was his his protected petition  his support of his wife's earlier complaints is also mentioned but really not emphasized any longer the filing of this lawsuit we submit was not petitioning on a matter of public concern as is now required under the borough of duryea case the public concern issue had been addressed by the lower court in the summary judgment decision and the court had said that if there was a i'll call it a car city type of claim a free a free speech claim raised here and apparently there was originally that could not go forward because the speech in question by mr martz off was strictly about his personal status not a matter of public concern the same public concern and that how i'm that's the point that we have to get into if he's planning that there was discrimination generally then it would be a matter of public concern is that right well i think that's an overstatement  you have to look at the whole picture and in this instance we're talking about his statements no we're no longer talking about his wife statements and the allegations about his statements are still or i shouldn't say still they are very much about his own situation well suppose for example an african american was reduced in rank  and he says i was reduced in rank be clueless black does that state a matter of public concern i think you would probably need to know a little bit more i think it could but i don't think it absolutely guaranteed does but that's not what we have here was she said post she says i was well but since she's not the pla exactly as if she were the plaintiff and she was saying that i was discriminated against because i'm a woman and i wouldn't  something about systemic problems and certainly if a person comes forward with an individual complaint and and portrays it as part of a systemic problem that would heighten the likelihood that the issue being raised is one of public concern but you're putting the rabbit in the hands suppose the person simply says i was fired because i was an african american period it is not a personnel decision that's not a matter of public concern or isn't a matter of i don't think you can give absolute answer to that question because it depends upon the context form and content of the petition so if the african american judge clover's high hypothetical is the only african american ever hired in the history of they'll obviously not true but that's the hypothetical is that a matter of public concern it could be but that in the under those facts maybe it would be and also i have to say that we are probably remiss if we don't pay attention to the fact that we're at the summary judgment stage here rather than at the motion to dismiss stage a complaint that simply says what has been described in these examples would probably get passed a motion to dismiss because of the possibility that a discrimination allegation raises an issue that is of concern to the public but a case that that only is an issue if it's a first amendment claim i see so if you have the individual sewing then it's a title seven and like my african american testing probably not and here we have a petition by mr marks of reading it generously but it's about the question we have to decide is whether his petition raised a matter of public concern and if no matter how much public concern there might potentially have been in connally's allegations she's not a plaintiff anymore she's not arguing that her first amendment rights were violated she says she's in fact if anything her withdrawal from the lawsuit suggests that maybe the issues being raised born as a in fact as i was preparing for this argument and trying to i think through in my own mind whether mr bailey's argument in his brief on behalf of mr martz all that a lawsuit  as i understand his point per se a protected petition had any legs and i thought about that and i said well wouldn't that lawsuit be raising an issue of public concern on racial discrimination throughout the state police affecting many people in many ways and i'd have to say yes it probably would be and you know but i'm sure you find it what you but anyway  i would say probably was but that is so different from this case in so many ways that i don't think it should really matter in the courts analysis because then that  so is one step removed from the actual this from an ace well that's part of it that's part of the context that we are instructed by the supreme court to look  at he was it i think word for word the various versions of the complaint here all even the last one talk a lot about what a what allegedly happened off's own allegations are more limited and they are very much personal to him and that's why the bottom line is he did not in that petition raise a argument judge pollack raised another important point from the defense side which is the lack of personal involvement by the actual defendants in this case even setting aside the protected conduct issue there were was no evidence brought forth raising a triable issue as to any of those six people's personal involvement in mr martz salt's removal from the certain the record shows that that distorts appears to show that that decision was made by major zanker who was not a defendant who was never deposed the second memo refers to a captain james e tor car being the person to refer any questions to i don't to be honest i don't know even who he is but he's certainly not a defendant in this case must have some way or nest of how the search team works and how mr martz all came to be removed from it but there is no evidence from any of the defendants or from anybody else that actually points in the direction of personal involvement by any defendant in that action they were to the extent that they were asked about it in their depositions pages nine and ten of our brief summarized that what they said which is essentially i don't know and it probably wasn't major zank and finally the  third reason that there isn't a basis for affirming on the substance of this claim is that related to the letter to the lack of personal involvement is the lack of any basis to in for a causal connection between the petition and the alleged petition i'll call it and mr martz also removal from the certain the removal itself the actual removal didn't come about until march fifteenth two thousand and six which resemble six months after this lawsuit that the clearest instance of petitioning it that we've got was filed and in the loon case this course a court specifically said that three months isn't enough to infer causation from temporal proximity alone so if that's true then six months is that much more now i know that the appellant points to the fact that the lawsuit was filed in district court at the end of september and the temporary removal of six from cert came about a week after that or some very close amount of time but i would submit that that is not enough to draw an inference of causation based on the whole record here because the lawsuit being filed still had to be served on the defendants and if they didn't know they had been served they who were not involved in the search removal decision anyway as far as we can tell certainly could not have been motivated by a retaliatory an effort to retaliate for the filing of the lawsuit a little while earlier thank office in the pennsylvania state police was the restricted limited duty for example or actually effectuated within their system by the commander it has that's the way the system functions so you're talking about the fence in this case i think the issue soup i would just like to make one comment in light of that is first of all you have a suspect category case in public employment particularly in a law enforcement agency for goodness sakes would it's very difficult we couldn't get additional discovery we could not get the local work to do anything ok in a lot of ways that maybe is another story for another time but be that as it may the thing with with jim was connie was a p c oh she's a public communications civilian employee connie was complaining about what was happening to him is going to is a period she's even going around the chain of command