ability and his family were the victims of the last dallas tornado which caused considerable destruction to the family home and so forth but he is fully engaged in the cases  will participate in all the decisions of cases that we hear this week to that and he will be listening to the oral arguments so i would just underscore what we normally say is to make sure you stay in the microphone and fully respond to the questions so when he and we later are listening to the tapes we fully pick up what the arguments are but so he will be gay's with the cases and we all three confer based on  arguments in the briefing in the sad cases so that's the only thing that may be a little bit all right with that we just have two cases this morning first case up it's been feel district court recognized that there were at least was a close question on certain of the issues and i believe that this court would be could assist the district courts in trying to get some guidance with respect to the pleading burdens on several of these relatively new new developing issues the st one i wanted to talk about was the the inference of retaliatory causation there's there's not an allegation of direct evidence here there's not a temp oral proximity here it's nineteen months approximately eighteen months so you can't rely upon the temporal proximity so there's got to be an inference somewhere else in this pleading circumstances so given this we can take notice the sole pairs mansfield relatively small municipality etc so in this instance as i read it it was because that's right more and better it's conclusory allegations i mean if if the this is the sequence that supposedly provides this inference of retaliatory causation are very general allegations quote harassment by me he or his underlings that's pretty broad if that if this court were addressing that as a cause of action of course that would not meet the standard it's not it's conclusory if you through each of those allegations that allegedly provide this inference they're all similar in the courts familiar with it so i'm not going to run through each other but there may be four or five different statements harassment spoke to him about his work his education just a few pretty innocuous sounding things but more importantly they don't relate they are attributed to mr mckee they're not given any time as to when it occurred one of them no reference as to their life he said between the time frame from the firing and whichever is the most recent and these harassment allegations that's correct judge there's not a reference to time on any of them it's just says after the letter these things happened and they're not attributed to good germany but to him or his underlings in an alternative and that's one of our thoughts too is that you should be able to plead you know generically to get around the lack of a temporal proximity with this exception to that exception and i think i submit that if they're able to get around the exception with this then it would not be difficult at all to to say well i know it wasn't here are i know it was eighteen months or two years but i have been experience some difficulty at work and now i have to attribute it in any more detail not to have provided any court is notice pleading so are you making an argument that twamley etc has sort of imported a sort of fact pleading you know notion and another word said differently the other says look this is federal court it's notice pleading i've given notice and this car knology should be sufficient if i would stay cool yes i would have to lay out all of these details because that's a fact cleaning sta so is that noticed i mean up sort of know what your answer is but just pushing your own your argument it is a notice pleading requirement in the federal rules right and so if you're arguing that they have to lay it out cha and verse aren't you really arguing that the notice pleading aspect doesn't apply where we are either qualified immunity or something else well i agree that it's notice pleading but i submit that every every time this court says it's hearing cases addressing twamley under circumstances that are exactly like this and they're saying hey this is conclusory we're not allowed to accept as true the factual allegation that's conclus y a statement that says harassing about going back to school accusing them of acts of terrorism telling to go to counseling those are some of it have some factual  component but they're primarily conclusory and you can't look at that and says and test what the heck it's talking about who is this that did it when did they do it how does that provide an inference that says this letter is the retaliatory motive eighteen months later for this other activity so i think that is what i submit is the court should use the well worn stuff treatment of problem the knowledge allegation is even more kind of fundamental than that and yes it is a small parish but there's not an allegation that this was referenced anywhere i mean it went to this police it could have gone to the police to the roar's there's none of the facts known allegation in this complaint that mr mcgee ever got it going to be c c d on it it wasn't directed to him the fact that it was written is not particularly strong inference of march really because he says he already made these recommendations all of them to the administration so there has to be a basis to say this letter and the type of allegations that were included in there and i think it needs to be the letter not just the fact that it was a letter sent is a fundamental pleading that needs to be made not necessarily hal he knew but that he did i mean how is that not  rising not rising above the the speculative level here that he's the mess director or ministry or and a letter went to a police jury it is in the indirect kind of chain yes we did i mean we argued that he hadn't failed he hadn't stated a speech claim he hadn't communicated something it wasn't fleshed out in as much detail of course and but my point is that that should be the plaintiff's burden to help the court see what it is to overcome qualified immunity what is the claim that we are assertive not to place the burden on the defendant to try to flesh this out so regardless of a minor that's right i mean he needs to be able to there's not a case cited that says i mean now they're saying oh the st minute speech claim is silence and we would not communicate we wouldn't tell the boss that he had done this to make it simple he would not say something about his other employee if that had been argued i mean surely that would be a garces setting there because it's a workplace it's a statement it's not made to the supervisor there should have been briefing by the plaintiff to a point that out to the court instead the court said mr byrd you did not address that that type of a claim in your motion so we're going to deny it not you move for dismissal you've made a good effort to try to glean from this what the causes of action are the plaintiff has the obligation to convince us what it is and to demonstrate what the constitutional claim is they should be able just now come and say well it was really a silence as speech and we did mention that to the court below but we did not obviously brief it in detail because we weren't aware that that was that was the claim another area i think that needs help really with the district courts would be how gore said he applies under these circumstances and i think that this is a case where he's making his allegations it's not to the rd person it's not a and to make it simple his ordinary job duties would not include making a statement about improving the workplace to some rd party or to the public or to the news media or something like that but an employee a senior employee who is communicating with the police jury who controls the funding of the entity who appoints the board members to the entity it clearly is in direct chain it's not maybe not direct chain i would argue that it could be but it's clearly indirect chain and i think that's an important place for qualified immunity as well it was no qualified me because it was clearly established that you can't go out if you go outside of your chain then that's not something that you're acting as the employee well here it's surely not think that that's another place for qualified immunity does that really clearly establish that this kind of communication sent to this particular person behalf of the appellant i want to go into the issue that was being discussed during the appellant's presentation concerning the communication being made to the police juror and somehow that there is qualified immunity because there was not a case that established that that was the constitutional right i think it is very clear that an employee's right to freedom of speech was established in two thousand and fourteen in the th circuit so clearly that right was known they have tried to expand it to whether qualified immunity covers this type whether he do whether it really should have known that it was a constitutional violation to report the  to make a letter sent to the police juror and the trial one sided two cases and anderson both of which she felt was on point and i agree that they were on point mo dick involved a cosmetology employee of the texas board of cosmetology who wrote and complained to her state representative this is very similar to an employee of the desoto parish e m a s writing to the police sure yes they do provide the funding for it but as the court noted you're wrong jimbo davlin the police juror was only one of the number of police jurors he couldn't vote for example to remove a board director he had no direct ability to address any of the complaints that mr warren was making he could not discipline mr warren he could not fire mr one it was also very similar to the andersen case which was a texas case where a law clerk complained about the judge and she worked for to the supreme court's chief texas supreme court chief justice and the fist circuit held that that was clearly inappropriate communication and that was as in this case there is no leather which was attached the petition clearly made some complaints of both public and private concern and the couple those are outlined in the district court's opinion and following  concerns we've all legit there was a pattern of harassment and discrimination in response to that and it's not you know the knowledge that there's no pleading i allegations i think i think that the issues though d they're certainly not conclusion it's all actions by mr mcgee that he denied the supervisor promotion that he was it was terrorism because he hired an attorney he was told that false accusations about having a woman up at the fire station for the purposes of sex have counseling or be terminated he was chris ridge alleges beliefs were criticized i mean that is an ongoing behavior and there are cases one of the problems with the temporal proximity it's good in cases and the plaintiff's lawyers use it in defense lawyers use it you know where you were fired two days after you took some action the temporal causation is probably going to be the primary basis for the case but what do you do now that we have a more sophisticated group of employers who know that you simply can't have that direct close temporal connection between some act and retaliation for that protected act so things do get stretched out and we cited some cases and the appellate side in some cases the mooney case which i believe was three years there's another case that talks about nineteen months there's a case it talks about thirteen months being ok and what those cases say or i mean th make the link make the connection and the you're in the pleading stage admit it lee but this was like what eighteen months in between that is correct you're out of the woods is a long time i mean there's a lot of things that you know go on in between that is very correct but i think it it there was a sufficient not the most are completely in the world of mentally but i think when you read the entire complaint is clear that mr mcgee knew about this letter i think the judge correctly said that yes there is enough there to show that he did know about the letter and there are a lot of things that occurred but eighteen months is not even the you know we set aside in case there is a three year term and the rules pretty clear i don't think it's anything it's a secret i don't think qualified immunity covers it i think it was known at that point because there's cases older than two thousand and fifteen they talk about it that if you have a chronology of some kind between the act that precipitated the retaliation and  retaliatory act that that would survive and in those cases we are summary judgment one involved a trial in a post trial review that was reversed for other reasons you  issue but of course in summary judgment you have discovery also where you can get more details and more facts about exactly what happened including such as e mails here it is simply based on the pleadings and i believe we do survive a twelve b six motion on the issue of causation because there are cases again that we have cited that show that as long as you have some chronology that events took place between the protected event and the ultimate discharge that you can survive tabby atory activities that took place in between and that also protects this court from because the employees are caught in a dilemma if somebody if somebody acts here were brought to the court's attention a year after six months after close the court would've said well wait a minute you haven't been fired there's been no adverse employment action your two aren't your guide here so i don't think we ought to reward employers who recognize that they should delay and take time and kind of spread the time out and harass the employee with these little advance in between and nd now we're going to fire you for what clearly was at least as we've alleged complying with doing overseas and wasn't available and so mr warren was instructed to go ahead and sign his name at all there was no ever never an allegation that any of the training did not take place all of the training in fact did take place it was simply the signature and when a new physician came in to the medical director he wanted the employees the sign it directly which wasn't a problem for mr one but then they were fired for doing it that what you what's your best case to keep  the person who fired her was not the wrongdoer complained and she had good evaluations and the people she complained of actually recommended her for a pro for a promotion so she ultimately lost but in the brady case they did accept a eighteen month timeline there's also bow there is which was discussed by both parties at length and there's a lot of parties in there but they talk specifically about a thomas and leo battle they are s and they start to recently over there is and they say that again i believe that our pleading was sufficient i believe it is a notice pleading not a fact pleading under state law and i believe that it was sufficient and i don't believe that our allegations concerning what happened to him were conclus you with respect to mr ben fields calling it is the more problematic claim frankly for the apple lady i do believe that there was a speech claim they are that was not address and i believe the court is correct that it was with respect to or his refusal to provide a false report which i believe is going to raise an issue of protected speech but that is the allegation that was there that is based on batwoman statement that he refused to swear to a false statement against mr warren and that's why he was can fire and that is the free speech claim there is not a lot to it but i believe that the trial court was correct in holding that that was never addressed and that she was not going to dismiss that claim at that time there's a court of any further questions the cases that were referenced there to the moony case we did cite that we relied upon it for the proposition that there has to be non allegations that provide this inference of retaliatory mode with without regard to the temporal connection and if you look at the mean m person at issue who had knowledge there even describing the knowledge and that it began when this happened and it continued by this person throughout with detail after detail that provides th the ability for the court to draw that inference the valdez case of course that's the one that's caused a lot of folks to try to figure this out it's hard to follow there's multiple opinions in there but obviously and that a twelve the six that included it wasn't on the causation issue of course but it was it's no comparison to say that complaining outside of the chain of the agency that's being addressed that appoints the board members it's definitely indirect but it's not going to be analogous to to the mr anderson's complaint against the judge in the val the state legislature i mean in the in the motorcade case it's the cosmetologist he was supposed to be out doing doing the i can't room exactly what the work was but it was some type of administrative review stuff but she made the complaint to the state legislature nothing to do with this in city not even close to being in the chain much less that the direct chain yeah they're going to be cases where there's where you can have eighteen months plus and adequately pled kron ology and adequately pled meaning it would satisfy the type of analysis that we yes it was it was never addressed by the plaintiff and if if the obligation is to glean from this every conceivable cause of action that could be out there very subtle and part of it is we we ma if that's a speech claim then it's sure subtle and it shouldn't be the burden of the ended individual being sued here to try to flesh that out we point we said we they have stated the speech claim they have and as we said specifically mr bin field has not alleged that he spoke on a matter of public concern that was the sentence in the motion and in the memo in response there's a reference to that sentence that says i didn't you know he told me to change the name and i wouldn't or he told me to to document this wrong and i would not run a case is cited not going to pursue a free of speech quite a dismissal of a speech claim we said no we think that that is the closest claim that you've got to being pled and it was the focus because it really was and then in hindsight they come out i think say well there's another one here i think they didn't address it initially because it was so clearly a garside the problem with that an employer telling his employee to say something or not say something is clearly a garces any issue that should be controlled and that it should have been and should have been difficult here we have an individual defendant the burden of having to undergo discovery and all the meth mess that's going to be involved in these kind of allegations of valving two plaintiffs that's why twelve b six is so argument and as mentioned we will be conferring with judge hoeing and we'll get it decided thank you